November 15, 1996

Ms. Gretchen O. Lewis
Office of the Secretary
Department of Health and Human Resources Capitol Building 3, Room 206
Charleston, West Virginia 25305

Dear Madam Secretary:

This is in response to your letter of September 4, 1996, regarding the issue of education costs for children in the custody of DHHR and placed in out-of-state education facilities.

As you are aware, the Interagency Agreement of October 1, 1993, which is still currently in place, provides that the Department of Education will only pay the education costs for children with disabilities in order to comply with the provisions of a Free, Appropriate Public Education (FAPE). This cooperation is a result of the mandated responsibility of the Department of Education for the education of children with disabilities under 34 CFR §300.600 and §300.152 of the Individuals with Disabilities Education Act (IDEA). It should also be noted that §300.600 does not limit the responsibility for the costs of an education of disabled children solely to the Department of Education; therefore DHHR could be jointly responsible for these costs if the issue were pursued. Furthermore, these sections do not speak to any requirement or responsibility of the Department of Education for the payment of costs associated with the placement of children with disabilities who are placed out-of-state. This gratuitous effort has been voluntarily provided by the Department of Education.

We would like to remind DHHR that the Department of Education has been more than cooperative in its effort to pay the costs of the children with disabilities who have been placed in out-of-state education facilities and has not attempted to collect any payment for these services from DHHR. Additionally, in meetings regarding the provisions of the Interagency Agreement between the Department of Education and DHHR, it was agreed that there would be an attempt on the part of DHHR to reduce the number of out-of-state placements. However, the number of students with disabilities placed out-of-state has significantly increased instead of decreased.

In view of the increased number of placements of children out-of-state and the fact that these placements are made without the involvement of the Department of Education or the county board of education, the continued participation of the Department of

Ms. Gretchen O. Lewis
Page Two
November 15, 1996

Education in the costs of education must be reexamined. The current interagency agreement has continued through the 1996-97 school year with the IDEA State Plan. However, the agreement must be reaffirmed with the revision and submission of a 1998 State Plan. The interagency agreement with the DHHR will be reviewed for appropriate revisions during this time.

The position of the Department of Education is clear in this matter. The Interagency Agreement does not apply to your request for payment of education costs to children placed out-of-state who are not disabled. The legal custody of those children falls with DHHR and therefore, DHHR is responsible for children who are placed out-of-state. When DHHR places the custody of those children in foster homes out-of-state those children should then become residents of the other state and the receiving state is responsible for educating those children. Therefore, by no stretch of the imagination can the Department of Education be responsible for children without disabilities who legally reside in another state. That responsibility falls upon the receiving state once those students actually reside there. If the receiving state refuses to pay for those children then action should be taken against that state. Furthermore, if it is conceivable that the receiving state would not be responsible for the costs associated with the education of the children, then the second place to look for payment would be upon DHHR because legal custody is with DHHR.

There is no legal nor rational argument that would support a theory that the Department of Education has any responsibility for the payment of costs associated with children who legally reside in another state and who do not fall within the protections of FAPE.

Hoping that this letter brings closure to this matter, I am

Sincerely,

/s/

Henry Marockie
State Superintendent of Schools