March 16, 2007

Mr. Glen M. DeHaven
Director of Special Programs
Pleasants County Schools
2272 North Pleasants Highway
St. Marys, WV 26170

Dear Mr. DeHaven:

You have requested an interpretation of our statutory and constitutional obligation to provide a free and appropriate education to a student under the following circumstances: Father and mother were divorced in a 1990 action filed in the Court of Common Pleas of Washington County, Ohio. In November of 2004, the parents agreed to a change in legal custody of their two minor children, a son and a daughter, to father, who was now a resident of Pleasants County. Son had been born in Ohio in 1989.

The son enrolled in Pleasants County Schools on October 24, 2004. He went back to live with his mother in Ohio on March 10, 2005. The Ohio court entered an order on June 1, 2005 requiring Father to pay child support because the son was in the physical custody of mother who was receiving public assistance.

Son attended public high school in Green, Ohio in 2005 where he had an Individualized Education Plan ("IEP") pursuant to the Individuals with Disabilities Education Act. A decision was made by Ohio social services to place son in a special education facility called Parmadale Center during October, November and December, 2005. I have not been informed of the circumstances under which this placement was made.

Son was released from Parmadale to his father on December 19, 2005 and re-enrolled in Pleasants County Schools. Son was expelled from St. Mary's High School on March 29, 2006.

Pleasants County Schools has received an invoice from the Educational Service Center of Cuyahoga County, Ohio, which serves as the billing agent for Parmadale Center. The Education Service Center has formally requested payment from Pleasants County in the amount of $1, 802.52 for the services provided son at Parmadale. It asserts that under Ohio Revised Code 3323.14, the legal and financial responsibility of net costs to educate a special education student is the school district where the legal custodian resides.

You have asked whether Pleasants County Schools has a legal obligation to pay an out-of-state facility for services provided when a student was no longer enrolled in your school system, and you did not determine in an IEP that son needed services that Pleasants County could not provide.

A West Virginia county board of education's obligations are not governed by Ohio law. A county board of education is generally obligated to an out-of-state school district or out-of-state facility under two laws: (1) West Virginia Code Section 18-5-16(d) and (2) Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. ("IDEA").

West Virginia Code Section 18-5-16(d) provides that transfers of students from West Virginia to another state "shall be upon such terms as shall be mutually agreed upon by the board of the transferring county" and the receiving county's authorities. If Pleasants County agreed to a transfer of Son under this subsection, it is legally obligated to pay the agreed upon amount. It is my understanding that Pleasants County made no such agreement.

If there was no agreement, IDEA imposes an obligation upon a county to pay the costs of an out-of-state institution providing educational and related services to a student with disabilities as part of FAPE (a free and appropriate education) when a student's IEP requires services that the county cannot provide. If the parents unilaterally place the student in an out-of-state facility and successfully prevail in a due process hearing that challenges the IEP regarding placement, the county would also be liable.

If those two situations do not exist, and the parents decided that Son should be in the physical custody of Mother who lives in Green, Ohio and should attend an Ohio public school in 2005, IDEA directs that Green Ohio, as the new local education agency, follow Son's West Virginia IEP (if he had one) until and unless Ohio conducts a new evaluation. 20 U.S.C. § 1414(d)(2)(C)(i)(II). The clear implication is that when a student voluntarily moves and transfers, it is now the obligation of the new school district to provide FAPE.

I hope I have been of assistance.

Sincerely,

/s/

Steven L. Paine
State Superintendent of Schools