Matter Of" A" Family

No. 14815

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1979

I N THE MATTER O THE "A" FAMILY.
F

ORIGINAL PROCEEDING:

C o u n s e l o f Record:

For Appellant:

Ted 0 . Lympus, County A t t o r n e y , Kalispell, Montana

J o h n a t h a n B. S m i t h a r g u e d , Deputy County A t t o r n e y ,
K a l i s p e l l , Montana

F o r Respondent :

Cannon a n d G i l l e s p i e , H e l e n a , Montana

R o s s W. Cannon a n d R i c h a r d G i l l e s p i e a r g u e d , H e l e n a ,
Montana

J o h n A l b r e c h t a r g u e d , C h o t e a u , Montana

Submitted: August 2 2 , 1979

Decided: i979
Mr. Justice John C. Sheehy delivered the Opinion of the Court.
Child A is the male adopted son of H A and B A, the
respondents in this case. Child A is within the age parameters
of those entitled to special education as a handicapped child.
The appellant is the school district in which the parents
are residents. The appeal is from the mandatory injunctive
order of the District Court, Eleventh Judicial District,
Flathead County, requiring the school district to provide an
educational placement for Child A including an intensive
psychotherapy program at the Devereux Foundation, Santa
Barbara, California, for one year. Transportation costs of
the parents in connection with the placement of Child A were
also required to be paid in the court's order.
The District Court denied the motion of the school
district to amend or alter the findings of fact and mandatory
injunction and this appeal timely followed.
For several years Child A was identified by the school
district as mildly mentally retarded. He had been placed in
the special education program in the public school system of
his county, being "mainstreamed" into several classes for
nonhandicapped students. His parents felt that he was not
progressing in school and that he had periods of retrogression
emotionally that made him uncontrollable, a danger to himself,
and a threat to others. The parents took Child A at their
own expense to the Developmental and Evaluation Clinic of
the Children's Hospital in Denver, Colorado, for a complete
educational evaluation. There the staff concluded that Child
A was functionally retarded as a result of a primary handicapping
condition of severe emotional disturbance, schizophrenic
process.
The parents delivered the Children's Hospital report to
the Child Study Team of their home school system. They asked
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that Child A's identification be changed to severe emotional
disturbance, schizophrenic process. They further asked that
Child A be placed at the Devereux Foundation, in Santa
Barbara, California, to receive intensive psychotherapy,
along with a residential school program.
The Child Study Team decided that Child A was not
severely emotionally disturbed, schizophrenic process, but
rather that he was mildly mentally retarded and that he
should not be placed in the Devereux Foundation. The parents
requested a special education hearing regarding Child A's
identification and placement. A hearing, however, was not
held because the rules then in effect on special education
complaints were repealed by the Superintendent of Public
Instruction.
On May 15, 1978, the state Superintendent adopted
emergency rules for special education complaints (Montana
Administrative Register, May 25, 1978, issue no. 5, pages
764, 770). The parents of Child A renewed their request for
a hearing. They named both the school district and the
state Superintendent as antagonistic parties.
A hearing at the county level was held first. The
hearing officer found that Child A was severely emotionally
disturbed, schizophrenic process. He concluded that Child A
was in need of an intensive psychotherapy program in a
r e s i d e n ~ lschool such as provided by the Devereux ~oundation.
He dismissed the Superintendent as a party.
The school district appealed to the Superintendent of
Public Instruction, who appointed a hearing officer for
another hearing at the level of the Superintendent's office.
The parents again named the Superintendent as a party. The

hearing officer reached the same conclusions as the hearing
officer at the county level.
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 The parents filed cause no. 29516 in the District
Court, requesting a mandatory injunction ordering the
Superintendent of Public Instruction and the Board of
Trustees of the school district immediately to comply with
the hearing officer's decision. That suit was filed on
August 21, 1978. On September 26, 1978, the hearing officer
appointed by the Superintendent issued findings, conclusions,
and an order which generally affirmed the order entered by
the local hearing officer. On October 26, 1978, the Board
of Trustees of the school district filed complaint no.
29,732 in the District Court, seeking review of the hearing
officer's decision. Both cases were eventually consolidated.
The hearing officer that had been appointed by the Super-
intendent of Public Instruction also dismissed the Superintendent
as a party.
On March 20, 1979, the District Court entered its
findings of fact, conclusions of law, mandatory injunction
and declaratory judgment, generally affirming the decision
of the hearing officer, and requiring an educational place-
ment of Child A in the Devereux Foundation for one year.
The court also entered a declaratory order that the administrative
rules of procedure adopted by the Superintendent of Public
Instruction created a dual hearing procedure in which a
parent must also proceed against the Superintendent of
Public Instruction in this type of case. The District Court
declared that such procedure violated the Education of All
Handicapped Children Act of 1975, 20 U.S.C., 81415, on the
ground that the administrative rules prevented a final
decision being made where both the Board of Trustees and the
Superintendent of Public Instruction were not a party to the
same procedure.
The school district, through its Board of Trustees,
appeals from the mandatory injunction finding that Child
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A is severely emotionally disturbed, schizophrenic process
and requiring that he be placed for one year in the Devereux
Foundation. The Superintendent of Public Instruction appeals
from the order of the District Court requiring that she be
a party for final decision in the case at bar, and from the
conclusion of the District Court that her administrative
regulations deprived the parents of due process.
The school district presents these issues for review:
(1) Insufficiency of the evidence to support the
findings of the District Court that Child A is severely
emotionally disturbed, schizophrenic process, requiring
his institutionalization at Devereux.
(2) Whether the institutionalization of Child A is
in compliance with the requirement that he be educated
in the least restrictive environment.
(3) Whether the school district is responsible for
the provision of psychotherapy for Child A.
At a hearing before the District Court in which all
parties were represented by counsel, it was stipulated that
"Montana is a state which receives assistance under part B
of the [federal] Education of the Handicapped Act, and that
Georgia Ruth Rice is a state educational agency that receives
assistance under part B of the Education of the Handicapped
Act." It was further stipulated that in this case the
State of Montana is bound by the applicable provisions of
Public Law 94-142, Stat. , the federal Education
For All Handicapped Children Act of 1975. The federal
statutes relating to the education of handicapped persons
are found in 20 U.S.C. beginning at section 1401. Section
1415(e)(2) of Title 20 allows a party aggrieved by administrative
hearings such as took place here to appeal to any state court
of competent jurisdiction. That section also provides:
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 .
". . In any action brought under this paragraph,
the court shall receive the records of the
administrative proceedings, shall hear additional
evidence at the request of a party, and, basing
its decision on the preponderance of the evidence,
shall grant such relief as the court determines
is appropriate."
The District Court found that Child A was severely
emotionally disturbed, schizophrenic process. It agreed with
the Children's Hospital of Denver, Colorado, that Child A
had perceptual difficulties, audio, visual and neurological
incoordination and that Child A was classified as functionally
retarded. His intelligence quotient has been measured at
varying levels from 58 to 80. His academic progress showed
a failure to learn; he had a history of periodic withdrawals
from friendship, being socially insecure, fighting and
complaining about being hurt; he had hidden in a bathroom
for one-half hour at his school; had showed signs of
frustration and nervousness. During his periods of withdrawal,
his speech is slurred, he seems frightened, his dress habits
are poor, and he does not appear to be oriented. He regresses
to infantile behavior in these periods. Moreover, the
District Court found that he had exhibited self-destructive
behavior by running a razor over the back of his arm and
standing in a dangerously hot shower. Doctors and Child
Study Teams that had observed him reported him to be having
severe emotional problems, severe emotional distress, and
being emotionally insecure. Two hearing officers had deter-
mined that he was severely emotionally disturbed, schizophrenic
process. Based on these findings, the District Court concluded
that in order to give Child A an education appropriate to
his needs, it was necessary that he be placed in Devereux
for a period of one year, thereafter to be evaluated again.
The school district, on the other hand, claims that
the findings of the District Court are insufficiently based
on the evidence. It points to the evidence of Dr. William
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Cook, a clinical psychologist who testified that Child A
is not seriously emotionally disturbed and that he does not
demonstrate a functional retardation; that his mental
retardation is not the result of emotional problems, but
rather is true mental retardation, secondary to which are
emotional problems. Dr. Cook emphasized that Child A had
excellent care in his parents' home and was in an environment
which is stimulating and productive to his overall growth.
Dr. Cook also attacked the findings of Children's Hospital
based upon the educational competence of the staff that
evaluated Child A. Dr. Cook also doubted that the child was
suicidal or self-destructive, or a danger to others.
Another witness, Ronald Holter, a clinician at the
Comprehensive Development Center in Missoula, testified that
he was able to understand Child A, and that Child A made
no inappropriate responses or suffered no blackouts during
the time he observed him. He also criticized the Denver
report in the use of some of the tests that were described
in the Denver report.
Some of Child A's teachers also testified. One testified
that Child A gets along socially, had no discipline problems
and is making progress. Another testified that Child A
puts forth effort in class though he does not do as
well academically as other students, but he gets along
well socially. Two school psychologists testified observing

no abnormal activity by Child A in class or on the playground.
They disagreed with the recommendations of the Children's
Hospital because that hospital did not observe Child A
in the educational setting in which he had been placed.
The school district has argued that in this case involving
a mandatory injunction, we are dealing with a matter of an
equitable nature. Therefore it contends, our duty of review is
governed by section 3 - 2 - 2 0 4 ( 5 ) , MCA:
-7-
 "In equity cases and in matters and proceedings
of an equitable nature, the supreme court shall
review all questions of fact arising upon the
evidence presented in the record, whether the
same be presented by specifications of particulars
in which the evidence is alleged to be insufficient
or not, and determine the same, as well as questions
of law, unless for good cause a new trial or the
taking of further evidence in the court below
be ordered. Nothing herein shall be construed
to abridge in any manner the powers of the
supreme court in other cases."
The order appealed from in this case is termed a
"mandatory permanent injunction." If it were a true in-
junction, it would be equitable in nature, and perhaps section
3-2-204(5), MCA, would apply as to our duty of review. However,
the true nature of the proceedings in the District Court was
one of mandamus. Mandamus is an action at law, though it is
sometimes controlled by equitable principles. 52 Am.Jur.2d
357 Mandamus S32. The distinction between injunction and
mandamus is noted as follows:
"Another material distinction between the
two remedies is found in the relief which they
are designed to afford. Injunction is a remedy
to restrain the doing of injurious acts or,
in its mandatory form, to require the undoing
of injurious acts and restoration of the status
quo, while mandamus commands the performance of
a particular duty which rests upon the defendant,
or respondent, because of his official status or
by operation of law. . ."42 Am.Jur.2d 750
Injunctions S19. (Emphasis added. )
The order of the District Court here in effect commands
the school district to perform a duty that devolves upon it
by operation of law. Its true nature is that of mandamus,
and it should be governed by like consideration. Miguel v.

McCarl (1934), 291 U.S. 442, 54 S.Ct. 465, 78 L.Ed. 901.
Therefore, section 3-2-204 (5), MCA does not apply to our
review here. We are not called upon to determine the issues
of fact. Instead, the findings of fact by the District
Court come to us for review on appeal in the cloak of Rule
52 (a), Mont. R.Civ.P., not to be set aside unless they are
clearly erroneous.
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 Moreover, the school district maintains that the report
of the Children's Hospital in Denver, to which the school
district made objection at the time of the trial, should
not have been received into evidence, and that the District
Court should have struck that report from the evidence on
motion of the district. On this argument however, the school
district is foreclosed by the provisions of 20 U.S.C. S1416,
which provides that "the court shall receive the records of
the administrative proceedings." The report of the Children's
Hospital is a part of the administrative record and accord-
ingly it is a part of the evidence which the District Court
had to consider in determining the preponderance. This
special provision of federal statutory law overrides any
other consideration with respect to the reception into
evidence of the Children's Hospital report even though we
recognize the inherent evil in accepting hearsay evidence
not subject to cross-examination.
On review of the record, on the facts set forth above,
we sustain the finding of the District Court that Child A is
severely, emotionally disturbed, schizophrenic process,
requiring his placement in an educational surrounding such
as Devereux.
The next issue raised by the district is whether it
is in compliance with federal estate statutes and regulations
to place Child A in Devereux when those statutes and regulations
require that handicapped children be educated in the least
restrictive environment.
It must be admitted that the policy of the State
and federal statutes is to place handicapped children as
far as possible to be educated with children who are not
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handicapped. 20 U.S.C. 81412(5) requires a state which
desires to participate in federal funding to establish
procedural safeguards "to assure that . . . handicapped
children . .. are educated with children who are not
handicapped, and . . . that separate schooling . . . occurs
only when the nature or severity of the handicap is such
that education in regular classes with the use of supplementary
aids and services cannot be achieved satisfactorily. . ." The
Montana statute agrees (section 20-7-411, MCA). Yet the
requirement is not ironclad because both the federal and
state statutes provide that where the education of the child
in regular classes cannot be achieved satisfactorily, separate
schooling or other removal from the regular educational
environment may be provided. Section 20-7-411, MCA.
The question becomes therefore whether the evidence
supports the removal of Child A from the regular school
environment in his county, or whether the special education
program in his county, aided by such supplementary programs
as the special education program of that county permits, is
satisfactory to provide Child A with a "free appropriate
public education". 20 U. S.C. 51412 (1); Section 20-7-411 (1),
MCA; See 1972 Mont. Const., Art. X I 51.
Under section 20-7-414, MCA, the determination of what
children require special education and the type of special
education needed is the responsibility of the school trustees.
The District Court concluded that the trustees in this case
had abused their discretion in continuing to contend that
the special education program in which Child A was participating
in his home county was sufficient to meet his needs. The
conclusion of the District Court stems from the facts which
we have set forth above.
 We find before us on the one hand the school district
which contends that Child A is mildly mentally retarded, and
the parents on the other hand who claim their child is
severely emotionally disturbed. It is a difference in
degree, but it is a difference the effect of which may be
beyond our measure respecting the child. The District Court
found from the evidence that as a participant in the mildly
mentally retarded special education program, Child A has not
been making substantial progress and may be retrogressing.
It also found from the evidence that Child A is indeed
severely emotionally disturbed. Once it hai accepted that
premise, it was necessary that Child A be placed in the
Devereux Foundation school. The evidence supports no other
choice.
"In order to avoid any misunderstanding, it may
be proper to add here that no more is required
of the applicant [for a writ of mandate] than
that he establish the material allegations of
his complaint by a preponderance of the evidence."
State v. Ford (1944), 116 Mont. 190, 202, 151
P.2d 171, 176.
Therefore, when we review this case under Rule 52(a),
Mont.R.Civ.P., substantial evidence supports the finding.
We affirm the finding of the District Court that Devereux
is a proper placement for Child A.
We come now to the third issue raised by the school
district, that is, that psychotherapy is not properly allowable
as a related cost for Child A, and that such costs should be
born by the parents or other public agency.
In large measure, this issue arises out of confusing
if not conflicting federal and state statutes and regulations
relating to special education.
The pertinent federal statutes relating to the case at
bar are these:
"Title 20, U.S.C. §1401(1)
"The term 'handicapped children' means mentally
retarded,. .. speech impaired, visually handicapped,
seriously emotionally disturbed children . .. who by
reason thereof require special education - - related
and
services.
"Title 20, U.S.C. S1401(16)
"The term 'special education' means specially
designed instruction, - - - -to parents
at no cost
or guardians, to meet the unique needs of
a handicapped child, including classroom
instruction, instruction in physical education,
home instruction, and instruction - hospitals
in
and institutions.
"Title 20, U.S.C. §1401(17)
"The term 'related services' means transportation,
and such developmental, corrective and other
supportive services (including speech pathology
and audiology, psychological services, physical
and occupational therapy, recreation, and
medical and counseling services, except that
such medical services shall be for diagnostic and
evaluation purposes only) as may be required to
assist a handicapped child to benefit from
special education, and includes the early
identification and assessment of handicapping
conditions in children.
"Title 20, U.S.C. 81401 (18)
"The term 'free appropriate public education'
means special education and related services
which (A) have been provided at public
expense, under public supervision and direction,
and without charge, (B) meet the standards of
the State educational agency, (C) include an
appropriate preschool, elementary, or secondary
school education in the State involved, and (D)
- --

--
are provided in conformity with the individualized
education program required under section 1414(a) (5)
of this title.
"Title 20, U.S.C. §1401(19)
"The term 'individualized education program'
means a written statement for each handicapped
child developed in any meeting by a representative
of the local educational agency . . . who shall
be qualified to provide .
. . specially designed
instruction to meet the unique needs of handicapped
children, the teacher, the parents or guardian
of such child, and, whenever appropriate, such child,
which statement shall include (A) a statement of the
present levels of educational performance of
such child, (B) a statement of annual goals,
 including short-term instructional objectives,
(C) a statement of the specific educational
services to be provided to such child, and
the extent to which such child will be able
to participate in regular educational programs,
(D) the projected date for initiation, and anticipated
duration of such services, and (E) appropriate
objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis,
whether instructional objectives are being achieved."
(Emphasis added. )
Under the foregoing statutes, and others, the Department
of Health, Education and Welfare has promulgated certain
federal regulations relating to the administration of the
powers granted by the statute. The following definition contained
in the regulations is pertinent:
45 C.F.R. 121a. 5 (b)(8) (1978):
"'Seriously emotionally disturbed' is defined
as follows: (i) The term means a condition
exhibiting one or more of the following
characteristics over a long period of time
and to a marked degree, which adversely affects
education performance:
"(A) an inability to learn which cannot be
explained by intellectual, sensory, or health
factors.
"(B) an inability to build or maintain satisfactory
interpersonal relationships with peers and teachers;

"(C) Inappropriate types of behavior or feelings
under normal circumstances;
"(D) A general pervasive mood of unhappiness
or depression; or
" ( E ) A tendency to develop physical symptoms or
fears associated with personal or school problems.
" (ii) The term includes children who are schizo-
phrenic or autistic.. . ."
We note parenthetically that Child A fits many of the
criteria set forth in the definition of a seriously emotionally
disturbed child.
"Related services", as used in the statute are admini-
stratively defined as follows:
 45 C.F.R. 121ae13(a):

"As used in this part, the term 'related
services' means transportation and such
developmental corrective and other supportive
services as are required to assist a handicapped
child to benefit from special education, and
includes .. . psychological services, physical
and occupational therapy, recreation, early
identification and assessment of disabilities
in children, counseling services, and medical
services for diagnostic or evaluation purposes.. . .
45 C.F.R. 121a.13 (b)(4):
"'Medical services' means services provided by
a licensed physician to determine a child's
medically related handicapping condition which
results in the child's need for special education
and related services.
45 C.F.R. 121a.13 (b)(8):
"'Psychological services' include:
" (v) Planning and managing a program of
psychological services, inciuding psy~ological
counseling for children and parents."
(Emphasis added.)
We note from the federal regulations foregoing that
"medical services" are provided only for diagnostic purposes
and are paid for under the program when they result in establishing
the child's need in special education and related services.
On the other hand, "psychological services" are not so limited
to diagnosis as specific authority is included for "planning
and managing a program of psychological services" for the
child which would come under the special education program.
The word "psychotherapy" is not specifically mentioned
in the federal statutes or regulations. However, Webster's
Seventh New Collegiate Dictionary (1965) defines "psychotherapy"
as "treatment of mental or emotional disorder or of related
bodily ills by psychological means." By that definition,
psychotherapy comes within the meaning of the term "psycholo-
gical services".
The Montana statutes on special education begin at
section 20-7-401, MCA. The state definition of an emotionally
disturbed child is consonant with that found in the federal
provisions as is the definition of special education. The
attendance of a child in an out-of-state special education
program is authorized in section 20-7-422, MCA.
The conflict with respect to psychotherapy arises out
of the state administrative regulations promulgated by the
Board of Education, in conjunction with the Superintendent
of Public Instruction, as found in 48 A.R.M. 2.18(22)-
S18430 (2), as follows:
"When a child is handicapped to such a degree
that a totally controlled environment is needed,
residential school placement may be essential.
Room and board and tuition costs are considered
allowable costs in the district's special
education budget. The public school is only
responsible for room and board and the educational
kinds of costs. Other services - -as psychiatric
such
--
therapy and/or medical treatment must be deleted
from the special education costs and assumed by
--
Parents and/or other agencies. When an out-of-
histrict placement involves the payment of tuition
or board and room, the placement must be approved
by the Superintendent of Public Instruction."
(Emphasis added.)
There is an obvious conflict between the specific deletion
provided in the state administrative regulation above quoted,
and the federal statutes and regulations which we have
heretofore cited. The dilemna is answered however, by the
state regulations which provide for submission to federal
regulations when a conflict exists. 48 A.R.M. 2.18(46)-
S18750 provides:
 "FEDERAL PROGRAMS GENERALLY. (1) There are
several federal programs which have a portion
of the program charged to serve handicapped
children. Specific regulations published by
each program must be followed as well as the
Special Education Rules - Regulations. If
and
the Special Education --- Regulations are
Rules and
in conflict with the federal requirements, then
the federal requirements supercede (sic) ... ."
(And the department of education too,:)
We therefore hold that the federal regulations allowing
for psychological services, which includes psychotherapy, overrides
the state regulations which exclude psychotherapy. We are
comforted in this holding by the testimony of Dr. Paul
Spore, the federal programs manager in the office of the
Superintendent of Public Instruction. He testified:
". . . As long as the local team of professionals,
the Child Study Team, or as a result of a hearing
like this one, as long as the professionals there
rule that [Child A] needed the intensive psychotherapy
or family therapy kind of services in order again
to benefit from the public school instruction, those
would be appropriate and allowable costs and we
would certainly approve that."
The school district contends that our holding in Doe v.
Colburg (1976), 171 Mont. 97, 555 P.2d 753, is controlling because
there we held that the special education rules and regulations,
which we have quoted above, as promulgated by the State, delete
psychiatric therapy and/or medical assistance. However, we
distinguish - insofar as it applies to this case.
Doe The effect
of the federal statutes and regulations were not considered in

- and moreover, - was involved with medical services provided
Doe Doe
by Dr. Kuska in Denver, Colorado. It is enough to say that
we find psychotherapy is not regarded as medical services
for the purpose of determining "related costs" under the
special education program promulgated by the federal government
but rather is included as part of psychological services,
which are a part of the related costs. Since in this case
it was stipulated that the special education program in the
home county of Child A was funded in part by the federal
government, the federal regulations apply and supersede
whatever regulations the state may have promulgated to the contrary.
 We turn now to the contention of the Superintendent
Public Instruction on her appeal that the District Court
erred in determining that the regulations promulgated by the
Superintendent offend due process in that a dual procedure
is necessary to obtain approval of an out of state special
education program.
The issue is more technical than real, as an examination
of the statutes, regulations, and the record will reveal.
Section 20-7-422, MCA, provides with respect to out-of-
state special education:
"(2) Whenever the attendance of a child at an
out-of-state special education program is
approved by the superintendent of public
instruction, it shall be the responsibility
of the superintendent of public instruction,
in cooperation with the department of
social and rehabilitation services and the
department of institutions, to negotiate
the program for the child and the amount
and manner of payment of tuition . . ."
The language of the quoted statutes implies that discretion
is vested in the Superintendent in this case to grant approval
or withhold approval for the out of state special education
program. This implication runs counter to the language of
the federal statutes which require that the decision of the
hearing officer in the appeal to the Superintendent of Public
Instruction is final. The applicable federal statute is
20 U.S.C. S1414 (e)(1), as follows:
"A decision made in a hearing conducted pursuant
to paragraph (2) of subsection (b)[the hearing
conducted before the Board of School Trustees] of
this section shall be final, except that any party
involved in such hearing may appeal such decision
under the provisions of subsection (c) and paragraph
of this subsection. A decision made under
subsection (c) of this section [the hearing
conducted by the hearing officer for the Super-
intendent of Public Instruction] shall be final,
except that any party may bring an action under
paragraph (2) [providing for an appeal to the
District Court] of this subsection." (Emphasis
and bracketed material added.)
 It is evident from the foregoing federal statute that
it is the intent of Congress that a party having gone through
the administrative hearing processes before the local agency
and the Superintendent of Public Instruction shall be entitled
to a final decision, subject only to court appeal. This means
that once the hearing officer for the Superintendent of Public
Instruction had reached his decision in favor of the A family,
under the federal statute, the Superintendent had no further
right of discretion as to approval or nonapproval of the out-
of-state education plan.
It is apparent to us that the Superintendent understood
this intent of Congress because in the regulations which
she promulgated to administrate the State special education
program, and particularly with respect to hearings before her
relating to proposed special education programs, it is provided
"[tlhe decision of the hearing officer is final unless a party
seeks judicial review pursuant to section 82-4216, R.C.M. 1947,
or brings a civil action pursuant to 20 U.S.C. 1415." Section
A.R.M.
48 h.18 (42), S18780 (11).
The District Court received the impression during the trial
that the Superintendent of Public Instruction had an adversary
position to the A family with respect to the proposed program
at Devereux. Because there was uncertainty, even among counsel,
as to the extent of the Superintendent's right of approval or
nonapproval of the application, the District Court denied a
motion to dismiss the Superintendent as a party and eventually
found that the State regulations instituted a dual procedure
for approval which violated the due process requirement of the
federal statute, 20 U.S.C. S1415 (b)(2).
Later during the trial, unfortunately, counsel for the
Superintendent requested an opinion of Dr. Spore as to the
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appropriateness of the proposed placement at Devereux. Over
objection Dr. Spore testified that it was his opinion that
Kalispell rather than Devereux would be the appropriate program
for Child A. He went on, however, to state that if the court
ruled in Child A's favor, the Superintendent would approve
the application without further claim of right of approval.
It was inappropriate for Dr. Spore to give his opinion
as to the advisibility of the proposed placement at Devereux
because the decision of the hearing officer both at the
local level and before the Superintendent was that Devereux
was a proper placement and their decisions were final under
the federal law and the State's regulations. Neither the
Superintendent nor her agents have authority to overrule the
hearing officer who is required to be impartial, although
appointed by the Superintendent. 20 U.S.C. §1415(b)(2).
Since, however, the Superintendent took the position
during the trial that a decision of the District Court would
be binding upon her and would be approved with no further
claim of right of rejection on her part, such a stance was
in harmony with the federal statutes, and with the State .

regulations. Therefore, we do not find a dual procedure rising
out of the State regulations for special education programs,
as long as the Superintendent maintains that she is bound by
the findings of the hearing officer, and by the court, if an
appeal is taken from the hearing officer.
The answer to the first contention of the Superintendent
with respect to the claim of dual procedures under the regulations,
also answers the second part of the Superintendent's appeal,
that she is not properly a party to the case. The federal

statutes and the State regulations contemplate that she not
be a party. She has administrative duties, but she is limited
and has no discretion with respect to special education programs
-19-
decided either by the Board of School Trustees, or by hearing
officers upon appeals from decisions of the School Trustees.
The hearing officers were therefore correct in dismissing the
Superintendent as a party to the controversy. Likewise, the
Superintendent is not a proper party in a court appeal from
such hearing officer as long as the Superintendent adopts the
stance that she has no discretion once the court has acted.
She would, of course, be a necessary party if at anytime she
contended that she had a right of discretion to approve or
deny the application for special education after the hearing
officers have acted, or after the court has made a final decision.
In light of the foregoing, therefore, the judgment of
the District Court that Child A is severely emotionally disturbed,
schizophrenic process, and requires placement in the Devereux
Foundation for a period of one year, after which Child A shall
again be evaluated, is affirmed; the decision of the District
Court that the regulations promulgated by the Superintendent
of Public Instruction for administrative hearings of appeals
deny due process is reversed; the decision of the District
Court that the Superintendent is a proper party to the
action is also reversed, in view of the stance taken during
the trial by the Superintendent that she had no power of
discretion once the court had acted.
The Court commends the actions of the parties in providing
for the placement of the child at Devereux Foundation pending
the final decision of this Court. .--,

Justice
We Concur:
-.

Justices
-20-
The Honorable Gordon R. Bennett dissenting:

Neither the Superintendent nor the school district
is responsible for providing free psychiatric treatment
for Child A. Such coverage is not mandated by the Education
of the Handicapped Act (Ch. 33, Title 20, U.S.C., S1401-
1461, incl.) and it is effectively excluded by state
regulation 48 A.R.M. 2.18(22)-S18430(2).
The federal act contains definitions of relevant terms,
specifically, "related services" and "free appropriate
education." These terms are defined as follows:
" (17) The term 'related services' means
transportation, and such developmental,
corrective, and other supportive services
(including speech pathology and audiology,
psychological services, physical and occupational
therapy, recreation, and medical and counseling
services, except that such medical services shall
be for diagnostic and evaluation purposes only) as
may be required to assist a handicapped child to
benefit from special education, and includes the
early identification and assessment of handicapping
conditions in children. (18) the term 'free appropriate
public education' means special education and related
services which (A) -- provided at public
have been
expense, under public supervision and direction,
--
and without charge, (B) meet the standards of -
- the
State educational agency, (C) include an appropriate
preschool, elementary or secondary school education
in the State involved, and (D) are provided in
conformity with the individualized education program
required under Section 614(a)(5)." (Emphasis supplied.)
The definition of "free appropriate public education"
in 45 C.F.R. 121a.4 is identical to that in the code, with
the exception of one word in the first part: ". .. special
education and related services which: -
(a) Are provided at
public expense,. . ." (Emphasis supplied.) Related services
are further defined in 45 C.F.R. 1211.13. In that section,
"'Counseling Services' means services provided by qualified
social workers, psychologists, guidance counselors, or other
qualified personnel." "'Psychological services' include (i)
Administering psychological and educational tests, and other
assessment procedures; (ii) Interpreting assessment results;
(iii) Obtaining, integrating, and interpreting information
about child behavior and conditions relating to learning;
(iv) Consulting with other staff members in planning school
programs to meet the special needs of children as indicated
by psychological tests, interviews, and behavioral evaluations;
and (v) Planning and managing a program of psychological
services, including psychological counseling for children
and parents."
The Act does not express the requirement that all
"related services" mentioned in the Act must be provided by
the State. A careful reading of the definitions of "appropriate
public education" and the rest of the Act and the accompanying
regulations disclose the intent of the Act to be two-fold.
First, it is intended that - handicapped children will be
all
provided with the "related services" it presently provides to

- handicapped child.
any This purpose is reflected in the
requirement that the local educational agency identify those
handicapped children receiving the related services and those
handicapped children who are not. (20 U. S.C. 51414 (a)(1)(A). )
Second, it is intended that the Act be an incentive for the
State to expand and improve its services to handicapped
children. This is reflected in 20 U.S.C. §1414(a)(l)(c) which
requires establishment of a goal of providing full educational
opportunities to all handicapped children. In other words, if
the State wants to participate in the federal program it is
required to offer to all handicapped children the related
services which it presently provides to some, and which meet
the standards of the Superintendent of Public Instruction, and
it is also required to aim at improving and expanding its
present services to ultimately achieve "full educational
-22-
opportunities" for all handicapped children. The Act
does not intend that every state provide every imaginable
"related service" just because a handicapped child would
benefit by it. And the "related services" listed in the
Act are not exhaustive. See Comment after 45 C.F.R. 121a.13.
Each state must develop its own standards and goals in
achieving full educational opportunities for all handicapped
children. The federal act is not attempting to compel each
state to provide identical or fully comprehensive services.
Montana has its own standards for providing services
to handicapped children. In 48 A.R.M. 2.18(22)-S18430(2),
the Superintendent of Public Instruction has interpreted
the federal act in such a way that psychiatric therapy and/or
medical treatment is excludable from special education costs.
In pertinent part this regulation provides:
"The public school is only responsible for room
and board and the educational kinds of costs.
Other services such as psychiatric therapy and/or
medical treatment must be deleted from the
special education costs and assumed by parents
and/or other agencies."
Three years ago, this Court announced it found this same
rule and this same language ". ..
is reasonable and entirely
the of
consistent with/carrying out/the legislative direction of
Montana's statutes . . ." Doe v. Colburg (1976), 171 Mont.
97, 100, 555 P.2d 753, 754. Upon this finding, this Court
set aside a District Court judgment ordering the Superintendent
of Public Instruction to find a behavioral modification program
to be carried on out of state by somebody with the title of
"doctor". The issue was simply stated: ". . . whether special
education funding can be used to provide psychiatric-medical
treatment outside the State of Montana." The answer was an
unequivocal "no". We are dealing here with the same funding
the same federal and state acts, the same regulation and the
same kind of treatment. The only perceivable difference is
that we have a different doctor and a different Superin-
tendent. This Court now reverses itself on the ground it
didn't consider the pertinent federal statutes and regulations
three years ago. This year it holds the federal statutes
and regulations require the financing of psychiatric-medical
services. I have attempted to show there is no such require-
ment discoverable in the federal statutes and regulations.
There is absolutely no showing that in the three intervening
years the "feds" raised any question whatever, legally or
administratively, about this Court's former ruling. As a
matter of fact, the United States Commissioner of Education
has continued since that time to approve of the "state plan"
required to be submitted by the Superintendent of Public
Instruction annually as a condition of funding (20 U.S.C.
S1413). This statute requires the Superintendent to disclose
every conceivable facet of her education for the handicapped
program except the names of her nearest of kin, and it
clearly requires inclusion of all regulations propounded
under the federal act. And, as would be expected, if the
Commismer finds the plan does not comply with the Act he
may cut off the federal money (20 U.S.C. S1413 (c)(2)) .
There is, as has been noted, no showing whatever that the
Commissioner has attempted to do so with regard to this or
any other Montana regulation made under the Act.
The holding of the Court is that the federal regulations
allowinq for psychological services, which includes psycho-
therapy, overrides the state regulations which exclude
psychotherapy. In the first place, the state regulations do
not exclude psychotherapy, they exclude payment for psychiatric
therapy and/or medical treatment. Psychotherapy, not mentioned
in either the federal act or regulations, may well come
within the gamut of the psychological services authorized by
the Act and regulations. And one can hardly argue with the
heirs of Noah Webster, called upon to decide this case, that
psychotherapy is "treatment of mental or emotional disorders
or of related bodily ills by psychological means." Psychiatric
therapy may well be one of those means. The only question
here, as in the Colburg case, is whether the Superintendent
is required to pay for it. The holding of the Court answers
the question. The federal act may allow psychiatric therapy
I
I understand there is considerable controversy in Washington
and elsewhere on the point, but it does not require it, thus
there is no conflict between the federal act and regulations
and the state regulation. The state regulation is, then,
authorized by federal and state law and is, therefore, to be
treated as law, not as a policy statement. Contrary to what
is said in Colburg, this substantive legislative rule is
entitled to more than respectful consideration. Being duly
and properly propounded in conformity with the applicable
statute (section 20-7-402(2), MCA) it is as binding on this
Court as a legislative enactment. Section 2-4102(11) (a),
MCA. To ignore or evade the rule is to repeal it, which is
a legislative act not a judicial function.
For this reason, I would remand the case to the District
Court for modification of the order appealed from to exclude
payment by the Superintendent of Public Instruction and the
school district for psychiatric therapy and medical treatment.
 I must note in passing that the Court, with its
unquestioned procedural rulemaking power, has made a new rule
of evidence in this case. That rule could be stated: if
federal statutes require, the Montana Rules of Evidence may
be waived. This is the net effect of the ruling made here
with regard to reception and consideration of the report of
the Denver Children's Hospital, loaded as it is with hearsay,
speculation and confusing conclusions, without providing the
appellants an opportunity to examine its authors. It is said
the school district was foreclosed from objecting to consideration
of this report by the District Court because 20 U.S.C. 81415
(el (2) provides in part, "In any action brought under this
paragraph the court shall receive the records of the admini-
strative proceedings,. . ." It could be that federal law may
be invoked to nullify the provisions of parts (2) and (5) of
section 2-4-612, MCA, the provisions of the Administrative
Procedure Act requiring adherence at the administrative level
to the rules of evidence and providing for cross examination
of the authors of documents. And if the federal law requires
it, I suppose there is no harm in the District Court receiving
the entire record of an administrative proceeding, regardless
of how filled up it might be with procedural and evidentiary
error. But that cannot possibly mean that the District Court,
in hearing and considering the matter, must disregard the
rules of procedure and evidence in making its determination.
Here there was, apparently, a timely motion to strike the report
of the Denver Children's Hospital from consideration by the
Court. In my opinion the motion should have been granted unless
the authors of the report were presented to lay the foundation
for its consideration and be subjected to cross examination
with regard to it. To require less would be to abdicate the
-26-
authority of the Montana courts and legislature to determine
procedure and evidentiary qualification to the composers of
rules for the United States Department of Health, Education
and Welfare. I would not do so.

Hon. Gordon R. Bennett
District Court Judge sitting
in for Justice Gene B. Daly

L
Justice
 I N THE SUPREME C U T O THE STATE O M N A A
O R F F OTN

No. 14815

I N THE MATTER O THE "A" FAMILY.
F

O R D E R

PER CURIAM:

I T I S ORDERED t h a t t h e f o l l o w i n g c o r r e c t i o n s be made
i n t h e above-named o p i n i o n .

On t h e T i t l e Page t h e words "ORIGINAL PROCEEDING" s h o u l d
be d e l e t e d and t h e f o l l o w i n g p u t i n t h e i r p l a c e .

"APPEAL FROM: D i s t r i c t C o u r t of t h e E l e v e n t h J u d i c i a l D i s t r i c t
Honorable Arnold O l s e n , Judge p r e s i d i n g . "

The words " F o r Respondent" s h o u l d b e d e l e t e d and t h e
same words "For Respondent" s h o u l d b e p u t j u s t above t h e name
o f John A l b r e c h t , who i s t h e c o u n s e l f o r r e s p o n d e n t . Cannon
a n d G i l l e s p i e a r e c o u n s e l f o r a p p e l l a n t a l s o , s o t h e i r names
may r e m a i n where t h e y a r e .

On page 9 , l i n e 7 from t h e t o p o f t h e p a g e , p l e a s e change
t h e c i t e "20 U.S.C. S1416" t o "20 U.S.C. § 1 4 1 5 ( e ) ( 2 ) ".
On page 9 , l i n e 7 from t h e bottom o f t h e p a g e , p l e a s e
i n s e r t t h e word " a n d " i n between t h e word " f e d e r a l " and t h e word
"estate".

On page 1 6 , from t h e t o p o f t h e p a g e , p l e a s e d e l e t e l i n e
1 0 which r e a d s : "(And t h e d e p a r t m e n t o f e d u c a t i o n t o o . ) " .

On page 1 7 , l i n e 1 5 from t h e bottom o f t h e page s h o u l d be
changed t o r e a d : "20 U.S.C. § 1 4 1 5 ( e ) ( l ) , a s f o l l o w s : "

O page 1 8 , l i n e 1 3 from t h e bottom of t h e p a g e , p l e a s e
n
change "48 A.R.M. "
2.18 ( 4 2 ) ,Sl8780 (11) a s f o l l o w s : "48 A.R.M.
2.18 ( 4 2 - S18780 (11). "
O page 1 8 , l i n e 1 from t h e bottom o f t h e p a g e , p l e a s e
n
change t h e s p e l l i n g o f t h e name o f D r . S p o r e t o "Dr. Spoor".

O page 1 9 , l i n e 2 and l i n e 7 from t h e t o p o f t h e p a g e ,
n
p l e a s e change t h e s p e l l i n g o f t h e name o f D r . S p o r e t o "Dr. S p o o r " .

On page 2 1 , l i n e 5 from t h e bottom o f t h e p a g e , p l e a s e
change t h e c i t e "45 C.F.R. 1211.13" t o r e a d : "45 C.F.R. 121a.13.

On page 25, l i n e 7 from t h e bottom o f t h e p a g e , p l e a s e
c h a n g e " S e c t i o n 2-4102(11) ( a ) " t o r e a d : " S e c t i o n 2-4-102(11) ( a ) " .
f

DATED t h i s 3&- day o f O c t o b e r , 1979.

Justices u
&