No. 13426
IN THE SUPREME COURT O THE STATE O MONTANA
F F
1976
JOHN DOE, a Minor, by L W E C H.
A RNE
SVERDRUP, h i s Guardian A Litem,
d
P l a i n t i f f and Respondent,
DOLORES COLBURG, Superintendent of
P u b l i c I n s t r u c t i o n and t h e STATE OF
MONTANA,
Defendants and Appellants.
Appeal from: D i s t r i c t Court of t h e Eleventh J u d i c i a l D i s t r i c t ,
Honorable Robert Sykes, Judge p r e s i d i n g
Counsel of Record:
For Appellants :
Hon. Robert L. Woodahl, Attorney General, Helena,
Montana
Lon J. Maxwell argued, A s s i s t a n t Attorney General,
Helena, Montana
Corbin W. Howard appeared, Helena, Montana
For Respondent:
Williams and Sverdrup , Libby, Montana
Lawrence H. Sverdrup argued, Libby, Montana
Submitted: September 13, 1976
Decided: ~ L 1J d 9 '976
Filed : J ,l-t~
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This appeal comes from an order and judgment of the
district court, Lincoln County, ordering the state superintendent
of public instruction to provide funds to treat respondent, an
emotionally disturbed child, out of special education monies.
The matter was submitted to the district court on an agreed
statement of facts and issues.
The minor involved was a 15 112 year old male at the time
of the order of May 19, 1976. His life from the time he was
abandoned at birth by his mother, has been one of tragic circum-
stances. Due to these circumstances he developed a serious behav-
ioral pattern that brought him to the attention of the juvenile
court system. John Doe has been in several institutions, including
the Pine Hills School at Miles City, where psychological studies
showed him in need of special treatment.
At the time of the hearing, John Doe was a student in high
school, living with his stepmother and his stepbrother and step-
sisters. A guardianship was provided to care for him. Fortunately
for this young person, Lawrence H. Sverdrup the attorney who was
appointed as guardian, took a great interest in him and has gone
to great lengths to find assistance for him. He found the school
district had previously submitted a recommended special education
plan to defendant state superintendent for another student; that such
plan had been approved and that funds had been forwarded to the
school district. The guardian further found that for some reason
the plan never came into being and the money was held by the school
district.
During t h i s p e r i o d , t h e g u a r d i a n Learned of a b e h a v i o r a l
m o d i f i c a t i o n program of a D r . Kuska i n Denver, Colorado, t h a t
he f e l t was worth t r y i n g i n an e f f o r t t o save t h e boy. He a p p l i e d
f o r and r e c e i v e d from t h e s c h o o l board a p p r o v a l t o use t h e above
funds t o t r e a t John Doe i n a s p e c i a l e d u c a t i o n program. The
p l a n was t o t a k e t h e boy t o Denver f o r two weeks t r e a t m e n t w i t h t h e
i n i t i a l c o s t t o be about $2,500 p l u s follow-up s u p p o r t i v e c o s t s of
unknown amounts. The p l a n was submitted t o t h e o f f i c e of t h e s t a t e
s u p e r i n t e n d e n t and t u r n e d down a s an improper e x p e n d i t u r e of educa-
t i o n a l funds under Chapter 78, T i t l e 75, K.C.M. 1947.
The i s s u e b e f o r e t h i s Court i s whether s p e c i a l e d u c a t i o n
funding can be used t o p r o v i d e p s y c h i a t r i c - m e d i c a l t r e a t m e n t o u t -
s i d e t h e s t a t e of ~ o n t a n to
a
T i t l e 75, Chapter 78, R.C.M. 1947, p r o v i d e s f o r s p e c i a l
e d u c a t i o n f o r e x c e p t i o n a l c h i l d r e n i n Montana. S e c t i o n 75-7803
g i v e s t h e s u p e r i n t e n d e n t of p u b l i c i n s t r u c t i o n s u p e r v i s i o n o v e r
and c o o r d i n a t i o n of t h e conduct of s p e c i a l e d u c a t i o n . Section
75-7803(8), s p e c i f i c a l l y r e q u i r e s t h a t t h e s u p e r i n t e n d e n t approve
t h o s e s p e c i a l e d u c a t i o n c l a s s e s o r programs "which comply w i t h
t h e laws of t h e s t a t e of Montana, p o l i c i e s of t h e board of p u b l i c
e d u c a t i o n , and t h e r e g u l a t i o n s of t h e s u p e r i n t e n d e n t of p u b l i c
instruction1'.
S e c t i o n 75-7806(5) a l l o w s t h e l o c a l s c h o o l board d i s t r i c t
t r u s t e e s power t o e s t a b l i s h and m a i n t a i n a s p e c i a l e d u c a t i o n
program f o r " i n d i v i d u a l c h i l d r e n r e q u i r i n g s p e c i a l e d u c a t i o n such
a s home o r h o s p i t a l t u t o r i n g , school-to-home telephone communica-
tions, or o t h e r i n d i v i d u a l programs". (Emphasis added. ) In
a d d i t i o n , following t h e s t a t u t o r y p o s i t i o n s e t by T i t l e 75, Chapter
78, t h e S t a t e Board of Education adopted r u l e s and r e g u l a t i o n s
to implement the carrying out of the program. Rule 7.5 of
the Special Education Rules and Regulations Reference Manual
pertaining to out-of-district services states:
"The public school is only responsible for room and
board and the educational kinds of costs. Other ser-
vices such as psychiatric therapy and/or medical
assistance must be deleted from the special education
costs and borne by parents and/or other agencies."
(Emphasis added.)
This Court has on several occasions considered the inter-
pretative regulations by administrative agencies charged with
the duty of administering and enforcing a legislative act, for
an understanding of the provisions that must be carried out.
Butte Miner's Union No. 1 v. Anaconda Copper Mining Co., 112
Mont. 418, 430, 118 P.2d 148; State v. King Colony Ranch, 137
Mont. 145, 151, 350 P.2d 841; Montana Consumer Counsel v. Public
Service Commission, Mont . , 541 P.2d 770, 774, 32 St.
Rep. 1026. While such administrative interpretations are not
binding on the courts, they are entitled to respectful considera-
tion.
Here, we find that Rule 7.5 is reasonable and entirely
consistent with the carrying out of the legislative direction
of Montana's statutes set forth in Title 75, Chapter 78, R.C.M.
1947.
The judgment and order of the district court is set aside
and the motion to dismiss is granted.
We Concur:
Justice. '