Parents of school-aged handicapped or severely handicapped children admitted to the Department of Mental Health may not be charged for special education and related services. If the admissions of any such children is necessary for them to receive appropriate special education and related services, then their parents may not be charged for special education, related services, nonmedical care, and room and board. School districts and special school districts are obliged to pay towards the costs of special education and related services rendered by the Department of Mental Health to its full-time patients or residents. Absent a contractual provision, we find no authority for the Department of Mental Health to charge the State Board of Education for special education it chooses to render to patients and residents of its facilities.

EDUCATION: DEPARTMENT OF MENTAL HEALTH: Parents of school- aged handicapped or severely handicapped children admitted to the Department of Mental Health may not be charged for special education and related services . If the admissions of any such children is necessary for them to receive appropriate special education and related services , then their parents may not be charged for special education , related services , nonmedical care, and room and board . School districts and special school districts are obliged to pay towards the costs of special education and related serv i ces rendered by the Department of Mental Health to its full-time patients or residents . Absent a contrac tual provision , we find no authority for the Department of Mental Health to charge the State Board of Education for special education it chooses to render to patients and residents of its facilities . August 4, 1980 OPINION NO. 9 Paul R. Ahr , Ph . D., M.P . A. Director Department of Mental Health 2 002 Missouri Boulevard Jefferson City , Missouri 65101 Dear Dr . Ahr: This official opinion is issued in response to your predecessor ' s r equest for rulings on the following questions: "1. If handicapped or severely handicapped children, as defined under § 162 .675 (2) and (3) , RSMo 1978 , are admitted to Department of Mental Health facilities , may the Department charge the parents or guardian for any services -- room and board , treatment , education? " 2 . If handicapped or severely handicapped children , as defined under § 162.675 (2) and (3), RSMo 1978, are admitted to Department of Me ntal Health facilities, may the Departmen t charge school districts , specia l school districts o r the State Board of Education for the services provided? " Paul R. Ahr, Ph.D., M.P.A. QUESTION NO. 1 As to the first question , subsection 2 of § 630.205 of Confere nce Committee Substitute for H.B. 1724 is directly on point. The General Assembly passed this bill during the recent session , and the Governor signed it on June 9, 1980; consequently, it becomes effective on August 13, 1980. Subsection 2 of § 630.205 of H.B. 1724 reads as follows: "Parents of minors who are domiciled in this state , as defined in section 162.970, RSMo, shall not be liable for the cost of education or special education and related services. If, as a result of a comprehensive evaluation and such conclusion in the minor's individualized education program , admission to a department facility or placement program is necessary for such minor to receive an appropriate education, the parents of minors who are domiciled in this state under section 162.970, RSMo , shall not be liable for the cost of nonmedical care and room and board." The definitions of "handicapped children" and "severely handicapped children" are found in section 162.675(2) and (3), RSMo 1978, respectively, as follows: "(2) 'Handicapped children ', children under the age of twenty-one years who have not completed an approved high school pro- gram and who , because of mental, physical , emotional or learning problems , require special educational services in order to develop to their maximum capacity; "( 3) ' Severely handicapped children ', handicapped chtldren under the age of twenty-one years, who because of the extent of the handicapping condit ion or conditions, as determined by competent professional evaluation , are unable to benefit from or meaningfully participate in programs in the public schools for handicapped children. The terms ' severely handicapped' is not con- fined to a separate a nd specif i c category but pertains to the degree of disability which permeates a variety of handicapping conditions and education programs; ••• " -2- Paul R. Ahr, Ph.D., M.P.A. The term "special education" has a special meaning for handicapped and severely handicapped children beyond just in- struction in the usual elementary and secondary school subjects. Under section 162.670, RSMo 1978, "special educational services sufficient to meet the needs and maximize the capabilities of handicapped and severely handicapped children" are required to be provided by the state or by the public schools in the state . The term "special educational services" is defined in section 162.675(4) as follows: "··· programs designed to meet the needs and maximize the capabilities of handicapped or severely handicapped children and which include , but are not limited to, the provisions of diagnostic and evaluation serv ices, student and parent counseling , itinerant, homebound and referral assistance, organized instructional a nd therapeutic programs , transportation, and corrective and supporting services ." Under subsection 3 of section 630.205, H.B. 1724, the federal definitions of the terms "special education" and "related services", as found in 20 U.S . C. § 1401, are specifically incorporated by reference. The term "special education" is defined at 20 U. S.C . § 1401(16), as follows : "(16) The term ' special education ' means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a handicapped child, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions." The term "related services" has been broadly defined at 20 u.s.c. § 1401(17), as follows: "(17) The term 'rela ted serv ices ' means ·tran s - portation, 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." -3- Paul R. Ahr , Ph . D., M.P. A. Rather than dividing the children who need special education into separate groups of "handicapped children " and "severely handi- capped children" as done under Missouri. law in section 162 . 675(2) and (3), RSMo 1978, the federal law has just one group of "handi- capped children", who, by reason of their handicap , require st~c ial education and related services . 20 u.s.c. § 1401(1). Thus, the federal term encompasses both of the state terms . ln the regulations promulgated under 20 U.S.C . § 1401, ~ ~ , the term "re lated services" is more elaborately defined and offers further qui.dance on what services are to be provided without charge to parents. The definition is located at 45 C.F . R. § 12la.l3 . Parents may clearly be charged for certain services "not related" to special education including medical treatment of their handicapped or severely handicapped children who are inpatients or residents of Department of Mental Health facilities. See Tatro v. State of Tex., 481 F.Supp. 1224 (N. D. Texas 1979) where the court determ1ned that catheterization of a child s uffering from spina bifida was not a "related service" but a life maintenance service "required whether or not she is attending school ." Parents have a common- law obligation to support their minor children , Ivey v. Ayers , 301 S .W.2d 790 (Mo . 1957) , and State ex rel. Shoemaker v. Hall, 257 S . W. 104 7 (Mo. 1924); however , t f the servtce falls withln the definitions of "special education" or "re lated services ," then under section 630.205 , H.B. 1724, the p~rents are not obliged to pay for them . The Department shall determine whether a particular service may be charged to parents depending upon whether it i s classified as medical treatment or special education or related serv ice. Disti nctions must be considered on a case-by-case basis for school-aged children. Generally, under subsections 2 and 3 of sect ion 630.205, which incorporate the federal definitions, services required to assist the handicapped or severely handi- capped child to benefit f rom education shall be provided without c harge to parents; however , if the services are strictly medical in nature, then the services may be charged to the parents . Finally, subsection 2 of section 630.205 states that parents shal l no t be liabl e for the cost of nonmedical care and room and board , if, as a result of a comprehensive evaluation and such conclusion in the minor's individualized education program , admission to a department facility is necessary for the child to receive an education. Thus , after a handicapped or severely , handicapped child has been admitted to a Department of Mental Health facility, the department shal l determine , in each instance, if the admission was necessary for the child to receive an appropriate education . - 4- Paul R. Ahr , Ph.D., M.P.A. For example, if the child can be appropriately educated off the facility grounds by the school district or special school district where the facility is located or by the state school for the severely handicapped operated by the State Board of Education, as authorized under section 162.970, RSMo 1978, then the admission is not necessary for the child to receive an appropriate education. Rather, the admission may be necessary for certain medical, habilitation, or other reasons. For example, children could be committed to the Department of Mental Health by the juvenile court, or the parents may admit their children because they may not wish to keep them at home. However, if they were living at home, and could appropriately be educated by the school district , special district, or state school for the severely handicapped, then the parents would be responsible for non medical care and room and board. " Non- medical care" is not defined in the statute or regula- tions. It would be logical for it to mean assisting the handicapped or severely handicapped children with such activities as dressing, toileting and grooming. These are services usually performed by parents who could not do them if the child is in residential placement. In conclusion, the parents of school-aged children may be charged for services other than education, special education , and related services unless the admissions are necessary for them to receive appropriate education . Regarding those children whose admission to the Department of Mental Health facilities are found to be necessary for them to receive appropriate education , their parents may not be charged for special education , related services , nonmedical care , and room and board. QUESTION NO. 2 As to the second question, section 162.740 in H.B. 1724 requires the school district or special school district of residence to pay towards the cost of the education of a child attending an educational program for a full-time patient or resident at a Department of Mental Health facility. Section 162.740, H.B. 1724, reads as follows: "The district of residence of each child attending a state school for severely handicapped children , an institution providing contractual services arranged pursuant to section 162.735, or an educational program for a full-time patient or resident at a facility -5- Paul R. Ahr , Ph . D., M.P.A. operated by the department of mental health except school districts which are a part of a special district and except special school districts , shall pay toward the cost of the education of the child an amount equal to the average sum produced per child by the local tax effort of the district . The district of residence shall be notified each year , not later than December fifteenth, of the names and addresses of pupils enrolled in such schools . In t he case of spec i al district , said special district shall be responsible for an amount per child not to exceed the average sum pro- duced per child by the local ta x effor ts of the component districts . The district of residence of the child ' s parents or guardians shall be the district responsible for local tax contributions required by this section. " Section 162 . 745 , H. B. 1724 , sets out a means of collecting t he mo ney . Subsection 2 of section 162 . 970 , RSMo 1978 , requires school distric t s or special school districts of the domicile of handi- capped o r severely handicapped children to pay towards the cost of special educational services for such children . Under sub- section 1 of section 162 . 970 , the Department of Mental Health may prov ide special education t o handicapped or severel y handicapped children . The school district of domicile is the place of residence of the parents. Section 162.970. 7 . Section 162.970 when read with section 162 . 740 would require the school district where the pa r e nts r es i de pay towards the cost of education . Although under section 162 . 725, RSMo 1978 , the State Board of Education has the primary responsibility to provide special e ducatio n serv i ces t o certai n severel y hand i capped ch ildren , we f ind no author i ty for hold ing the Board responsibl e to pay the Depar tment of Mental Health for the special education the De pa r t ment prov i des to handicapped o r sever ely handicapped c h i l d r e n adm i t t ed t o Department faci li ties . Under section 162 . 735 , the S t ate Board of Education may contract with "another publi c agency" to pr ovide special educational services determi ned to "be in the best i nteres t s " of the severely ha ndicapped chil dren : ho wever , a bsent provisions for payment in such a contr act , t he State Board of Educati on has no statutory r espons i bi l i t y t o pay for the special educat iona l services provided by t he Depar tment of Me ntal Hea l th . -6- Paul R. Ahr , Ph.D., M.F.A. CONCLUSION Therefore, it is the opinion of this office that parents of school-aged handicapped or severely handicapped children admitted to the Department of Mental Health may not be charged for special education and related services . If the admtssions of any such children is necessary for them to receive appropriate special education and related services, then their parents may not be charged for special education , related services , non- medical care , and room and board. School districts and special school districts are obliged to pay towards the costs of special education and related services rendered by the Department of Mental Health to its full-time patients or residents . Absent a contractual provision we find no authority for the Department of Mental Health to charge the State Board of Education for special education it chooses to render to patients and residents of its facilities. The foregoing opinion , which I hereby approve, was prepared by my assistant , Reginald H. Turnbull. Very truly yours, Attorney General - 7-