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Official Opinion 96-23

Official Opinion 96-23

December 3, 1996
To: 

State Superintendent of Schools

Re: 

School-age children placed in a facility by the Department of Human Resources or the Department of Children and Youth Services and who remain in that facility for more than sixty days must be provided a free education by the local school system in which the facility is located unless the child is in a Youth Detention Center, confined pursuant to a court sentence or unable to leave the facility.

You have asked for my official opinion regarding the situation in which a child is placed by the Department of Human Resources ("DHR") or the Department of Children and Youth Services ("DCYS") in a facility in a county other than the county of the parents' residence. Your questions are whether the local school system in which the facility is located must provide education (both general and special) to those children even if the child has not been made a ward of the state, and even if the facility is private rather than public.

It is my opinion that the local school system 1 in which the facility is located is responsible for providing education to school-age 2 children who have been placed there by DCYS or DHR except for those in youth development centers, those confined in a facility as a result of a court-imposed sentence and those who are unable to leave the facility.

The children to whom this opinion applies fall into several diverse categories. Some are children who have been adjudicated delinquent by a juvenile court and committed to the care of DCYS or DHR which then place them in group homes or other like facilities for their care and rehabilitation. See O.C.G.A. § 15-11-35. Some are children who are placed for treatment in mental health facilities such as Central State Hospital in Milledgeville or Georgia Mental Health Institution in Atlanta.

All are children who remain in their parents' or guardians' legal custody, that is they are not "wards of the State." See 1978 Op. Att'y Gen. 78-51. They have been "placed" by DCYS or DHR, meaning that the state agency is arranging for the care of a child by a foster family, group home or institution. See O.C.G.A. § 39-4-4 (definition of "placement" in the Interstate Compact on the Placement of Children).

Official Code of Georgia Annotated § 20-2-133 provides specifically for non-resident children who have been placed in facilities by DHR and DCYS as follows:

any child placed by the Department of Children and Youth Services or the Department of Human Resources or any of its divisions in a facility operated by or under contract with the Department of Children and Youth Services or the Department of Human Resources who remains in that facility for more than 60 continuous days . . . shall be treated by the local unit of administration of the school district in which the facility is located as eligible for enrollment in the educational programs of that local unit of

administration: provided, however, that the child meets the age eligibility requirements established by this article. The local unit of administration of the school district in which these facilities are located is responsible for the provision of all educational programs, including special education and related services, free of charge to these children as long as the children remain in such facilities.

O.C.G.A. § 20-2-133(b)(1) (emphasis added).

There are six exceptions to the above general rule requiring the providing of these services. Services are not required for:

1. Children who are in the "physical custody" of DHR and DCYS and are receiving services pursuant to subsection (b)(2) of O.C.G.A. § 20-2-133. 3

2. Children who are unable to leave the facility. O.C.G.A. § 20-2-133(b)(6).

3. Children who are in youth development centers. O.C.G.A. § 20-2-133(b)(2).

4. Children or youth incarcerated by the Department of Corrections or DCYS pursuant to a court-imposed sentence. Id.

5. Children who have been placed in a facility by a parent or another local unit of administration. O.C.G.A. § 20-2-133(b)(1).

6. Children who remain in those facilities for less than 60 days. Id.

The statute makes no reference to whether the child is a ward of the state. It provides a duty on the part of school systems in which the various facilities are located to provide free education to children who are either placed by DHR or DCYS or in the physical custody of DHR or DCYS.

Prior to the enactment of the above provision by amendment of O.C.G.A. § 20-2-133, 4 the responsibility for the education of children placed at mental health facilities such as Central State Hospital remained with the school system in which the parents resided. 1978 Op. Att'y Gen. 78-51. As a result children were sometimes made wards of the state or placed in the legal custody of the Department of Human Resources in order for them to be educated in the county in which DHR had placed them. A child who was a ward of the state could be said to reside anywhere within the state and residency was not a problem. Id. Since the amendment of O.C.G.A. § 20-2-133, that distinction is no longer effective for purposes of determining which local school system is responsible for educating children placed by or in the physical custody of DHR and DCYS.

Similarly, the statute does not require that the facility at which the child is placed be a public facility. It could be a private facility with which either DHR or DCYS contracts. See O.C.G.A. § 20-2-133(b)(1).

Therefore, it is my official opinion that school-age children placed by the Department of Human Resources or the Department of Children and Youth Services in a facility who remain in that facility for more than sixty days must be provided a free education by the local school system in which the facility is located unless the child is in a youth detention center, confined pursuant to a court order or unable to leave the facility.

Prepared by:

KATHRYN L. ALLEN
Senior Assistant Attorney General


{1} For ease of understanding, the terms "local school system" and "local unit of administration" are treated as if they were synonymous in this opinion. "Local unit of administration" in fact is a broader term, but that has no significance here. See O.C.G.A. § 20-2-242.

{2}Again, for ease in understanding, the term "school-age children" is used when in fact the exact statutory limitation is "provided . . . the child meets the age eligibility requirements established by this article." O.C.G.A. § 20-2-133(b)(1). This is not a relevant distinction here.

{3} These children who are "physically present" within a local school system's geographical boundaries must receive educational services from that local system pursuant to subsection (b)(2). The difference is that children served under (b)(1) need not be in the "physical custody" of DHR or DCYS but they must remain in the "facility" more than 60 continuous days.

{4} 1989 Ga. Laws 1693, 1693-97.