No. 13426 

### IN THE SUPREME COURT OF THE STATE OF MONTANA 1976

JOHN DOE, a Minor, by LAWRENCE H. SVERDRUP, his Guardian Ad Litem, Plaintiff and Respondent,

DOLORES COLBURG, Superintendent of Public Instruction and the STATE OF 

### MONTANA, Defendants and Appellants.

Appeal from: District Court of the Eleventh Judicial District, Honorable Robert Sykes, Judge presiding Counsel of Record: For Appellants: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana Lon J. Maxwell argued, AssistantAttorney 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: ~LJ 1

### d9

### '976 Filed: J ,l-t~Mr. JusticeJohn 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 educationmonies. Thematter was submitted to the district court on an agreed statement of facts and issues. Theminor involvedwas a 15 112year 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 circumstances. Due to these circumstanceshe developed a seriousbehavioralpattern 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 showedhim in need of special treatment. At the time of the hearing, John Doewas a student inhigh school, livingwithhis stepmother and his stepbrother and stepsisters. A guardianshipwas provided to care for him. Fortunately for this young person,Lawrence H. Sverdrup the attorneywho was appointed as guardian, took a great interest inhim and has gone to great lengths to find assistance for him. He found the school districthad 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 schooldistrict. The guardian further found that for some reason the plan never came into being and the money was held by the school district.During this period, the guardian Learned of a behavioral modification program of a Dr. Kuska inDenver, Colorado, that he feltwas worth trying in an effort to save the boy. He applied for and received from the school board approval to use the above funds to treatJohn Doe ina special education program. The plan was to take theboy toDenver for two weeks treatment with the initial cost tobe about $2,500 plus follow-up supportive costs of unknown amounts. The plan was submitted to the office of the state superintendent and turned down as an improper expenditure of educational funds under Chapter 78, Title 75, K.C.M. 1947. The issuebefore this Court iswhether special education funding can be used toprovide psychiatric-medical treatment outside the stateof ~ontana 

### to Title 75, Chapter 78, R.C.M. 1947, provides for special education for exceptional children inMontana. Section 75-7803 gives the superintendent of public instruction supervision over and coordination of the conduct of special education. Section 75-7803(8), specificallyrequires that the superintendent approve thosespecial education classes or programs "which comply with the laws of the stateof Montana, policies of the board of public education, and the regulations of the superintendent of public instruction1'. Section 75-7806(5) allows the local schoolboard district trustees power to establish and maintain a special education program for "individual childrenrequiring special education such

as home or hospital tutoring, school-to-home telephone communications,

## or other individual programs". (Emphasis added.) In addition, following the statutory position setby Title75, Chapter 78, the StateBoard of Education adopted rules and regulationsto implement the carrying out of the program. Rule 7.5 of the SpecialEducation Rules and Regulations ReferenceManual pertaining to out-of-district services states: "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 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 interpretative regulationsby administrative agencies charged with the duty of administering and enforcing a legislativeact, for

anunderstanding of the provisions that must be carried out. Butte Miner's UnionNo. 1v. Anaconda CopperMining 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 interpretationsare not binding on the courts, they are entitled to respectful consideration.Here,we find that Rule 7.5 is reasonable and entirely consistentwith 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. '