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, Assistant 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: ~LJ 1 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 circumstances. Due to these circumstances he developed a serious behavioral 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 stepsisters. 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 this period, the guardian Learned of a behavioral 

modification program of a Dr. Kuska in Denver, Colorado, that 

he felt was 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 treat John Doe in a special education program. The 

plan was to take the boy to Denver for two weeks treatment with the 

initial cost to be 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 issue before this Court is whether special education 

funding can be used to provide psychiatric-medical treatment outside the state of ~ontana to 

Title 75, Chapter 78, R.C.M. 1947, provides for special 

education for exceptional children in Montana. Section 75-7803 

gives the superintendent of public instruction supervision over 

and coordination of the conduct of special education. Section 

75-7803(8), specifically requires that the superintendent approve 

thosespecial education classes or programs "which comply with 

the laws of the state of Montana, policies of the board of public 

education, and the regulations of the superintendent of public 

instruction1'. 

Section 75-7806(5) allows the local school board district 

trustees power to establish and maintain a special education 

program for "individual children requiring 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 set by Title 75, Chapter 

78, the State Board of Education adopted rules and regulations 
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 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 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 consideration. 

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. '