Were Connecticut education payments for blind students mandatory or discretionary?

Plain-English summary

In June 1995, Connecticut’s AG distinguished two payment provisions for blind or visually impaired students. Subsection (a) said eligible residents “shall be entitled” to instruction on the board director’s signed recommendation and that the state “shall” pay its cost up to the then-stated per-student fiscal-year limit. The AG read this as a mandatory reimbursement once the director was satisfied that the student met the statutory criteria. If actual instruction cost less than the ceiling, the state owed only that lower cost.

Subsection (b) addressed children who also were deaf or had other severe physical disabilities and might be sent to specialized facilities. It said the board “may expend” funds and “may determine” an out-of-state placement. The AG treated both the expenditure and its amount as discretionary within the statute’s then-current maximum. His distinction rested on the legislature’s different use of “shall” and “may” in neighboring subsections.

Students and families at the time

The opinion recognized a mandatory payment for qualifying instruction under subsection (a), within its annual cost limit. It did not turn specialized placement under subsection (b) into an entitlement.

Education and budget officials at the time

The director’s signed recommendation related to student eligibility under subsection (a). Decisions and spending under subsection (b) remained within the board’s discretion.

Currency note

This opinion was issued in 1995. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Could the board deny all standard instruction reimbursement to an eligible blind student?
A: The AG said subsection (a) made payment mandatory once the statutory criteria were met, up to the then-current per-student limit.

Q: Was specialized placement for a child with additional disabilities an automatic entitlement?
A: No. The AG read subsection (b)’s “may expend” language as discretionary.

Q: Did the state owe the maximum amount even if instruction cost less?
A: No. The opinion said reimbursement was limited to actual qualifying cost below the statutory ceiling.

Background and statutory framework

The AG compared the mandatory wording of Conn. Gen. Stat. §10-295(a) with the permissive wording of §10-295(b). The opinion addressed the 1995 statute’s funding duties, not present-day benefit levels.

Citations and references

Statutes: Conn. Gen. Stat. §10-295(a); Conn. Gen. Stat. §10-295(b).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/1995-formal-opinions/mr-george-precourt-board-of-education-and-services-for-the-blind-1995021-formal-opinion-attorney-gen

Original opinion text

Mr. George Precourt, Board of Education and Services for the Blind, 1995-021 Formal Opinion, Attorney General of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

June 19, 1995

Mr. George Precourt |

Executive Director

Board of Education and Services for the Blind

170 Ridge Road

Wethersfield, CT 06109

Dear Mr. Precourt:

You have asked for an opinion regarding whether the payments for educational and other services which the Board of Education and Services for the Blind ("BESB") makes for the benefit of blind or visually impaired students and blind or visually impaired students with additional disabilities, pursuant to Conn. Gen. Stat. §10-295(a) and (b), respectively, are discretionary expenditures or in the nature of mandatory entitlements. You note that treating one or both as entitlement programs would have important fiscal and administrative impacts on BESB and its provision of services.

Conn. Gen. Stat. §10-295(a) provides in pertinent part that

[a]ll residents of this state, regardless of age, who, because of blindness or impaired vision, require special education programs, on the signed recommendation of the director of the board of education and services for the blind, shall be entitled to receive such instruction and for such length of time as is deemed expedient by said director.... The expense of such instruction shall be paid by the state to an amount not exceeding six thousand four hundred dollars for each of such persons in any one state fiscal year.... All educational privileges prescribed in part V of Chapter 164, not inconsistent with the provisions of this chapter [Conn. Gen. Stat. §§10a-67 et seq.] shall apply to the pupils covered by this subsection....

(Emphases added).

Conn. Gen. Stat. §10-295(b), in turn, provides in pertinent part that

[s]aid board may expend funds up to fourteen thousand dollars per fiscal year per child for the purpose of sending children who are both blind or visually impaired and deaf, or blind or visually impaired with other severe physical handicaps, to specialized facilities within or outside the state furnishing proper facilities for education of such children.... Said board may determine if such children should be sent to such out-of-state places and may promulgate such regulations as it deems necessary to carry out the purpose and intent of this subsection....

(Emphases added).1

It is well settled that the fundamental objective of statutory construction is to ascertain and give effect to the apparent intent of the legislature. Concept Associates, Ltd. v. Board of Tax Review of the Town of Guilford, 229 Conn. 618 (1994). In discerning such intent, courts look to the words of the statute itself, the legislative history, the circumstances surrounding its enactment, the legislative policy it was designed to implement and the relationship of the statute to existing legislation and common law principles governing the same subject matter. Town of North Haven v. Planning and Zoning Commission of the Town of Hamden, 220 Conn. 556 (1991); Ambroise v. William Raveis Real Estate, Inc., 226 Conn. 757 (1993). In interpreting the language of a statute, words must be given their plain and ordinary meaning unless the context indicates a different meaning was intended, because it is generally assumed that the language expresses the legislature's intent. Oller v. Oller-Chiang, 230 Conn. 828 (1994).

As noted, while Conn. Gen. Stat. §10295(a) states that blind residents "shall be entitled" to receive such instruction, which "shall be paid" by the state "to an amount not exceeding" $6,400, the benefit is at least nominally contingent upon "the signed recommendation of the director...." "Whether the word 'shall' is mandatory or precatory [in the nature of a request, wish or recommendation] depends upon its context." Smith v. Zoning Board of Appeals, 227 Conn. 71, 91-92 (1993); Caron v. Inland Wetlands & Watercourses Commission, 222 Conn. 269, 273 (1992).

While subsection (a) of Section 10-295 uses the term "shall" with respect to the expenditure, subsection (b) indicates BESB "may expend" funds.2 (FN2) These words reflect an important legislative distinction. Where the legislature uses "shall" in one subsection of a statute and "may" in another, "'[t]he words 'shall' and 'may' must then be assumed to have been used with discrimination and a full awareness of the difference in their ordinary meanings." Caulkins v. Petrillo, 200 Conn. 713, 717 (1986) (quoting Shulman v. Zoning Board of Appeals, 154 Conn. 426, 428-29 (1967)). Here, under subsection (a), although the beneficiaries are "entitled" to the benefit, it is predicated on the director's recommendation. A review of this statute's numerous statutory predecessors reveals that in 1969 the phrase "signed recommendation of the director" was substituted for "affirmative vote or order of three members [of the board]." 1969 Conn. Pub. Acts No. 159.

Taking into account all these factors, including the cited common law principles of statutory construction, we are persuaded that the "shall be entitled" language of subsection (a), especially in the context of the repeated use of the "may" in the following subsections, indicates that the expenditure called for in subsection (a) is a mandatory one, up to a maximum of $6400, provided the student meets the other statutory criteria. In this context, the reference to the director's "recommendation" is tied to the other criteria. In other words, provided the director is satisfied that the student is indeed blind or visually impaired, up to $6400 of special education costs will be paid (or, in reality, reimbursed) by the state. If the student's special education program costs less, then the state will reimburse up to that amount.

By contrast, subsection (b) provides that BESB "may expend funds" up to $14,000 to send children who are both blind or visually impaired and deaf, or blind or visually impaired with "other severe physical handicaps" to specialized facilities. The use of the term "may" in this and the other statutory subsections connotes a discretionary function and expenditure, particularly where, as in subsection (b), the term is repeated throughout (e.g., the funds "may be spent" outside the state; BESB "may determine" if such children should be sent to out-of-state placements). Caulkins, 200 Conn. at 717. Obviously, if the expenditure itself is discretionary, the amount of any such expenditure is also within BESB's discretion.

Very truly yours,

Richard Blumenthal

Attorney General

Ralph E. Urban

Assistant Attorney General

1 It is notable that Conn. Gen. Stat. §10-295(c) provides that BESB may provide for the instruction of blind adults in their homes, expending such sums as the general assembly may appropriate, and Conn. Gen. Stat. §10-295(d) provides that BESB may expend up to $10,000 per fiscal year per blind and deaf adult for specialized facilities, with BESB determining the criteria for who is to be served.

2 As noted, subsections (b) and (c) also indicate BESB "may" provide certain benefits to other classes of people.