Could Maryland bill parents for their child's stay at a state psychiatric residential center (RICA) if the placement was for special education?

Plain-English summary

Governor Harry Hughes asked the Attorney General whether Maryland could seek reimbursement from parents for the full cost of their child's care and treatment at a Regional Institute for Children and Adolescents (RICA), a state-run residential and day program for emotionally disturbed children, and if not, under what circumstances the State could seek partial reimbursement. The opinion concluded the State's ability to charge parents depended on why the child was placed there. If a child was placed in a RICA solely for educational reasons, meaning the local school system's Admission, Review, and Dismissal Committee determined the child needed 24-hour special education and personal care that could not be provided elsewhere, the State could seek reimbursement only for nondiagnostic medical services performed by a physician and other services shown to be unrelated to the child's education; it could not recover the basic cost of care itself. If the child was instead placed there for medical or social reasons, in addition to or instead of educational ones, the State could seek reimbursement for the portion of RICA care allocable to those noneducational needs, but never for the educational and related services themselves.

Currency note

This opinion was issued in 1982. 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.

The opinion applied Maryland's Health-General and Education Articles, COMAR regulations, and the federal Education for All Handicapped Children Act as they all stood in 1982, along with then-current admission practices at the three RICA facilities. Federal and state special education law, Maryland's health and education statutes, and RICA admission procedures have all had decades to change since 1982. Anyone researching current rules on parental cost-sharing for a child's placement in a Maryland residential treatment or special education facility should verify the current statutes and regulations rather than relying on this opinion's 1982 analysis.

Common questions

Could Maryland charge parents the full cost of their child's stay at a RICA?
No, not if the child was placed there for educational reasons. The opinion concluded that when a child's placement rested solely on an educational needs determination, the State could not recover the basic cost of care from the parents, only nondiagnostic medical services and clearly noneducational extras.

What if the child needed a RICA for medical or behavioral reasons, not just school?
Then the answer changed. The opinion found that when a child was placed for medical or social reasons in addition to or instead of educational ones, the State could seek reimbursement for the share of the RICA's costs allocable to those noneducational needs, while still being barred from charging for the educational and related-services portion.

Why the different treatment for education versus other services?
The opinion explained that Maryland's Health-General Article set a general policy that people receiving care from state health facilities (and their responsible family members) pay for it, but the Education Article separately guaranteed handicapped children free special education and related services, consistent with the federal Education for All Handicapped Children Act's requirement that a free appropriate public education be provided at no cost. Applying the rule that a specific, later-enacted statute controls over a conflicting general one, the opinion treated the education guarantee as carving out an exception to the general health-cost-recovery policy.

Could the State ask parents to use their own health insurance to cover part of a RICA stay?
Only in limited circumstances. The opinion noted a U.S. Department of Education policy that barred states from requiring parents to file an insurance claim for educational placement costs if doing so would cause the parents a financial loss (such as a deductible, a premium increase, or reduced lifetime coverage), unless the state itself covered that loss, and it advised Maryland to follow that policy for the education and related-services portion of RICA costs.

Background and statutory framework

Maryland operates three Regional Institutes for Children and Adolescents, licensed under the Department of Health and Mental Hygiene as "care homes" providing clinical, child care, and educational services to emotionally disturbed children, with each RICA's clinical program, child-care program, and educational program separately approved by different state agencies. At RICA-Rockville and RICA-Cheltenham, admission ordinarily required the local school board's Admission, Review, and Dismissal (ARD) Committee to find, under governing regulations, that the child required 24-hour special education programming and personal care that could not otherwise be met, while RICA-Baltimore could admit children directly through medical, social services, or Juvenile Court referrals, with the ARD Committee conducting only a post-admission educational assessment.

The opinion found the Health-General Article's general cost-recovery policy, which makes the "chargeable" parents of a minor responsible for the cost of care received at a Department of Health and Mental Hygiene facility, in apparent conflict with the Education Article's guarantee of free special education and related services (defined broadly to include therapeutic treatments ancillary to education, special equipment, and transportation) for handicapped children, a guarantee that itself implements Maryland's obligations under the federal Education for All Handicapped Children Act's "free appropriate public education" requirement. Citing Criminal Injuries Compensation Bd. v. Gould for the rule that a specific statute controls over a conflicting general one, and noting the education-cost guarantee (1973) was enacted later than the general health-cost-recovery statute (tracing to 1943, with the mental-health-facility version added in 1970), the opinion concluded the education guarantee functions as a carve-out from the general health-cost policy specifically for handicapped children's educational needs.

Turning to federal case law construing "related services" under the Education for All Handicapped Children Act, the opinion drew on the Supreme Court's decision in Board of Ed. of the Hendrick Hudson Central School Dist. v. Rowley for the principle that free public education must be accompanied by whatever "related services" are necessary to let the child benefit educationally, and on lower-court decisions like Tatro v. State of Texas, Kruelle v. New Castle County School Dist., and Tokarcik v. Forest Hills School Dist. for the proposition that a service must generally be provided free of charge if it is necessary to the child's special education and either can be performed by someone other than a physician or is diagnostic medical care, while purely nondiagnostic medical treatment performed by a physician remains excludable and chargeable. Applying these principles to current RICA admission practice, which as of 1982 based residential educational placements solely on a finding of need for "24-hour special education programming and personal care," the opinion concluded no portion of RICA care beyond nondiagnostic medical treatment or clearly unrelated services could be charged to parents under that admission framework, though it noted that if RICA-Rockville and RICA-Cheltenham revised their intake procedures to separately identify noneducational or multiple-purpose placements, the State could then lawfully seek proportional reimbursement for the noneducational share, a change the opinion said the Office was working with the responsible state agencies to develop.

Citations

Statutes:

• Title 19, Subtitle 3, of the Health-General Article
• Title 8, Subtitle 4, of the Education Article
• Education for All Handicapped Children Act, 20 U.S.C. §§1401 through 1420
• HG §19-307(b)(1)
• HG §§19-301(d), (i) and (j)
• HG §19-318
• COMAR 10.07.04.01A
• COMAR 10.07.04.02E
• COMAR 13A.05.01.06D(1)
• COMAR 13A.05.01.06D(4)(c)
• COMAR 10.21.03.03A
• COMAR 10.21.03.03G
• COMAR 13A.05.01.06C
• Ed §8-409
• COMAR 13A.05.01.06F(2)(a)
• COMAR 13A.05.01.06E(3)(f)
• COMAR 13A.05.01.06E(3)(e)
• HG §16-102(a)
• HG §16-101(d)(1)
• HG §10-101(i)
• HG §16-101(c) and (f)(2)
• Ed §8-402(a)
• Ed §8-403(a)
• Ed §8-403(d)(4) and (5)
• Ed §8-401(a)(3)
• COMAR 13A.05.01.02B
• Education for All Handicapped Children Act of 1975, Public Law No. 94-142
• 20 U.S.C. §1412(1)
• 20 U.S.C. §1401(18)
• 20 U.S.C. §1401(16)
• 20 U.S.C. §1401(17)
• Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794
• Chapter 170, Laws of Maryland 1943
• Chapter 407, Laws of Maryland 1970
• Chapter 359, Laws of Maryland 1973
• HG §10-705
• COMAR 10.21.03
• COMAR 13A.05.01.06D
• 45 Fed. Reg. 86390 (December 30, 1980)
• 47 Fed. Reg. 33854 (August 4, 1982)
• Executive Order 01.01.1982.09

Cases:

• Board of Ed. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 207 (1982)
• Criminal Injuries Compensation Bd. v. Gould, 273 Md. 486 (1975)
• Maguire v. State, 192 Md. 615, 623 (1949)
• Parks v. Pavkovic, 536 F.Supp. 296, 304 (N.D.Ill. 1982)
• Tatro v. State of Texas, 625 F.2d 557, 563 (5th Cir. 1980), on remand, 516 F.Supp. 968 (N.D. Tex. 1981)
• Kruelle v. New Castle County School Dist., 642 F.2d 687, 694 (3d Cir. 1981)
• Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 456 (3d Cir. 1981)
• North v. District of Columbia Board of Education, 471 F.Supp. 136, 141 (D.D.C. 1979)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1982/Volume67_1982.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

Education—Health—Handicapped Children—"Special Education"/"Related Services"—Regional Institutes for Children and Adolescents—Criteria for RICA Placement—State's Right to Reimbursement for Care and Treatment

November 18, 1982

The Honorable Harry Hughes
Governor

You have requested our opinion on the financial obligation of parents for the care and treatment of children placed at a Regional Institute for Children and Adolescents ("RICA"). Specifically, you inquire: (i) whether the State may seek reimbursement from parents for all costs of care and treatment at a RICA; and (ii) if not, under what circumstances, if any, the State may seek partial reimbursement, i.e., reimbursement for costs other than those identified as educational.

For the reasons discussed below, it is our opinion that the State may seek reimbursement from parents for the cost of care and treatment of children at a RICA only within the following legal limits:

(1) If a child is placed in a RICA solely for educational reasons, the State may seek reimbursement only for nondiagnostic medical services (i.e., treatment performed by a physician) and for other services that are shown to be unrelated to the child's educational needs. The basic cost of care at a RICA may not be recovered from the child's parents.

(2) If a child is placed in a RICA for medical or social reasons, in addition to, or instead of, educational reasons, the State may seek reimbursement for the cost of the portion of RICA care that is allocable to the child's noneducational needs, as well as for the cost of nondiagnostic medical services and other specific noneducational services. The cost of educational and related services, and the cost of the portion of RICA care allocable to educational needs, may not be recovered from the child's parents.

I
Regional Institutes for Children and Adolescents

There are three Regional Institutes for Children and Adolescents in this State: RICA-Rockville, RICA-Cheltenham, and RICA-Baltimore. Each RICA operates under the auspices of the Department of Health and Mental Hygiene ("DHMH") and offers day and residential programs for emotionally disturbed children. The programs are multidisciplinary and provide clinical, child care, and educational services.

As we discuss in more detail below, these programs are subject to requirements contained in three sources of law: Title 19, Subtitle 3, of the Health-General Article of the Maryland Code ("HG" Article); Title 8, Subtitle 4, of the Education Article of the Maryland Code ("Ed" Article); and the federal Education for All Handicapped Children Act, 20 U.S.C. §§1401 through 1420.

Under Maryland law, a RICA is a "care home" that "provides care to individuals who, because of . . . mental disability, require domiciliary care or personal care in a protective, institutional environment". HG §19-307(b)(1). See also HG §§19-301(d), (i) and (j). As such, a RICA, further defined in the applicable regulations as a "residential treatment center", may not operate without a license from the Secretary of Health and Mental Hygiene. HG §19-318; COMAR 10.07.04.01A.

The licensing process requires: (i) approval by the Department of Health and Mental Hygiene of the RICA's "[c]linical services and treatment program"; (ii) approval by the Department of Human Resources of the RICA's "[c]hild care services and program"; and (iii) approval by the Department of Education of the RICA's "educational program". COMAR 10.07.04.02E. Thus, the regulations recognize that a RICA resident will typically receive services that go beyond the educational. Indeed, both an "individualized education program" and an "individualized treatment plan" are developed for each child admitted to a RICA program.1

1 An "individualized education program" is "a written comprehensive outline for total special education services which describes the special education needs of the child and the services to be provided to meet those needs". COMAR 13A.05.01.06D(1). It includes a description of "the specific special education and related services to be provided to the child". COMAR 13A.05.01.06D(4)(c).

An "individualized treatment plan" is "a comprehensive and thoughtfully written plan based on an initial diagnostic impression and an overall evaluation of the patient's specific needs and problems". COMAR 10.21.03.03A. It includes a "plan of active treatment . . . which aims at the arrest, reversal, and amelioration of the [child's] illness and symptoms". Id. It also includes the child's educational program. COMAR 10.21.03.03G.

A child may be referred to a RICA program by a public or private agency, a Juvenile Court, or the child's family or physician. At RICA-Rockville and RICA-Cheltenham, all applications for admission to the program are screened and evaluated by the local school board, acting through its Admission, Review, and Dismissal Committee ("ARD Committee"), to determine first whether the child's needs could not otherwise be adequately met through placement in a special educational program in the local public school system.2

2 Each local school board is required to maintain an ARD Committee responsible for: (1) reviewing all referrals for special educational services; (2) arranging for assessments of the child and development of individualized education programs; and (3) determining special placements within the public school system. COMAR 13A.05.01.06C. If a child needs special educational services not provided in the public school system, the ARD Committee may either recommend the child's placement in an appropriate State-operated program or, if the services are not available in a State-operated program, request additional State funding for placement in a private program that provides the necessary services. Ed §8-409; COMAR 13A.05.01.06F(2)(a).

Current regulations limit the ARD Committee to determinations concerning educational needs alone. If a child is placed in residence at a RICA pursuant to the recommendations of an ARD Committee, the sole basis for such placement, under present regulations, must be as follows:

"[The child] requires 24-hour special education programming and personal care. [This placement] is designed to provide instruction or treatment, or both, on a short or long-term basis in a residential setting, which includes a comprehensive special education program, special equipment, related services and 24-hour personal care". COMAR 13A.05.01.06E(3)(f) (emphasis added).3

Such a determination will have been made prior to a residential placement in RICA-Rockville or RICA-Cheltenham.4

3 In addition, admission to a day program at RICA-Rockville or RICA-Cheltenham would be based on the ARD Committee's finding that the child "requires a comprehensive special education setting for his entire school day in a special wing or day school. Services are provided in a comprehensive special education setting which includes special equipment and related services." COMAR 13A.05.01.06E(3)(e).

4 RICA-Rockville has a self-contained unit that provides acute care and diagnostic services. Admissions to that special unit, often as a result of Juvenile Court referrals, do not entail a prior educational determination by the local ARD Committee. However, an ARD Committee's determination of educational need is a prerequisite to a child's transfer to the regular RICA-Rockville program.

Admissions to RICA-Baltimore follow a different process. If a child is referred by a local department of social services, a Juvenile Court, a private physician, or the child's family, RICA-Baltimore may accept the child directly without prior screening or evaluation by the local school board. In these cases, however, the appropriate ARD Committee conducts a post-admission assessment to determine whether the child's educational needs require RICA placement. In some circumstances, a child may remain at RICA-Baltimore even if the ARD Committee does not so determine.

II
Governing Law

A. State Health Law

Under the Health-General Article of the Maryland Code, the parents of a child who receives care from DHMH are generally responsible for the cost of that care. HG §16-102(a) provides:

"It is the policy of this State to obligate each recipient of services and, to the extent provided in this title, those legally responsible for the recipient to pay, if financially able, for the cost of care that is received by the recipient of services."

"Cost of care" is defined as "the cost of care, maintenance, treatment, and support of a recipient of services". HG §16-101(d)(1). "Treatment", in turn, means "any professional care or attention that is given in a facility ... to improve or to prevent the worsening of a mental disorder". HG §10-101(i).

As noted above, the RICAs are DHMH facilities. Hence, children placed in a RICA are "recipients of services" within the scope of HG §16-102(a). And, for purposes of that law, "[t]he parents of a recipient of services who is a minor" are "chargeable persons". HG §16-101(c) and (f)(2).

B. State Education Law

In the Education Article of the Maryland Code, the General Assembly has provided for the free education of handicapped children. Ed §8-402(a) provides as follows:

"The State and each county shall make free educational programs available to each handicapped child ... as provided by this subtitle." (Emphasis added.)

The Education Article further requires the State Board of Education to adopt, "as bylaws, standards for the identification, diagnosis, examination, and education of each child in this State who is under the age of 21 and is found to need special educational services . . . , whether or not the child is receiving nonduplicative services from another governmental agency". Ed §8-403(a). The standards are to include "provisions for local, regional, and State day and residential centers for children who cannot be served reasonably in the regular public schools; [and provisions for] coordination of these special educational services with services given by any other government agency". Ed §8-403(d)(4) and (5). Local boards must develop plans to carry out these standards.

The Education Article defines "special educational services" as follows:

"'Special educational services' means the educational services necessary to assure that all handicapped children are given the opportunity to reach appropriate levels of knowledge and learning skills consistent with their potential and includes the full range of these services, including special equipment, therapeutic treatments ancillary to education, and transportation, whether provided as part of or in addition to regular classroom placement or in separate public or private classes or facilities". Ed §8-401(a)(3).

State Board of Education regulations refine the statutory term "special educational services" into two components: "special education" and "related services". "Special education" includes "instruction in hospitals and institutions". COMAR 13A.05.01.02B. "Related services" is defined as follows:

"Related services are transportation and those developmental, corrective, and other supportive services that are required to assist a handicapped child in benefitting from education. The term 'related services' includes speech pathology and audiology, psychological services, physical and occupational therapy, recreation, early identification and assessment of disabilities, counseling services, and medical services for diagnostic or evaluation purposes. The term also includes school health services, social work services in schools, and parent counseling and training." COMAR 13A.05.01.02B.

C. Federal Law

The Maryland law governing education of the handicapped reflects the State's obligations under federal law. Under the federal Education for All Handicapped Children Act of 1975, Public Law No. 94-142, a state that seeks certain assistance grants must demonstrate that it "has in effect a policy that assures all handicapped children the right to a free appropriate public education". 20 U.S.C. §1412(1).5

5 As a condition of receiving federal financial assistance, Maryland must also comply with a statute that generally prohibits discrimination against the handicapped. Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §794. We do not believe that, in the context of this discussion, this statute imposes requirements that differ from those of the Education for All Handicapped Children Act.

A "free appropriate public education" consists of two elements, "special education" and "related services", both to be provided at public expense. 20 U.S.C. §1401(18). "[S]pecial education" means "specially designed instruction ... to meet the unique needs of a handicapped child, including ... instruction in hospitals and institutions". 20 U.S.C. §1401(16). "Related services" means:

"such developmental, corrective, and other supportive services (including . . . psychological services . . . 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". 20 U.S.C. §1401(17).

The United States Supreme Court, in holding that the federal law did not require a local school board to provide a sign-language interpreter to a deaf student who was otherwise receiving an adequate education, recently observed: "The primary responsibility for formulating the education to be accorded a handicapped child, and for choosing the educational method most suitable to the child's needs, was left by the Act to state and local educational agencies in cooperation with the parents or guardian of the child." Board of Ed. of the Hendrick Hudson Central School Dist. v. Rowley, 458 U.S. 176, 207 (1982). Of course, "primary [state] responsibility" does not mean exclusive state authority; the states must in any event comply with identifiable federal requirements under the Act. 458 U.S. at 203-04, 208-10 (provision of personalized instruction and related services that resulted in adequate education satisfied "free appropriate public education" requirement of the Act).

III
Application of the Law to RICA Care

On the one hand, the Health-General Article requires the parents of children who receive care at DHMH facilities to pay for the cost of that care. On the other hand, the Education Article frees parents of handicapped children from the cost of special education and related services, in compliance with the applicable federal law. The issue is how these differing legal mandates are to be applied to the costs incurred by RICA residents.

In Criminal Injuries Compensation Bd. v. Gould, 273 Md. 486 (1975), the Court of Appeals analyzed the problem of two statutes that could not be given simultaneous effect. The Court held that the more specific statute of the two was controlling:

"[W]here there is a specific enactment and a general enactment 'which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.'" 273 Md. at 495 (quoting Maguire v. State, 192 Md. 615, 623 (1949) [original source cited as "Pretty v. Solly, 26 Beav. 610, per Romilly, M. R."]).

In addition, the Court applied the rule of construction that, in case of conflict, the later enacted of two statutes supersedes the earlier enacted one. 273 Md. at 494-95.

In our view, these principles are controlling here. The General Assembly has prescribed a general policy, applicable to all who use DHMH facilities, that the cost of care be reimbursed. However, it has also determined that one particular group, handicapped children, are to receive free educational services, including "the full range" of services "necessary to assure that all handicapped children are given the opportunity to reach appropriate levels of knowledge and learning skills". Ed §§8-401(a)(3) and 8-402(a). At a RICA, these services are provided under the auspices of DHMH. Applying the principle of construction set out in Gould, we conclude that the specific provision mandating free educational services for handicapped children must be understood as an exception to the general policy of cost recovery from parents for their children's use of DHMH facilities.

Moreover, the statutory provision authorizing the State to charge persons for the cost of care and treatment in State facilities was first enacted in 1943. See Chapter 170, Laws of Maryland 1943. A similar provision was enacted in 1970 for State mental health facilities. See Chapter 407, Laws of Maryland 1970. However, the relevant provisions of the Education Article, requiring the State to make special educational services available to handicapped children at no charge or cost to the parents, were more recently enacted in 1973. See Chapter 359, Laws of Maryland 1973.

Finally, to the extent that a child placed at a RICA receives "special education and related services" within the meaning of the Education for All Handicapped Children Act, a condition of federal grant assistance is the State's compliance with that Act. In this regard:

"[T]he unambiguous mandate of federal law is that these services be provided at not cost to [the child's] parents. While [the local school board's] refusal to meet fully [the child's] expenses may be authorized by state law, such laws are inconsistent with the mandate to provide an appropriate free public education, and cannot stand." Parks v. Pavkovic, 536 F.Supp. 296, 304 (N.D.Ill. 1982).

Federal law expressly requires that "sufficient support services to permit the child to benefit educationally from [personalized] instruction" be provided free of charge. Board of Ed. of Hendrick Hudson Central School District v. Rowley, 458 U.S. 176, 203 (1982). Neither regulation nor case law delineates with precision the scope of such "related services". It nevertheless appears that, as a general matter, a service must be provided free of charge (1) if it is necessary to aid the child's special education, and (2) if either (i) the service may be performed under state law by a nurse or other qualified person, rather than by a physician only, or (ii) if the service is a medical procedure performed by a physician for diagnostic purposes. See, e.g., Tatro v. State of Texas, 625 F.2d 557, 563 (5th Cir. 1980), on remand, 516 F.Supp. 968 (N.D. Tex. 1981). Nondiagnostic medical services (i.e., nondiagnostic services that can only be performed by a physician) are excluded by statute from "related services". 20 U.S.C. §1401(17).6

6 In the case of a child whose educational needs do not require residential placement, a service would not be "related" to education "if it did not have to be provided during school hours, but could instead be performed at some other time". Tatro v. State of Texas, 625 F.2d at 563. See also Kruelle v. New Castle County School Dist., 642 F.2d 687, 694 (3d Cir. 1981).

Under current procedures, residential placement at a RICA for educational reasons entails a finding that "24-hour special education programming and personal care", is necessary for the child's education. COMAR 13A.05.01.06E(3)(f). Given such a determination, no portion of the cost of care, apart from nondiagnostic medical treatment or other services that are unrelated to the child's educational program, may be recovered from the parents. Moreover, reimbursement may not be sought from parents for the costs of a service that is necessary to aid the child's education, even if the service also contributes to care of the child's other needs. Tokarcik v. Forest Hills School Dist., 665 F.2d 443, 456 (3d Cir. 1981).7

7 With regard to reimbursement from the parents' insurance carrier, the U.S. Department of Education has issued a policy statement, pursuant to the Education for All Handicapped Children Act, that prohibits the states from requesting parents to file an insurance claim related to the costs of educational placements if the parents would thereby incur a financial loss. 45 Fed. Reg. 86390 (December 30, 1980). The policy statement defines financial loss to include payment of a deductible amount, an increase in premiums, a decrease in lifetime coverage, or discontinuation of a policy. Id. If a state holds parents harmless from any financial loss (e.g., pays the deductible), the policy permits the state to request parents to file an insurance claim. Id. The federal policy does not apply to noneducational services and medical services. The Secretary of Education recently proposed to adopt this policy statement as part of his agency's revised regulations under the Education for All Handicapped Children Act. See 47 Fed. Reg. 33854 (August 4, 1982). We would therefore advise the State to observe the policy with respect to educational and related service costs of RICA placements.

IV
Possible Changes in Admission Practices

As discussed above, the regulations under which RICAs now operate expressly state that RICAs are to offer clinical and child care services, as well as an educational program. See COMAR 10.07.04.02E. However, current admission procedures at RICA-Rockville and RICA-Cheltenham do not recognize admission for purposes related to a child's noneducational needs. If these admission procedures were revised to permit accurate identification of RICA placements for noneducational purposes, or for separately identifiable multiple purposes, of which education is but one, then the parents of a child so placed could legally be held responsible for the costs of care proportionate to noneducational services.

We recognize that such a revised system poses complex problems of administration. First, a proposed placement in a RICA might require assessment by several agencies. Thus, clear placement criteria and consultative procedures are needed. One such procedure might provide that children with emotional and psychiatric problems would be referred to a RICA through local departments of health or regional mental health directors. In this way, physicians would be responsible for recommending admission to the RICA and for prescribing the child's individual treatment plan. See HG §10-705; COMAR 10.21.03. For such a medical placement, the State could lawfully seek reimbursement from the parents for the cost of the therapeutic treatments prescribed by a physician in the child's individual treatment plan, even if the physician did not personally administer the treatments. Under this hypothetical approach, local school boards would review these RICA placements to ensure that children admitted in this way nevertheless receive appropriate special educational services free of charge. See COMAR 13A.05.01.06D.

A second problem may involve the difficulty of providing for a proper allocation of costs between: (i) educational and related services, for which reimbursement from parents may not be sought under any circumstances; and (ii) nondiagnostic medical and noneducational social services, for which reimbursement may be sought. As discussed above, State law itself does not always provide a precise demarcation among the range of services offered at an institution like a RICA, and, indeed, the law's application to scores of children, each with his or her unique needs, probably cannot be defined fully in advance. Nevertheless, the State is free to supplement the statute with regulations that define more exactly the circumstances under which particular RICA services are to be reimbursed. See generally North v. District of Columbia Board of Education, 471 F.Supp. 136, 141 (D.D.C. 1979) (responsibility for distinguishing educational from other needs lies with local agencies).

This Office has for some time been involved in consultations with our client agencies to resolve these and similar problems. In furtherance of your Executive Order 01.01.1982.09, concerning the activities of the State Coordinating Council on Services to Handicapped Children, these efforts will continue. We hope that, in the near future, a system can be developed that will accommodate the mandate of the law, the practical problems of the agencies, and the needs of handicapped children and their parents.8

8 Your letter also inquired whether our analysis of the reimbursement issue concerning RICAs would apply as well to handicapped children in other DHMH facilities. The underlying legal principle is identical: the costs of educational and related services may not be recaptured from parents, but the costs of medical and other noneducational services may be. However, given the need to assess the particular factual and legal setting in each case, we do not here address the application of this principle to other DHMH facilities.

V
Conclusion

In summary, it is our opinion that the State may seek reimbursement from parents for the cost of care and treatment of children who are placed at a RICA only within the following legal limits:

(1) If a child is placed in a RICA solely for educational reasons, the State may seek reimbursement only for nondiagnostic medical services (i.e., treatment performed by a physician) and for other services that are shown to be unrelated to the child's educational needs. The basic cost of care at a RICA may not be recovered from the child's parents.

(2) If a child is placed in a RICA for medical or social reasons, in addition to, or instead of, educational reasons, the State may seek reimbursement for the cost of the portion of RICA care that is allocable to the child's noneducational needs, as well as for the cost of nondiagnostic medical services and other specific noneducational services. The cost of educational and related services, and the cost of the portion of RICA care allocable to educational needs, may not be recovered from the child's parents.9

This Office is working with the responsible State agencies to develop a RICA placement procedure that reflects these legal guidelines.

9 As to reimbursement from a parent's insurance carrier, see note 7 above.

Stephen H. Sachs, Attorney General
Jack Schwartz, Assistant Counsel, Opinions and Advice
Avery Aisenstark
Chief Counsel,
Opinions and Advice