If a child with disabilities is placed in an Arkansas residential treatment center by an out-of-state parent, does an Arkansas school district have to provide special education?

Plain-English summary

Secretary of Education Johnny Key brought AG Leslie Rutledge a question that special-education directors face frequently in border counties: a child with a disability is placed by an out-of-state parent (or by a state child welfare agency or state court) into an Arkansas residential treatment facility for clinical or behavioral reasons. The placement is for treatment, not for education. Once the child is in the facility, the local Arkansas school district has to figure out whether it owes the child a free appropriate public education (FAPE).

Key noted apparent tension between two statutes. Ark. Code Ann. § 6-41-202(a) declares it state policy "to provide and to require school districts to provide, as an integral part of the public schools, a free appropriate education for students with disabilities." But Ark. Code Ann. § 6-18-202 contains general residency rules that tie school attendance to the residence of the student's parent, guardian, or person standing in loco parentis. If the parents are in another state, do the residency rules cut off the FAPE obligation?

The AG said no. There is no real tension because the statutes operate at different levels of generality. Section 6-18-202(b) sets the general residency rule for public-school attendance. Section 6-41-202(a)(2) is a more specific provision that authorizes the State Board of Education to "assign responsibility for providing free appropriate public education of any child with a disability to an appropriate school district." The Department of Education's implementing regulation, Ark. Admin. Code 005.18.18-18.05.1.2, exercises that authority and provides:

When a student with a disability is placed for non-educational reasons in a residential treatment facility for treatment, the district where the facility is located is the student's resident district. The district shall be responsible for … the provision of [a free appropriate public education].

The regulation does not require the child to have been an Arkansas resident before placement. The district where the facility sits picks up FAPE responsibility, period.

The AG framed this as the more-specific statute (§ 6-41-202(a)(2)) and its regulation winning out over the general residency statute (§ 6-18-202). For Arkansas school districts whose territory includes a residential treatment facility, the rule is unambiguous: a child with a disability placed there for non-educational reasons is the district's student for FAPE purposes.

The opinion is short because the legal analysis is straightforward. The practical impact is significant: districts hosting residential treatment facilities effectively serve as default special-education providers for an out-of-state placed-child population.

Currency note

This opinion was issued in 2020. 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

What is FAPE under the IDEA?
The Individuals with Disabilities Education Act (IDEA) is a federal statute requiring that all children with disabilities be made available a free appropriate public education tailored to their needs. Arkansas implements that obligation through Ark. Code Ann. § 6-41-202(a) and related regulations. The district responsible for providing FAPE depends on where the child resides for educational purposes.

Why don't the general residency rules in § 6-18-202 apply?
Because special-education residency for a child placed in a treatment facility is governed by a more specific statute (§ 6-41-202(a)(2)) and its regulation. Under standard rules of statutory construction, the more specific provision prevails over the more general. Section 6-18-202 still applies to ordinary public-school attendance questions where no treatment placement is involved.

Who pays for the FAPE?
The opinion did not address funding. State and federal funding mechanisms for IDEA-eligible students are handled separately. The district hosting the residential treatment facility may be reimbursed through state funding formulas and federal IDEA pass-through funds.

What if the child's parents are in another state and disagree with the IEP?
The opinion did not address procedural rights, but federal IDEA grants parents (regardless of state residence) the right to participate in IEP development, request mediation, request due-process hearings, and appeal to court. The district owes those procedural protections even when parents are out of state.

Does this only apply to residential treatment facilities, or to other placements?
The opinion specifically addressed children "placed for non-educational reasons in a residential treatment facility." The regulation Ark. Admin. Code 005.18.18-18.05.1.2 cited by the AG also targets that specific situation. Other types of placements (foster care, group homes, juvenile detention) may have different residency rules under separate provisions of Arkansas law.

What does 'placed for non-educational reasons' mean?
The placement reasons are typically therapeutic (mental health treatment, substance abuse), behavioral, or court-ordered. The placement decision is not made for educational purposes. The opinion's logic is that when the placement reason is something other than schooling, the FAPE obligation should attach to where the child physically is, not where the parents are. That keeps the educational system aligned with the child's actual living situation.

Background and statutory framework

Arkansas's commitment to FAPE for students with disabilities sits in Ark. Code Ann. § 6-41-202(a)(1): "It is the policy of the state to provide and to require school districts to provide, as an integral part of the public schools, a free appropriate education for students with disabilities." That declaration aligns Arkansas with the federal IDEA mandate.

Section 6-41-202(a)(2) gives the State Board of Education authority to assign FAPE responsibility to specific districts when the standard residency rules don't fit. The Arkansas Department of Education exercised that authority in Ark. Admin. Code 005.18.18-18.05.1.2, which makes the host-district rule for residential-treatment placements explicit.

Section 6-18-202 is the general residency-for-school-attendance statute. Section 6-18-202(b) provides that, with some exceptions, students attend school in the district where their parent, guardian, or person standing in loco parentis resides. The residential-treatment-facility regulation is one of the exceptions to that general rule, even though it is not literally framed as an "exception" within § 6-18-202 itself.

This pattern (general statute plus more-specific carve-out for unique populations) is common across Arkansas's school code, where special education, foster care, homelessness, military families, and other categories each get their own residency rules.

Citations

Statutes and regulations:

• Ark. Code Ann. § 6-18-202 (Supp. 2018) (general school-attendance residency requirements)
• Ark. Code Ann. § 6-18-202(b) (parent/guardian residence rule)
• Ark. Code Ann. § 6-41-202(a) (Repl. 2018) (state policy to provide FAPE for students with disabilities)
• Ark. Code Ann. § 6-41-202(a)(1) (FAPE declaration)
• Ark. Code Ann. § 6-41-202(a)(2) (State Board authority to assign FAPE responsibility)
• Ark. Admin. Code 005.18.18-18.05.1.2 (Department of Education regulation: host district provides FAPE for non-educational placement)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2020-012
August 4, 2020
The Honorable Johnny Key
Secretary of Education
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
Arkansas Department of Education
Four Capitol Mall, Room 304-A
Little Rock, AR 72201-1019

Dear Secretary Key:

This is in response to your request for an opinion concerning Ark. Code Ann. §§ 6-18-202 (Supp. 2018) and 6-41-202(a) (Repl. 2018). Your correspondence alludes to potential tension between section 6-41-202(a)'s requirement that Arkansas school districts provide a free appropriate public education to students with disabilities and section 6-18-202's general residency requirements.

You therefore ask:

Is a child with a disability identified under the [Individuals with Disabilities Education Act] whose parents/guardians reside in a state other than Arkansas, and who has been placed by a parent/guardian or other non-educational entity (e.g., state child welfare services, state court) in an Arkansas residential treatment facility, entitled to receive a free appropriate public education from the Arkansas public school district where the facility is located? In other words, is the Arkansas public school district where the residential treatment facility is located required to provide a free appropriate public education to a student from out-of-state placed in an Arkansas residential treatment facility?

RESPONSE

Yes, a child placed in an Arkansas residential treatment facility for non-educational reasons is entitled to a free appropriate public education from the district in which the facility is located.

DISCUSSION

Arkansas law requires the provision of a free appropriate public education to children with disabilities. In particular, Ark. Code Ann. § 6-41-202(a)(1) declares, "It is the policy of the state to provide and to require school districts to provide, as an integral part of the public schools, a free appropriate education for students with disabilities." To fulfill that mandate, Arkansas law authorizes the State Board of Education to assign districts responsibility for educating a child with a disability. And the Arkansas Department of Education has directed that, "When a student with a disability is placed for non-educational reasons in a residential treatment facility for treatment, the district where the facility is located is the student's resident district. The district shall be responsible for … the provision of [a free appropriate public education_]." There is no requirement that the child be an Arkansas resident before attending the facility. Thus, as relevant here, the district where a residential treatment facility is located is obligated to provide a child with a free appropriate public education.

You suggest this rule might be in tension with Ark. Code Ann. § 6-18-202. But there is no tension. Section 6-18-202 sets forth the general residency requirements for attending public school in Arkansas; it provides that, with some exceptions, a student should attend school in the district in which his or her parent, guardian, person having lawful control over the student, or person standing in loco parentis resides. By contrast, subdivision 6-41-202(a)(2), as discussed above, specifically addresses the issue of which school district a child with a disability should attend and specifically authorizes the State Board "to assign responsibility for providing free appropriate public education of any child with a disability to an appropriate school district." Hence, subdivision 6-41-202(a)(2) and the Department of Education's regulations promulgated under that authority control.

Accordingly, in response to your question, I believe a child with a disability who has been placed in an Arkansas residential treatment facility for non-educational purposes is entitled to receive a free appropriate public education from the district in which the facility is located.

Sincerely,

LESLIE RUTLEDGE
Attorney General