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AGO 1951 No. 042 - May 16, 1951
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Smith Troy | 1941-1952 | Attorney General of Washington

SOCIAL SECURITY ‑- RESPONSIBILITY OF THE DEPARTMENT IN REGARD TO LOCAL CONTROL ‑- CHILD PLACING AGENCIES, ETC.

1. It is the responsibility of the Department of Social Security to define by rule and regulation what is meant by adequate local control.

2. All hourly nurseries operated for profit are covered by the act regardless of whether or not they are operating under a board.

3. The proviso in section 2 applies only to hourly nurseries and the Department has the responsibility for licensing all maternity homes and all day nurseries as defined in the act.

4. In promulgating rules and regulations under section 3, the Department should be guided by subsections 1 through 5.

5. The Department should issue certificates of approval to foster homes.

6. The Department is responsible for the issuance of certificates of approval to all foster homes.

7. Those agencies specifically exempt under section 2 would not be covered by section 15 of the act.

8. The Department of Social Security has no responsibility for enforcing section 17, chapter 270, Laws of 1951.

                                                                  - - - - - - - - - - - - -

                                                                   May 16, 1951

Honorable Roderic Olzendam
Director, Department of Social Security
Olympia, Washington                                                                                            Cite as:  AGO 51-53 No. 42

Dear Sir:

            You have requested our opinion on the following questions involving the interpretation of chapter 270, Laws of 1951.

             [[Orig. Op. Page 2]]

            1. Subsection (d) (1), section 2 exempts from the coverage of the act of "any non-profit institution which is operated under adequate local control by an established board of laymen or by a church organization."  Is it the responsibility of the Department of Social Security to determine what is adequate local control, or are there any legal guides which could be used by the Department in determining what is local control?

            2. Subsection (d) (5) of section 2 defines an hourly nursery that specifically excludes "any agency operated by another state department or Governmental agency, nor to any non-profit [[nonprofit]]institution, society or association which is operated under adequate local control by an established board of laymen or by a church organization."  Does this provision mean that a profit organization operating under a board may be exempt from coverage?

            3. Does the proviso in section 2 apply only to hourly nurseries, or to all definitions listed in section 2.  If it applies only to hourly nurseries, does the Department have responsibility for licensing all maternity homes and all day nurseries exempting only nursery schools?

            4. Section 3 (a) of the act requires the Department to promulgate standards and publish rules and regulations in implementation of the standards.  Is the Department to be guided by subsections 1, 2, 3, and 4, as standards in promulgating rules and regulations?

            5. Section 14 of the act refers both to the issuance of "licenses" to foster homes and also to "certificates of approval."  In view of this ambiguity, may we have your opinion as to whether the Department should issue licenses or certificates of approval to foster homes?

            6. Under section 14, the issuance of licenses or certificates to foster homes may be delegated to the county welfare department or licensees of the department.  Does the department have any responsibility for licensing foster homes used by child caring agencies that are exempted under the act by section 2?

            7. Section 15 provides for court action against persons, associations, etc., who do not have a license or certificate of approval from the state Department of Social Security.  Are those agencies specifically exempted by section 2 covered by section 15?

            8. Does the state Department of Social Security have any responsibility for enforcing section 17 of chapter 270, Laws of 1951?

             [[Orig. Op. Page 3]]

            Our conclusions may be summarized as follows:

            1. It is the responsibility of the Department of Social Security to define by rule and regulation what is meant by adequate local control.

            2. All hourly nurseries operated for profit are covered by the act regardless of whether or not they are operating under a board.

            3. The proviso in section 2 applies only to hourly nurseries and the Department has the responsibility for licensing all maternity homes and all day nurseries as defined in the act.

            4. In promulgating rules and regulations under section 3, the Department should be guided by subsections 1 through 5.

            5. The Department should issue certificates of approval to foster homes.

            6. The Department is responsible for the issuance of certificates of approval to all foster homes.

            7. Those agencies specifically exempt under section 2 would not be covered by section 15 of the act.

            8. The Department of Social Security has no responsibility for enforcing section 17, chapter 270, Laws of 1951.

                                                                     ANALYSIS

            Subsection (d) (1), section 2, chapter 270, Laws of 1951, defines a children's institution and specifically exempts

            "* * * any non-profit [[nonprofit]]institution which is operated under adequate local control by an established board of laymen or by a church organization."

            Your question is whether or not there are any guides set up for the use of the Department in determining what is adequate local control.  The law itself contains no guide to be used by the Department, and in view of the numerous types of childrens institutions presently in operation in the state, it would have been difficult to specify in the law what constitutes adequate local control.  We do not think it was the intent of the legislature to give the Director of the Department of Social Security authority to make extensive investigations of  [[Orig. Op. Page 4]] any non-profit [[nonprofit]]institution in order to determine whether or not they were being operated under adequate local control.  However, we think the Department does have authority, and the responsibility to determine in a general way, what constitutes adequate local control and to set forth such means of determining adequate local control in rules and regulations thereon.

            Your second question is concerned with the proviso in subsection (d) (5) of section 2 which states that the act shall not apply to:

            "* * * any agency operated by another state department or governmental agency, nor to any non-profit [[nonprofit]]institution, society, or association which is operated under adequate local control by an established board of laymen or by a church organization."

            The only exemptions in the proviso are agencies operated by another state department or non-profit [[nonprofit]]institutions, society, etc.  Accordingly, you are advised that all hourly nurseries which are operated for a profit are covered by the act regardless of whether or not they operate under a board.

            In answer to your third question, the proviso in section 2 is found under subsection (d) (5) and relates only to subsection (5) of the act.  It would have been easy to make the proviso apply to the entire act if such had been the legislature's intent.  We have been advised that the fact that the proviso as written would apply only to subsection (d) (5) was pointed out to the legislators when the act was under consideration, but that no change was made.  Accordingly, you are advised that it is our opinion that the entire proviso applies only to the definition of an hourly nursery.  Therefore, the Department has responsibility for licensing all maternity homes and day nurseries exempting only nursing schools.

            In answer to your fourth question, section 3 provides as follows:

            "Sec. 3. The department shall have the power, and it shall be its duty through the children's staff of the department:

            "(a) To promulgate standards as follows:

             [[Orig. Op. Page 5]]

            "(1) Practices and policies of the applicant must provide adequately for the protection of the health, safety, physical, moral and mental well-being of the children cared for by the applicant or licensee.

            "(2) The applicant or licensee or the person charged with the active management must be persons of good character.

            "(3) The applicant or licensee must employ an adequate number of capable persons qualified by education or experience to render the type of care for which the applicant seeks a license.

            "(4) The applicant or licensee must have adequate physical facilities for the purpose for which the applicant seeks a license.

            "(b) To promulgate and publish rules and regulations in implementation of these standards governing the issuance of and renewal of licenses.

            "(c) To inspect and evaluate all applicants or licensees to determine whether or not there is compliance by such applicant or licensee with the applicable rules and regulations and standards.

            "(d) To consult with licensees and those applying for a license in order to help them improve their methods and facilities of child care.

            "(e) To prescribe the form and content of reports necessary for the administration of this act and to require regular reports from each licensee.

            "(5) The applicant or licensee must carry an adequate liability and property damage insurance policy in such amount as may be determined by the director."

             [[Orig. Op. Page 6]]

            Subsection (4) (b) requires the promulgation of rules and regulations and implementation of the standards governing the issuance or renewal of licenses.  As we read the act, section 3 established guides which were to be used by the Department in promulgating rules and regulations, and those guides are the standards found in subsection (a) (1) through (5).  Accordingly, you are advised that in promulgating its written rules and regulations the Department is to be guided by the standards provided in section 3.

            Your fifth question is concerned with section 14 of the act which relates to the licensing or issuance of certificates of approval to foster homes.  It will be noted that subsection (1) (a) uses the word "licenses" for foster homes whereas subsection (1) (a) and subsection (2) and (4) refer to "certificates of approval" which the Department is to issue to foster homes.  In the original draft of the law the words "certificate of approval" were used throughout in order to make clear the distinction between the procedures to be followed in approving foster homes and child care agencies which are required to be licensed.  This section as it now reads is ambiguous, but in view of the use of the term certificate of approval three times as opposed to the word licenses once, and the use of the term certificate of approval as distinguished from license in section 15, it is our opinion that the Department should issue certificates of approval to foster homes.

            Your sixth question is concerned with the issuance of certificates of approval to foster homes.  Section 13 defines a foster home as

            "a family home which is operated with or without compensation to provide care on a twenty-four hour basis or during a period of the twenty-four hours a day in lieu of the child's own home.  * * *"

            Section 14 authorizes the Department:

            "(1) To issue and renew licenses to applicants who have complied with the following standards either directly or through the county welfare departments acting for the department or licensees of the department as prescribed by rules and regulations.

            "(a) The applicant for a certificate of approval as a foster home must be a person of good character.

             [[Orig. Op. Page 7]]

            "(b) The foster home care of the applicant must provide adequately for the protection of the health, safety, physical, mental and moral well-being of the child or children to be cared for by the applicant.

            "(2) To promulgate and publish rules and regulations in implementation of these standards governing the issuance and renewal of certificates of approval.

            "(3) To inspect and supervise all foster homes to enforce the application of the rules and regulations.

            "(4) To deny, revoke or suspend the certificate of approval of any foster home which has failed or refused to comply with the provisions of this act or the rules and regulations promulgated pursuant to this act."

            We can find nothing in the act which specifically exempts any foster home from the necessity of obtaining a certificate of approval from the Department even though the foster home is used by an agency which is not required to obtain a license by the Department.  Although under subsection (1) supra, the certificates of approval are to be issued by the state Department of Social Security or the county welfare departments or licensees of the Department.  Foster homes which are now being used by the various private agencies must receive a certificate of approval from either the state Department of Social Security or the local county welfare department inasmuch as the private agencies are no longer licensees of the Department.

            In answer to your seventh question, section 15 of the act provides as follows:

            "Sec. 15. Notwithstanding the existence or pursuit of any other remedy, the department of social security may, in the manner provided by law, upon the advice of the attorney general who shall represent the department in the proceeding, maintain an action in the name of the state for injunction or other process against any person, partnership, association, or corporation, or any  [[Orig. Op. Page 8]] private institution, agency or foster home, which shall hereafter give temporary or permanent care or custody to a child or children, or an illegitimate pregnant woman or women not related by blood, marriage or adoption to such person, without having a license from the department or a certificate of approval as a foster home, or who shall place for temporary or permanent care or for adoption, a child or children not related to him by blood, marriage or adoption without having a license or certificate of approval, as heretofore provided in this act."

            That section provides a method of enforcing the act by the Department in administering the various provisions of the act.  Accordingly, that section is no more extensive than the actual coverage of the act itself and therefore all agencies specifically exempted in section 2 of the act would not be covered by section 15.

            In answer to your last question, section 17 makes it a gross misdemeanor for any persons to leave a minor child under the age of 12 years in a parked car while such persons enter a tavern or other premises where liquor is sold for consumption on the premises.  Inasmuch as the penalty provided is a criminal one, it is the duty of the prosecuting attorney in each county to enforce section 17 and the Department has no responsibility or authority in the matter.

Very truly yours,

SMITH TROY
Attorney General

JANE DOWDLE
Assistant Attorney General

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