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Opinion 98029

DATE: July 13, 1998

SUBJECT: Authority of the Foster Care Review Board to conduct visits and inspections of foster care group homes and methods to enforce such authority




REQUESTED BY: State Foster Care Review Board




WRITTEN BY: Don Stenberg, Attorney General

David Tarvin, Assistant Attorney General




You have requested our opinion as to whether Neb. Rev. Stat.

§ 43-1303(6) allows the State Foster Care Review Board ("Board") to

conduct visits and inspections of foster care group homes.

Specifically, the Board is seeking access to the OMNI group home

facilities ("OMNI"). According to your letter, OMNI has contracted

with the Department of Health and Human Services ("Department") to

provide a therapeutic environment for a number of foster care

children. Recently, the Board has received a number of allegations

that OMNI has provided improper care for many of the youth in their

homes. The Board wishes to tour OMNI's facilities to see if the

allegations are true and to ensure that the needs of the children

in OMNI's care are being met. OMNI has refused to allow the Board

to tour any of OMNI's facilities and has stated that the Board must

schedule in advance any visit the Board wishes to make.




We conclude that § 43-1303 does give the Board the authority

to conduct visits and inspections of these group homes, and that

any group homes must allow such inspections. We also conclude that

the Board may conduct such visits and inspections unannounced.




You also ask how the Board should proceed to enforce its

authority under this statute. We conclude that the proper method

of enforcement is to request that the Department initiate a license

suspension or revocation of any group home that does not comply

with § 43-1303.




DISCUSSION




The Board was created in 1982 by the passage of LB 714, the

Foster Care Review Act. The purpose of the Act was to provide for

periodic review of "cases of children who have resided in public or

private foster care for a period of more than six months to

determine what efforts have been made by the supervising agency or

child-caring institution to carry out the plan for rehabilitation

or permanent placement." Introducer's Statement of Intent on LB

714, 87th Neb. Leg., 2nd Sess. (January 19, 1982). As stated by

this office in a previous opinion, the goals of the Act were to

correct two problems. First, a number of foster care children were

being "lost in the system". Second, there were concerns that

neither the social service agency nor the courts were adequately

monitoring the progress of children placed in foster care. See Op.

Att'y Gen. No. 93-084 (October 18, 1993). In essence, the Board

was set up as an independent reviewer of the system.






Neb. Rev. Stat. § 43-1303 (Cum. Supp. 1996) sets out various

duties and responsibilities of the Board. These include gathering

data and making reports on children in foster care, reviewing the

activities of local review boards, keeping a statewide register of

all children in foster care, establishing training and procedures

for local review boards, evaluating judicial and administrative

data on foster care, and making reports and recommendations to the

Department and to each court having the authority to make foster

care placements.




In conjunction with their duties, § 43-1303 states that,

"[t]he state board may visit and observe foster care facilities in

order to ascertain whether the individual physical, psychological,

and sociological needs of each foster child are being met." No

other statutes or regulations address this specific statutory

provision.




Nebraska Law states that in construing a statute, a court must

determine and give effect to the purpose and intent of the

legislature as ascertained from the entire language of the statute

considered in its plain, ordinary and popular sense. Nickel v.

Saline County School Dist. No. 163, 251 Neb. 762, 559 N.W.2d 480

(1997). A court must look to the statutory objective to be

accomplished, the evils and mischiefs sought to be remedied, and

the purpose to be served, and then must place on the statute a

reasonable or liberal construction that best achieves the statute's

purpose, rather than construction that defeats it. Southeast Rural

Volunteer Fire Dept. v. Department of Revenue, 251 Neb. 436 (1997).

When the words of a statute are plain, direct, and unambiguous, no

interpretation is necessary or will be indulged in to ascertain

their meaning. Estate of Muchemore, 252 Neb. 119, 560 N.W.2d 477

(1997). It is not within the province of a court to read a meaning

into a statute which is not there, or to read anything direct and

plain out of a statute. Village of Winside v. Jackson, 250 Neb.

851, 553 N.W.2d 476 (1996).




In reading this language in its plain and ordinary meaning, we

believe that no other conclusion can be reached but that the Board

is allowed to visit and observe foster care facilities to ensure

the needs of the children at those facilities are being met.

OMNI's position appears to be that § 43-1303 does not require OMNI

to allow such visits and inspections by the Board. However, such

an interpretation would read into the statute a requirement that is

not there - that the Board may visit and inspect only with the

permission of the foster care facility. Such an interpretation

would defeat the purpose of the statute, which is to enable the

Board to make an independent determination as to whether the

children are receiving the proper care. Thus, OMNI and other group

homes are required under this statute to allow visits and

inspections by the Foster Care Review Board.




Implicit in this opinion request is also the question as to

whether such visits must be announced. Again, we look to the

plain, ordinary meaning of the statutory language, as well as to

the objectives to be achieved by the statute. First, there is no

requirement in the statutory language itself that the visits be

announced. Second, the purpose of the visits is to allow the Board

to determine if foster care children are receiving proper care. If

all visits must be announced in advance, then any facility which

was not providing foster care might be able to hide those problems

temporarily, thus defeating the purpose of the visit. Of course,

some problems, particularly long-term problems, may not be so easy

to disguise. However, it is important for the Board to be able to

see any problems which may exist so that it may make complete,

accurate, and correct reports to all social services agencies and

to each court dealing with the placement of children. Thus, § 43-

1303 allows the Board to conduct both announced and unannounced

visits.




The Board next asks what action it can take in order to gain

access to OMNI's facilities. We believe that the best course of

action would be to report OMNI's refusal to allow the inspections

to OMNI's licensing agent and to request that an action to suspend

or revoke OMNI's license be initiated unless it agrees to allow the

inspections.




Neb. Rev. Stat. § 71-1902 states:




Except as otherwise provided in this section, no person

shall furnish or offer to furnish foster care for two or

more children from different families without having in

full force and effect a written license issued by the

department upon such terms and conditions as may be

prescribed by general rules and regulations adopted and

promulgated by the department.




Neb. Rev. Stat. § 71-1904 states in part:




The department shall adopt and promulgate rules and

regulations pursuant to sections 71-1901 to 71-1906.02

for (1) the proper care and protection of children by

licensees under such sections, (2) the issuance,

suspension, and revocation of licenses to provide foster

care . . . .




The regulations promulgated by the Department pursuant to

these statutes are located in 474 NAC Chapter 6. 474 NAC 6-003

contains provisions related to foster care home licensure. 474 NAC

6-005 relates to licensing group homes and child caring and child

placing agencies. Since OMNI is a group home, it is subject to the

requirements of § 6-005.




474 NAC § 6-005.03 states:




Persons, other than a parent, who place, assist in

placing, advertise a child for placement, or give the

care and custody of any child to any person or

association for adoption or otherwise, except for

temporary or casual care, must obtain a license to place

children. See also 474 NAC 6-003.03.




474 NAC 6-003.03 states:




A license is required when the business is exercising the

care, supervision, custody or control over children, age

15 or younger, from more than one family, for

compensation or hire. This care must be in lieu of the

care or supervision normally exercised by parents in

their own home.


To provide day care for children in a foster home, the

provider shall obtain a separate day care center license

or day care home registration.




Each applicant/licensee shall comply with all applicable

federal, state, and local subdivision laws, ordinances,

and regulations.




As a group home, OMNI falls into the requirements of

§ 6-003.03 and is required to comply with all state laws and

regulations. Thus, OMNI would be required to comply with

§ 43-1303, and it would be the obligation of the Department to take

the necessary steps to in ensure compliance. The following

regulations set out the procedure to be followed by the Department.




Non-Compliance with Requirements is set out in 474 NAC 6-

005.13 by reference to 6-003.15 which states: "The licensing agent

shall notify the applicant/licensee in writing of any points of

non-compliance with licensing requirements."




In the absence of satisfactory corrective measures by the

licensee, there is a procedure for denial, revocation, or

suspension of a license. See 474 NAC 6-005.18 which refers to 474

NAC 6-003.21 which states: "The decision to deny, revoke or

suspend a license is made by Central Office Staff based on

documentation and recommendation provided by the licensing agent."

Subsections 21A and 21B provide a procedure for revocation and

suspension of a license. 21B provides that the licensing agent

shall recommend revocation for non-compliance after written notice

and 21C provides for suspension that is necessary following a

report of neglect or abuse.




It appears from the regulations that the proper course for the

Board would be to notify OMNI's licensing agent that OMNI is not

complying with one of its license requirements, i.e. allowing the

Board to inspect the facilities as mandated by § 43-1303. At that

point, the licensing agent is required to recommend suspension or

revocation to the Department. The general rule in Nebraska is that

the use of the word "shall" is considered mandatory and is

inconsistent with the idea of discretion. Shepherd v. Equal

Opportunity Commission, 251 Neb. 517, 557 N.W.2d 684 (1997). At

that point, the Department will need to review the recommendation.




Sincerely,




DON STENBERG

Attorney General








David R. Tarvin, Jr.

Assistant Attorney General