Opinion Number ( 1995 )

Dear Representative McFerren:

This office is in receipt of your request for an opinion of the Attorney General in regard to Day Care facilities. You present questions relative to Act 925 of 1993 which amended and reenacted R.S. 46:1441.1, 1441.4, 1441.5(A), 1441.7 and 1444.8 to provide for the definition of "Child and Adult Care Food Program"; to provide for registration and regulation for participants in the Child and Adult Food Program; to provide for rules, regulations and inspection requirements by the authorized department; and to establish a fee for inspections. The amended provisions are as follows:

R.S. 46:1441.1. Definitions

A. As used in this Chapter, the following definitions shall apply unless the context clearly states otherwise:

(1) "Child" means a person who has not reached the age of thirteen. The words "child" and "children" are used interchangeably in this Chapter.

(2) "Child and Adult Care Food Program" means the federal nutrition reimbursement program funded by the federal Department of Agriculture through the state Department of Education.

(3) "Department" means the Department of Health and Hospitals or the Department of Social Services or the Department of Education in accordance with 7 C.F.R. Part 226, as indicated by the context.

(4) "Family child day care home" means any place, facility, or home operated by any institution, society, agency, corporation, person or persons, or any other group for the primary purpose of providing care, supervision, and/or guidance of six or fewer children.

(5) "Group child day care home" means any place, facility, or home operated by any institution, society, agency, corporation, person or persons, or any other group for the primary purpose of providing care, supervision, and/or guidance of seven but nor more than twelve children.

(6) "Sponsoring agency" means any private, public, for profit or nonprofit corporation, society, agency, or any other group approved by or contracted with the Department of Education to coordinate family child day care homes and group child day care homes participating in the federal Child and Adult Care Food Program.

B. For purposes of this Chapter, "registered home" shall include family child day care homes and group child day care homes registered in accordance with this Chapter.

R.S. 46:1441.4 Rules and regulations; inspection requirements

A. The Department of Health and Hospitals or the Department of Social Services shall promulgate rules and regulations in accordance with the Administrative Procedure Act to carry out the provisions of this Chapter for all homes which receive state or federal funds except those family day care homes which participate in the federal Child and Adult Care Food Program.

B. The Department of Education shall promulgate rules and regulations in accordance with the Administrative Procedure Act to carry out the provisions of this Chapter for those family child day care homes and group child day care homes which participate in the federal Child and Adult Care Food Program.

C. A family child day care home shall be inspected and approved by the office of state fire marshal in accordance with the rules and regulations as established under Subsections A and B of this Section, developed in consultation with the office of state fire marshal.

R.S. 46:1441.5. Homes subject to registration or licensure; exemptions

A. All family child day care homes that receive state or federal funds shall be subject to the provisions of this

Chapter. However, individuals who do not participate in

the federal Child and Adult Care Food Program or who provide care for only related family members shall not be required to be registered within the time period established by the appropriate agency.

R.S. 46:1441.7. Fees

A. (1) The office of state fire marshal shall have the authority to charge each home applying for registration or licensure or renewal of registration or licensure an annual fee for services. This fee shall be adopted in accordance with the Administrative Procedure Act.

(2) A fee shall be charged to cover the cost of inspection for homes regulated by the Department of Education in accordance to R.S. 46:1441.4(B). The fee shall be set at thirty dollars per inspection and used for the sole purpose of employing personnel to perform such inspections.

B. The office of state fire marshal shall transfer sufficient funds to the Department of Health and Hospitals or the Department of Social Services for those family child day care homes and group child day care homes which receive state or federal funds but do not participate in the federal Child and Adult Care Food Program to carry out the registration process in accordance with this Chapter.

R.S. 46:1441.8 Revocation or refusal to renew registration or licensure; written notice

The authorized department shall have the authority to deny, revoke, or refuse to renew a registration or licensure of a registered or licensed home if an applicant has failed to comply with the provisions of this Chapter, any applicable published rule or regulation relating to registered homes, or any other state, federal, or local rule or regulation or license. If a registration or license is denied, revoked, or withdrawn, the action shall be effective when made and the home shall be notified in writing. This notice shall give the reason for denial, revocation, or withdrawal of the registration or license.

In connection with these amendments you state that R.S. 46:1403 defines child care facilities as does Act 925 of 1993. You ask which statute defines a Day Care Home.

In Title 46, Chapter 14 is entitled Child Care Facilities and Child Placing Agencies, and includes R.S. 46:1401-1424. R.S.46:1403(4) defines "Day Care Center", but provides in part that "Day Care Center does not include a group child day care home, as defined in R.S. 46:1441.1(A)(4) under a sponsoring agency, as defined in R.S. 46:1441.1(A)(5)". Chapter 14-B is Child Care Registration, and therein "Family child day care home" is defined in R.S. 46:1441.1(A)(4) as care of six or fewer children, and "Group child day care home" is for seven but not more than twelve. R.S. 46:1403A(4) defines "Day Care Center" as providing care of "seven of more children".

All these statutes must be read together and a Day Care Center by statute does not include a family day care home with under seven and under a sponsoring agency which is a group approved by the Department of Education to coordinate the day care homes participating in the federal Child and Adult Care Food Program.

You indicate the Louisiana Department of Education sent letters to all Sponsoring Agencies that all family day care homes caring for more than six children would have to be dropped from agencies, or conform to the six child rule, and this ruling dropped hundreds of day care homes from the Child and Adult Care Food Program (CACFP). You ask if those day care homes and children are being discriminated against.

Although we have not been supplied with a copy of the letter you make reference to, it is our understanding the letter was to notify the day care facilities for compliance with the amended statutory provisions. R.S. 46:1441.2 in Chapter 14-B provides all family child day care that receive funds through the Child and Adult Care Food Program or any other state or federal funding program shall be registered, and under R.S. 46:1441.4 the Department of Education shall promulgate rules for the family child day care homes and group child day care homes which participate in the federal Child and Adult Care Food program.

The amended provisions have created an inconsistency in your letter in regard to family day care homes caring for more than six children since the definition of a family day care home is defined as caring for six of less. However, by such classification there is no discrimination where all in the group similarly constituted are treated equally.

In response to your question whether Act 925 of 1993 meets the guidelines of the USDA Food and Nutrition Services, we note that7 C.F.R. § 226.1 et seq provides regulations for the Secretary of Agriculture to carry out the Child and Adult Care Food Program.

The Food and Nutrition Service is designated to act on behalf of the Department in the administration of the program, but each State agency is directed to establish an application procedure to determine eligibility of applicant institutions, and an on going renewal process for the purpose of reviewing and approving applications. The application approval includes among other requirements "submission of documentation that all child care centers, adult day care centers, outside-school-hours care centers, and day care homes for which application is made are in compliance with program licensing/approval provisions." It is our understanding that the State by the amendment has revised these provisions under this authorization.

In regard to your questions about accepting and approving sponsor or institution applications we note that 7 C.F.R. § 226.6(k) provides each State agency shall establish an appeal procedure to be followed by an institution requesting a review of a denial of an institution's application for participation, a denial of an application submitted by a sponsoring organization on behalf of a facility, a termination of the participation of an institution facility or facility, a suspension of an institution's agreement, a denial of an institution's application for start-up payments, a denial of an advance payment, a denial of all or part of the claim for reimbursement, a denial by the State agency to forward to FNS an exception request by the institution or sponsoring organization for payment of a late claim or a request for an upward adjustment to a claim, demand for the remittance of an overpayment, and any other action of the State agency affecting the participation of an institution in the program or the institution's claim for reimbursement. It further provides if the State has not established its own appeal procedures or the procedures do not meet the listed criteria, the State agency must observe a minimum procedure as set forth. It is our understanding a procedure has now been established by the state for registration.

Thus, we must conclude the answer to your questions are controlled by these procedures which you should discuss with the proper authorities in the Department as we are not conversant with the established procedure of the State. Moreover,7 CFR 226.2 mandates, "Each State agency shall provide technical and supervisory assistance to institutions and facilities to facilitate effective Program operations, monitor progress toward achieving Program goals, and ensure compliance with the Department's nondiscrimination regulations * * *." It is obvious that the Department cannot act arbitrarily but whether this has occurred is a question of fact which we are not in a position to consider.

We hope we have sufficiently answered the major questions presented in your inquiry, and that this directs you to the proper source for further information pertaining to this matter.

Sincerely yours

RICHARD P. IEYOUB Attorney General

By: _________________________ BARBARA B. RUTLEDGE Assistant Attorney General

BBR

Hon. Johnny McFerren Representative, District 7 10255 Linwood Ave. Shreveport, La 71106