Judges: WRITTEN BY: Jon Bruning, Attorney General Frederick J. Coffman, Assistant Attorney General
Filed Date: 4/15/2009
Status: Precedential
Modified Date: 7/5/2016
REQUESTED BY: Georgie Scurfield, Chairperson,
State Foster Care Review Board
You requested our opinion on three specific questions related to the State Foster Care Review Board's (Board) authority as set forth in NEB. REV. STAT. §
Question #1: The statute [NEB. REV. STAT. §
Question #2: Can the Foster Care Review Board delegate to non-employee volunteer agents its authority to visit and observe foster care facilities?
Question #3: Is it totally up to the Foster Care Review Board to create and implement rules, regulations and procedures by which non-employee volunteer agents visit and observer foster care facilities?
With respect to the first two questions, we conclude that Neb. Rev. Stat. §
In response to your third question, we conclude that the Board has been granted specific authority in Neb. Rev. Rules §
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., 2d Sess. (January 19, 1982). Discussion of the Act addressed provisions that the Board shall visit and observe foster care facilities and have responsibility for appointing each of the local boards. In 1990 the Act was amended by LB 1222. Incorporated in the discussion of that bill was the shortage of personnel to perform the duties assigned to the Board. As a result the Act was amended to provide for, among other things, the authority to employ or contract with persons to enable the Board to carry out its duties.
The duties of the Board are found in Neb. Rev. Stat. §§
Question #1: The statute [NEB. REV. STAT. §
Presently, NEB. REV. STAT. §
Question #2: Can the Foster Care Review Board delegate to non-employee volunteer agents its authority to visit and observe foster care facilities?
Similar to Question #1 above, §
Question #3: Is it totally up to the Foster Care Review Board to create and implement rules, regulations and procedures by which non-employee volunteer agents visit and observer foster care facilities?
"A legislative enactment may properly confer general powers upon an administrative agency and delegate to the agency the power to make rules and regulations covering the details of the legislative purpose. Board of Regents v. County of Lancaster,
The state board shall review the activities of local boards and may adopt and promulgate its own rules and regulations. Such rules and regulations shall provide for the following:
(a) Establishment of training programs for local board members which shall include an initial training program and periodic inservice training programs;
(b) Development of procedures for local boards;
(c) Establishment of a central record-keeping facility for all local board files, including individual case reviews;
(d) Accumulation of data and the making of annual reports on children in foster care. Such reports shall include (i) personal data on length of time in foster care, (ii) number of placements, (iii) frequency and results of court review, and (iv) number of children supervised by the foster care programs in the state annually;
(e) To the extent not prohibited by section
43-1310 , evaluation of the judicial and administrative data collected on foster care and the dissemination of such data to the judiciary, public and private agencies, the department, and members of the public; and(f) Manner in which the state board shall determine the appropriateness of requesting a review hearing as provided for in section
43-1313
We believe the foregoing subsection provides authority for the Board to promulgate rules and regulations in two general areas. Subsections (a) through (c) allow the board to adopt rules and regulations with respect to activities of the local boards, while paragraph (2) and subsections (d) through (f) allow the Board to adopt rules and regulations with respect to general and specific duties of the Board. As noted above, one of the duties of the Board is to visit and observe foster care facilities. To the extent the Board desires to create rules and regulations outlining how volunteers may perform this duty, we believe §
CONCLUSION
Predicated upon the foregoing it is our opinion the Board has authority to delegate to the Board's staff and to non-employee volunteers the authority to visit and observe foster care facilities. It is our further opinion the Board has the statutory authority to create its own rules and regulations that would govern non-employee volunteers when they visit and observe foster care facilities.
Very truly yours,
JON BRUNING Attorney General
Frederick J. Coffman Assistant Attorney General
Approved by:
___________________________ Attorney General