AGO Opinion 98029
Authority of the Foster Care Review Board to conduct visits and inspections of foster care group homes and methods to enforce such authority
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.
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
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
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
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
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,
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.
David R. Tarvin, Jr.
Assistant Attorney General