Did Arkansas school districts have to maintain a 1-school-nurse-per-750-students ratio under Ark. Code Ann. § 6-18-706?

Plain-English summary

State Representative Julie Mayberry asked the AG nine questions, all variations on whether Arkansas school districts were obligated to maintain particular school nurse-to-student ratios under Ark. Code Ann. § 6-18-706 and the related Arkansas Department of Education Standards for Accreditation. The ratios in the statute are:

• 1 school nurse per 750 students generally;
• 1 per 400 students in districts with a "high concentration of children with disabling conditions" as designated by the State Board of Education; and
• 1 per 125 students at centers for profoundly disabled students within a district.

AG Leslie Rutledge concluded that none of these ratios were enforceable in 2016 because the statute itself made its provisions "effective only upon the availability of state funds." Reading § 6-18-706 in pari materia with the Public School Funding Act of 2013 (§ 6-20-2301 et seq.), the AG concluded that:

1. Foundation funding does not count as "available" for purposes of triggering § 6-18-706. Foundation funding is unrestricted; school districts spend it on their own priorities. If mere foundation funding triggered the ratio mandate, the contingency in § 6-18-706(e)(1) would be superfluous because foundation funding always exists. Statutes are not read to make their own provisions superfluous.
2. Categorical funding does not count either. The four categorical lines under § 6-20-2305(b)(2)-(5) (alternative learning environments, English-language learners, national school lunch, professional development) did not specifically direct money to school nurses. National school lunch funding could be spent on a school nurse among many other items, but that was not the dedicated allocation § 6-18-706 contemplated. The AG made the textual point that § 6-18-706 was enacted after national school lunch funding could already be spent on nurses, so reading lunch funding as triggering § 6-18-706 would also make the contingency superfluous.
3. Until the General Assembly creates a dedicated school-nurse funding category, § 6-18-706 stays dormant.

So the answer to all nine questions was no:

• The ratios were not legally required.
• A district below the ratios was not in violation of § 6-18-706.
• The Standards for Accreditation did not require a ratio (only employment of "a school nurse"), so failing to meet a ratio could not trigger probationary status under § 24.08.
• The State Board of Education was not required to designate high-disability districts (because the ratio was not enforceable).

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

The Public School Funding Act, the Standards for Accreditation, and § 6-18-706 itself have been amended since 2016. Whether dedicated school-nurse categorical funding has been created in any subsequent budget cycle should be verified before relying on this analysis.

Background and statutory framework

The two-part statutory architecture

Section 6-18-706 has substantive provisions (the ratios) and a contingency clause:

• § 6-18-706(c)(1)-(3): the nurse-to-student ratios.
• § 6-18-706(e)(1): "The provisions of this section shall be effective only upon the availability of state funds."
• § 6-18-706(e)(2): "Available funds shall be distributed to school districts based on the previous year's three-quarter average daily membership."

The AG's interpretive move was to read subsection (e)(1) ("availability of state funds") in light of subsection (e)(2)'s reference to "average daily membership" ("ADM"), which is a technical funding term from the Public School Funding Act. That cross-reference signaled that "available state funds" meant state funds specifically allocated through the education-funding machinery.

Foundation funding vs. categorical funding

Arkansas school funding splits into two main streams:

• Foundation funding (§ 6-20-2303(7), § 6-20-2305(a)(2)(A)-(B)): unrestricted general aid based on enrollment. Districts spend it as they see fit for an adequate education.
• Categorical funding (§ 6-20-2305(b)(2)-(5)): restricted aid for specific purposes. Four categories existed: alternative learning environments, English-language learners, national school lunch, and professional development.

The AG's analysis was that "available state funds" in § 6-18-706 had to mean a dedicated allocation, not just any funding that flowed to schools. Otherwise the contingency clause would never function as a contingency. The Arkansas Supreme Court's general rule (cited in MacSteel Div. of Quanex and Glaze v. State) is that statutes should be read to give effect to every word, with no surplusage.

The national school lunch wrinkle

Categorical funding for the National School Lunch Program under § 6-20-2305(b)(4)(C)(i)(b)(4) permitted districts to spend allocated lunch funding on school nurses among many other items. The AG could have read this as the trigger for § 6-18-706. But the AG read it the other way: the lunch funding option pre-existed § 6-18-706, so if that already-available option satisfied the contingency, the contingency would have done no work from day one. That would violate the surplusage canon.

Why the Standards for Accreditation did not impose a ratio

The ADE's Standards for Accreditation, promulgated under § 6-15-202(f)(41), set baseline requirements all public schools must meet. Section 16.03.1 of the Standards required "[e]ach school district shall have a health services program under the direction of a licensed nurse." Section 24.08 said a school or school district would be placed in probationary status for failing to "employ a . . . nurse." Neither provision required a specific ratio. The AG took those provisions as the administrative agency's interpretation of § 6-18-706, consistent with the agency's view that without state funding, no ratio could be enforced. So the agency required only that a district have a school nurse, not a specific quantity.

Why the State Board of Education was off the hook

Question 6 asked whether the State Board of Education was required under § 6-18-706(c)(2) to designate high-disability districts. The AG read that obligation as subordinate to the contingency in § 6-18-706(e)(1). Because the ratios were dormant, the duty to designate was also dormant. To hold otherwise would assume the ratios were enforceable, which they were not.

Common questions

Q: My child's school doesn't have a full-time nurse. Is that a violation of state law?
A: Under this 2016 opinion, the answer turned on whether the district employed "a school nurse" at all. The Standards for Accreditation required at least that. The 1:750 ratio in § 6-18-706 was not enforceable in 2016 because of the funding contingency.

Q: How would § 6-18-706 ever become enforceable?
A: The AG identified two ways: (1) the General Assembly adds school nurses as a separate funded category to the state's categorical-funding regime, or (2) the General Assembly otherwise specifically allocates enough money for school nurses through another statute or direct allocation.

Q: Does the Standards for Accreditation requirement to "employ a school nurse" require a full-time nurse?
A: The opinion did not parse "employ a nurse" beyond noting that no ratio was required. ADE could clarify the practical floor through its administrative practice.

Q: My district has many students with disabilities. Doesn't the 1:400 ratio apply automatically?
A: No. The 1:400 ratio is in § 6-18-706(c)(2), which is subject to the same contingency. And the State Board of Education has no obligation to designate high-disability districts while the ratios remain dormant.

Q: Could parents sue a district for failing to meet the ratios?
A: The AG concluded no district was in violation of § 6-18-706 by missing the ratios. Without an enforceable mandate, a suit to enforce that mandate would likely fail.

Citations and references

Statutes:

• Ark. Code Ann. § 6-11-102(a)(1) (Supp. 2015), Education Commissioner
• Ark. Code Ann. § 6-15-202(b)(1), schools must meet Standards for Accreditation
• Ark. Code Ann. § 6-15-202(f)(41) (Supp. 2015), Commissioner's authority over compliance
• Ark. Code Ann. § 6-18-701 et seq., school health subchapter
• Ark. Code Ann. § 6-18-706 (Repl. 2013), school nurse ratios
• Ark. Code Ann. § 6-20-2301 et seq. (Repl. 2013 and Supp. 2015), Public School Funding Act of 2013
• Ark. Code Ann. § 6-20-2303(3)(A) (Supp. 2015), average daily membership definition
• Ark. Code Ann. § 6-20-2303(7), foundation funding definition
• Ark. Code Ann. § 6-20-2305(a)(2)(A)-(B), foundation funding allocation
• Ark. Code Ann. § 6-20-2305(b)(1)-(5), categorical funding categories

Cases:

• MacSteel Div. of Quanex v. Arkansas Okla. Gas Corp., 363 Ark. 22, 210 S.W.3d 878 (2005) (Ark. Sup. Ct.)
• Green v. Mills, 339 Ark. 200, 4 S.W.3d 493 (1999) (Ark. Sup. Ct.)
• R.N. v. J.M., 347 Ark. 203, 61 S.W.3d 149 (2001) (Ark. Sup. Ct.)
• Glaze v. State, 2011 Ark. 464, 385 S.W.3d 203 (Ark. Sup. Ct.)
• Lake View School Dist. No. 25 of Phillips County v. Huckabee, 364 Ark. 398, 220 S.W.3d 645 (2005) (Ark. Sup. Ct.)

Administrative materials:

• Arkansas Department of Education, Rules Governing the Standards for Accreditation of Arkansas Public Schools and School Districts, §§ 16.03.1, 24.08

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

Opinion No. 2016-028
July 14, 2016

The Honorable Julie Mayberry
State Representative
3022 East Woodson Lateral Road
Hensley, AR 72065-9169

Dear Representative Mayberry:

You have requested my opinion regarding the relationship between Ark. Code Ann. § 6-18-706 and the Arkansas Department of Education's Rules Governing the Standards for Accreditation of Arkansas Public Schools and School Districts ("Standards for Accreditation"). It will be helpful prior to setting out your questions to first summarize some background information.

BACKGROUND

Section 6-18-706 outlines the role of school nurses in the context of the "health status and educational achievement of the children of [the state of Arkansas]." The statute provides that, beginning with the 2004-2005 school year, and "effective only upon the availability of state funds," school districts shall meet certain school nurse-to-student ratios. Specifically, districts are required to have "no fewer than the full-time equivalent of one (1) school nurse per seven hundred fifty (750) students or the proportionate ratio thereof." If a district has a "high concentration of children with disabling conditions as determined by the State Board of Education, the ratio of school nurses to students should be one (1) to four hundred (400) in those schools so designated." Finally, in school districts that "provide[] a center for profoundly disabled students, the ratio should be one (1) school nurse per one hundred twenty-five (125) students at that center."

The State Board of Education and the Arkansas Department of Education (ADE) are responsible for ensuring compliance with Ark. Code Ann. § 6-18-701 et seq. Under its authority to administer education statutes, the ADE has promulgated the Standards for Accreditation. These standards require that "[e]ach school district shall have a health services program under the direction of a licensed nurse." These standards, which all public schools are required to meet, also provide that a "school or school district will be placed in probationary status for failing to employ a . . . nurse."

QUESTIONS

In light of the above, you pose the following questions, which I have paraphrased:

(1) Is it a requirement that a school district maintain the ratio of one (1) school nurse per seven hundred fifty (750) students?
(2) If a school district does not have one (1) school nurse per seven hundred fifty (750) students, is the school district in violation of Ark. Code Ann. § 6-18-706?
(3) Under § 24.08 of the Standards for Accreditation, if a school district does not have one (1) school nurse per seven hundred fifty (750) students, must the school district be placed in probationary status?
(4) Is it a requirement that a school district that has a high concentration of children with disabling conditions maintain the ratio of one (1) school nurse per four hundred (400) students?
(5) If a school district that has a high concentration of children with disabling conditions does not have one (1) school nurse per four hundred (400) students, is the school district in violation of Ark. Code Ann. § 6-18-706?
(6) Does Ark. Code Ann. § 6-18-706(c)(2) require the State Board of Education to determine which school districts have a high concentration of children with disabling conditions?
(7) Does Ark. Code Ann. § 6-18-706(c)(2) require the State Board of Education to designate which schools have a high concentration of children with disabling conditions?
(8) Is it a requirement that a school district that provides a center for profoundly disabled students maintain the ratio of one (1) school nurse per one hundred twenty-five (125) students at the center?
(9) If a school district that provides a center for profoundly disabled students does not have one (1) school nurse per one hundred twenty-five (125) students at the center, is the school district in violation of Ark. Code Ann. § 6-18-706?

SUMMARY RESPONSE

The ratio requirements set out in Ark. Code Ann. § 6-18-706 are only triggered upon the "availability of state funds." In my opinion, funding is not currently "available," as contemplated by section 6-18-706. I therefore must conclude that the answer to all of your questions is "no."

DISCUSSION

In my opinion, the resolution of your questions turns on the proper construction of Ark. Code Ann. § 6-18-706(e)(1)-(2):

(1) The provisions of this section shall be effective only upon the availability of state funds.
(2) Available funds shall be distributed to school districts based on the previous year's three-quarter average daily membership.

A. The Meaning of "Availability" Under Ark. Code Ann. § 6-18-706

The first rule in considering the meaning and effect of a statute is to construe it just as it reads, giving the words their ordinary meaning and usually accepted meaning in common language. [The courts] construe the statute so that no word is left void, superfluous, or insignificant; and meaning and effect are given to every word in the statute if possible.

It is well-established that in construing statutes, the Arkansas Supreme Court "look[s] to the language under discussion in the context of the statute as a whole."

Here, subsection 6-18-706(e)(1) states that "[t]he provisions of this section shall be effective only upon the availability of state funds." Your questions turn on the meaning of this contingency. What does the General Assembly mean when it says the school nurse-to-student ratios in section 6-18-706 only apply if state funds are "available?"

It seems evident to me based on a plain reading of subsection 6-18-706(e) that "availability of state funds" for school nurses must be analyzed in reference to the education funding statutes. My opinion is bolstered by long-standing principles of statutory construction. Because courts construe provisions of a statute as a whole, we must consider subsection 6-18-706(e)(2) when interpreting subsection 6-18-706(e)(1)'s reference to the "availability of state funds." Subsection (e)(2) states that "[a]vailable funds shall be distributed to school districts based on the previous year's three-quarter average daily membership." The operative phrase here is "average daily membership." "Average daily membership" ("ADM") is a technical term under the Public School Funding Act of 2013. It describes a means of calculating the amount of funding schools receive in a given year. The reference to ADM in subsection 6-18-706(e)(2) indicates that the phrase "availability of state funds" in subsection 6-18-706(e)(1) should be analyzed in light of how school funding operates under the education funding statutes. When section 6-18-706 is read in pari materia with the funding statutes, I believe it becomes clear that the state funds are not currently available to meet the school nurse-to-student ratios under this statute.

B. "Availability" Under the School Funding Statutes

Education funding is divided into two principal categories: foundation funding and categorical funding. Ark. Code Ann. § 6-20-2305(b)(2)-(5) specifies four types of categorical funding where allocated monies are spent: alternative learning environments; English-language learners; national school lunch; and, professional development. None of the four types of categorical funding currently triggers the automatic "availability of state funds," for purposes of section 6-18-706, as none specifically categorizes a source of funding for school nurses.

The national school lunch state categorical funding, as outlined in Ark. Code Ann. § 6-20-2305(b)(4)(C)(i)(b)(4), does permit this type of categorical funding to be spent on school nurses. But this permitted expenditure is merely one among numerous others on which schools have discretion to spend their allocated national school lunch state categorical funding. The fact that school districts may use national school lunch funds for school nurses is therefore an insufficient basis to conclude that there is an "availability of state funds" to trigger the ratio requirements under section 6-18-706. My analysis on this point is supported by the fact that at the time section 6-18-706 was enacted, the legislature had already made clear that national school lunch funding could be used by the districts to pay a school nurse, among numerous other things. Accordingly, the conditional effectiveness provision of section 6-18-706 only makes sense if available state funds is understood to mean something other than (and in addition to) national school lunch funding.

Subsection 6-20-2303(7) provides what is known as "foundation funding." Foundation funding is "an amount of money specified by the General Assembly for each school year to be expended by school districts for the provision of an adequate education for each student[.]" Unlike categorical funding, foundation funding is unrestricted. Schools have ample flexibility in spending their foundation funding aid, enabling them to meet their unique funding needs.

In my opinion, the mere existence of foundation funding does not mean that funds are "available" under subsection 6-18-706(e). To conclude otherwise would ignore the way foundation funding works under section 6-20-2305 and fail to read section 6-18-706 in harmony with these funding statutes. If the mere existence of foundation funding were sufficient to automatically trigger the ratio requirements of section 6-18-706, then the triggering provision would be superfluous, as there is always some foundation funding in each year. Reading section 6-18-706 in this way would also impliedly amend the foundation funding provisions, which currently do not specify how funds are to be allocated, contrary to established rules of statutory construction. No school is required to spend foundation funding on school nurses. So we must conclude that foundation funding is not "available" so as to trigger the ratios under section 6-18-706.

To be clear, it is my opinion that section 6-18-706, which is very clear that it only becomes "effective . . . upon the availability of state funds," will not be effective unless and until the legislature adds school nurses as a separate funded category to the state's categorical funding regime or otherwise allocates enough money specifically to school nursing through some other statute or direct allocation.

In light of this discussion, I will now turn to your specific questions.

Question 1: Is it a requirement that a school district maintain the ratio of one (1) school nurse per seven hundred fifty (750) students?

No. The ratio of one school nurse per seven hundred fifty students is not a requirement under either section 6-18-706 or the Standards for Accreditation promulgated by the ADE. As stated above, there is currently no source of funding "available" so as to trigger the applicability of section 6-18-706. Moreover, the Standards for Accreditation as enforced by the ADE merely require schools and school districts to employ a school nurse. The Standards for Accreditation do not currently reflect a requirement to maintain a certain ratio of school nurses to students.

Question 2: If a school district does not have one (1) school nurse per seven hundred fifty (750) students, is the school district in violation of Ark. Code Ann. § 6-18-706?

No. Because the ratios as stated under section 6-18-706 are not required, a school district is not in violation of this statute for failing to comply with the contemplated ratios. Because, due to the nature of the current funding structure, state funds are not currently available, the funding contingency of subsection 6-18-706(e)(1) prevents the enforcement of the nurse-to-student ratios as listed in this statute.

Question 3: Under § 24.08 of the Standards for Accreditation, if a school district does not have one (1) school nurse per seven hundred fifty (750) students, must the school district be placed in probationary status?

No. The ratio requiring one school nurse per seven hundred fifty students is only specified under subsection 6-18-706(c)(1). Under § 24.08 of the Standards for Accreditation, "[a] school or school district will be placed in probationary status for failing to employ a . . . nurse . . . ." Under § 16.03.1 of the Standards for Accreditation, "[e]ach school district shall have a health services program under the direction of a licensed nurse." A school district will not be placed in probationary status for failing to meet the ratio as described under subsection 6-18-706(c)(1), as no ratio is required under the Standards for Accreditation.

Question 4: Is it a requirement that a school district that has a high concentration of children with disabling conditions maintain the ratio of one (1) school nurse per four hundred (400) students?

Please see my response to your first question.

Question 5: If a school district that has a high concentration of children with disabling conditions does not have one (1) school nurse per four hundred (400) students, is the school district in violation of Ark. Code Ann. § 6-18-706?

Please see my response to your second question.

Question 6: Does Ark. Code Ann. § 6-18-706(c)(2) require the State Board of Education to determine which school districts have a high concentration of children with disabling conditions?

No. Subsection 6-18-706(c)(2) states that "[i]n districts having a high concentration of children with disabling conditions as determined by the State Board of Education, the ratio of school nurses should be one (1) to four hundred (400) in those schools so designated."

But the Board of Education does not have to determine or designate those school districts or schools that have a "high concentration of children with disabling conditions." As previously discussed, subsection 6-18-706(e)(1) states that "[t]he provisions of this section shall be effective only upon the availability of state funds." Subsection 6-18-706(c)(2) is therefore subject to this contingency. Because funding is not currently available, the ratios stated under section 6-18-706 are not currently enforceable. Therefore, the Board of Education is not required to determine or designate which school districts or schools have a "high concentration of children with disabling conditions." To conclude otherwise presupposes that the ratios are currently enforceable.

Question 7: Does Ark. Code Ann. § 6-18-706(c)(2) require the State Board of Education to designate which schools have a high concentration of children with disabling conditions?

Please see my response to your sixth question.

Question 8: Is it a requirement that a school district that provides a center for profoundly disabled students maintain the ratio of one (1) school nurse per one hundred twenty-five (125) students at the center?

Please see my response to your first question.

Question 9: If a school district that provides a center for profoundly disabled students does not have one (1) school nurse per one hundred twenty-five (125) students at the center, is the school district in violation of Ark. Code Ann. § 6-18-706?

Please see my response to your second question.

Sincerely,

LESLIE RUTLEDGE
Attorney General