Does Arkansas require child care facilities to have only one CPR-certified staff member on site, or more?

Plain-English summary

A child care center asked, in effect: if I have one CPR-certified person on site, that matches the statute, so why is the state telling me I need more? The AG explained that the statute and the regulation do two different jobs.

Ark. Code Ann. § 20-78-210(e) is not the licensing rule that a child care facility has to comply with. It is a direction to the Department of Human Services' Division of Child Care and Early Childhood Education to write a licensing rule that requires at least one CPR-certified adult on site during business hours. The phrase "at least one" expressly allows the Division to require more.

The actual licensing requirement is at Part 306, No. 5 of the Minimum Licensing Requirements for Child Care Centers: the director, assistant director or site supervisor, and 50% of on-site staff at any given time must hold first-aid and CPR certification. That regulation is more stringent than the statute, but it is exactly what the statute authorized the agency to do, so it has the same legal force.

The opinion also addresses whether the regulation is a form of "alternative compliance" under Part 106 of the minimum licensing rules. It is not. Alternative compliance is a separate process for asking the Division to accept an alternative way of meeting a requirement. The 50% rule is the requirement, not an alternative to it.

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.

Common questions

Q: My center has one CPR-certified person on site. Am I in compliance?
A: Probably not, under the rule in effect at the time of this opinion. The Division's rule required first-aid and CPR certification for the director, the assistant director or site supervisor, and 50% of the staff on site at any given time. Check the current Minimum Licensing Requirements before relying on this answer, because rules have been updated since 2016.

Q: Can an agency rule be stricter than the statute it comes from?
A: Yes, when the statute authorizes a floor and lets the agency go higher. "At least one" is a floor. The agency may require one, two, ten. The Arkansas Supreme Court has consistently held that a proper administrative regulation has the same force and effect as a statute (Rowell v. Austin).

Q: What is "alternative compliance" in this context?
A: It is a separate procedure under Part 106 of the licensing rules letting a provider ask the Division to accept a different way of meeting a licensing requirement. If the Division denies the request, the dispute can be appealed to the Division and then to the Child Care Appeal Review Panel under Ark. Code Ann. § 20-78-206(c)(1). It is not a backdoor to the underlying licensing rule.

Q: Where can I find the actual licensing rules?
A: The opinion cites Part 306, No. 5 of the Minimum Licensing Requirements for Child Care Centers (PUB-002, rev. 1/1/2015 at the time). The current version is on the DHS Division of Child Care and Early Childhood Education website.

Background and statutory framework

Arkansas' Child Care Facility Licensing Act sits at Ark. Code Ann. § 20-78-201 et seq. Section 20-78-206 directs the Division of Child Care and Early Childhood Education to promulgate rules setting minimum standards for licensing, refusal, suspension, and revocation. Section 20-78-210(e) layers on a specific instruction about CPR coverage: "[T]he division shall require that during regular business hours at least one (1) adult member of the staff who is certified in infant and child cardiopulmonary resuscitation shall be present within the physical confines of the child care facility."

The word "at least" in the statute is doing the load-bearing work. It lets the Division impose a more stringent requirement. The Division did exactly that in Part 306, No. 5 of the Minimum Licensing Requirements for Child Care Centers: director, assistant director or site supervisor, and 50% of on-site staff at any given time must hold first aid and CPR certification.

The opinion uses Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982), for the proposition that a proper administrative regulation has the same legal force as a statute. That is why the 50% rule, even though it is in the regulations and not the code, is the binding requirement.

Citations and references

Statutes:

• Ark. Code Ann. § 20-78-201 et seq. (Child Care Facility Licensing Act)
• Ark. Code Ann. § 20-78-206 (rulemaking authority)
• Ark. Code Ann. § 20-78-210(e) ("at least one" CPR floor)

Cases:

• Rowell v. Austin, 276 Ark. 445, 637 S.W.2d 531 (1982) (proper agency regulation has force of statute)

Agency rule:

• Minimum Licensing Requirements for Child Care Centers, Part 306, No. 5 (PUB-002, rev. 1/1/2015)
• Minimum Licensing Requirements for Child Care Centers, Part 106 (alternative compliance)

Source

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

Original opinion text

Opinion No. 2016-090
November 28, 2016
STATE OF ARKANSAS
ATTORNEY GENERAL
LESLIE RUTLEDGE

The Honorable Dan Sullivan
State Representative
P. O. Box 19406
Jonesboro, AR 72403-2406

Dear Representative Sullivan:

This is in response to your request for my opinion concerning certain minimum licensing requirements for child care facilities under the Child Care Facility Licensing Act (Ark. Code Ann. § 20-78-201 et seq.). Your questions pertain specifically to the requirement regarding the number of staff that must be certified in infant and child cardiopulmonary resuscitation ("CPR"). You ask:

Question 1: Would a child care facility be found noncompliant if only one staff member who is present within the physical confines of the facility is certified in CPR in accordance with Ark. Code Ann. § 20-78-210(e)?

Question 2: Is the requirement [in the Arkansas Department of Human Services' minimum licensing requirements] that the director, assistant director/site supervisor, and 50% of the facility staff that are on site at the child care facility at any given time have a certificate of successful completion of first aid and CPR from an approved organization a form of "alternative compliance" in relation to Ark. Code Ann. § 20-78-210(e)?

RESPONSE

Arkansas Code Annotated § 20-78-210(e) is not itself the applicable licensing requirement. Rather, it is a direction to the Arkansas Department of Human Services' Division of Child Care and Early Childhood Education to establish a licensing requirement. The requirement set forth in your second question is the applicable licensing requirement. This requirement is not a form of alternative compliance.

DISCUSSION

Section 20-78-210(e) is not directed at child care facilities. Instead, it is directed at the Arkansas Department of Human Services' Division of Child Care and Early Childhood Education ("Division"). The statute instructs the Division to create a licensing requirement that requires the presence of "at least one (1) adult member of the staff who is certified in infant and child cardiopulmonary resuscitation [CPR]":

In issuing an initial license or reviewing a current license for a child care facility, the division shall require that during regular business hours at least one (1) adult member of the staff who is certified in infant and child cardiopulmonary resuscitation shall be present within the physical confines of the child care facility.

This statute is not the licensing requirement itself. Rather, it is a direction for the Division to create a licensing requirement. As discussed below, the actual licensing requirement is the one found in an administrative regulation that is the subject of your second question.

The CPR requirement identified in your second question is an administrative regulation that was promulgated by the Division of Child Care and Early Childhood Education ("Division") of the Arkansas Department of Human Services pursuant to general authority in Ark. Code Ann. § 20-78-206. This statute requires the Division to "promulgate and publish rules and regulations setting minimum standards governing the granting, revocation, refusal, and suspension of licenses for a child care facility and the operation of a child care facility."

The Division's licensing requirements for child care facilities require that "[t]he director, assistant director/site supervisor, and 50% of the facility staff that are on site at any given time shall have a certificate of successful completion of first aid and CPR from an approved organization." The CPR licensing requirement is more stringent than the "one (1) adult [staff] member" minimum under Ark. Code Ann. § 20-78-210(e). But that is plainly authorized by section 20-78-210(e) because the statute says "the division shall require ... at least one (1) adult member of the staff who is certified in infant and child cardiopulmonary resuscitation [CPR]." (Emphasis added). The "at least" language in the statute authorizes, or certainly allows, the Division to impose a more stringent requirement; hence the regulation is a proper exercise of the Division's administrative authority and has the same effect as a statute.

You have asked whether this administrative regulation requirement is a form of "alternative compliance." I presume you refer to an "alternative form of compliance" with the Minimum Licensing Requirements for Child Care Centers the procedure for which is addressed in the licensing requirements. Alternative compliance" is an alternate way to comply with a licensing requirement. In my opinion, the CPR requirement in your question is not an alternative way to comply with a licensing requirement. Rather, it is the licensing requirement.

Sincerely,

LESLIE RUTLEDGE
Attorney General