If an Idaho boarding school keeps kids 24 hours a day for therapeutic and educational programs, does it have to be licensed under Idaho's child-care licensing law?

Subject

Opinion 87-4: Boarding school providing 24-hour group care is subject to child-care licensing act.

Plain-English summary

Bonner County Deputy Prosecutor Paul Vogel asked whether the Eagle Mountain Outpost, a Bonner County facility holding itself out as a boarding school for adolescents with "emotional, behavioral, substance abuse or learning disorders," was subject to Idaho's Child-Care Licensing Act of 1963 (Idaho Code § 39-1208 et seq.). The owner had argued no, on the theory that the operation was a school providing education rather than a group home providing parental care. Attorney General Jim Jones concluded yes: a boarding school that provides 24-hour group care for children under 18 falls within the Act and must be licensed.

The opinion worked through the statutory definitions methodically. The Act defines "child" as a person under 18, "foster home" as a home accepting an unrelated child for substitute parental care, "children's agency" or "children's institution" as an organization providing group care for children in its custody or control through legal action or informal arrangement, "foster care" as child care in lieu of parental care in a foster home or children's institution, and "group care" as foster care in a dormitory or cottage-type setting. The Eagle Mountain operation, taking unrelated children of school age into 24-hour residential care under contractual arrangements with their parents, fit each definition. The single statutory exception in § 39-1213(b), for foster homes approved by a licensed children's agency or institution, did not apply.

The opinion rejected the argument that the education statutes in Idaho Code Title 33 displaced the Act. Title 33 does not define "boarding school" or carve out an exemption from child-care licensing. Sections 33-118 and 33-119 cover the minimum course of study and accreditation; § 33-122 directs the Board of Education to cooperate with the Board of Health and Welfare on public health matters. Even if there were a conflict, the rule in State v. Roderick would require reconciling the statutes to give effect to both. There was no inherent conflict: certifying the educational program could happen alongside licensing the group-care environment, just as the education and child-care statutes had been read together in earlier opinions.

The opinion closed with the enforcement framework. Counties were responsible for the cost and enforcement of state penal statutes (§ 31-2227), and prosecutors had a duty to handle child-care licensing cases (§§ 39-1220, 39-1222). The Attorney General's office could provide assistance under §§ 67-1401(7) and 31-2603.

Currency note

This opinion was issued in 1987. 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.

Idaho's Child-Care Licensing Act has been amended multiple times since 1987, with significant changes to the definitions and the licensing process. The federal landscape around residential treatment facilities has also evolved (including IDEA, FERPA, and ICWA implications for some programs). Anyone running or evaluating a current Idaho residential program for children should consult the present Idaho Code Title 39, Chapter 12, the current Department of Health and Welfare administrative rules, and applicable federal frameworks, not the 1987 framing here.

What the opinion meant for the parties at the time

For Bonner County, the opinion provided the legal basis for a licensing enforcement action against Eagle Mountain Outpost. The operator's argument that this was a "school" rather than a group home did not protect the facility from the Act. The county prosecutor was within statutory authority to pursue prosecution under §§ 39-1220 and 39-1222 if the facility refused to obtain a license.

For other Idaho boarding schools and residential treatment programs in 1987, the opinion sent a clear message: if you are taking children under 18 for 24-hour group care, you need a Department of Health and Welfare license, even if you call yourself a school and offer educational programming. The Act's purpose, "to insure that children of this state shall receive adequate substitute parental care" when their parents have relinquished daily care to others, applied just as much to a residential education program as to a traditional foster home.

For the Department of Health and Welfare, the opinion confirmed its licensing authority extended to residential education facilities. The Department could license the group-care environment alongside whatever the State Department of Education required for the educational program.

For parents considering placement of a child in a residential program, the opinion was a useful indicator that any Idaho program advertising 24-hour care should be able to show a current Health and Welfare license. Absence of one was a red flag.

Common questions

Did the AG say all boarding schools needed child-care licenses?
Not all. The Act applied to facilities providing 24-hour group care for children under 18 in lieu of parental care. A traditional day school where children went home at the end of the day did not fall within the Act. The operative trigger was the residential, parents-not-present aspect of the care.

What if the facility's primary purpose was education or therapy rather than substitute parenting?
The purpose of the program did not change the legal classification under the Act. The Eagle Mountain Outpost combined "academic education," a "highly structured intensive therapeutic environment," and "therapeutic recreation," all in a residential setting. The opinion treated all three as wrapped within "group care" once the residential element kicked in. The legislature had instructed in § 39-1223 that the Act "be liberally construed" to achieve its purpose, which the AG read to disfavor narrow exemptions.

Could a facility avoid licensing by structuring itself as a long-term educational contract rather than a foster placement?
No. The definition of "foster care" was "child care, in lieu of parental care in a foster home, children's agency or children's institution." If the children lived at the facility under a contract with their parents while the parents were not providing daily care, the facility was providing care "in lieu of" the parents. The legal label of the contract did not change that.

What happened to the educational accreditation question?
The opinion did not displace the educational accreditation framework. Sections 33-118, 33-119, and 33-1201 still applied to the educational program. The point was that those provisions did not exempt the residential side of the operation from child-care licensing. Both regulatory layers operated at once.

Who enforced the Act?
Counties were responsible for the cost of enforcing state penal statutes under § 31-2227. The county prosecutor had the duty to handle child-care licensing cases (§ 39-1220 referenced criminal penalties for violations and § 39-1222 referenced injunctive enforcement). The Attorney General's office could assist under §§ 67-1401(7) and 31-2603, but the front-line enforcement was a county responsibility.

Background and statutory framework

Idaho's Child-Care Licensing Act of 1963 was a relatively short statute, codified in Idaho Code §§ 39-1208 through 39-1223. The legislature framed it as a response to the "fact that a child is not capable of protecting himself, and when his parents for any reason have relinquished his care to others, there arises the possibility of certain risks to the child which require offsetting statutory protection of licensing."

The Act covered three categories of providers: foster homes, children's agencies, and children's institutions. Each had its own definition. Foster homes were single-family settings accepting one child at a time; children's agencies were organizations placing or supervising children; children's institutions were group-care providers. A boarding school with 24-hour care fit the children's institution category, since it took children "for control, care, maintenance or placement, . . . or provides group care for children who are in its custody and control through . . . informal arrangement." The operative concept was "group care," defined to mean "foster care of a number of children . . . in a dormitory or cottage type setting, characterized by activities and discipline of a more regimented and less formal nature than found in a family setting."

The licensing authority sat with the Idaho Department of Health and Welfare under § 39-1213. Licensing standards came from §§ 39-1210 and 39-1211. The single statutory exception in § 39-1213(b) covered foster homes that had been approved through a licensed children's agency or institution.

Idaho's education statutes in Title 33 governed accreditation, course of study, and teacher certification, but they did not contain any cross-reference to child-care licensing. Section 33-1257 was a savings provision indicating no intent to override other statutory frameworks. Section 33-122 directed cooperation between the Board of Education and the Board of Health and Welfare on public health matters.

The opinion drew on basic statutory construction rules from Summers v. Dooley (legislative intent) and St. Benedict Hospital v. County of Twin Falls (literal reading where statute is clear). It applied State v. Roderick to confirm that even a perceived conflict between Title 33 and Title 39 would have to be reconciled, not used to create an implied exemption.

Citations

• Idaho Code § 31-2227
• Idaho Code § 31-2603
• Idaho Code § 33-118
• Idaho Code § 33-119
• Idaho Code § 33-122
• Idaho Code § 33-1001
• Idaho Code § 33-1201
• Idaho Code § 33-1257
• Idaho Code § 39-1208 (legislative findings and policy)
• Idaho Code § 39-1209 (definitions of child, foster home, children's agency/institution, foster care, group care)
• Idaho Code § 39-1210 (licensing standards)
• Idaho Code § 39-1211 (licensing standards)
• Idaho Code § 39-1213 (licensing authority and § 39-1213(b) exception)
• Idaho Code § 39-1220 (penalties)
• Idaho Code § 39-1222 (enforcement)
• Idaho Code § 39-1223 (liberal construction)
• Idaho Code § 67-1401(7) (Attorney General duties)
• Summers v. Dooley, 94 Idaho 87, 481 P.2d 318 (1971)
• St. Benedict Hospital v. County of Twin Falls, 107 Idaho 143, 686 P.2d 88 (App. 1984)
• Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963)
• State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962)
• Independent School District v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 820 (1931)
• 51 AmJur 2d, Licenses and Permits, §§ 21, 44, 126
• Official Attorney General Opinion No. 76-9
• Official Attorney General Opinion No. 84-4
• Official Attorney General Opinion No. 78-34

Source

• Landing page: https://www.ag.idaho.gov/office-resources/opinions/
• Original PDF: https://ag.idaho.gov/content/uploads/2018/04/OP87-04.pdf

Original opinion text

STATE OF IDAHO
OFFICE OF THE ATTORNEY GENERAL
JIM JONES
ATTORNEY GENERAL

BOISE 83720

TELEPHONE
(208) 334-2400

ATTORNEY GENERAL OPINION NO. 87-4

Paul Vogel, Esq.
Deputy Prosecuting Attorney
Bonner County
P.O. Box 1486
Sandpoint, ID 83864

Per Request for Attorney General's Opinion

QUESTION PRESENTED:

Your letter of January 19, 1987, requests our opinion as to "whether or not a boarding school is subject to Idaho's Child-Care Licensing Act" as found in Idaho Code § 39-1208, et seq.

Our opinion is that a boarding school which provides 24-hour group care for children under the age of 18 years is subject to the provisions of the Child-Care Licensing Act.

ANALYSIS:

Your letter indicates that the owner of the facility in question does not think the Child-Care Licensing Act of 1963 (hereinafter "the Act") applies because, in his viewpoint, the facility is a "school providing an education and is not a group home providing full-time substitute parental care." Attached to your letter are copies of materials from the "school" known as the Eagle Mountain Outpost. These materials indicate that this is a facility which receives children through contractual arrangements with their parents. By the terms of these agreements the children live at the facility and are "supervised in group care by the staff of the Eagle Mountain Outpost." According to the attachments to your letter and an advertising brochure we have received, the facility serves "the adolescent with emotional, behavioral, substance abuse or learning disorders." It holds itself out as a "holistic environment to live, learn, and grow in," and has several program components consisting of "academic education," an "equally important . . . highly structured intensive therapeutic environment" and "therapeutic recreation."

In answering your question, we look first to the clear statement of public policy declared by the Idaho legislature in adopting the Act:

. . . to insure that children of this state shall receive adequate substitute parental care in the event of absence, temporary or permanent inability of parents to provide care and protection for their children. This policy is predicated upon the fact that a child is not capable of protecting himself, and when his parents for any reason have relinquished his care to others, there arises the possibility of certain risks to the child which require offsetting statutory protection of licensing.

Idaho Code § 39-1208. The legislature took the additional step of enacting Idaho Code § 39-1223 to require that the Act be liberally construed to achieve that policy.

We next turn to the definition section of the Act, Idaho Code § 39-1209, et seq., and set forth the following relevant definitions:

(3) "Child" means a person less than 18 years of age.

(4) "Foster home" means a home which accepts, for any period of time, with or without compensation, an unrelated child as a member of the household for the purpose of providing substitute parental care of the child.

(7) "children's agency" or "children's institution" means an organization, corporation, society or association which receives children for control, care, maintenance or placement, . . . or provides group care for children who are in its custody and control through legal action or informal arrangement.

(9) "Foster care" means child care, in lieu of parental care in a foster home, children's agency or children's institution.

(10) "Group care" means foster care of a number of children . . . in a dormitory or cottage type setting, characterized by activities and discipline of a more regimented and less formal nature than found in a family setting. (Emphasis added.)

The authority for licensing foster homes, children's agencies and children's institutions is granted to the Idaho Department of Health and Welfare. Idaho Code § 39-1213. The standards for licensing these facilities are set forth in Idaho Code §§ 39-1210 and 39-1211. There is no exception in the Act for an educational institution, boarding school, or any other type of school operation which also provides 24-hour group care. The only exception to the scope of the licensing authority contained in this act is provided by Idaho Code § 39-1213(b) wherein a specific exception is granted to a foster home which has been approved by a licensed children's agency or children's institution.

In applying the definitions of the Act to the facility described in your letter and attachments, we are guided by some basic rules of statutory construction. First, in construing a statute the goal is to determine the legislative intent, which intent may be implied by the language used, or inferred on grounds of policy or reasonableness. Summers v. Dooley, 94 Idaho 87, 481 P.2d 318 (1971). When applying a statute to a factual setting, the initial determination is whether the meaning of the statute is clear or ambiguous. If the meaning of the statute is clear, then one should read the statute literally, neither adding nor taking away anything. St. Benedict Hospital v. County of Twin Falls, 107 Idaho 143, 148, 686 P.2d 88 (App. 1984); see also, Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963).

Examining the Act with the above-cited principles in mind, we conclude that the licensing requirements of the Act apply to a boarding school that provides 24-hour group care for children under the age of 18 years. The children who live at and attend the facility are all "less than 18 years of age." Idaho Code § 39-1209(3). They are "unrelated" to the owner or operator. Idaho Code § 39-1209(4). The facility cares for the children on a 24-hour basis. The children's parents obviously are not in a position to provide care for them while they are at the facility. The facility operators and staff provide care "in lieu of parental care." Idaho Code § 39-1209(9). By doing so, the facility is providing "foster care." Id.

According to the sample "agreement" attached to your letter, the facility holds itself out as a provider of "group care." Under the relevant language of the Act, "group care" is defined as "foster care of a number of children . . . in a dormitory or cottage-type setting, characterized by activities and discipline of a more regimented and less formal nature than found in a family setting." Idaho Code § 39-1209(10). Finally, the facility also meets the definition of "children's agency," or "children's institution," because it is "an organization . . . which receives children for control, care, maintenance or placement, . . . or provides group care for children who are in its custody and control through . . . informal arrangement, . . . ." (emphasis added) Idaho Code § 39-1209(7).

Our opinion that this facility is subject to the Child-Care Licensing Act is confirmed by reference to the expressed legislative policy to require the "offsetting statutory protection of licensing" when a child's parents for any reason have relinquished his care to others. That legislative policy should be attained through liberal construction of the Act. Idaho Code §§ 39-1208 and 39-1223. We recognize that the stated goals of the facility's operators are laudable, and that there may well be a need for this kind of program in our society today. However, the clear and unambiguous language of the Act and the legislative policy behind it do not discourage such programs. The Act simply specifies minimum standards to ensure that children receive adequate care when their "parents for any reason have relinquished [their] care to others."

Your letter implies that the operators of this facility maintain that they are instead governed exclusively by the education acts found in Idaho Code Title 33. However, those statutes do not provide any definition of a "boarding school," nor any specific exemption or exclusion from the scope of the Child-Care Licensing Act. Idaho Code §§ 33-118 and 119 prescribe the minimum course of study and accreditation. These are educational requirements and do not address group care, health, safety or living requirements. A review of the definition section in Idaho Code § 33-1001, together with the certification requirements for teachers in Idaho Code § 33-1201 and the savings provision of Idaho Code § 33-1257, indicates a legislative intent that the education acts not conflict with the provisions of the Child-Care Licensing Act. In fact, Idaho Code § 33-122 directs the Board of Education to cooperate with the Board of Health and Welfare on public health matters.

While a comparison of the provisions of the Child-Care Licensing Act and the provisions of the education acts contained in title 33 reveals no conflict, even if we were to assume such a conflict the provisions would have to be reconciled and construed so as to give effect to both. State v. Roderick, 85 Idaho 80, 84, 375 P.2d 1005 (1962). There is no inherent conflict in requiring the certification of a particular educational program for a facility of this nature and also requiring that the group care and living environment aspects be licensed by the childcare licensing agency. See, 51 AmJur 2d, Licenses and Permits, §§ 21, 44, 126; Independent School District v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 820 (1931); Official Attorney General Opinion No. 76-9, p. 65.

In response to the other concerns addressed in your letter, counties are responsible for the cost and enforcement of state penal statutes, and it is the duty of a prosecuting attorney to handle an appropriate child-care licensing case. Idaho Code §§ 31-2227, 39-1220, and 39-1222; Official Attorney General Opinion No. 84-4. The Attorney General does provide assistance to prosecutors in fulfilling their obligations. Idaho Code §§ 67-1401(7) and 31-2603.

Idaho Code § 39-1208, et seq., requires the licensing of a "boarding school" which provides group care for children less than 18 years of age on a 24-hour basis, even though it may also provide an educational program. There is no exception to the provisions of the Child-Care Licensing Act contained in title 33 of the Idaho Code relating to education. It is the duty and responsibility of the counties to enforce state penal statutes and it is the duty of the county prosecuting attorney to prosecute a violation of the Child-Care Licensing Act.

AUTHORITIES CONSIDERED:

Idaho Statutes
Idaho Code §§ 31-2227, 33-118, 33-119, 33-122, 33-1001, 33-1201, 39-1208, 39-1209, 39-1210, 39-1211, 39-1213, 39-1220, 39-1222, 39-1223, 39-1257

Idaho Cases
Summers v. Dooley, 94 Idaho 87, 481 P.2d 318 (1971)
St. Benedict Hospital v. County of Twin Falls, 107 Idaho 143, 686 P.2d 88 (App. 1984)
Messenger v. Burns, 86 Idaho 26, 382 P.2d 913 (1963)
State v. Roderick, 85 Idaho 80, 375 P.2d 1005 (1962)
Independent School District v. Pfost, 51 Idaho 240, 4 P.2d 893, 84 A.L.R. 820 (1931)

Other Authorities
Official Attorney General Opinion Nos. 76-9, 78-34, 84-4
51 AmJur 2d, Licenses and Permits, §§ 21, 44, 126

DATED this 8th day of July, 1987.

ATTORNEY GENERAL

ANALYSIS BY:
JOHN J. McMAHON
Chief Deputy Attorney General
PETER C. ERBLAND
Deputy Attorney General
Chief, Criminal Law Division

cc:
Idaho Supreme Court
Supreme Court Library
Idaho State Library