Can a Tennessee church run a Parents' Day Out program more than two days a week if no individual child attends more than two days?

Subject

Opinion No. 12-48, Licensing Exemption for Parents' Day Out Programs, April 25, 2012

Plain-English summary

Tennessee licenses child-care agencies through the Department of Human Services, with a narrow exemption for church-run "Parents' Day Out" programs. Tenn. Code Ann. § 71-3-503(a)(7) exempts these programs from licensure if they care for pre-school-age children "for not more than two (2) days in each calendar week for not more than six (6) hours each day."

Commissioner Raquel Hatter of DHS asked the AG two related questions. First: can a church run the Parents' Day Out program for more than two days a week so long as no individual child attends more than two days? Second: if that doesn't work, can the church run several different Parents' Day Out programs at the same facility on different days, each operating within the two-day limit?

The AG said no to both. The two-day, six-hour cap applies to the program, not to each child's attendance. Stretching the exemption to per-child attendance or splitting one full-week program into nominally separate two-day programs at the same facility would effectively let unlicensed church programs operate every weekday, defeating the General Assembly's intent. The AG also rejected any fall-back through the general "catch-all" exemption in Tenn. Code Ann. § 71-3-503(c) because the specific Parents' Day Out provision controlled.

Currency note

This opinion was issued in 2012. 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.

Historical background and statutory framework

Tennessee's child-care licensing scheme

Tenn. Code Ann. §§ 71-3-501 to -534 establish a comprehensive child-care licensure regime. "Child care" is defined as "the provision of supervision and protection, and, at a minimum, meeting the basic needs, of a child or children for less than twenty-four (24) hours a day" (§ 71-3-501(3)). A "child care agency" includes any family child-care home, group child-care home, child-care center, drop-in center, or any place that provides child care for five or more children unrelated to the primary caregiver for three or more hours per day (§ 71-3-501(4)). All such agencies must be licensed by DHS unless they fit a statutory exemption.

The Parents' Day Out exemption

Section 71-3-503(a)(7) carves out:

"Parents' Day Out" or similar programs carried on by churches or church organizations that provide custodial care and services for children of less than school age for not more than two (2) days in each calendar week for not more than six (6) hours each day.

The exemption reaches only "children of less than school age," so older children would fall outside it. All of the day-and-hour limits apply collectively to the program, not to each child.

The "clear and convincing" standard for exemptions

Any program seeking an exemption from licensure must establish it by "clear and convincing evidence" under § 71-3-503(a)(1). The Tennessee Court of Appeals in In re Melanie T. (2011) described this standard as evidence that eliminates "any 'serious or substantial doubt about the correctness of the conclusions drawn from the evidence,'" producing "a firm belief or conviction" and showing that the asserted facts are "highly probable" rather than merely "more probable than not."

That enhanced burden colored the AG's interpretive method. Because the legislature elevated the proof standard, courts construe the exemption's language narrowly (Wilson v. Johnson County).

Why the per-child interpretation fails

The AG worked through the statute's plain text. The exemption limits the program's "provision of custodial care" to (a) children of less than school age, (b) not more than two days in each calendar week, and (c) not more than six hours each day. Reading the limits as applying only to individual children would let the program operate every weekday, "effectively allow these programs to operate on a full time basis without complying with the statute's licensure and regulatory requirements." That reading would also "render the time and date restrictions in the exemption meaningless," which violates the rule that statutes must be construed so "no part will be inoperative, superfluous, void or insignificant" (State v. Northcutt). The Court of Appeals in Tennessee Dep't of Human Services v. Priest Lake Cmty. Baptist Church (2007) had already rejected a similar workaround, holding that a church "Bible School" running every weekday for about twelve hours was not exempt.

Why parallel programs at the same facility also fail

The second question asked about running two or more nominally distinct Parents' Day Out programs at the same church on different weekdays. The AG read the exemption to apply to the church's overall Parents' Day Out operation at the facility, not to bookkeeping labels. Treating each labeled "program" as separate would again allow the church to deliver unlicensed full-week child care, contrary to the statute's plain limits and clear-and-convincing-evidence standard.

The catch-all exemption did not help

Tenn. Code Ann. § 71-3-503(c) is a general exemption for programs that are "clearly distinguishable from child care services typically regulated by the department." It contains factors like specialized educational or religious purposes, time-limited duration, and reasons parents would choose the program for its unique nature rather than as a substitute for full-time care. The AG concluded a Parents' Day Out program operating outside the (a)(7) limits could not use the catch-all because (1) Parents' Day Out is exactly the kind of routine child care DHS regulates, and (2) under the canon that a specific statute controls over a general one (Keough v. State), the specific (a)(7) provision governs.

Common questions

Our church wants to add a third weekday. Can we do that without a DHS license?

Not under this opinion. The two-day-per-week cap applies to the church's Parents' Day Out program as a whole. A third day would require either fitting some other exemption or obtaining a license from the Department of Human Services. Confirm current law before relying on this guidance.

What about running a Tuesday-Thursday morning program and a Wednesday-Friday afternoon program?

The AG analysis says this is not enough to qualify. The exemption applies to the church's Parents' Day Out operation at the facility, not to bookkeeping labels. Splitting one full-week program into nominally separate ones at the same site would defeat the exemption's plain limits.

If we run only twelve hours total a week, are we under the cap?

The cap is structural: not more than two days per week AND not more than six hours each day. The exemption requires both conditions. A program meeting one but not the other does not qualify.

What is "school age" for the exemption?

The exemption by its terms covers only "children of less than school age." Children who have reached school age would fall outside the exemption, so a program serving them could not rely on the (a)(7) exemption to avoid licensure.

What did the AG say about church programs that aren't structured as "Parents' Day Out"?

The opinion focused on programs falling within the (a)(7) language: church-run "Parents' Day Out" or similar programs offering custodial care for pre-school-age children. Other church programs would have to fit other exemptions or obtain licensure.

Can the "catch-all" exemption ever apply to a church's full-week program?

Not for a program that is "Parents' Day Out" in substance. The AG read the specific exemption to govern. A genuinely distinguishable program, such as one that primarily provides specialized non-childcare opportunities and only secondarily includes incidental supervision, might be analyzed differently under § 71-3-503(c), but that is fact-specific and beyond the scope of this opinion.

Citations

• Tenn. Code Ann. § 71-3-501 (child-care definitions)
• Tenn. Code Ann. § 71-3-502 (licensure requirement)
• Tenn. Code Ann. § 71-3-503 (exemptions)
• Tenn. Code Ann. § 71-3-503(a)(1) (clear and convincing standard)
• Tenn. Code Ann. § 71-3-503(a)(7) (Parents' Day Out)
• Tenn. Code Ann. § 71-3-503(c) (catch-all exemption)
• In re Valentine, 79 S.W.3d 539 (Tenn. 2002)
• In re Melanie T., 352 S.W.3d 687 (Tenn. Ct. App. 2011)
• Wilson v. Johnson County, 879 S.W.2d 807 (Tenn. 1994)
• State v. Northcutt, 568 S.W.2d 636 (Tenn. 1978)
• Keough v. State, 356 S.W.3d 366 (Tenn. 2011)
• Tennessee Dep't of Human Services v. Priest Lake Cmty. Baptist Church, 2007 WL 1828871 (Tenn. Ct. App. June 25, 2007)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2012/op12-048.pdf

Original opinion text

April 25, 2012
Opinion No. 12-48
Licensing Exemption for Parents' Day Out Programs

QUESTIONS

1. Does the exemption from "child care agency" licensure set forth at Tenn. Code Ann. § 71-3-503(a)(7) allow a church or church organization to operate a "Parents' Day Out" program for any number of days in the same calendar week as long as no single child enrolled in the program attends for more than two calendar days during the same calendar week and for no more than six hours during each of those two days?

2. If the answer to question one is no, then can the church or church organization have multiple Parents' Day Out programs at the same church facility operating on different days during the same calendar week in order to qualify for the exemption?

OPINIONS

1. No, a church may not operate a Parents' Day Out program for more than two days in a calendar week (and for not more than six hours each day) without a license, even if no individual child enrolled attends for more than two days in the same calendar week.

2. No, the church organization cannot have multiple Parents' Day Out programs operating at the same church facility on different calendar days and still qualify for the exemption.

ANALYSIS

Tennessee has enacted a comprehensive system for the regulation and licensure of child care agencies operating in Tennessee, codified at Tenn. Code Ann. § 71-3-501 to -534. "Child care" is defined as "the provision of supervision and protection, and, at a minimum, meeting the basic needs, of a child or children for less than twenty-four (24) hours a day." Tenn. Code Ann. § 71-3-501(3). A child care agency is any place or facility, regardless of whether it is licensed, that is operated as a "family child care home," a "group child care home," a "child care center," or a "drop-in center," as those terms are defined by the statute, or that provides child care for five or more children who are not related to the primary caregiver for three or more hours per day. Tenn. Code Ann. § 71-3-501(4). All persons or entities operating a child care agency must be licensed by the Department of Human Services, unless exempt under Tenn. Code Ann. § 71-3-503. Tenn. Code Ann. § 71-3-502(a)(1). Pursuant to Tenn. Code Ann. § 71-3-502(a)(1), the Department has promulgated extensive regulations applicable to licensed child care centers for the "enforcement of appropriate standards for the health, safety and welfare of children in their care." Tennessee Dep't. of Human Services v. Priest Lake Cmty. Baptist Church, No. M2006-00302-COA-R3-CV, 2007 WL 1828871 at *5 (Tenn. Ct. App. June 25, 2007).

Tenn. Code Ann. § 71-3-503 lists a number of programs and facilities that are exempt from these licensure requirements. In order to qualify for exemption, the program or facility must demonstrate by "clear and convincing evidence" that it meets the criteria for one of the listed exemptions. Tenn. Code Ann. § 71-3-503(a)(1). The "clear and convincing evidence" standard evidences that the General Assembly imposed an enhanced standard of proof for an entity seeking an exemption from licensure. Tennessee courts have defined the elements of this standard of proof as follows:

To be clear and convincing, the evidence must eliminate any "serious or substantial doubt about the correctness of the conclusions drawn from the evidence." In re Valentine, 79 S.W.3d 539, 546 (Tenn. 2002) (citing Hodges v. S.C. Toof & Co., 833 S.W.2d 896, 901 n. 3 (Tenn. 1992)). The evidence should produce a firm belief or conviction as to the truth of the allegations sought to be established. In re H.L.F., 297 S.W.3d [223] at 233 [Tenn. Ct. App. 2009]; In re M.L.P., 228 S.W.3d 139, 143 (Tenn. Ct. App. 2007); In re Giorgianna H., 205 S.W.3d 508, 516 (Tenn. Ct. App. 2006). In contrast to the preponderance of the evidence standard, clear and convincing evidence should demonstrate that the truth of the facts asserted is "highly probable" as opposed to merely "more probable than not." In re H.L.F., 297 S.W.3d at 233 (citing In re M.A.R., 183 S.W.3d 652, 660 (Tenn. Ct. App. 2005) (quoting In re C.W.W., 37 S.W.3d 467, 474 (Tenn. Ct. App. 2000))).

In re Melanie T., 352 S.W.3d 687, 695 (Tenn. Ct. App. 2011).

The questions posed concern Parents' Day Out programs operated by a church or a church organization. Such programs are exempt if they meet the following criteria:

(7) "Parents' Day Out" or similar programs carried on by churches or church organizations that provide custodial care and services for children of less than school age for not more than two (2) days in each calendar week for not more than six (6) hours each day.

Tenn. Code Ann. § 71-3-503(a)(7).

This Office, in reviewing this statute, is guided by the general rule of statutory construction to ascertain legislative intent from the plain meaning of the language of the statute, without unduly restricting or expanding the statute beyond its intended scope. Wilson v. Johnson County, 879 S.W.2d 807, 809 (Tenn. 1994). Furthermore, given the General Assembly's directive that any exemption must be demonstrated by clear and convincing evidence, the statutory language granting any exemption must be narrowly construed.

The exemption in question is limited to programs that do not exceed defined day and hour restrictions. The plain language of the exemption limits the provision of custodial care to: (a) children of less than school age, (b) for not more than two days in each calendar week, and (c) for not more than six hours each day. Tenn. Code Ann. § 71-3-503(a)(7). Thus to qualify a program may only serve children within the defined age for not more than two days a week, and for not more than six hours each day the program operates.

To read the exemption to allow multiple programs during the week which meet these day and time restrictions, or to allow the program to operate the entire week so long as no single child enrolled attends for more than two days and no more than six hours each day would effectively eviscerate the time and date restrictions set by the statute. This interpretation also would in effect allow these programs to operate on a full time basis without complying with the statute's licensure and regulatory requirements. Such a broad reading of this provision is contrary to the plain meaning and intent of the statute to allow Parents' Day Out programs to operate without licensure only on a limited basis, contravenes the "clear and convincing evidence" standard for obtaining an exemption and would render the time and date restrictions in the exemption meaningless. See State v. Northcutt, 568 S.W.2d 636, 637-38 (Tenn. 1978) (stating that a statute should be construed so that "no part will be inoperative, superfluous, void or insignificant"). See also Priest Lake Cmty. Baptist Church, 2007 WL 1828871 at *14-16 (rejecting a constitutional challenge to the Department of Human Services finding that a church-operated "Bible School" program caring for many children, which operated every weekday for approximately twelve hours, was not exempt).

Nor could any church or church organization whose Parents' Day Out program failed to meet the exemption criteria under Tenn. Code Ann. § 71-3-503(a)(7) satisfy the requirements of the "catch-all" exemption at Tenn. Code Ann. § 71-3-503(c). This exemption states:

(c) In analyzing whether the program or activity is exempt pursuant to this section, unless the department determines upon clear and convincing evidence that the program or activity qualifies for an exemption based upon the criteria set forth in subdivisions (a)(2)-(12), the department shall consider the following nonexclusive criteria to determine if the program or activity is clearly distinguishable from child care services typically regulated by the department and otherwise qualifies for exemption from licensing:

(1) The sole or primary purpose of the program or activity is to provide specialized opportunities for the child's educational, social, cultural, religious or athletic development, or to provide the child with mental or physical health services;

(2) The time period in which the program or activity provides these opportunities is consistent with a reasonable time period for the completion of the program or activity, considering the age of each child served and the nature of the program;

(3) The primary purpose of the program or activity is not routinely available or could not be made routinely available in the typical child care settings regulated by the department;

(4) Parents could reasonably be expected to choose the program or activity because of the unique nature of what it offers, rather than as a substitute for full-time, before or after school, holiday or weather-related child care; and

(5) If the program or activity is regulated by any other federal, state or local agency, it is required by such other agency to comply with standards that substantially meet or exceed department licensing regulations.

Tenn. Code Ann. § 71-3-503(c) (emphasis added).

A Parents' Day Out program operating outside of the time and date limitations of Tenn. Code Ann. § 71-3-503(a)(7) would not qualify for the "catch all" exemption in Tenn. Code Ann. § 71-3-503(c) because a Parents' Day Out program is not clearly distinguishable from child care services typically regulated by the Department nor does it provide services not routinely available in the typical child care settings regulated by the Department. See Priest Lake Cmty. Baptist Church, 2007 WL 1828871 at *12 (noting that including a specialized component, such as religious development, in a program that primarily constitutes child care is not sufficient to qualify for the catch-all exemption). Furthermore, from a statutory construction perspective, given Tenn. Code Ann. § 71-3-503(a)(7) specifically addresses under what circumstances a Parents' Day Out program is exempt from licensure, then this provision should exclusively govern such programs rather than the general catch-all exemption at Tenn. Code Ann. § 71-3-503(c). See Keough v. State, 356 S.W.3d 366, 371 (Tenn. 2011) (citing the generally accepted rule of statutory construction that "a special statute, or a special provision of a particular statute, will prevail over a general provision in another statute or a general provision in the same statute").

ROBERT E. COOPER, JR.
Attorney General and Reporter

WILLIAM E. YOUNG
Solicitor General

SHANTA J. MURRAY
Assistant Attorney General

Requested by:
Raquel Hatter, MSW, Ed.D.
Commissioner
TN Department of Human Services
400 Deaderick Street
Nashville, TN 37243-0028