Request By:
Mr. David L. Nicholas, Director
Division of Occupations
and Professions
Department of Administration
Finance and Administration Cabinet
State Board of Examiners of
Social Work of Kentucky
P.O. Box 456
Frankfort, Kentucky 40602
Opinion
Opinion By: Frederic J. Cowan, Attorney General; Richard C. Carroll, Assistant Attorney General
In your correspondence to this Office, you posed three questions regarding the interpretation by the Board of Examiners of Social Workers of several sections of KRS 335.010.
In particular, you stated that KRS 335.010(5) provides that social workers employed in certain settings are exempt from the licensure requirements of KRS 335.010. Specifically, KRS 335.010(5) states:
Nothing contained in KRS 335.010 to 335.160 and 335.990 shall require persons employed by church-related or church-operated or affiliated agencies, childrens' homes, neighborhood centers, or other philanthropic and non-profit field service offices to be licensed. The provisions of KRS 335.010 to 335.160 and 335.990 shall not be construed to apply to, limit or restrict the regulation of the title, setting of standards, qualification, training and experience of those engaged as employes of such entities in the practice of social work or applied social counseling.
According to your letter, this exemption has caused difficulty when attempting to interpret the phrase, "other philanthropic and non-profit field service offices" in regard to the licensing of social workers associated with such facilities. As a result of this interpretation problem, you stated that the Board enacted 201 KAR 23:130(1), which provides:
For the purposes of KRS 335.010(5) the term 'other philanthropic and non-profit field service offices' shall mean a non-profit subsidiary branch office of a national or regional social service agency which has been certified or accredited by such national or regional organization and which meets specific guidelines and standards of said organization, including those organizations whose branch office is directed by a board representative of and accountable to the local community, with responsibilities shared by the national or regional accrediting organization.
Section 2 of the regulation lists various well known national organizations to serve as examples of the exempted agencies defined in Section 1 of the regulation.
Your first question is, "Does this definition exceed the statutory authority which has been granted to the board by the General Assembly. "
Another concern of yours in regard to this exemption issue is a policy of the Board that, to be exempted under KRS 335.010(5), an agency must either meet the requirements in the regulation mentioned above, or be church operated or affiliated. Your second question is, "Whether this policy is a correct interpretation of the law."
KRS 335.070(1) states that the Board shall administer and enforce the provisions of KRS 335.010 to 335.160, and 335.990 and may adopt rules and regulations consistent with its provisions, including a code of ethical practice for certified social workers and social workers. The basic issue in regard to each of the above-stated questions is whether the Board exceeded the authority given to it under KRS 335.070(1) when it enacted 201 KAR 23:131 and adopted a policy which interprets some of the language contained in KRS 335.010(5).
In
Portwood v. Falls City Brewing Co., Ky., 318 S.W.2d 535 (1958), the then-Kentucky Court of Appeals affirmed a decision from a circuit court which had ruled that two regulations adopted by the Alcoholic Beverage Control Board were invalid. The basis for the holding was that one regulation bore no rational connection with the enforcement of the law pertaining to alcoholic beverages while the other regulation was in conflict with a statute.
As a general rule in regard to the adoption of regulations, the Court of Appeals in Portwood, supra, held:
. . . Rules and regulations must be reasonably adopted to secure the end in view, and are invalid if shown to bear no reasonable relation to the purpose for which they are authorized to be made . . . Id., at 536.
The appellate court went on to hold that:
Administrative rules and regulations, to be valid, must be within the authority conferred upon the administrative agency. The power to make regulations is not the power to legislate in the true sense, and under the guise of regulation legislation may not be enacted. The statute which is being administered may not be altered or added to by the exercise of a power to make regulations thereunder. A rule which is broader than the statute empowering the making of rules cannot be sustained. Administrative authorities must strictly adhere to the standards, policies, and limitations provided in the statutes vesting power in them. Regulations are valid only as subordinate rules and when found to be within the framework of the policy which the legislature has sufficiently defined. Id., at 537.
The issue of when an agency regulation is a proper interpretation of a statute was also addressed by the
Kentucky Supreme Court in Kentucky Association of Chiropractors, Incorporated v. Jefferson County Medical Society, et al., Ky., 549 S.W.2d 817 (1977).
In that case a Kentucky statute prohibited state licensed medical laboratories from accepting specimens from those individuals not authorized by statute to collect and submit such specimens. Another Kentucky statute listed various persons authorized to collect and submit such specimens, but did not specifically name chiropractors. Nevertheless, the Kentucky Board of Chiropractic Examiners, by way of a regulation, authorized chiropractors to collect and submit specimens to medical laboratories for testing.
The Kentucky Supreme Court affirmed the circuit court's decision that the regulation was void, since it was inconsistent with the statutes governing the practice of chiropractic. In its decision the Supreme Court stated that:
. . . [T]he power of the agency to adopt such regulations is limited to a direct implementation of administration of the functions and duty assigned to the administrative body by statute or executive order. KRS 13.082(1). As we read the regulation in issue here, we see it as an attempt to grant to chiropractors authority which had been previously withheld. It therefore goes well beyond the powers granted to the Board of Chiropractic Examiners by KRS 312.075, and the statutory definition of Chiropractic as originally written and as amended. As such, it is legislative in nature and in violation of Sections 27 and 28 of the Kentucky Constitution. In
Henry v. Parrish, 307 Ky. 559, 211 S.W.2d 418 (1948), we recognized that the power to make regulations is not the power to legislate in the true sense, and the statute which is being administered may not be altered by the exercise of a power to make regulations thereunder. Regulations are valid only as subordinate rules and when found to be within the framework of the policy defined by the legislature. Id., at 821.
Therefore in order for regulations to be valid, they may not add to or subtract from the authority provided by an enabling statute and they must bear a reasonable relation to the purpose for which they were enacted.
Another equally important and relevant principle is that, where the terms of a statute are ambiguous, the courts will allow an agency to interpret the ambiguity in the statute. See
Palmer v. Bank of Louisville & Trust, Ky.App., 682 S.W.2d 789 (1985).
The hereinabove cited principles of law were subsequently incorporated into a statute by the General Assembly in Chapter 13A of the Kentucky Revised Statutes. KRS 13A.120, as enacted in 1984, one year prior to the adoption of the regulation at issue, provided:
(1) An administrative body shall not promulgate administrative regulations:
(i) Which modify or vitiate a statute or its intent.
It must also be remembered that the General Assembly in KRS 335.010(1) stated that the purpose and policy of the licensing of social workers is,
. . . to protect the public from being misled by incompetent and unauthorized persons, and from unprofessional conduct on the part of qualified social workers by providing regulatory authority over persons who hold themselves out to the public as social workers.
It is clear that the regulation at issue did not add to the authority provided to the Board, as was the case with the Chiropractic Examiners. The regulation also has a reasonable relation to the purpose for which it was enacted, i.e. supervision and control over social workers to protect the general public from harm. However, based upon the hereinabove cited case law and statute, it is the opinion of this office that the regulation in question is invalid. This decision is based upon the fact that the regulation limited the interpretation of philanthropic and nonprofit field service offices to only those agencies which operate on a national or regional basis. The regulation eliminated the opportunity of any social worker(s) employed by philanthropic and nonprofit field service offices which operate on only a local or state wide basis to qualify for the exemptions. Therefore, based upon the foregoing reasoning the enactment of 201 KAR 23:130(1) went beyond the statutory authority granted to the board by the General Assembly. Likewise, the policy adopted by the board is also invalid since the regulation upon which it is based is invalid.
The third and last question contained in your letter is in regard to the licensing of social workers who are employed at Comprehensive Care Centers. According to your letter, the Board has historically considered Comprehensive Care Centers (previously referred to as Community Mental Health Centers) to be exempted from the licensure requirements due to the language contained in KRS 335.010(4), which provides:
Nothing contained in KRS 335.010 to 335.160 and 335.990 shall require persons employed by the Commonwealth of Kentucky, the director or administrative head of a social service agency or division of a city, county, or urban county government, or applicants for such employment to be licensed.
The issue then is whether employees of a Comprehensive Care Center are to be considered as employees of the Commonwealth of Kentucky under KRS 335.010(4). Community Mental Health Centers are the products of federal legislation, commonly known as the Community Mental Health Centers Act.
As noted in a previous Opinion issued by this Office, Comprehensive Care Centers are operated by Regional Community Mental Health and Mental Retardation Boards. [See OAG 74-384]. These mental health boards are established pursuant to KRS 210.370, et seq. In reality, it is these Regional Mental Health Boards which receive grants from the Commonwealth of Kentucky under KRS 210.370, et seq. , and the federal government under the Community Mental Health Centers Act, along with private donations, which fund the operation of the Community Mental Health Centers. See
Kentucky Region Eight v. Commonwealth, Ky.App., 507 S.W.2d 489 (1974). Therefore it would appear that Comprehensive Care Centers operate as agencies of the regional boards.
In the Kentucky Region Eight, supra, decision, one of the questions the Court of Appeals was asked to resolve was whether the regional boards were state agencies for purposes of the statutes which provided for the Kentucky Employees Retirement System. In its decision, the Court of Appeals held that the regional boards, insofar as the application of the retirement statutes were concerned, were not state agencies. The Court determined that state departments or agencies as used in KRS 61.510:
. . . [P]lainly means departments, boards or agencies that are such integral parts of state government as to come within regular patterns of administrative organization and structure and to be subject to standard personnel policies having general application in the administration of government. Id., at 491.
In support of its decision, the Court also noted that the employees of the regional boards are not under the state merit protection system, state salary schedule, or any other state personnel regulations. The Court also relied upon studies which pre-dated the enactment of KRS 210.370 which established that the use of non-profit corporations to implement the mental health program were intended to be alternatives to the use of direct state agencies. Id., at 490. The fact that the corporations receive and administer grants of state funds, according to the Court of Appeals, did not mean that they were state agencies.
Therefore, under the Region Eight decision, the employees of the regional boards were clearly not employees in regard to the Kentucky Employees Retirement System.
In an Opinion from this Office following the Region Eight, supra, decision, the question was asked whether Speech Pathologists and Audiologists employed at Comprehensive Care Centers, also operated by the regional boards, were employees of a state government agency and therefore exempt from having to obtain a license from the Speech Pathology and Audiology Board. [See OAG 74-384].
In that Opinion, this Office held that the employees of a comprehensive care center were not to be considered as state employees for purposes of being exempt from the licensure provisions for speech pathologists and audiologists. This Opinion was followed two years later by another Opinion from this Office, OAG 76-260, which dealt with whether employees of the regional boards were eligible to participate in the Public Employees Deferred Compensation Plan. In that Opinion, this Office held that the ruling in the Region Eight, supra, decision should again be followed and therefore employees of the Mental Health-Mental Retardation Boards were not employees of a city, county, or other political subdivision.
Following the Region Eight decision, regulations were adopted by the Cabinet for Human Resources regarding the regional mental health and mental retardation boards. See 902 KAR 6:010, et seq.
902 KAR 6:010 Section 1 provides:
. . . For purposes of carrying on the delegated regional responsibilities of the Cabinet for Human Resources, Department for Mental Health and Mental Retardation Services, these mental health, mental retardation boards become the local authority.
Additionally, the regulations also require that the regional boards establish personnel policies along with a specific corporate structure in order to continue to receive grants though the Cabinet for Human Resources. Nevertheless, based upon the previously cited case law herein the Cabinet for Human Resources by way of regulation cannot designate employees of these boards nor employees of the Comprehensive Care Centers as employees of the Commonwealth of Kentucky. Such a determination could only be established by way of interpretation of a statute by a court of law, or by the general assembly through legislation.
Therefore, based upon the hereinabove-cited authority, it is the Opinion of this Office that employees of the Comprehensive Care Centers are not persons employed by the Commonwealth of Kentucky as contained in KRS 335.010(4) and therefore are not exempted from the licensure requirements of KRS 335.010, et seq. as provided in KRS 335.010(4).