CONSTRUCTION OF CHAPTER 117, LAWS OF 1951 ‑- REGULATION OF NURSING HOMES

CONSTRUCTION OF CHAPTER 117, LAWS OF 1951 ‑- REGULATION OF NURSING HOMES.

1. Under chapter 117, Laws of 1951, the right to the issuance of a nursing home license and th right to the license fee accompanying the application for a license belongs entirely to the state department of health.

2. Under chapter 117, Laws of 1951, local authorities may not issue separate license and may not enforce regulations which are more stringent than those of the department of health.

3. Under chapter 117, Laws of 1951, the state department of health may issue provisional licenses after July 1, 1951.

4. Under chapter 117, Laws of 1951, the fee for a renewal of a license is in the amount of ten dollars.

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                                                                   June 12, 1951

Honorable J. A. Kahl, M.D.
Acting State Director of Health
Smith Tower
Seattle 4, Washington                                                                                                     Cite as:  AGO 51-53 No. 69

Dear Sir:

            This is to acknowledge receipt of your letter of May 4, 1951, wherein you requested an opinion of this office on the following questions:

            1. When a local health department is authorized upon a receipt of a certificate of approval to enforce the standards, rules and regulations governing nursing homes under chapter 117, Laws of 1951, is the local health department entitled to the license fee that accompanies the application for license?

            2. If, under chapter 117, Laws of 1951, the local health department is entitled to the license fee that accompanies the application for license, must the fee be used solely for the purposes of the act?

             [[Orig. Op. Page 2]]

            3. Under chapter 117, Laws of 1951, when the local health department has received a certificate of approval from the State Department of Health to enforce the standards, rules and regulations governing nursing homes, does the local department or the State Department of Health issue the license, or may the license be issued jointly?

            4. Under chapter 117, Laws of 1951, may local authorities issue separate licenses and enforce regulations which are more stringent than those of the State Department of Health?

            5. Under chapter 117, Laws of 1951, may the State Department of Health issue provisional licenses to operators of nursing homes after July 1, 1951?

            6. Under chapter 117, Laws of 1951, what is the amount of the fee that accompanies a renewal of application for a license to operate a nursing home?

            Our conclusions may be summarized as follows:

            1. Under chapter 117, Laws of 1951, a local health department when authorized by a certificate of approval to enforce the standards, rules and regulations of the act, is not entitled to the license fee that accompanies the application for a license.

            2. There is no necessity for an answer to this question.

            3. Under chapter 117, Laws of 1951, the state department of health issues the license for a nursing home.

            4. Under chapter 117, Laws of 1951, local authorities may not issue a separate license to a nursing home and may not enforce regulations which are more stringent than those of the state department of health.

            5. Under chapter 117, Laws of 1951, the state department of health may issue provisional licenses to operators of nursing homes after July 1, 1951.

            6. Under chapter 117, Laws of 1951, the amount of the fee that accompanies an application for a renewal of a license to operate a nursing home is ten dollars.

                                                                     ANALYSIS

             [[Orig. Op. Page 3]]                                                                             

            Prior to the enactment of chapter 117, Laws of 1951, the regulation of nursing homes for the promotion of public health and the safe and adequate care and treatment of patients within the homes was a subject of local concern.  With the passage of this legislation, the regulation and licensing of all nursing homes have been placed on a state‑wide [[statewide]]basis as is evidenced by the requirement in section 4, chapter 117, Laws of 1951, that no person after July 1, 1951, shall operate a nursing home in this state without a license under the act.  It is evident that the intention of the legislature in subjecting nursing homes to state licensing was to make uniform the regulation of nursing homes and to apply like standards of maintenance and operation to all such institutions throughout the state.  The regulation of nursing homes is now deemed to be of state‑wide [[statewide]]importance and the health of the public as affected by the homes of general state concern.

             The act provides, however, that local authorities may have some part in the regulation of nursing homes.  Section 3 is quoted as follows:

            "Any city, county, or district health department, employing a part-time or full-time health officer, may make application in writing to the director for a certificate of approval authorizing such city, county or district to enforce this act, and the rules and regulations of the board within its jurisdiction.  Upon receipt of the application the director shall investigate and determine whether the city, county, or district health department is entitled to approval and if so he shall issue the certificate applied for.  Upon receipt of a certificate of approval the local health department shall have full authority through the health officer to perform all of the duties relative to the enforcement of the provisions of this act and of the rules and regulations of the board.  Any certificate of approval may be cancelled by the director after thirty days' notice in writing to the holder of the certificate of approval should it be found that the holder is incompetent or unable to enforce the requirements of the act."  (Emphasis added).

            This section, which is the only section that relates to the functions of local health departments, limits the scope of authority of certified departments to enforcement of the provisions of the act and the rules and regulations as  [[Orig. Op. Page 4]] drafted by the state board of health.  This authority can in no instance be taken to mean the licensing of nursing homes.  We are not unmindful of the fact that section 2 (5) defines "department" as including certified local health departments.  However, we believe that the application of this term does not enlarge the functions of local health departments but only makes the language of the act relate to them in matters within the scope of their operation; that is, pertaining to enforcement.  The subject of enforcement differs materially and essentially from that of licensing.  Two distinct fields of operations are encompassed entirely.  The above quoted section governing local health departments in this act cannot be read so as to entitle the departments to issue licenses or to receive the fees that accompany the applications for licenses to operate nursing homes.  And, under sections 5 and 6, which relate to licensing, no provisions can be found which would authorize a license to be issued jointly by the state department of health and the certified local health departments or by the certified local departments alone.

            "Sec. 5. An application for license shall be made to the department upon forms provided by it and shall contain such information as the department reasonably requires, which may include affirmative evidence of ability to comply with the rules and regulations as are lawfully prescribed hereunder.  Each application for license shall be accompanied by a license fee of fifteen dollars plus one dollar per bed capacity per year, but in no event shall the total exceed one hundred dollars:  Provided, That no fee shall be required of government-operated institutions.

            "Sec. 6. Upon receipt of an application for a license and the license fee, where required, the department shall issue a license if the applicant and the nursing home facilities meet the requirements established under this act.  A license unless suspended or revoked shall be renewable annually.  All licenses issued under the provisions of this act shall expire on the first day of July next succeeding the date of issue.  Applications for renewal shall be on forms provided by the department and shall be filed with it not less than ten days prior to its expiration.  Each application for renewal shall be  [[Orig. Op. Page 5]] accompanied by a license fee of ten dollars.  Each license shall be issued only for the premises and persons named in the application, and no license shall be transferable or assignable except with the written approval of the department.  License shall be posted in a conspicuous place on the licensed premises."

            It is the opinion of this office that the licensing provisions apply only to the state department of health and that the local health departments when authorized upon a receipt of a certificate of approval are not entitled to the license fee that accompanies the application for a license to operate a nursing home under chapter 117, Laws of 1951.

            It is a fundamental principle of law that municipal ordinances are inferior and subordinate to the general laws of the state.  Indeed, it is provided by the constitution in section 11, Article XI, that

            "Any county, city, town or township, may make and enforce within its limits all such local, police, sanitary, and other regulations as are not in conflict with general laws."

            It is an equally fundamental principle of law that the mere fact that the state has legislated on a subject does not of necessity deprive a municipality of the power to deal with the subject by ordinance.  State ex rel. Isham v. Spokane, 2 Wn. (2d) 392, 98 P. (2d) 306.  Concurrent jurisdiction by the state and a municipality may exist.  Nevertheless, if the state has asserted its sovereign jurisdiction over a given subject matter and there is no room for concurrence, the municipal regulations or ordinances must give way.  State ex rel. Webster v. Superior Court, 67 Wash. 37, 120 Pac. 861; L.R.A. 1915-C 287, Ann. Cas. 1913-D 78;Seattle Electric Co. v. Seattle, 78 Wash. 203, 138 Pac. 892.  Therefore, inquiry must be directed toward the question as to whether or not the legislature intended that a local authority should exercise its powers over a particular subject matter.

            In passing chapter 117, Laws of 1951, the state has acted in the field of regulation of nursing homes, and the preservation of public health in this aspect has become of general concern to the state.  Can local authorities operate under or enact regulations governing the same subject matter?  The opinion of this office is to the contrary.

             [[Orig. Op. Page 6]]

            An examination of the statute does not disclose that a nursing home in order to be in valid operation may also have to conform to local health ordinances.  There is no positive provision that local authorities may also issue licenses for nursing homes.  Generally, it is true that local ordinances may enlarge upon the provisions of a statute to a greater extent than the statute requires.  State ex rel. Isham v. Spokane, supra.  However, section 3 of the act makes provision for cities, counties, or district health departments to participate in the control of nursing homes.  This express reference to local enforcement of the provisions of chapter 117, Laws of 1951, can only mean that the legislature intended that the local authorities act solely in this manner.  There is no room for concurrent jurisdiction.  To hold otherwise would invoke a lack of uniformity of control over the operation of nursing homes.  It is our opinion that the state has preempted the field of regulation of nursing homes to the exclusion of local authorities except as provided in the statute, and therefore, local authorities may not pass regulations which are more stringent than those provided for in chapter 117, Laws of 1951.

            Section 9, chapter 117, Laws of 1951, provides as follows:

            "Any nursing home which is in operation at the time of promulgation of any applicable rules or regulations under this act shall be given a reasonable time, not to exceed three months from the date of such promulgation, within which to comply with the rules and regulations established under this act."

            This section impliedly gives authority to the state department of health to issue provisional licenses to operators of nursing homes after July 11, 1951.  However, the provisional license may not extend beyond a period of three months after the promulgation of applicable rules and regulations.

            The language of section 6 which governs the requirements for application and renewal of licenses under the act is clear and unequivocal.  The license fee for an application of renewal of a nursing home license is in the amount of ten dollars.

Very truly yours,

SMITH TROY
Attorney General

BARBARA L. OHNICK
Assistant Attorney General