COUNTIES ‑- AGED INDIGENTS ‑- AUTHORITY TO ESTABLISH AND OPERATE FACILITIES FOR CARE

COUNTIES ‑- AGED INDIGENTS ‑- AUTHORITY TO ESTABLISH AND OPERATE FACILITIES FOR CARE.

The county has authority to establish and operate nursing homes for the care of aged indigents, such authority not being impaired by the public assistance laws of 1953.

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                                                                 August 16, 1954

Honorable Lawrence Hickman
Prosecuting Attorney
Whitman County
Seattle‑First National Bank Building
Colfax, Washington                                                                                        Cite as:  AGO 53-55 No. 302

Dear Sir:

            In your recent letter you asked certain questions which, for the purposes of this opinion, we have taken the liberty of paraphrasing into one question, as follows:

            Does a county have authority to establish and operate a nursing home at county expense for the primary purpose of caring for the indigent old people of the county, in view of the 1953 public assistance laws constituting the State Department of Public Assistance the single state agency to administer public assistance?

            Your question has been answered in our recent opinion, AGO 53-55 No. 284, dated July 15, 1954 [[to J. A. Kahl, Department of Health]], a copy of which is attached, wherein we concluded that dated July 15, 1954, a copy of which is attached, wherein we concluded that counties have "authority to establish facilities for the care of senile patients in available buildings and grounds; however, priority for admission to these facilities must be given to recipients of public assistance and medical indigents of our state."  While that opinion dealt specifically only with facilities for "senile"  [[Orig. Op. Page 2]] persons, its reasoning supports the conclusion that counties have the same authority with respect to the establishment and operation of facilities for all aged persons in need of nursing home care.  And we do not believe that such authority has been impaired in any way by the public assistance laws of 1953.

                                                                     ANALYSIS

            In our opinion of July 15, 1954, we did not discuss the question, raised by you, whether the 1953 public assistance law, by constituting the State Department of Public Assistance "the single state agency to administer public assistance" (Laws of 1953, Ch. 174, Sec. 6, RCW 74.04.050) and transferring the financial responsibility for general assistance from the several counties to the State of Washington (Laws of 1953, 1st Ex. Sess., Ch. 3, Sec. 1, RCW 74.04.151), has not withdrawn the authority of the counties to establish and operate nursing homes for aged indigents.  Your doubt in this regard stems in part from another opinion out of this office, AGO 53-55 No. 15, dated April 21, 1953 [[to G. M. Hollenbeck, Department of Public Assistance]].  In that opinion, however, we were concerned only with the respective powers of the State Department of Public Assistance and the county welfare offices in administeringthe state public assistance program.  We concluded that under the 1953 public assistance law the State Department was the sole agency for administering that program, and that the county offices were but branch offices of the department.  We did not reach the question whether counties might institute public assistance programsof their own, outside the state program.

            Nor is it necessary to answer that general question in this opinion.  We need not decide, for example, whether it is any longer open to the counties to themselves provide for the needy by means of money grants, or poorhouses, or poor farms.  Whether the counties may establish and operate nursing homes is a quite separate and distinct question.  We assume that in using the term "nursing home" in your questions you had in mind the statutory definition of that term:

            "'Nursing home' means any home, place or institution which operates or maintains facilities providing convalescent or chronic care, or both, for a period in excess of twenty-four consecutive hours for four or more patients not related by blood or marriage to the operator, who by reason of illness or infirmity, are unable properly to care for themselves.  Convalescent and chronic care may include any or all  [[Orig. Op. Page 3]] procedures commonly employed in waiting on the sick, such as administration of medicines, preparation of special diets, giving of bedside nursing care, application of dressings and bandages, and carrying out of treatment prescribed by a duly licensed practitioner of the healing arts.  It may also include care of mentally incompetent persons if they do not require psychiatric treatment by or under the supervision of a physician who devotes all or a major portion of his time to this specialized field of medicine."  Laws of 1951, Ch. 117, Sec. 2 (RCW 18.51.010).

            We confine our attention to the question whether counties may establish and operate nursing homes, as thus defined.

            We have already concluded in our opinion of July 15, 1954, that Sec. 1 of Ch. 228, Laws of 1947, is sufficiently broad to confer authority on the counties to establish and operate nursing homes for the indigent.  And we believe the 1953 medical assistance law, passed in the 1953 extraordinary session, subsequent to the passage of the public assistance law, expressly recognizes the continuing authority of the counties to establish and operate such institutions.  The medical assistance law (Laws of 1953, 1st Ex. Sess., Ch. 5, RCW 74.08.390et seq.), providing for medical, dental and allied services to public assistance recipients and medical indigents, authorizes the State Department of Health to "utilize county hospitals and infirmaries" in carrying out its responsibilities under that law.  (Emphasis ours).  Laws of 1953, 1st Ex. Sess., Ch. 5, Sec. 4 (1), RCW 74.08.420 (1).  An infirmary is a "hospital, or place where the infirm or sick are lodged and nursed, or where patients who are not residents are treated."  Webster's New International Dictionary (2d Ed.); see Irvin v. Swinney, D.C. Mo., 44 F. (2d) 172, 175.  A nursing home, both in popular conception and by statutory definition (Laws of 1951, Ch. 117, Sec. 2, RCW 18.51.010) falls within the above definition of "infirmary."  And as a matter of fact there were so-called "county infirmaries" operating in this state at the time of the passage of the 1953 medical assistance act which were nothing more nor less than nursing homes.  It is interesting to note in this connection that the Department of Public Assistance Regulations, Sections 413.616, 420.1, and 421.44 use the terms "public nursing home" and "county infirmary" synonymously.  We must assume that the legislature was aware of these facts when it provided for the  [[Orig. Op. Page 4]] utilization by the State Department of Health of "county infirmaries."  This recognition by the legislature, in its last session, of the existence and legality of county nursing homes is conclusive on the question as to the authority of the counties to establish and operate such institutions.

Very truly yours,

DON EASTVOLD
Attorney General

JOHN F. HANSLER
Assistant Attorney General