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9/4/2012 - September 2012 SLI Educational Update - Jefferson County Health Department Regulations Affect Church Operated Daycares

AN EDUCATIONAL UPDATE FROM

THE SOUTHEAST LAW INSTITUTE™, INC.

 To:                  SLI Supporters                                  

Date:               September 2012  

From:              A. Eric Johnston

Re:                  Jefferson County Health Department Regulations Affect Church Operated Daycares

 On January 2, 2012, new health regulations affecting church run daycares in Jefferson County went into effect.  The Jefferson County Department of Health (“JCDH”) has a certain amount of rulemaking authority for local health.  § 22-3-1, 1975 Code of Alabama.  The new regulations came to our attention from the Alabama Christian Education Association (“ACEA”).  Mr. Robin Mears, Executive Director of ACEA, keeps a watch on behalf of a significant number of church operated schools and daycares in the State of Alabama.  We are grateful for his attentiveness to issues that affect religious freedom.

At the request of ACEA, we reviewed the regulations and found a number of concerns.  We outlined those in a legal memorandum to ACEA.  Subsequently, we met with the county health officer, Dr. Mark E. Wilson, and other representatives of the JCDH and their lawyer.  We had a good reception and we have every reason to believe our concerns will be resolved on a proper basis.  We have some work that lays ahead of us.

As brief background, we have worked for many years to protect church ministries from improper regulation by the state.  There were movements in the 1970’s across the United States, including Alabama, to regulate church run schools.  At the same time, state officials looked toward regulating church daycares.  In response to this, churches supported legislation resulting in statutes that exempted church schools from state regulation, except for truancy (§ 16-28-7, id.), and limited regulation of daycares, except for a minimal intrusion which would serve to inform parents of the nature and quality of the daycares to which they may take their children (§ 38-7-3, id.)

However, we must always be on our watch for things that might interfere with the protections we seek to provide.  This happened when the JCDH passed regulations usurping the authority of the Alabama Department of Human Relations (“DHR”) and requiring more than state statutes require.  The Legislature has given DHR the main task of overseeing daycares.  At the same time, Section 22-3-1, id., provides that the county boards of health have general rulemaking authority to provide for the health and welfare of citizens and these departments must work together.

What must not happen is a department trying to do the job of another department; and, more importantly, none overstepping the bounds of constitutional propriety.  We believe both of these happened.  The first part of our task is to re-define the bounds within which the JCDH may operate through its new regulations.  This is achieved by resolving the overreach of specific regulations.

The issue with which we had most concern was a suggestion in the regulations that the JCHD would have access to criminal background check information.  Section 38-13-1, id., provides authority for criminal background checks for daycares is delegated only to DHR.  The JCDH regulations purported to give itself the authority to obtain the information.  This information is highly confidential and we had worked in the legislative process to protect it.  The regulations undo this.

 Another part of DHR delegated authority observes that the church run daycares may operate without state regulation, but provide a “notice” that it had complied with local health requirements.  However, the JCDH regulations suggested that church run daycares must “make written application” through the JCHD.  This implies another regulatory approval.  The JCDH may make reasonable health related rules, but does not have the authority to approve or disapprove a daycare operation.

A regulation that caught our attention required all daycares to serve food in conformity with certain United States Department of Agriculture requirements.  Another is what discipline may be administered.  These are important areas that deserve close attention.  While regulation and background checks are really reserved to DHR, how do we deal with a health related issues such as food and is corporal punishment really health related? 

 An appropriate diet is of significant concern due to obesity issues in Alabama.  We understand the JCDH is concerned with obesity and that is one of the reasons for many of these new regulations.  Corporal punishment for children has been an ongoing issue in many fora for quite sometime now.  We believe churches have the right to reserve to themselves, with the permission of parents, the right to administer corporal punishment.  The state does not have the right to interfere with this.  These issues will require some attention and we expect to resolve them on a favorable basis. 

The purpose of this month’s Educational Update is to make our readers aware of this situation.  We will report in more detail later, when we have resolved these issues.  For the time being, however, the regulations are in effect and there is the potential for overreach by the JCDH.  For that reason, we want to be sure that those churches which operate daycares are aware of the issues and that if any problems arise, they should contact us right away.  We will help them resolve problems and, in the long term, find solutions to the tensions that exist between the JCDH and churches.

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