Kansas Attorney General Opinion 2013-009

April 15, 2013
ATTORNEY GENERAL OPINION NO. 2013- 09
Dr. Robert Moser, Secretary
Kansas Department of Health and Environment
1000 SW Jackson St., Suite 560
Topeka, KS 66612
Re: 	Public Health–Maternity Centers and Child Care Facilities–License or
Temporary 	Permit 	Required; 	Exemptions; 	Definitions; 	Competent
Supervision and Care of Children
Synopsis: 	A boarding school is a child care facility for the purposes of K.S.A. 65-501
et seq. Cited herein: K.S.A. 1997 Supp. 65-501; K.S.A. 65-501; K.S.A.
1997 Supp. 65-503; K.S.A. 2012 Supp. 65-503; K.S.A. 1997 Supp. 65-
508; K.S.A. 2012 Supp. 65-508.
* 	* 	*
Dear Dr. Moser:
As Secretary for the Kansas Department of Health and Environment (KDHE), you ask
whether a boarding school is required to be licensed as a child care facility pursuant to
K.S.A. 65-501 et seq. In your letter, you state that it is the position of KDHE that a
boarding school falls within the definition of “child care facility” and, as such, must obtain
a license from KDHE. 1 You further state that it has been suggested that a boarding
school is not a child care facility because those terms are separately defined in K.S.A
65-501 et seq., and because legislative history indicates that the legislature did not
intend to define “child care facility” to include boarding schools.
1 K.S.A. 65-501 (“It shall be unlawful . . . to conduct or maintain . . . a child care facility for children under
16 years of age without having a license or temporary permit therefor from the secretary of health and
environment.”).

Dr. Robert Moser
Page 2
When interpreting statutes, the fundamental rule is that the purpose and intent of the
legislature governs if that intent can be ascertained. 2 “In construing statutes, the
legislative intention is to be determined from a general consideration of the entire act.”3
“The several provisions of an act, in pari materia, must be construed together with a
view of reconciling and bringing them into workable harmony and giving effect to the
entire statute if it is reasonably possible do to so.”4
Following these rules of statutory construction, we consider the various provisions of
K.S.A. 65-501 et seq. to determine whether a boarding school is a child care facility for
the purposes of the act.
The definitions of child care facility and boarding school are found in K.S.A. 2012 Supp.
65-503. A child care facility is defined in relevant part as “[a] facility maintained by a
person who has control or custody of one or more children under 16 years of age,
unattended by parent or guardian, for the purpose of providing the children with food or
lodging, or both . . . .”5 A boarding school is separately defined as “a facility which
provides 24-hour care to school age children, provides education as its primary function,
and is accredited by an accrediting agency acceptable to the secretary of health and
environment.”6
K.S.A. 2012 Supp. 65-508(c)(1) authorizes KDHE to develop and adopt rules and
regulations designed to promote the health, safety and welfare of any child served in a
child care facility. The last sentence of that subsection states, “Boarding schools are
excluded from requirements regarding the number of qualified persons who must
supervise and provide care to residents.” Aside from this language and the definition of
boarding school in K.S.A. 2012 Supp. 65-503, there is no other mention of the term
“boarding school” in K.S.A. 65-501 et seq.
Turning to the definition of child care facility in K.S.A. 2012 Supp. 65-503(c)(1), the plain
language of that definition appears to include boarding schools. A boarding school has
control or custody over one or more children under 16 years of age, unattended by
parent or guardian. While the primary function of a boarding school is to provide an
education, such schools also provide food and lodging to children who are attending the
school. Therefore, based upon the plain language of K.S.A. 2012 Supp. 65-503(c)(1),
we opine that a boarding school is a type of child care facility for the purposes of K.S.A.
65-501 et seq.
Based on the rules of statutory construction, and because the plain language of the
statute is clear, we need not consider legislative history. However, in your letter, you
advise that it has been suggested that by separately defining “boarding school,” the
Kansas Legislature intended to exclude boarding schools from the definition of child
2 See, e.g., State v. Comprehensive Health of Planned Parenthood, 291 Kan. 332, 357 (2010).
3 State v. Adee, 241 Kan. 825, 829 (1987).
4 Easom v. Farmers Ins. Co., 221 Kan. 415, Syl. ¶ 3 (1977).
5 K.S.A. 2012 Supp. 65-503(c)(1).
6 K.S.A. 2012 Supp. 65-503(f).

Dr. Robert Moser
Page 3
care facility and therefore exempt boarding schools from KDHE licensure. K.S.A. 65-
501 expressly exempts from the KDHE licensure requirement residential facilities or
hospitals that are owned and maintained by a state agency 7 and summer instructional
camps. 8 Notably, boarding schools are not listed as an entity exempt from the licensure
requirement. Arguably, the failure to do so resolves the issue of a licensure exemption
for boarding schools. Nevertheless, we consider the legislative history of the statutes in
question to specifically address this argument.
The term “boarding school” did not appear in K.S.A. 65-501 et seq. until 1998, when the
Kansas Legislature passed House Bill 2837 (HB 2837). 9 That bill added the definition of
boarding school to K.S.A. 1997 Supp. 65-503, and also amended K.S.A. 1997 Supp.
65-508(c)(1) to add the language excluding boarding schools from KDHE staffing
requirements.10 HB 2837 did not amend K.S.A. 1997 Supp. 65-501, which identifies
entities that are exempt from the licensure requirement. We note that the legislature
could have added boarding schools to the list of exempt entities but did not do so.
Legislative testimony in support of HB 2837 indicates that the bill was introduced at the
request of St. John’s Military School in Salina, Kansas, for the purpose of exempting
boarding schools such as St. John’s from the minimum staffing levels required by KDHE
regulations governing licensed child care facilities. 11 Proponents of the bill testified that
it would “maintain health and safety requirements” and would “recognize the mission of
boarding schools as being one of education rather than simply care and treatment of
children.” 12 This testimony shows that the legislative intent was to grant boarding
schools a limited exception from the staffing requirements rather than a complete
exemption from the licensure requirement.
In addition, the Secretary of KDHE testified that “[b]oarding schools are considered
boarding homes for children.” 13 Prior to the 1994 legislative session, there was a
category of facility called “boarding home for children.” During the 1994 session, the
legislature amended K.S.A. 65-503 to replace the term “boarding home for children”
with “child care facility,” but did not change the substantive definition of that term.14
Thus, 	the 	Secretary’s 	testimony 	expressed 	KDHE’s 	understanding 	that 	boarding
schools are child care facilities as defined by K.S.A. 65-503.
Courts presume that the legislature does not intend to enact meaningless legislation. 15 If
boarding 	schools 	did 	not 	fall 	within 	the 	definition 	of 	child 	care 	facility, 	then 	the
7 K.S.A. 65-501(a).
8 K.S.A. 65-501(b).
9 L. 1998, Ch. 166.
10 See K.A.R. 28-4-271.
11 Minutes, House Committee on Education, February 23, 1998, Attachments 3 and 4; Minutes, Senate
Committee on Education, March 11, 1998, Attachments 5 and 7.
12 Id.
13 Minutes, House Committee on Education, February 23, 1998, Attachment 4; Minutes, Senate
Committee on Education, March 11, 1998, Attachment 7.
14 L. 1994, Ch. 279, § 6.
15 See, e.g., Kansas Dept. of Revenue v. Powell, 298 Kan. 564 (2010).

Dr. Robert Moser
Page 4
amendment to K.S.A. 1997 Supp. 65-508(c)(1) in HB 2837 would be meaningless.
There 	would 	be 	no 	need 	to 	exclude 	boarding 	schools 	from 	KDHE’s 	staffing
requirements if those requirements never applied in the first place. Indeed, legislative
testimony in support of HB 2837 acknowledged that boarding schools are subject to
KDHE licensure as a child care facility, and the bill would not disturb KDHE’s health and
safety requirements for boarding schools. Therefore, construing the various provisions
of HB 2837 together, it is our opinion that the definition of boarding school was added
not to create a class of facilities separate from child care facilities, but rather to clarify
the meaning of the amendment to K.S.A. 1997 Supp. 65-508(c)(1).
The statutory provisions enacted in 1998 by HB 2837 have not been amended in any
manner that would alter the above analysis. Reading those statutes in pari materia, we
conclude that the definition of boarding school in K.S.A. 2012 Supp. 65-503(f) does not
create a class of facilities outside the definition of child care facility, but instead defines
a subset of child care facilities that are exempt only from KDHE’s staffing requirements.
We 	find 	no 	evidence 	of 	contrary 	legislative 	intent 	that 	would 	conflict 	with 	this
interpretation. Therefore, we opine that a boarding school is a child care facility for the
purposes of K.S.A. 65-501 et seq.
Sincerely,
Derek Schmidt
Attorney General
Sarah Fertig
Assistant Attorney General
DS:AA:SF:sb