Mental Health, Therapeutic Camps; Child-Caring Facilities; Sanitation; Licensing

April 22, 1981

Subject:

Mental Health, Therapeutic Camps; Child-Caring Facilities; Sanitation; Licensing; G.S. 122-72;

G.S. 110-49; G.S. 108-78; G.S. 72-46; G.S. 130-170.

Requested By:

Dr. Sarah T. Morrow Secretary Department of Human Resources

Question:

Do the licensure statutes found in G.S. 122-72, G.S. 110-49, and G.S. 108-78 and the permit requirements found in G.S. 72-46 apply to Eckerd Therapeutic Camps, or other residential camps established for the purpose of remediation for behaviorally disordered children?

Conclusions:

The applicability of G.S. 122-72 to any such facility depends upon a factual determination as to whether the nature and purpose of a facility and the disabilities of its resident campers fall within the description set forth in the first sentence of G.S. 122-72(a).
G.S. 110-49 and G.S. 108-78 could be determined inapplicable to a therapeutic camp facility licensed under and functioning exclusively within the purview of G.S. 122-72.
G.S. 110-49 and G.S 108-78 would be applicable to such facilities which are factually determined to be providing full-time care to resident children if or to the extent their function is determined to be out of the purview of G.S. 122-72 or other specific facility licensing laws providing necessary protection from unsatisfactory environmental conditions for such children.
G.S. 130-170 pertaining to regulation of sanitation in private institutions, rather than G.S. 7246, seems applicable to camps providing year-round, full-time care or therapy to children.

G.S. 122-72 contains the following pertinent language:

"(a) It shall be unlawful for any person or corporation to establish or maintain a private hospital, home or school for the cure, treatment or rehabilitation of mentally ill persons, mentally retarded, or inebriates without having a license therefor from the Department of Human Resources. . . ."

In our Opinion of October 16, 1980, to Dr. Morrow, we have advised, with respect to G.S. 12272, that the actual function of a facility governs over the terminology by which it is called in determining its need for licensure under that statute. Therefore, the fact that therapy takes place in a camp environment would not exclude the facility from these licensure requirements.

G.S. 122-36 contains definitions applicable to terms used in G.S. 122-72. G.S. 122-36(d) provides, in pertinent part, as follows: ""(Mentally) ill" . . . when applied to a minor shall mean a mental condition, other than mental retardation alone, which so lessens or impairs the youth’s capacity either to develop or exercise age appropriate or age adequate self-control, judgment, or initiative in the conduct of his activities and social relationships as to make it necessary or advisable for him to be under treatment, care, supervision, guidance or control."

Further, G.S. 122-36(e) provides:

"The words "mentally retarded" refer to a person who has significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during his developmental period."

We refer you also to the definition of "inebriate" in G.S. 122-36(c).

Whether the camps in question are facilities for "mentally ill", "mentally retarded", or "inebriate" minors and whether the therapy given is for their "cure, treatment or rehabilitation" are factual questions within a specialized area of expertise, and not questions which may be abstractly answered as a matter of law. The statutory language should be acknowledgeably applied with a full understanding of the actual function of the facility under consideration. The Court of Appeals of this State, in reference to the definition of "mental illness" in G.S. 122-36(d) has stated that it ". . . is certainly capable of being understood and objectively applied with the help of medical experts." (Emphasis supplied). In re Salem, 31 N.C.App. 57. We have previously stated that sensible application of the statutory language (of G.S. 122-72) would indicate that only facilities designed to restore an individual to a useful life or to effect a cure of an existing disease or problem are within this particular statute.

Although not a subject of the inquiry, we note that the procedure for voluntary admission to a "treatment facility" provided for in Article 4 of G.S. Chapter 122, including the required judicial determination that the admitted minor is mentally ill or an inebriate and is in need of further treatment at the facility (G.S. 122-56.7), may be incompatible with some admissions contemplated for the Eckerd therapeutic camps. (For instance – children in trouble with the law).

If a facility is thus considered and determined to be established and maintained for the purposes and persons described in G.S. 122-72, they should be licensed under that statute.

Your inquiry also extends to the applicability of the licensure requirements of G.S. 110-49 and

G.S.: 108-78(c) provides:

"This section shall not apply to any child-caring institutions chartered by the laws of the State of North Carolina (or operating under charters of other states which have complied with the corporation laws of North Carolina) which has a plant and assets worth sixty thousand dollars ($60,000) or more and which is owned or operated by a religious denomination or fraternal order and which was in operation prior to July 1, 1977. Neither shall this section apply to State institutions for the mentally handicapped or to State institutions for the detention of juveniles."

To our knowledge, the Jack and Ruth Eckerd Foundation, which operates the Eckerd therapeutic camps is not an exempt organization or institution.

Nothing else appearing it would seem that a facility rendering, for all practical purposes, fulltime, year-round care to children for periods approximating a year or more would be susceptible to a determination that it is subject to licensure as a child-caring institution even though the facility is a wilderness camp. However, where a facility is otherwise subject to more specialized licensure laws and regulations and where the persons served by it are determined to be similarly or adequately protected thereby, we believe it beyond the intent of the referenced licensure statutes to indiscriminately require dual licensing of a facility under regulations of different commissions which may be conflicting or incapatible. A resulting undue burden on a facility might be determined an unreasonable exercise of the police power.

On the other hand, particularly with respect to "innovative facilities not within traditional licensure concepts, it might reasonably be determined that the facility is performing more than one distinct licensable function so that it is necessary to apply more than one licensing statute for the protection of all of those served by it. Consequently, it is not inconceivable that both G.S. 122-72 and the child-care licensing laws could be determined by the Department to be simultaneously applicable to a therapeutic camp. We do not believe that the fact that facilities, such as the Eckerd therapeutic camps, render their services under a contract with your Department makes such facilities exempt from licensing laws which would otherwise be applicable.

We recognize that the minimum standards prescribed by the Commission for Mental Health and Mental Retardation Services for a G.S. 122-72 facility and the rules and regulations of the Social Services Commission pertaining to child-caring institutions may not be compatible or applicable to a therapeutic wilderness camp facility. However, where it appears to the Department that a facility should be licensed under an existing statutory provision, it would seem incumbent upon the Department to seek promulgation of suitable and practical standards or regulations to permit meaningful licensure. Of course, if it is determined that it is not possible or practical to license a desirable nontraditional facility under existing law, appropriate legislation might be sought from the General Assembly.

You asked if the permit requirements of G.S. 72-46 (regulation of sanitation and hotels, cafes, etc.) apply to such camps. Another statute, G.S. 130-170 provides for regulation by your Department, under standards set by the Commission for Health Services, of sanitation in "private hospitals, nursing and convalescent abodes, sanitariums, sanitoriums and educational or other institution in North Carolina," The enforcement tool here is the seeking of injunctive relief under

G.S. 130-205. The doctrine of ejustem generis requires that general words of a statute which follow a designation of particular subjects or things be restricted by the particular designations to things of the same kind, character, and nature as those specifically enumerated. State v. Lee, 277

N.C. 242. It seems that a facility giving long-term, full-time behavioral therapy or child care which includes education (although nontraditional) is an institution to which G.S. 130-170 is applicable. Despite the fact that G.S. 72-46 includes "summer camps" among its enumerated food and lodging establishments, it seems not to contemplate a facility providing such services. Here, again, it will be necessary that regulations be such as may be practically applied to such camps.

Rufus L. Edmisten Attorney General

William F. Briley Assistant Attorney General