Alabama Advisory Opinions March 04, 2003: AGO 2003-092 (March 4, 2003)

Alabama Attorney General Opinions

2003.

AGO 2003-092.

Dear Senator Dixon:

This opinion of the Attorney General is issued in response to your request.

QUESTION

May the board, in considering requests for exemption from the educational requirements to take the board's assisted living administrator licensure examination, as provided for in the provisions of section 8(a) of the Act 2001-1057, establish without legislative authority, as a prerequisite for consideration of such requests, a showing of impossibility or undue significant hardship in meeting said educational requirements by the person applying for such an exemption, or is the board allowed to consider only the experience and tenure of an applicant for such an exemption as set out in said section 8(a) of the act as passed by the Legislature?

FACTS AND ANALYSIS

Your request states:

Section 2(a) of the act provides that "[n]o assisted facility in the state may operate unless it is under the supervision of an administrator who holds a currently valid assisted living administrator's license . . . issued by the board." The legislatively imposed prerequisites to taking the board's examination for licensure as an assisted living administrator are listed in section 8(a) of the act and include a requirement that an applicant be a high school graduate or have completed an educational program equivalent thereto, as well as any additional educational requirements prescribed by the board. Section 8(a) also provides that the board may exempt the educational requirements for practicing administrators on the effective date of this act based on acceptable experience and tenure in the applicant's current position. The administrative rules established by the board pursuant to the authority of the act require that any person administering an assisted living facility who does not possess a license as a nursing home administrator must take and pass the board's licensure examination for assisted living administrators no later than September 1, 2003, or thereafter not be permitted under the provisions of the act to continue to administer an assisted living facility in Alabama.

It is my understanding that the board is presently denying applications for exemption from the educational requirements of the act to sit for the board's licensure examination if applicants for such exemption do not present evidence of impossibility or undue hardship in meeting those educational requirements, without considering the acceptability of the experience and tenure of the applicant as section 8(a) of the act appears to require.

The Board of Examiners of Assisted Living Administrators was created by Act 2001-1057 of the 2001 Fourth Extraordinary Session of the Alabama Legislature. 2001 Ala. Acts No. 2001-1057, 1032. Act 2001-1057 requires all administrators of assisted living facilities or special care assisted living facilities to be licensed. 2001 Ala Acts No. 2001-1057, sect. 2(a), 1032, 1033.

Section 8(a) of Act 2001-1057 provides, in pertinent part, as follows:

Section 8. (a) The board shall admit to examination for licensure as an assisted living administrator any candidate who submits evidence of good moral character and suitability prescribed by the board and who submits evidence to the board that he or she is at least 19 years of age, a citizen of the United States, or that he or she has duly declared his or her intention of becoming a citizen of the United States, that he or she is a high school graduate or has completed an educational program equivalent thereto, and that he or she has completed any additional educational requirements prescribed by the board. The board may exempt the educational requirements for practicing administrators on the effective date of the act based on acceptable experience and tenure in the applicant's current position.

2001 Ala. Acts No. 2001-1057, sect. 8(a), 1032, 1037-38 (emphasis added). This provision specifically states that the board can exempt the educational requirements of section 8(a) for practicing administrators on the effective date of the act, such exemption being based on acceptable experience and tenure in the applicant's current position.

The following are among the functions and duties of the board:

Develop, impose, and enforce standards which shall be met by individuals in order to receive a license as an assisted living administrator, which standards shall be designed to insure that assisted living administrators will be individuals who are of good character and are otherwise suitable and who, by training or experience in the field of institutional administration, are qualified to serve as assisted living administrators.

2001 Ala. Acts No. 2001-1057, sect. 4(a)(i), 1032, 1036.

Although the Board of Examiners of Assisted Living Administrators may develop and enforce standards to be met by individuals to receive a license as an assisted living administrator, it cannot usurp legislative powers or contravene a statute. Ex Parte Jones Mfg. Co., 589 So. 2d 208, 210 (Ala. 1991). An action or requirement of an administrative agency cannot subvert or enlarge upon statutory policy. Id . The administrative agency cannot use the power granted it to further goals not designated by statute. Smith v. City of Mobile , 374 So. 2d 305, 307 (Ala. 1979). See also Ex parte State Dep't of Human Resources , 548 So. 2d 176 (Ala. 1988).

CONCLUSION

In keeping with the specific wording of section 8(a) of Act 2001-1057, previously quoted, the Board of Examiners of Assisted Living Administrators may exempt, on the effective date of Act 2001-1057, the educational requirements for practicing administrators based on acceptable experience and tenure in the applicant's current position. The board cannot require the practicing administrators applying for the exemption from educational requirements to present evidence of impossibility or undue hardship in meeting those educational requirements.

I hope this opinion answers your question. If this Office can be of further assistance, please contact Carol Jean Smith of my staff.

Sincerely,

BILL PRYOR

Attorney General

By: CAROL JEAN SMITH

Chief, Opinions Division

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