A Pulaski County circuit judge on Thursday refused to stop the state from forcing public schools to carry insurance on their child-care facilities despite a warning that the provision, which goes into effect July 1, stands to cause the schools to abandon early childhood programs.
But Circuit Judge Chris Piazza agreed with the plaintiffs in the lawsuit challenging the insurance requirement -- three Northwest Arkansas school districts that together have about 25 such child-care facilities -- that they have enough evidence to take the case to trial. No date has been set.
At a 30-minute hearing, the judge turned down a request by the state Department of Human Services, which regulates child care, to dismiss the case while simultaneously rejecting a preliminary injunction request by the Fort Smith, Greenwood and Van Buren school districts.
The schools in Crawford and Sebastian counties sued in February to challenge the legality of the law, arguing that Act 778 of 2009 -- which also requires schools to carry insurance on their buses and transportation programs -- forces them to give up their limited immunity from lawsuits by requiring them to carry liability insurance on the facilities they use to provide child care.
Under Arkansas Code 21-9-301, schools, like counties, cities and other political subdivisions of the state, have tort immunity, which protects them from lawsuits seeking damages for harmful acts. The child-care requirement would "destroy" and "obliterate" that immunity, the districts contend in their lawsuit. The districts are required to have insurance in place by July 1.
Schools attorney James Llewellyn warned that the cost of buying insurance, combined with the loss of immunity opening them to litigation, would be so expensive that the schools might choose to give up such programs as Arkansas Best Chance, Supervised Program In a Caring Environment and Pre-School Special Education, which would be affected by the mandate and which schools are not required to operate.
Closure of such programs would put numerous children "back on the streets," Llewellyn told the judge.
The schools' child-care facilities are not the same as the facilities regulated by the Human Services Department and should not be recognized as such, he said.
"They're not just baby sitters," Llewellyn said. "They are educating children."
If they lose their liability immunity, schools could also stop allowing the public to use their buildings, rather than accept the potential risk, warned Richard Abernathy, executive director of the Arkansas Association of Educational Administrators, who described the requirement as an "unfunded mandate."
The law is 5 years old, but the state did not begin enforcing the child-care provision until 2012, and then it gave schools more time to get ready, said agency attorney Mark White. There's no risk to the schools' immunity, he argued in court filings, because the immunity statute specifically limits damages to the amount of insurance they carry.
And no school stopped busing children when the Legislature mandated schools carry liability insurance on their vehicles, he pointed out.
Schools aren't required to have insurance on every building they have, White told the judge, just the ones that are devoted to child care for more than 20 hours a week.
Fort Smith has 20 such licenses, while the other two districts have three or four each, he said.
"Act 778 applies to schools just as it does to other licensed child-care centers," he said.
Metro on 06/06/2014