specially concurring.
I concur in the majority’s opinion, except that portion in which they discuss the applicability of NMSA 1978, Section 41-4-9 (Repl.Pamp.1989). I agree with the majority that the phrase “negligence of public employees while acting within,the scope of their duties in the operation of any hospital ... or like facilities” does not waive immunity on these facts, because the foster home was not a facility like the other institutions the section specifically lists. I am not persuaded that it was similar in function or risk of liability to the group of institutions within the ordinary meaning of the words used in Section 41-4-9. I conclude that applying the waiver of liability provided in Section 41-4-9 to Plaintiffs’ complaint would not be a result the state should reasonably have anticipated in providing coverage. I think, however, that the discussion of the term “operation” and its applicability on these facts merits more discussion than the majority opinion contains.
The placement of a child in foster care within a private home involves the state in the lives of its citizens in a unique way. For example, regulations (not cited by Plaintiffs nor relied upon in their briefs) impose an obligation on the Human Services Department (Department) to advise foster parents of all relevant information concerning the child to be placed, accept liability for any property damage a child in foster care does to the foster home, and permit the foster parents to refuse a particular placement. See N.M. Human Servs. Dep’t Substitute Care for Children—Procedures (SSD Procedures) PR 5.2.6.1.1; 5.3.5(D); 5.2.7.5 (1987). The regulations specifically provide that “[fjoster parents or other providers do not make independent plans for children in their care,” PR 5.2.7.2, that “[t]he Department shall determine the most suitable arrangements for the child and plan for the child’s protection, growth, development and education,” PR 5.3.1, and allude to the agency’s liability and that of the foster family if a foster child was placed in an unlicensed home or a home at licensing capacity and “something untoward happened to a child.” PR 5.3.3.10; cf. SSD Procedures PR 5.3.24.2.3 (1989) (placement in an untrained, unlicensed foster home might result in a lawsuit “if anything happened to the child in care”).
This regulatory scheme differs from that under review in Armijo v. Department of Health & Environment, 108 N.M. 616, 775 P.2d 1333 (Ct.App.1989). In that case, we held that the Department of Health and Environment (HED) did not operate a transitional living unit within the meaning of Section 41-4-9. In that case, the plaintiff contended that HED operated the facility because of the extensive regulatory scheme. We noted that the allegations were claims of malpractice and failure to warn and were based on HED’s failure to “step into the clinical decision-making process” of the facility. Id. at 618, 775 P.2d at 1335. We held that HSD “did not regulate what is alleged to have caused plaintiff’s injuries.” Id. In this case, the regulations adopted by the Department do regulate what is alleged to have caused the injuries alleged in the complaint. Thus, I think Armijo is distinguishable.
However, the question is whether the Department’s employees can be said to have been “acting within the scope of their duties in the operation of any hospital * * * or like facilities.” § 41-4-9. I agree with the majority that on these facts the foster home was not a facility like a hospital. Thus, the damages alleged did not result from the negligence of its employees while acting within the scope of their duties in operating such a facility. The damages resulted from negligence in a different context, difficult to equate with the management of a health care facility because the Department’s responsibilities are both broad and shared.
In Romero v. State, 112 N.M. 291, 814 P.2d 1019 (Ct.App.), rev’d on other grounds, 112 N.M. 332, 815 P.2d 628 (1991), we indicated that “ ‘duties in the operation’ does not encompass a duty to supervise the operation through regulation.” Id. at 299, 814 P.2d at 1027. In overruling this court’s opinion, the Supreme Court indicated that the Highway Department’s own statutory responsibilities were within the meaning of “maintenance,” stating that “ ‘the greater supervisory responsibilities contemplated by [statute] included more than issuing regulations. Those responsibilities could have included supervising the county’s actual day-to-day maintenance of the roadway.’ ” See Caillouette v. Hercules, Inc., 113 N.M. 492, 499, 827 P.2d 1306, 1313 (Ct.App.1992) (quoting Romero v. State, 112 N.M. at 334, 815 P.2d at 630) (distinguishing Romero on the basis of the language quoted).
There is no comparable statutory scheme relevant to this case. The regulations appear to divide responsibility between foster parents and the Department for placement. Other decisions appear to be reserved by the Department. The placement decision in itself is not analogous to supervision of actual day-to-day operation, which under Romero might be equated with operation. On the other hand, unlike Chee Owens v. Leavitts Freight Serv., Inc., 106 N.M. 512, 745 P.2d 1165 (Ct.App.1987), the Department for some purposes was “driving the bus.” However, Plaintiffs have relied on the placement decision in framing their appellate argument.
Under these circumstances, I conclude that Plaintiffs’ claim is not supported by the language of Section 41-4-9. Cf. Sahf v. Lake Havasu City Ass’n for the Retarded & Handicapped, 150 Ariz. 50, 721 P.2d 1177 (Ct.App.1986) (private group home not a “health care institution”). Therefore, I join the majority in holding that Section 41-4-9 does not support Plaintiffs’ claim, and thus in affirming the district court’s decision dismissing Plaintiffs’ complaint with prejudice.