A state-funded child care program that has operated in Idaho for more than three decades may lack the statutory authority that normally gives government programs their legal standing — and a growing number of state officials are demanding accountability over how it has continued for so long.
The Idaho Child Care Program (ICCP) was established in 1992 under the Idaho Office for Children, but no act of the Idaho Legislature formally created it. When the program was transferred to the Department of Health and Welfare (DHW) in 1997, it continued operating under agency rulemaking authority — specifically IDAPA 16.06.12 — rather than a statute passed by elected legislators. That arrangement has remained in place for nearly 30 years, even as the program has grown to approximately $70 million in annual spending.
DHW Director Acknowledges the Problem
The issue came into sharper focus this year when DHW Director sent a letter to the Joint Finance and Appropriations Committee (JFAC) on March 9, directly acknowledging that the program rests on shaky legal ground.
“[The ICCP] has been administered via administrative rules and budget intent language,” the director wrote. “A program of this size and magnitude without a clearly defined statute is untenable.”
Despite that candid admission, DHW’s response was not to wind the program down or pause it pending legislative authorization. Instead, the agency moved to codify the program through the legislature — to give it the legal backing it has always lacked, rather than suspend operations while lawmakers deliberate.
Two codification bills were introduced during the legislative session. Senate Bill 1374 was the initial attempt to put ICCP into statute. It was followed by Senate Bill 1419, an updated version of the same effort. In a separate but related track, Senate Bill 1375 — which carried a $14 million expansion of the program through new federal grants in Fiscal Year 2026 — failed in the House, reportedly due to concerns about Medicaid spending growth. That bill was subsequently replaced by Senate Bill 1435. A further expansion measure, Senate Bill 1428, would have added another $16 million to ICCP in Fiscal Year 2027.
Attorney General Weighs In — Senators Push Back
State Senators Brian Lenney and Josh Keyser formally requested that the Office of the Attorney General analyze whether DHW actually possesses the legal authority to operate ICCP without a statute. The Attorney General’s office concluded that “DHW has sufficient legal authority to continue operating ICCP.”
That finding is at odds with the DHW director’s own characterization of the program’s legal foundation as insufficient. Critics of the program argue that general rulemaking authority — the mechanism DHW has cited — is not a substitute for the specific statutory authorization that the Idaho Legislature is supposed to provide before a government program of this scale operates and spends public funds.
The debate has broader implications beyond child care. Programs that grow through administrative rule rather than legislative action represent a pattern sometimes described as the expansion of the administrative state — where agencies take on functions that elected representatives have not explicitly authorized. When those programs also draw federal dollars, the compliance requirements and strings attached to that funding can further entrench spending that legislators never formally approved.
The federal Child Care and Development Fund (CCDF), which dates to the early 1990s, provides the federal funding stream tied to ICCP. The program’s reliance on federal grants has been a point of contention for legislators concerned that accepting new tranches of federal money — such as the FY26 expansion in Senate Bill 1375 — commits Idaho taxpayers to program infrastructure that outlasts the grant period.
What Comes Next
The Idaho Legislature adjourned earlier this spring, meaning the codification bills and expansion measures advanced this session will not see further floor action until lawmakers reconvene. The Attorney General’s opinion backing DHW’s authority gives the agency legal cover to keep the program running in the interim, but the underlying question — whether a $70 million program that has never been formally authorized by statute should continue without legislative action — remains unresolved.
The Idaho Freedom Foundation has indicated it is pursuing public records requests related to the program, which could surface additional details about how ICCP has been administered over the past three decades. Senators Lenney and Keyser have signaled ongoing interest in the issue, suggesting it will return when the legislature is back in session.
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