OMNI v. Nebraska Foster Care Review Bd.

OMNI BehavIOral health , a NeBraska cOrpOratION,
ON Behalf Of Itself aNd all Of Its clIeNts , et al .,
appellaNts , v. NeBraska fOster care revIew
BOard, aN adMINIstratIve ageNcy Of the
state Of NeBraska , et al ., appellees.
764 N.W.2d 398
Filed April 23, 2009. 	No. S-08-332.
1. Summary Judgment. Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue regarding any material
fact or the ultimate inferences that may be drawn from those facts and that the
moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment is granted and gives such party the benefit of all reasonable
inferences deducible from the evidence.
3. Constitutional Law: Search and Seizure. The Fourth Amendment to the
U.S. Constitution and article I, § 7, of the Nebraska Constitution guarantee
against unreasonable search and seizure. These constitutional provisions do not
protect citizens from all governmental intrusion, but only from unreasonable
intrusions.
4. ____: ____. The existence of an interest protected by the Fourth Amendment to
the U.S. Constitution and article I, § 7, of the Nebraska Constitution depends
upon whether the person or entity claiming the interest has a legitimate or justifi-
able expectation of privacy in the place which the government seeks to enter.
5. Torts: Intent: Proof. To succeed on a claim for tortious interference with a
business relationship or expectancy, a plaintiff must prove (1) the existence
of a valid business relationship or expectancy, (2) knowledge by the interferer
of the relationship or expectancy, (3) an unjustified intentional act of interfer-
ence on the part of the interferer, (4) proof that the interference caused the
harm sustained, and (5) damage to the party whose relationship or expectancy
was disrupted.
Appeal from the District Court for Lancaster County: Jeffre
cheuvrONt, Judge. Affirmed.
William G. Dittrick and Jennifer D. Tricker, of Baird Holm,
L.L.P., and Morgan P. Kelly for appellants.
Jon Bruning, Attorney General, and Frederick J. Coffman
for appellees.
wrIght, cONNOlly, gerrard, stephaN, MccOrMack, and
MIller-lerMaN, JJ.
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	641
Cite as 277 Neb. 641
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

stephaN, J.
A provision of Nebraska’s Foster Care review Act1 autho-
rizes the State Foster Care review Board (the State Board) to
visit and observe foster care facilities to ascertain whether they
are meeting the needs of foster children. oMNI Behavioral
Health (oMNI) and David and Wendy Krom operate foster care
facilities in Nebraska. They brought this action for declaratory
and injunctive relief, contending that warrantless home visits
pursuant to the act would violate their constitutional rights,
because the State Board has not promulgated rules restricting
the time, scope, and manner of such visits. oMNI also alleged
that Carolyn K. Stitt, executive director of the State Board,
wrongfully interfered with its contractual relationship with the
State of Nebraska. oMNI, its president William reay, and the
Kroms (collectively appellants) appeal from an order of the
district court for Lancaster County denying the relief sought
and entering summary judgment in favor of the State Board,
Stitt, and Burrell Williams, a former chairman of the State
Board (collectively appellees). We affirm the judgment of the
district court.
BACKGroUND
partIes
oMNI is a Nebraska nonprofit corporation, and reay is
its president and one of its founders. oMNI operates four
“enhanced treatment group homes” in Nebraska which provide
therapeutic foster care for children with significant mental dis-
orders and behavioral problems who pose a risk to themselves
and others. The group homes are licensed by the State of
Nebraska as community mental health centers and foster care
providers, and are approved for participation in the Medicaid
program. each group home accommodates approximately 10
children who range in age from 12 to 18. Most, but not all, of
the children residing in oMNI’s group homes have been placed
in the custody of the Nebraska Department of Health and
Human Services (DHHS) pursuant to court orders. As to these
children, oMNI is compensated either with Medicaid funds or,
1 See Neb. rev. Stat. §§ 43-1301 to 43-1318 (reissue 2008).
642 	277 NeBrASKA rePorTS

where a child does not qualify for Medicaid, through individual
contracts with DHHS. Pursuant to a contract with DHHS,
oMNI provides initial training, 24-hour support, and ongoing
training to licensed foster parents who care for children in their
private residences.
The State Board is established pursuant to the Foster
Care review Act and includes 11 members appointed by the
Governor with the approval of the Legislature.2 The State
Board is required by statute to establish local foster care
review boards for the review of cases of children in foster
care placement3 and to refer such cases to the local boards
for review.4
The State Board is required by law to establish and main-
tain a statewide register of all foster care placements occurring
within the state based upon reports made by DHHS, courts, and
child-placing agencies.5 The State Board is required to review
the activities of local boards and report findings to DHHS,
county welfare offices, and courts having authority to make
foster care placements.6 The State Board also has statutory
responsibility with respect to permanency planning for children
in foster care. It is required to review the case of each child at
least once every 6 months and submit to the court having juris-
diction over the child
its findings and recommendations regarding the efforts
and progress made to carry out the plan or permanency
plan established pursuant to section 43-1312 together
with any other recommendations it chooses to make
regarding the child. The findings and recommendations
shall include whether there is a need for continued out-
of-home placement, whether the current placement is
safe and appropriate, the specific reasons for the findings
and recommendations, including factors, opinions, and
2 § 43-1302(b).
3 § 43-1304.
4 § 43-1306.
5 See § 43-1303(1).
6 See § 43-1303(2) and (3).
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	643
Cite as 277 Neb. 641

rationale considered in its review, whether the grounds for
termination of parental rights under section 43-292 appear
to exist, and the date of the next review by the [S]tate
[B]oard or designated local board.7
At the center of the dispute in this case is the following provi-
sion of the Foster Care review Act: “The [S]tate [B]oard may
visit and observe foster care facilities in order to ascertain
whether the individual physical, psychological, and sociologi-
cal needs of each foster child are being met.”8
claIMs
This action involves two distinct claims. First, appellants
contend that because the State Board has not promulgated rules
and regulations narrowing the scope of its statutory authority to
visit and observe foster care facilities, any such visits to appel-
lants’ facilities would violate their rights under the 4th and
14th Amendments to the U.S. Constitution and article I, § 7,
of the Nebraska Constitution. Second, oMNI alleges that in
2004, Stitt tortiously interfered with its contractual relationship
with the State of Nebraska. Appellants sought declaratory and
injunctive relief prohibiting the State Board from visiting “any
group homes or foster care facilities” until it “promulgates
constitutionally acceptable and sufficient rules and regulations
surrounding the time, scope and manner of its warrantless
searches.” Finally, appellants further sought to enjoin appellees
from “contacting any law enforcement, judicial, or state and/or
federal monetary funding payors, including, but not limited to
the Governor of the State of Nebraska and [DHHS], in attempts
to defame oMNI and to preclude funding to oMNI or place-
ment of children in oMNI facilities.” Appellees denied these
claims and asserted several affirmative defenses.
prOceedINgs IN dIstrIct cOurt
After conducting an evidentiary hearing, the district court
denied appellants’ motion for a temporary injunction. Appellees
then filed a motion for summary judgment. At a hearing on this
7 § 43-1308(1)(b).
8 § 43-1303(3).
644 	277 NeBrASKA rePorTS

motion, the parties offered and the court received all of the tes-
timony and some of the exhibits received at the hearing on the
motion for temporary injunction. This record reflects a long-
standing dispute between oMNI and the State Board regarding
the scope of the State Board’s statutory authority to monitor
oMNI’s operations. The dispute has generated a 1998 Attorney
General’s opinion9 recognizing the State Board’s authority
under § 43-1303 to conduct both announced and unannounced
visits of foster care facilities, including group homes oper-
ated by oMNI and others. The dispute has also generated a
2006 letter from the office of Public Counsel (ombudsman)
critical of the fact that the State Board has not promulgated
rules and regulations addressing the timing, scope, and nature
of visits conducted pursuant to § 43-1303. Although the par-
ties’ differences are extensive and complicated, the material
facts relevant to the issues presented in this appeal are rela-
tively straightforward.
The rules and regulations promulgated by the State Board
pursuant to the Administrative Procedure Act10 include no pro-
visions pertaining to visits conducted pursuant to § 43-1303.
A draft version of rules pertaining to this subject was prepared
and discussed in 2006 but never adopted by the State Board,
for reasons which are unclear from the record. The State Board
does have certain written protocols and manuals pertaining to
home visits, some of which are available on its Web site, but
these have not been adopted as regulations and do not place
specific restrictions on home visits.
A representative of the State Board, together with a rep-
resentative of DHHS acting at the request of the Governor,
conducted an unannounced visit to an oMNI group home in
1999. The State Board has not attempted another unannounced
visit to an oMNI group home since that time, and oMNI has
denied the State Board’s requests to conduct announced visits.
The State Board has not conducted any unannounced visits to
any foster care facilities since 2001.
9 Att’y Gen. op. No. 98029 (July 13, 1998).
10 Neb. rev. Stat. §§ 84-902 to 84-909 (reissue 2008).
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	645
Cite as 277 Neb. 641

The Kroms have been licensed foster care providers since
2000. They have cared for a total of 6 or 7 foster children in
their private home and were caring for two foster children at
the time of Wendy Krom’s testimony in 2007. The Kroms have
received training and support from oMNI. In 2005, a repre-
sentative of the State Board called Wendy Krom to arrange a
home visit. oMNI had instructed foster care providers to refuse
to allow the State Board to inspect foster care facilities, so the
Kroms reported the request to their oMNI specialist. The State
Board eventually obtained a court order requiring the Kroms to
permit the visit.
The visit was conducted by two representatives of the State
Board, and an oMNI specialist was also present. The visi-
tors explained the purpose of their visit and asked the Kroms
basic questions about their foster children. They also spoke
with the children and gave them gifts. There is no indica-
tion in the record that they inspected the Kroms’ home. The
visit was approximately 20 minutes in duration. Wendy Krom
described the visitors as “very polite” and compared the visit
to “grandma and grandpa coming over.” She later completed
a foster home visit evaluation in which she stated that she
was impressed with the professionalism and demeanor of
the persons who conducted the visit and considered them to
be “excellent” representatives of the State Board. However,
Wendy Krom testified that she would not feel comfortable
denying a future request for a home visit by the State Board
due to fear of the foster children’s being removed from her
home, and she believes that there should be rules governing
such visits.
At the time of the 2007 evidentiary hearing in this case, the
State Board, in conjunction with its local boards, was conduct-
ing 25 or fewer visits of foster care facilities per year. The vis-
its are arranged in advance and last 40 minutes or less. Some
are informational visits to group homes and other foster care
facilities which are not located in private homes. During such
visits, the facility and programs are examined in order to deter-
mine whether the foster placement is safe and appropriate, but
the foster children residing at the facility are not interviewed
or otherwise evaluated. State Board representatives enter only
646 	277 NeBrASKA rePorTS

those areas of a group home or similar facility where permitted
by the facility staff. The State Board has never been denied
permission to visit any group home or similar facility by any
foster care provider other than oMNI.
“Project Permanency” visits are conducted by the State
Board at private foster homes to determine that children are
safe and their needs are being met. Arrangements for the visit
are made in advance with the foster parents. During “Project
Permanency” visits, the foster parents are interviewed but the
children are not. representatives of the State Board enter only
those rooms to which they are invited by the foster parents. The
State Board has not received complaints regarding any “Project
Permanency” visit.
other home visits conducted by the State Board are pursuant
to court orders entered in juvenile proceedings. There has been
no reported harm to any foster child resulting from a visit by
the State Board.
Stitt wrote a letter to the director of DHHS on August
19, 2004, setting forth details of a “consistent pattern of
children’s safety being endangered in oMNI group homes”
and a failure on the part of oMNI to acknowledge and
address such problems. reay disputed these statements in a
letter to the State Board dated August 23, 2004. The State
Board denies receiving this letter. oMNI’s general counsel
sent a letter dated September 1, 2004, addressed to Stitt in
her individual capacity and as executive director of the State
Board, alleging that Stitt’s August 19 letter to the director of
DHHS was libelous and requesting that Stitt publish “retrac-
tions and corrections.” The record does not reflect whether
Stitt responded to this letter. reay testified in an April 2007
hearing that none of oMNI’s facilities have been closed as a
result of any action by the State Board, that its operations in
Nebraska have expanded, and that it continues to receive new
state contracts.
Based upon this evidence, the district court entered an order
on February 28, 2008, granting appellees’ motion for summary
judgment. The court determined that the visits by the State
Board pursuant to § 43-1303 did not constitute “‘warrant-
less administrative searches’” implicating Fourth Amendment
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	647
Cite as 277 Neb. 641

rights, but, rather, were “in furtherance of the responsibility of
the state to assure appropriate care and services for children
who are in the state’s care.” The court also determined that
this action was an impermissible collateral attack on juvenile
court orders requiring that foster care facilities be available
for announced as well as unannounced visits by case manag-
ers, court-appointed special advocates, guardians ad litem, and
the State Board. The court determined that appellants lacked
standing to assert any rights on behalf of others. Finally,
the court rejected oMNI’s claim that the actions of Stitt or
the State Board tortiously interfered with oMNI’s contractual
relationship with the State, reasoning that one state agency
cannot interfere with a contract between another state agency
and a third party and that there was no prayer for relief for
tort damages.
Appellants perfected a timely appeal from the district court’s
order. We moved the appeal to our docket on our own motion
pursuant to our statutory authority to regulate the caseloads of
the appellate courts of this state.11
ASSIGNMeNTS oF error
Appellants assign that the district court erred in (1) sustain-
ing appellees’ motion for summary judgment; (2) finding that
the State Board visits do not constitute warrantless administra-
tive searches; (3) applying the “special needs” balancing test
to the facts of this case in an improper manner; (4) essentially
finding that because of the contract between oMNI and DHHS,
the 4th and 14th Amendment rights of oMNI and the children
in its care have been extinguished or somehow diminished; (5)
finding that appellants are attempting to collaterally challenge
the jurisdiction of certain Nebraska juvenile court judges; (6)
dismissing the claims against Stitt in her individual capacity;
and (7) determining that they do not have standing to bring this
action on behalf of the children in their care.
STANDArD oF revIeW
[1,2] Summary judgment is proper when the pleadings and
evidence admitted at the hearing disclose no genuine issue
11 See Neb. rev. Stat. § 24-1106(3) (reissue 2008).
648 	277 NeBrASKA rePorTS

regarding any material fact or the ultimate inferences that may
be drawn from those facts and that the moving party is entitled
to judgment as a matter of law.12 In reviewing a summary judg-
ment, an appellate court views the evidence in the light most
favorable to the party against whom the judgment is granted
and gives such party the benefit of all reasonable inferences
deducible from the evidence.13
ANALYSIS
fOurth aMeNdMeNt claIMs
[3,4] The Fourth Amendment to the U.S. Constitution and
article I, § 7, of the Nebraska Constitution guarantee against
unreasonable search and seizure.14 These constitutional provi-
sions do not protect citizens from all governmental intrusion,
but only from unreasonable intrusions.15 While the language
of the Fourth Amendment specifically protects the right of a
person to be secure in his or her person, house, papers, and
effects against unreasonable searches and seizures,16 the U.S.
Supreme Court has held that the protection of the Fourth
Amendment is applicable to commercial premises, as well as
to private homes.17 The existence of an interest protected by the
Fourth Amendment to the U.S. Constitution and article I, § 7,
of the Nebraska Constitution depends upon whether the person
or entity claiming the interest has a legitimate or justifiable
expectation of privacy in the place which the government seeks
to enter.18
In this case, appellants do not seek relief with respect to any
specific visit conducted pursuant to § 43-1303(3) in the past.
12 State ex rel. Wagner v. Gilbane Bldg. Co., 276 Neb. 686, 757 N.W.2d. 194
(2008).
13 Id.
14 State v. Bakewell, 273 Neb. 372, 730 N.W.2d 335 (2007).
15 See State v. Roberts, 261 Neb. 403, 623 N.W.2d 298 (2001).
16 State v. Sinsel, 249 Neb. 369, 543 N.W.2d 457 (1996).
17 New York v. Burger, 482 U.S. 691, 107 S. Ct. 2636, 96 L. ed. 2d 601
(1987); See v. City of Seattle, 387 U.S. 541, 87 S. Ct. 1737, 18 L. ed. 2d
943 (1967).
18 See State v. Lara, 258 Neb. 996, 607 N.W.2d 487 (2000).
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	649
Cite as 277 Neb. 641

Instead, they seek declaratory and injunctive relief based on the
broad assertion that “the current lack of regulations surrounding
[State Board] ‘visits’ violates the 4th and 14th Amendment rights
of every individual subject to the [State Board] ‘visits.’”19 We
agree with the district court that oMNI and the Kroms have
standing to assert this claim only with respect to the premises
upon which they provide foster care and that reay has no legal
interest in this case separate from that of oMNI.
Appellants contend that the constitutionality of foster home
visits pursuant to § 43-1303 should be determined under the
“Colonnade/Biswell doctrine,”20 as articulated by the U.S.
Supreme Court in New York v. Burger.21 The doctrine is based
upon a recognition that because there is a reduced expectation
of privacy on the part of an owner of commercial premises in a
“‘closely regulated’” industry, the warrant and probable cause
requirements of traditional Fourth Amendment jurisprudence
have lessened application.22 In Colonnade Corp. v. United
States,23 which involved a warrantless inspection of a busi-
ness which sold liquor pursuant to a federal revenue statute,
the court noted that the liquor industry had long been subject
to close government supervision and inspection. In United
States v. Biswell,24 the Court upheld a warrantless search of
a licensed gun dealer’s premises pursuant to a federal statute,
noting that when the dealer chose to engage in the highly
regulated firearms business, he did so with the knowledge that
his business would be subject to effective inspection. In New
York v. Burger, the Court upheld a warrantless inspection of a
vehicle-dismantling business, articulating a three-part test for a
constitutionally permissible inspection in the context of a “per-
vasively regulated business”:
19 Brief for appellants at 13.
20 See, United States v. Biswell, 406 U.S. 311, 92 S. Ct. 1593, 32 L. ed. 2d
87 (1972); Colonnade Corp. v. United States, 397 U.S. 72, 90 S. Ct. 774,
25 L. ed. 2d 60 (1970).
21 New York v. Burger, supra note 17.
22 Id., 482 U.S. at 702.
23 Colonnade Corp. v. United States, supra note 20.
24 United States v. Biswell, supra note 20.
650 	277 NeBrASKA rePorTS

First, there must be a “substantial” government interest
that informs the regulatory scheme pursuant to which the
inspection is made. . . .
Second, the warrantless inspections must be “necessary
to further [the] regulatory scheme.” . . .
Finally, “the statute’s inspection program, in terms
of the certainty and regularity of its application, [must]
provide[e] a constitutionally adequate substitute for a
warrant.” . . . In other words, the regulatory statute must
perform the two basic functions of a warrant: it must
advise the owner of the commercial premises that the
search is being made pursuant to the law and has a prop-
erly defined scope, and it must limit the discretion of the
inspecting officers.25
Appellants argue that because there are no regulations defining
the scope of home visits pursuant to § 43-1303(3) or limiting
the discretion of the State Board in conducting such visits, any
home visit pursuant to the statute would violate their Fourth
Amendment rights under the Colonnade/Biswell doctrine.
We agree with the district court that the Colonnade/Biswell
doctrine is not the appropriate standard for determining whether
home visits by the State Board violate the Fourth Amendment
rights of foster care providers. The reasonable expectation of
privacy of a person or firm who is paid to provide foster care
for children who are wards of the State is far more attenuated,
as to the place where such care is provided, than that of a
regulated seller of firearms, liquor, or motor vehicle parts. The
State, as the legal custodian of such children, has an obliga-
tion to see that they are receiving proper care, and foster care
providers have an obligation to the children and the State to
provide such care. The Legislature has empowered the State
Board and its designated local boards with oversight respon-
sibilities regarding foster care placements, including specific
authority to conduct home visits. on this record, it is uncertain
whether such visits would constitute a search or seizure within
the meaning of the Fourth Amendment or article I, § 7, of the
Nebraska Constitution. The visit is not for the purpose of law
25 New York v. Burger, supra note 17, 482 U.S. at 702-03.
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	651
Cite as 277 Neb. 641

enforcement, and the record indicates that in the past, the State
Board has complied with restrictions on visits imposed by fos-
ter care providers.26
To the extent constitutional rights may be implicated by
home visits to foster care facilities pursuant to § 43-1303(3),
we agree with the district court that the visits should be judged
under a general standard of reasonableness which courts have
applied when “‘special [governmental] needs,’” beyond the
normal need for law enforcement, justify a departure from the
requirements of individualized suspicion, warrants, and prob-
able cause under traditional Fourth Amendment analysis.27 This
standard has been applied in cases involving drug testing of
railroad workers involved in accidents,28 U.S. Customs Service
employees seeking promotion to sensitive positions,29 and high
school students participating in sports.30 It is based upon a
recognition that “the legitimacy of certain privacy expecta-
tions vis-a-vis the State may depend upon the individual’s legal
relationship with the State.”31 In such cases, the Supreme Court
has applied a balancing test which weighs the intrusion on an
individual’s liberty interest against the special governmental
need for the intrusion.32
In Wyman v. James,33 the U.S. Supreme Court applied this
general test of reasonableness to the question of whether a
26 See Wyman v. James, 400 U.S. 309, 91 S. Ct. 381, 27 L. ed. 2d 408
(1971).
27 See, Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S. Ct. 2386,
132 L. ed. 2d 564 (1995); Treasury Employees v. Von Raab, 489 U.S.
656, 109 S. Ct. 1384, 103 L. ed. 2d 685 (1989); Skinner v. Railway Labor
Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. ed. 2d 639
(1989).
28 Skinner v. Railway Labor Executives’ Assn., supra note 27.
29 Treasury Employees v. Von Raab, supra note 27.
30 Vernonia School Dist. 47J v. Acton, supra note 27.
31 Id., 515 U.S. at 654. Accord S.L. v. Whitburn, 67 F.3d 1299 (7th Cir.
1995).
32 See Ferguson v. City of Charleston, 532 U.S. 67, 121 S. Ct. 1281, 149 L.
ed. 2d 205 (2001).
33 Wyman v. James, supra note 26.
652 	277 NeBrASKA rePorTS

recipient of government benefits for her children could refuse
a home visit by a caseworker without risking the termination
of benefits. After first questioning whether such visit consti-
tuted a search in the context of the Fourth Amendment, the
Court concluded that even if it did, it was not unreasonable.
In reaching this conclusion, the Court considered a number of
factors, including the statutory and regulatory prohibition of
forcible entry or entry under false pretenses, visitation outside
working hours, and “snooping in the home.”34 other factors
considered by the Court included the public interest in the
welfare of the child and expenditure of public funds, the giv-
ing of advance notice of the visit, the importance of observing
the child at the actual place of residence, and the fact that the
visit was not conducted by police or uniformed authorities, and
was not related to any criminal investigation. In concluding
that no issue of “constitutional magnitude” was presented, the
Court noted that the parent had the right to refuse the home
visit, with the only consequence being the cessation of pub-
lic assistance.35
Here, the State has a special need to visit foster care facili-
ties arising from its obligation to see that children entrusted
to its legal custody are receiving proper and appropriate foster
care from those who contract to provide such care. Thus, we
conclude that any claim that a home visit by the State Board
infringes upon Fourth Amendment rights, or corresponding
rights under the Nebraska Constitution, must be judged by a
standard of reasonableness, taking into consideration all rele-
vant circumstances. Normally, this would be an issue of fact
which would preclude summary judgment.36 However, as we
have noted, appellants in this case do not challenge the con-
stitutionality of any specific home visit conducted in the past.
rather, they allege that in the absence of duly promulgated
regulations defining the time, place, and scope of home visits,
34 Id., 400 U.S. at 321.
35 Id., 400 U.S. at 324.
36 See O’Connor v. Ortega, 480 U.S. 709, 107 S. Ct. 1492, 94 L. ed. 2d 714
(1987).
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	653
Cite as 277 Neb. 641

any such visit would necessarily violate their rights even if the
“special needs” standard is applied.
We reject this contention. The Foster Care review Act per-
mits but does not require the State Board to promulgate regu-
lations.37 The absence of specific regulations governing home
visits is one factor that a court could consider in determining
whether a specific visit was constitutionally unreasonable, but
is not the exclusive or necessarily the dispositive factor. For
example, the absence of regulations defining the permissible
scope and circumstances of home visits might be entitled to
significant weight in determining the reasonableness of an
unannounced visit conducted in the middle of the night without
logical justification, but considerably less weight in the circum-
stance where the date, time, and scope of a daytime visit are
discussed in advance by the State Board and the foster care
provider. In other words, the absence of specific regulations
governing home visits may or may not result in a particular
visit’s being held unreasonable and therefore unconstitutional,
depending upon all of the other pertinent facts and circum-
stances. The fact that oMNI group homes house children with
mental disorders and behavioral problems, including some who
are not wards of the State, does not alter this analysis. It is
simply one of the relevant factors which a court would need to
consider in determining whether or not a particular home visit
was reasonable.
For these reasons, we conclude that the district court did not
err in entering summary judgment with respect to appellants’
claims for injunctive relief on constitutional grounds. Because
of this disposition, we need not reach appellants’ related assign-
ments of error.
tOrt claIM
[5] Appellants contend that the district court erred in dis-
missing their claims against Stitt in her individual capacity.
We note that oMNI is the only one of the appellants to have
asserted a claim against Stitt individually, alleging that she
made various misstatements and mischaracterizations directed
37 See § 43-1303(2).
654 	277 NeBrASKA rePorTS

to the Governor “which constitute[ed] an intentional act done
for the purpose of causing harm” to oMNI’s relationship with
the State of Nebraska and that “oMNI suffered damage based
upon Stitt’s interference” with that relationship. To succeed
on a claim for tortious interference with a business relation-
ship or expectancy, a plaintiff must prove (1) the existence of
a valid business relationship or expectancy, (2) knowledge by
the interferer of the relationship or expectancy, (3) an unjusti-
fied intentional act of interference on the part of the interferer,
(4) proof that the interference caused the harm sustained, and
(5) damage to the party whose relationship or expectancy
was disrupted.38
The only specific communication between Stitt and the
Governor alleged by oMNI and reflected in the record is her
August 19, 2004, letter to the director of DHHS, which bears
the notation “cc: Governor Johanns.” The letter was written
on Stitt’s letterhead as executive director of the State Board
and signed by her in that capacity. In the opening sentence of
the letter, Stitt stated that she was writing at the request of the
State Board. In their complaint, appellants alleged that Stitt “at
all times relevant hereto, has been the executive Director of
the [State Board], and as such has been and will continue to
act ‘under color of state law.’” Although oMNI’s request for a
retraction of statements made in the letter was directed to Stitt
“simultaneously in both [her] individual and in [her] official
capacities,” this does not support an inference that Stitt ever
communicated with the Governor regarding oMNI other than
in her official capacity. Although oMNI alleged in the com-
plaint that it “suffered damage based upon Stitt’s interference
with its relationship with the State of Nebraska,” reay testified
that no oMNI facility has been closed as a result of any action
of the State Board and that oMNI continues to receive new
state contracts. reay also made a conclusory statement that
oMNI’s reputation had been harmed, but he did not relate this
to any specific conduct on the part of Stitt in her individual
38 Aon Consulting v. Midlands Fin. Benefits, 275 Neb. 642, 748 N.W.2d 626
(2008).
oMNI v. NeBrASKA FoSTer CAre revIeW BD. 	655
Cite as 277 Neb. 641

capacity or to oMNI’s contractual relationship with the State
of Nebraska.
The evidence received in support of the motion for summary
judgment shows that Stitt did not, as a matter of law, wrong-
fully interfere in her individual capacity with any contractual
relationship between oMNI and the State of Nebraska, and the
district court did not err in entering summary judgment with
respect to this claim.
CoNCLUSIoN
For the reasons discussed, we affirm the judgment of the
district court.
affIrMed.
heavIcaN, C.J., not participating.
JON OBerMIller , appellaNt, v. peak INterest, l.l.c.,
dOINg BusINess as pIzza hut, aNd tIg
INsuraNce cOMpaNy, appellees.
764 N.W.2d 410
Filed April 23, 2009. 	No. S-08-836.
1. Workers’ Compensation: Appeal and Error. Under Neb. rev. Stat. § 48-185
(reissue 2004), an appellate court may modify, reverse, or set aside a Workers’
Compensation Court decision only when (1) the compensation court acted with-
out or in excess of its powers; (2) the judgment, order, or award was procured
by fraud; (3) there is not sufficient competent evidence in the record to warrant
the making of the order, judgment, or award; or (4) the findings of fact by the
compensation court do not support the order or award.
2. Workers’ Compensation: Limitations of Actions: Appeal and Error.
Determining when the statute of limitations begins under Neb. rev. Stat. § 48-137
(reissue 2004) presents a question of law. When reviewing a question of law, an
appellate court resolves it independently of the lower court’s determination.
3. Workers’ Compensation: Limitations of Actions: Words and Phrases.
Under Neb. rev. Stat. § 48-137 (reissue 2004), the “time of the making of
the last payment” means the date the employee or the employee’s provider
receives payment.
Appeal from the Workers’ Compensation Court. reversed
and remanded with directions.
656 	277 NeBrASKA rePorTS