Untitled Texas Attorney General Opinion ( 1992 )

QBfficeof tip Bttorntp General
diMate of &txae
DAN MORALES September 29.1992
.,l-rORNEY
GENERAL
MS. Ma,n S~PP opinion No. DM-173
Executive Director
Texas Department on Aging Re: Whether the Human Resources
P. 0. Box 12786 Code section 101.063 provides immunity
Austin, Texas 78711 to vohmteer ombudsmen in the Texas
Department of Aging long-term care
ombudsman program (RQ-87)
Dear Ms. Sapp:
The Texas Department on Aging requested the attorney general’s opinion
concerning whether volunteer ombudsmen in the state long-term care ombudsman
program are immune from liability. We con&de that such volunteer ombudsmen
are immune from suit in the good-faith performance of their functions as volunteer
ombudsmen.
Human Resources Code chapter 101, subchapter C, created the State of
Texas Long-Term Care Ombudsman Q&e.’ Hum. Res. Code 5 101.052. The state
ombudsman is responsible for advocating the rights of nursing home residents and
their families, including: Intervening on behalf of elderly persons in nursing homes
to assure quality of care; establishing standards for dependable and acceptable nurs-
ing home care; investigating and resolving complaints made by or on behalf of resi-
dents of long-term care facilities, and monitoring nursing home :ompliance with
federal, state and local laws. Hum. Res. Code Q101.053 - .054; 40 ‘T.A. C. 98 299.1,
299.5, 299.9. In order to monitor nursing homes on a state-wide basis, the state .
ombudsman is authorized to recruit volunteers and citizens’ organizations to partici-
pate in the ombudsman program. Hum. Res. Code 5 101.056(a); 40 T. A. C.
99 29WbW) - (6); (c)(l), (8).
Human Resources Code section 101.063states: “An ombudsman is not liable
for civiI damages or subject to criminal proseanion for performing official duties
unless the ombudsman acts in bad faith or with malicious purpose.” You ask
p. 906
Ms.MarySapp - Page 2 (W173)
whether volunteer ombudsmen are itmmme from civil liability in the course of their
duties as volunteer ombudsmen, or whether section 101.063 applies only to the state
ombudsman Chapter 101, subchapter C, as well as its legislative history establish
that this limitation of liability was meant to apply to volunteer ombudsmen aa well
as the state long-term cue ombudsman
Throughout Human Resources Code chapter 101, subchapter C the legisla-
ture uses the term “ombudsman”to denote the state long-term care omkkmm, as
well as vohmteers and citizens organizations that participate in the propam. see
Hum. Rea Code 00 101.056(a), (c); 101.057(b), 101.063, 101.064(a)(l). When the
legislature refers particularly to the “state long-term care ombuds~’ the legisla-
ture either uses that term or uses the term “state ombudsman” See Hum. Res. Code
99 101.054(a), 101.058(a). We conclude from the plain language of section 101.063
that the limitation of liability for “an ombudsman” applies to volunteer and c&en
organizations that participate in the ombudsman program as well as the state
Ombudsman.
HumanResources Code chapter 101, subchapter C, was adopted to conform
Texas law to the requirements of the federal Older Americans Act of 1965 See
Hum Res. Code 0 101.053(a). Pursuant to the federal Older Americans Act,
Amendments of 1987, 42 U.S.C. 0 3021 u seq, certain federal ftmds were made
available to states and communities for programs to assist older persona Id.
55 3021,3CG!3,3@24.To qualify for these federal grants, state governments were r+
quid to develop plans meeting certain federal standards to monitor the provision
of health and social services for older persons. Id 0 3027. The Older Americans
Act required participating states in these plans to establish a state longterm care
ombudsman program. Id. 0 3@27(a)(12). The Older Americans Act provides that
“[t]he State will ensure that no npnzrentative of the Oflice [of the State Long-Term
Care Ombudsman] will be liable under State law for the good faith performance of
official duties.” Id. 0 3&27(a)(lZ)(I) (emphasis added). The Senate Labor and
Human Resources Committee Report accompanying the Older Americans Act
Amendments of 1987 states:
nua?nehemneognirethetnportrmccof~sub-state
ombudsmanm, and require that such local programs be
included as subdivisions of the Office [of the State Long-Term
Care Ombudman]. Pemm sta#ing thesepmpnq either m
emp~orasunpaidwbAnt~catobebclrtadar
p. 907
rrpmmrcrriva of the we. The bill requires that represen-
tatives of the O&n be afforded certain protections.. . . . [lyll
biU~‘theStatestomakepmrrrmccr:that``
theQ@ceniIlnotkliabieunderStatekawjiwgoadjWh
paformcma oft@c5%ddrAties.
S. Rep. No. l36,lOOth Gong., 1st Sess. 54 (1987) (emphasis added); @nred
k 1987
US.CC.AN. 866,874. The Older Americans Act and its legislative histoty make it
dear that vohmteer ombudsmen were intended to be immune fromhabihtyforgood
faith performance of their official duties.
Human Resources Code chapter 101, subchapter C, and section 101.062were
enacted by House Bii Na 541 of the 71st Legislature. The bill analysis
accompanying House Bii Na 541 states:
This legislation is pmposed to comply with the Older Americans
Aa, Public Law lOfk175,November 27, 1987. This federal law
requires the Texas Department on Aging to establish an otTice
of the state’s Long-Term Care Ombudsman to advocate for
nursing home residents.
l&e f&ml law nquins each srare to provide the ombudsman
program access to residents of mnsing homes and to pwkfe
immunayfi?f-dst~
House Comm. on Retirement and Aging, Bill Analysis, CSJ-LB. 541,7lst Leg.
(1989) (by Reps. Richardson & Robnett) (emphasis added); see uko Bill Analysis,
H.B. 541,7lst Leg. (1989) (by Rep. Richardson), (“one of the provisions of the 1987
re-authoriaation of the Older American’s Act required states to provide immunity
from civil or criminal action for ombudsmen volunteers who perform their duties in
good faith”).
We conclude from tk plain language of Human Resources Code section
101.063, as well as its legklative history, that vohmteer ombudsmen and citizens’
organizations that participate in the long-term care ombudsman program are
immtme from liability for good faith performance of their duties.
p. 908
~MuyS4Q-pIo~4 m-173)
SUMMARY
Hum Resources Code section 101.063, which provides
thtmombuQmanirnotLiableforeivildunnncrOrsubjectto
uiminal prosecution for good faith acts paformed in the course
of lth o!Iicial duties, applies to vohmmr ombudsmen and
dtixerd organidons that participate in the long-term c+re
o-p-
DAN MORALES
Attorney General of Texas
WILL PRYOR
Fiit Asshnt Attorney General
MARYKUJJZR
Deputy Assistant Attorney General
RENEAHrK!l
Spedal As&ant Attorney General
MADBLEDJBB. JOHNSON
Chair, Opinion Committee
prepared by Geoffrey Hennessey
Assistant Attomey General
p. 909