Are volunteer nursing home ombudsmen in Texas protected from lawsuits for their work?

Plain-English summary

Texas runs a long-term care ombudsman program: people who advocate for nursing home residents, look into complaints, and check that facilities follow the law. The state ombudsman cannot cover every nursing home alone, so the program relies on trained volunteers and citizens' organizations. The Texas Department on Aging asked the Attorney General whether those volunteers were protected from liability the way the state ombudsman was, or whether the immunity in the statute applied only to the state official.

The immunity provision, Human Resources Code section 101.063, said that "an ombudsman is not liable for civil damages or subject to criminal prosecution for performing official duties unless the ombudsman acts in bad faith or with malicious purpose." The question came down to who counts as "an ombudsman." The Attorney General concluded the term covered the volunteers and citizens' organizations in the program, not just the state ombudsman. Throughout the subchapter, the legislature used "ombudsman" to mean both the state office and the participating volunteers, and it switched to "state long-term care ombudsman" or "state ombudsman" whenever it meant only the state office. So the plain language of section 101.063 reached the volunteers.

The opinion backed this up with the federal law behind the program. Texas created the subchapter to comply with the federal Older Americans Act, which conditions certain grants on a state running a long-term care ombudsman program and ensuring that no representative of the ombudsman office is liable under state law for the good-faith performance of official duties. Both the federal statute and its legislative history showed that volunteer ombudsmen were meant to be immune for good-faith work. The Attorney General therefore concluded that volunteer ombudsmen and citizens' organizations in the program were immune from liability for the good-faith performance of their duties.

Currency note

This opinion was issued in 1992. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. The Human Resources Code long-term care ombudsman provisions cited here have been amended since 1992, and the federal Older Americans Act has been reauthorized multiple times, so confirm the current state and federal provisions before relying on anything described here.

Background and statutory framework

Subchapter C of Human Resources Code chapter 101 created the State of Texas Long-Term Care Ombudsman office (section 101.052). The state ombudsman was responsible for advocating the rights of nursing home residents and their families: intervening on behalf of elderly persons in nursing homes to assure quality of care, establishing standards for acceptable nursing home care, investigating and resolving complaints made by or on behalf of residents, and monitoring nursing home compliance with federal, state, and local laws (sections 101.053-.054; 40 T.A.C. §§ 299.1, 299.5, 299.9). To monitor nursing homes statewide, the state ombudsman was authorized to recruit volunteers and citizens' organizations to take part in the program (section 101.056(a)).

Section 101.063 provided the immunity: "An ombudsman is not liable for civil damages or subject to criminal prosecution for performing official duties unless the ombudsman acts in bad faith or with malicious purpose." The interpretive question was whether "an ombudsman" included the volunteers. The Attorney General looked at how the legislature used the word across subchapter C. Throughout the subchapter, "ombudsman" denoted the state long-term care ombudsman as well as the volunteers and citizens' organizations that participate in the program; when the legislature meant only the state office, it used "state long-term care ombudsman" or "state ombudsman." From that usage, the opinion concluded the limitation of liability in section 101.063 applied to participating volunteers and citizens' organizations as well as the state ombudsman.

The opinion then turned to the federal backdrop. Subchapter C was adopted to conform Texas law to the federal Older Americans Act of 1965 (see section 101.053(a)). Under the Older Americans Act Amendments of 1987, 42 U.S.C. § 3021 et seq., federal funds were made available to states for programs assisting older persons; to qualify, states had to develop plans meeting federal standards and establish a state long-term care ombudsman program (42 U.S.C. § 3027(a)(12)). The Act provided that "[t]he State will ensure that no representative of the Office [of the State Long-Term Care Ombudsman] will be liable under State law for the good faith performance of official duties" (42 U.S.C. § 3027(a)(12)(I)). The committee report on the 1987 amendments and the Texas bill analysis for House Bill 541 (71st Legislature, 1989), which enacted subchapter C, both confirmed that the immunity was meant to extend to volunteer ombudsmen who perform their duties in good faith. The Attorney General concluded, from both the plain language of section 101.063 and its legislative history, that volunteer ombudsmen and citizens' organizations in the program were immune from liability for the good-faith performance of their duties.

Common questions

Did the immunity cover volunteers, or only the state ombudsman?
The opinion concluded it covered volunteer ombudsmen and citizens' organizations participating in the program, not just the state ombudsman. The statute used "ombudsman" to mean both, and reserved "state ombudsman" for the state office alone.

What kind of protection did section 101.063 give?
It said an ombudsman is not liable for civil damages and is not subject to criminal prosecution for performing official duties. The protection had a limit: it did not apply if the ombudsman acted in bad faith or with malicious purpose.

Why did the federal Older Americans Act matter?
Texas enacted the ombudsman subchapter to comply with the Older Americans Act, which conditions federal funding on the state ensuring that no representative of the ombudsman office is liable under state law for good-faith performance of official duties. The opinion used that federal requirement to confirm that volunteers were meant to be covered.

Citations

• Human Resources Code § 101.063 (immunity)
• Human Resources Code § 101.052 (State Long-Term Care Ombudsman office)
• Human Resources Code §§ 101.053-.054, 101.056(a)
• 40 T.A.C. §§ 299.1, 299.5, 299.9
• 42 U.S.C. § 3021 et seq.; § 3027(a)(12), (a)(12)(I) (Older Americans Act)
• S. Rep. No. 136, 100th Cong., 1st Sess. (1987); House Bill 541, 71st Leg. (1989)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0173
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1992/dm0173.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, and several heavily degraded passages of quoted legislative history are marked as illegible. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

September 29, 1992

Ms. Mary Sapp
Executive Director
Texas Department on Aging
P. O. Box 12786
Austin, Texas 78711

Opinion No. DM-173

Re: Whether the Human Resources Code section 101.063 provides immunity to volunteer 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 conclude 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 office. Hum. Res. Code § 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 nursing home care; investigating and resolving complaints made by or on behalf of residents of long-term care facilities; and monitoring nursing home compliance with federal, state and local laws. Hum. Res. Code §§ 101.053-.054; 40 T.A.C. §§ 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 participate in the ombudsman program. Hum. Res. Code § 101.056(a); 40 T.A.C. §§ 299.6(b)(1)-(6), (c)(1), (8).

Human Resources Code section 101.063 states: "An ombudsman is not liable for civil damages or subject to criminal prosecution for performing official duties unless the ombudsman acts in bad faith or with malicious purpose." You ask whether volunteer ombudsmen are immune 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 as well as the state long-term care ombudsman.

Throughout Human Resources Code chapter 101, subchapter C, the legislature uses the term "ombudsman" to denote the state long-term care ombudsman, as well as volunteers and citizens' organizations that participate in the program. See Hum. Res. Code §§ 101.056(a), (c); 101.057(b), 101.063, 101.064(a)(1). When the legislature refers particularly to the "state long-term care ombudsman," the legislature either uses that term or uses the term "state ombudsman." See Hum. Res. Code §§ 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 citizens' organizations that participate in the ombudsman program as well as the state ombudsman.

Human Resources 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 § 101.053(a). Pursuant to the federal Older Americans Act, Amendments of 1987, 42 U.S.C. § 3021 et seq., certain federal funds were made available to states and communities for programs to assist older persons. Id. §§ 3021, 3023, 3024. To qualify for these federal grants, state governments were required to develop plans meeting certain federal standards to monitor the provision of health and social services for older persons. Id. § 3027. The Older Americans Act required participating states in these plans to establish a state long-term care ombudsman program. Id. § 3027(a)(12). The Older Americans Act provides that "[t]he State will ensure that no representative of the Office [of the State Long-Term Care Ombudsman] will be liable under State law for the good faith performance of official duties." Id. § 3027(a)(12)(I) (emphasis added). The Senate Labor and Human Resources Committee Report accompanying the Older Americans Act Amendments of 1987 states:

[The committee report passage here is largely illegible in the source scan. Legible portions indicate that the report recognized the importance of sub-state ombudsman programs and required that such local programs be included as subdivisions of the Office of the State Long-Term Care Ombudsman, that representatives of the Office be afforded certain protections, and that the bill required the States to make assurances that the Office will not be liable under State law for good faith performance of official duties.]

S. Rep. No. 136, 100th Cong., 1st Sess. 54 (1987) (emphasis added); reprinted in 1987 U.S.C.C.A.N. 866, 874. The Older Americans Act and its legislative history make it clear that volunteer ombudsmen were intended to be immune from liability for good faith performance of their official duties.

Human Resources Code chapter 101, subchapter C, and section 101.063 were enacted by House Bill No. 541 of the 71st Legislature. The bill analysis accompanying House Bill No. 541 states:

This legislation is proposed to comply with the Older Americans Act, Public Law 100-175, November 27, 1987. This federal law requires the Texas Department on Aging to establish an office of the state's Long-Term Care Ombudsman to advocate for nursing home residents. The federal law requires each state to provide the ombudsman program access to residents of nursing homes and to provide immunity [for ombudsmen].

House Comm. on Retirement and Aging, Bill Analysis, CSHB 541, 71st Leg. (1989) (by Reps. Richardson & Robnett) (emphasis added); see also Bill Analysis, H.B. 541, 71st Leg. (1989) (by Rep. Richardson) ("one of the provisions of the 1987 re-authorization 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 the plain language of Human Resources Code section 101.063, as well as its legislative history, that volunteer ombudsmen and citizens' organizations that participate in the long-term care ombudsman program are immune from liability for good faith performance of their duties.

SUMMARY

Human Resources Code section 101.063, which provides that an ombudsman is not liable for civil damages or subject to criminal prosecution for good faith acts performed in the course of official duties, applies to volunteer ombudsmen and citizens' organizations that participate in the long-term care ombudsman program.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Assistant Attorney General

RENEA HICKS
Special Assistant Attorney General

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Geoffrey Hennessey
Assistant Attorney General