Are interns in Texas's nursing-home ombudsman program protected from lawsuits like the certified volunteers?

Plain-English summary

Texas, like every state, runs a "long-term-care ombudsman" program: trained people who go into nursing homes and other care facilities to look into residents' complaints and advocate for them. The program relies heavily on volunteers. An earlier Attorney General opinion (DM-173) had already established that certified volunteer ombudsmen are immune from being sued while doing their job in good faith. The Department on Aging came back with a follow-up: what about the people who are not yet certified volunteers? Specifically, interns serving a three-month training stint under supervision, and a separate group called "friendly visitors" who just visit residents and do not investigate complaints?

For the interns, the Attorney General concluded they are protected, the same as certified volunteers. They are immune from lawsuits for money damages and from criminal prosecution as long as they are performing their official duties in good faith. The reasoning is that both the federal Older Americans Act and state law protect any "representative" of the State Long Term Care Ombudsman Office acting in good faith. A "representative" is someone acting for another through delegated authority, essentially an agent, and an intern working for the ombudsman office fits that description. The history of the state law (House Bill 541) confirmed that the legislature meant to provide immunity for volunteers and staff alike.

For the "friendly visitors," the opinion did not decide. The Department had not given enough information about what they do, so the opinion reserved that question.

The Department also asked whether the Attorney General's office would defend the state ombudsman and these various volunteers if they got sued. The opinion concluded that the Department on Aging is responsible for making sure the ombudsman office gets adequate legal advice and representation, and that the state ombudsman, as a state employee, is entitled to counsel from the Attorney General, but only for actions brought against the person in their official capacity. The statutes do not address Attorney General representation for volunteers. The opinion said it believed the office should represent designated representatives of the state ombudsman consistent with 1992 amendments to the federal Older Americans Act, but urged the Department to seek legislation updating the Human Resources Code to match those amendments, and declined to fully answer the representation question until that happened.

Currency note

This opinion was issued in 1993. 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 opinion itself flagged that the law had not yet caught up with the 1992 amendments to the federal Older Americans Act, and Texas's long-term-care ombudsman program has since been reorganized (now administered through the Health and Human Services Commission), so confirm current law before relying on anything described here.

Background and statutory framework

Human Resources Code chapter 101, subchapter C created the State of Texas Long Term Care Ombudsman Office (§ 101.052), adopted to conform state law to the federal Older Americans Act of 1965 (§ 101.053(a)). The federal act requires states monitoring health and social services for the elderly to maintain a state long-term-care ombudsman program (42 U.S.C. § 3021 et seq.), and the office is authorized to recruit volunteers and citizens' organizations to participate (§ 101.056(a); 40 T.A.C. § 299.9). Section 101.056 provides that the office shall recruit volunteers and citizens' organizations, that a paid staff member of an area agency on aging network or a nonprofit social service agency may be an ombudsman, that an ombudsman is a representative of the office, and that the office shall provide training as required by the subchapter and federal law. DM-173 (1992) had concluded that volunteer ombudsmen participating in the program are immune from suit while in the good-faith performance of their official duties (Human Resources Code § 101.063).

Interns are immune. The Department explained that before certification, individuals routinely serve a three-month internship under the supervision of a professional staff person or experienced certified volunteer. The opinion concluded these interns are immune from suit for civil damages and from criminal prosecution in the good-faith performance of their official duties. The federal act provides that the state "will ensure that no representative" of the State Long Term Care Ombudsman Office "will be liable under State law for the good faith performance of official duties" (42 U.S.C. § 3027(a)(12)). The opinion construed "representative" by its common meaning, one standing or acting for another, especially through delegated authority (Webster's New Collegiate Dictionary 1000 (1983)), interchangeable with "agent" (Black's Law Dictionary 1170 (5th ed. 1979)). Because interns act as representatives of the ombudsman office, they share the immunity. House Bill 541 of the 71st Legislature, which enacted subchapter C and section 101.062, was accompanied by a bill analysis stating that federal law requires each state to provide the ombudsman program access to nursing-home residents and "to provide immunity for volunteer and staff" (House Comm. on Retirement and Aging, Bill Analysis, C.S.H.B. 541, 71st Leg. (1989)).

Friendly visitors: reserved. The Department also described "friendly visitors," who visit residents on an indefinite basis, perform no complaint investigations, and receive little or no supervision. The opinion stated that while interns participating in the program are immune from suit, it was unclear whether the same is true for friendly visitors, and that the Department had not provided sufficient information to address that question, so the opinion reserved its response.

Attorney General representation. The Department asked whether the Attorney General's office would represent the state ombudsman, volunteer ombudsmen, interns, and friendly visitors in legal actions brought against them in their official or individual capacity. The opinion noted that section 101.055 requires the Department on Aging to ensure the ombudsman office receives adequate legal advice and representation, and that as a state employee the ombudsman is entitled to the legal counsel of the Attorney General (Civ. Prac. & Rem. Code §§ 104.001, 104.004), with that representation provided only where the action is sought against the individual in an official capacity. The Human Resources Code and the Civil Practice and Remedies Code do not mention Attorney General representation for volunteers. The opinion expressed the view that the office should provide legal counsel to designated representatives of the state ombudsman as provided in the 1992 amendments to the federal Older Americans Act, urged the Department to seek legislative clarification by introducing amendments to chapter 101 reflecting those federal amendments, and stated that, absent such legislation, it could not fully answer the representation question.

Common questions

Are unpaid interns in the Texas long-term-care ombudsman program protected from being sued?
Yes. The opinion concluded that interns serving the three-month internship are immune from suit for civil damages and from criminal prosecution while performing their official duties in good faith, the same protection certified volunteer ombudsmen have.

Why are interns protected even though they are not yet certified?
Because federal and state law shield any "representative" of the ombudsman office acting in good faith, and the opinion concluded an intern acting for the office is such a representative.

What about "friendly visitors" who just visit residents?
The opinion did not decide. It said the Department had not provided enough information about that group, so it reserved the question.

Will the Attorney General defend the ombudsman if sued?
The opinion concluded the state ombudsman, as a state employee, is entitled to Attorney General representation, but only for actions brought against the individual in an official capacity. For volunteers, the statutes were silent, and the opinion urged the Department to seek clarifying legislation.

Citations

• Human Resources Code ch. 101, subch. C (State Long Term Care Ombudsman Office): § 101.052 (creation), § 101.053(a) (conform to federal act), § 101.055 (legal advice and representation), § 101.056 (recruiting and training volunteers; ombudsman as representative), § 101.062, § 101.063 (immunity for good-faith official acts)
• 42 U.S.C. § 3021 et seq. (Older Americans Act of 1965); § 3027(a)(12) (no representative liable for good-faith performance)
• Civ. Prac. & Rem. Code §§ 104.001, 104.004 (state-employee legal representation)
• 40 T.A.C. § 299.9 (volunteer participation)
• House Bill 541, 71st Leg. (1989); House Comm. on Retirement and Aging, Bill Analysis, C.S.H.B. 541
• Attorney General Opinion DM-173 (1992)

Source

• Landing page: https://www.texasattorneygeneral.gov/opinions/dan-morales/dm-0206
• Original PDF: https://www.texasattorneygeneral.gov/sites/default/files/opinion-files/opinion/1993/dm0206.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

Office of the Attorney General
State of Texas

DAN MORALES
ATTORNEY GENERAL

March 16, 1993

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

Opinion No. DM-206

Re: Whether the Human Resources Code section 101.063 provides immunity to volunteer ombudsmen in the Texas Department on Aging long term care ombudsman program

Dear Ms. Sapp:

You seek clarification of Attorney General Opinion DM-173 (1992) which addresses the immunity of volunteer ombudsmen in the Texas Department on Aging long term care ombudsman program. In that opinion we concluded that volunteer ombudsmen participating in the program are immune from suit while in the good faith performance of their official duties. Hum. Res. Code § 101.063.

You have informed us that prior to becoming a certified volunteer ombudsman individuals routinely serve a three month internship under the supervision of a professional staff person or an experienced certified volunteer. You further state that the ombudsman program contains a class of volunteers referred to as friendly visitors. Their function is to visit residents in nursing facilities on an indefinite basis. Friendly visitors do not perform complaint investigations and receive little or no supervision. You ask if individuals serving in either of these categories are immune from suit as discussed in Attorney General Opinion DM-173. We conclude that the volunteers serving in the internship program are immune from suit for civil damages or criminal prosecution while in the course of good faith performance of their official duties.

Human Resources Code chapter 101, subchapter C, created the State of Texas Long Term Care Ombudsman Office. Hum. Res. Code § 101.052. Chapter 101, subchapter C, was adopted to conform the laws of this state to the requirements of the federal Older Americans Act of 1965 ("the act"). Id. § 101.053(a). The act requires that states participating in plans to monitor the provision of health and social services for the elderly establish a state long term care ombudsman program. 42 U.S.C. § 3021 et seq. In pursuit of its responsibilities, the office of the 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. § 299.9(b)(5) - (6); (c)(1); (8). Section 101.056 of the Human Resources Code provides:

(a) The office shall recruit volunteers and citizen organizations to participate in the ombudsman program. A paid staff member of an area agency on aging network or a nonprofit social service agency may be an ombudsman. An ombudsman is a representative of the office.

(b) The office shall provide training to ombudsmen as required by this subchapter and federal law. [Emphasis added.]

The federal Older Americans Act of 1965 further 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) (emphasis added). A representative is defined as standing or acting for another especially through delegated authority. Webster's New Collegiate Dictionary 1000 (1983). The term is interchangeable with agent. Black's Law Dictionary 1170 (5th ed. 1979). We conclude that as representatives of the office of the ombudsman, the interns are immune from suit while in the good faith performance of their duties.

Furthermore, House Bill 541 of the 71st Legislature enacted Human Resources Code chapter 101, subchapter C and section 101.062. The bill analysis states in part:

The federal law requires each state to provide the ombudsman program access to residents of nursing homes and to provide immunity for volunteer and staff. [Emphasis added.]

House Comm. on Retirement and Aging, Bill Analysis, C.S.H.B. 541, 71st Leg. (1989) (by Reps. Richardson and Robnett). While it is clear that interns participating in the program are immune from suit, we are unclear whether the same is true for individuals participating in the program as friendly visitors. You have not provided us with sufficient information to address your question with regard to this group, therefore we shall reserve our response.

You also ask whether the office of the Attorney General would be responsible for representation of the state ombudsman, volunteer ombudsmen, interns and friendly visitors "in the event of legal action taken against them in their official or individual capacity." Section 101.055 of the Human Resources Code provides that the Department on Aging shall ensure that the office of the ombudsman receives adequate legal advice and representation. Furthermore, as an employee of the state, the ombudsman is entitled to the legal counsel of the attorney general. Civ. Prac. & Rem. Code §§ 104.001, 104.004. The Human Resources Code and the Civil Practice and Remedies Code make no mention of attorney general representation for volunteers. However, we are of the opinion that this office should provide legal counsel to designated representatives of the state ombudsman as provided for in the 1992 amendments to the federal Older Americans Act. Therefore, we urge that you seek legislative clarification of this matter by introducing amendments to chapter 101 of the Human Resources Code to reflect the 1992 amendments to the Older Americans Act. In the absence of such legislation we are unable to provide a response to your second inquiry.

SUMMARY

Section 101.063 of the Human Resources Code, 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 his or her official duties, applies to interns in the volunteer ombudsman program.

The state ombudsman is entitled to legal representation from the office of the Attorney General. This representation will only be provided in instances where the action is being sought against the individual in his official capacity.

DAN MORALES
Attorney General of Texas

WILL PRYOR
First Assistant Attorney General

MARY KELLER
Deputy Attorney General for Litigation

RENEA HICKS
State Solicitor

MADELEINE B. JOHNSON
Chair, Opinion Committee

Prepared by Toya C. Cook
Assistant Attorney General