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AGO 1986 No. 15 - December 30, 1986
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Ken Eikenberry | 1981-1992 | Attorney General of Washington

STATE ‑- CONFIDENTIALITY ‑- SOCIAL AND HEALTH SERVICES ‑- LONG-TERM CARE OMBUDSMAN ‑- DISCLOSURE OF THE IDENTITY OF A COMPLAINANT

 (1) The long-term care ombudsman, under chapter 43.190 RCW, may not reveal the identity of a person who has filed a complaint with the Ombudsman without having first either obtained the written consent of such person or been ordered to do so by a court of competent jurisdiction.

(2) The ombudsman may reveal the identity of a complainant to those persons within the Department of Social and Health Services having supervisory responsibility over the Office of Long-Term Care Ombudsman.

 (3) Files maintained by the long-term care ombudsman program may be disclosed to persons outside the office of the long-term care ombudsman if the disclosure is made in such a manner as not to reveal the identity of complainants or residents of long-term care facilities mentioned in such files. 

                                                              - - - - - - - - - - - - - 

                                                               December 30, 1986 

Honorable Lorraine Wojahn, Chairperson
Senate Human Services & Corrections
407 John A. Cherberg Building, AS-32
Olympia, Washington 98504 

Cite as:  AGO 1986 No. 15                                                                                                                

 Dear Senator Wojahn:

             By a letter previously acknowledged you have requested our opinion on certain questions arising under chapter 43.190 RCW, which creates the long-term care ombudsman program within the Department of Social and Health Services (DSHS).  We paraphrase your questions as follows:

             (1) May the person designated as the State Long-Term Care Ombudsman pursuant to chapter 43.190 RCW reveal the identity of a person who has filed a complaint with the Ombudsman without having first either obtained the written consent of such person or been ordered to do so by a court of competent jurisdiction?

  [[Orig. Op. Page 2]]

            (2) Is the answer to the first question different where the only persons to whom disclosure is contemplated are those within DSHS having supervisory responsibility over the Office of the State Long-Term Care Ombudsman?

             (3) May files maintained by the long-term care ombudsman program be disclosed to persons outside the Office of the State Long-Term Care Ombudsman if the disclosure is made in such a manner as not to reveal the identity of complainants or residents of long-term care facilities mentioned in such files?

             For the reasons set forth in our analysis, we answer your first question in the negative and your second and third questions in the affirmative.

                                                                      ANALYSIS

             Your questions arise under chapter 290, Laws of 1983, part of which is now codified as chapter 43.190 RCW.  That statute created the long-term care ombudsman program within DSHS.  The main mission of the program is to "assist residents, patients, and clients of long-term care facilities in the assertion of their civil and human rights."  RCW 43.190.010.  The existence of a program like that created by chapter 43.190 is a condition of full eligibility for participation in the federally-funded programs established by the Older Americans Act.  See 42 U.S.C. § 3027(a)(12).1/

           Sections 1 through 12 of chapter 290, Laws of 1983, established the Office of the State Long-Term Care Ombudsman within DSHS and set forth the parameters within which that office operates.  These provisions now comprise chapter 43.190 RCW.

             Sections 13 and 14 of chapter 290, Laws of 1983, amended the existing statutory provisions relating to senior citizen programs operated by counties, cities, and towns (RCW 36.39.060) and area  [[Orig. Op. Page 3]] agencies on aging (RCW 74.38.040) and authorized each of those programs to include a long-term care ombudsman program as well.  Finally, section 15 of chapter 290, Laws of 1983, provides that neither DSHS nor area agencies on aging may charge clients for services provided by long-term care ombudsman programs.

             The answer to your first question‑-whether the State Long-Term Care Ombudsman may reveal the identities of persons who file complaints with the Ombudsman without either the written consent of such complainants or a court order‑-may readily be found by reference to RCW 43.190.110.  This statute provides:

            All records and files of long-term care ombudsmen relating to any complaint or investigation made pursuant to carrying out their duties and the identities of complainants, witnesses, patients, or residents shall remain confidential unless disclosure is authorized by the patient or resident or his or her guardian or legal representative.  No disclosures may be made outside the office without the consent of any named witnesses, resident, patient, client, or complainant unless the disclosure is made without the identity of any these individuals being disclosed.2/    Where the language of a statute is clear, there is no room for construction, and we, like the courts, are bound by its plain meaning.  Griffin v. Department of Social & Health Servs., 91 Wn.2d 616, 624, 590 P.2d 816 (1979).

             The provisions quoted above clearly prohibit the State Long-Term Care Ombudsman from revealing the identity of a complainant without first obtaining either that complainant's written consent or a court order.  Accordingly, we answer your first question in the negative.

           We turn now to your second question, which we repeat for ease of reference:

 [[Orig. Op. Page 4]]

             Is the answer to the first question different where the only persons to whom disclosure is contemplated are those within DSHS having supervisory responsibility over the Office of the State Long-Term Care Ombudsman?

            A superficial reading of the above quoted confidentiality provisions of chapter 43.190 RCW could easily lead to the conclusion that your second question should likewise be answered in the negative, since there is no specific provision authorizing the State Long-Term Care Ombudsman to disclose the identity of complainants within the supervisory structure of DSHS.  However,  we also note that the confidentiality provisions do not specifically prohibit such disclosure.

             This omission is significant in our view because of two factors.  First, the statute creating the Office of the State Long-Term Care Ombudsman places that office within DSHS.  RCW 43.190.030(1).  Second, the Secretary of DSHS has general supervisory authority over the entire Department.  RCW 43.20A.050.  Under this latter statute, "whenever [the Secretary's] authority is not specifically limited by law, he shall have complete charge and supervisory powers over the department."  The Secretary is further "authorized to create such administrative structures as he may deem appropriate, except as otherwise specified by law."

             It will readily be seen that the Secretary's supervisory authority would be severely limited, if not totally defeated, by a literal reading of RCW 43.190.030(2) so as to preclude disclosure even within the supervisory structure of DSHS.  Statutes on the same subject must be read in harmony, if possible.  Public Util. Dist. 1 v. Washington Pub. Power Supply Sys., 104 Wn.2d 353, 369, 705 P.2d 1195 (1985).  Therefore, we conclude that the supervisory authority of the Secretary of DSHS under RCW 43.20A.050 overrides the confidentiality provisions of chapter 43.190 RCW, to the extent that the exercise of the supervisory power of the Secretary necessitates access to the files and records of the state long-term care ombudsman program, including the identities of complainants, residents, witnesses, or others named in such files.  Accordingly, we answer your second question in the affirmative.

             Having reached that conclusion, we hasten to add that access under the Secretary's supervisory authority is limited to that reasonably necessary for effective exercise of that authority.  Further, information obtained by supervisory personnel as a result of such access is likewise subject to the confidentiality provisions otherwise covering the information so disclosed.  In  [[Orig. Op. Page 5]] other words, persons in the supervisory structure, up to and including the Secretary, are restricted in the same manner from disclosing that information as is the Ombudsman.3/         To conclude otherwise would undermine the efficacy of the confidentiality provisions of chapter 43.190 RCW, an unnecessarily absurd result in view of the obvious legislative intent to limit access to the information obtained by the Ombudsman.  Statutes must be read in a reasonable manner so as to avoid absurd results.  General Tel. Co. v. Utilities & Transp. Comm'n, 104 Wn.2d 460, 471, 706 P.2d 625 (1985).

             In your third question you ask:

             May files maintained by the long-term care ombudsman program be disclosed to persons outside the Office of the Long-Term Care Ombudsman if the disclosure is made in such a manner as not to reveal the identity of complainants or residents of long-term care facilities mentioned in such files?

             The answer to that question can readily be found by reference to the provisions of RCW 43.190.110, quoted above.  In summary, that statute prohibits is disclosure of

             records and files of long-term care ombudsmen . . . without the consent of any named witnesses, resident, patient, client, or complainantunless the disclosure is made without the identity of any of these individuals being disclosed.  (Emphasis added)

 Because your questions contemplate a situation in which the underlined condition would in fact be met, the prohibition, by its terms, does not apply and disclosure may be made under those circumstances.

 [[Orig. Op. Page 6]]

             We trust that the foregoing will be of assistance to you.

 Very truly yours,
KENNETH O. EIKENBERRY
Attorney General

WILLIAM L. WILLIAMS
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

 1/Much of the language of chapter 43.190 RCW, including the confidentiality provisions here involved, appears to have been taken directly from the cited provision of federal law.  However, in keeping with our long-standing policy of not purporting to interpret federal statutes, we emphasize that this opinion addresses the question you raise only in the context of state law.

 2/Similarly, RCW 43.190.030(2)(c) and (e) direct the State Long-Term Care Ombudsman to develop procedures to ensure that such disclosure does not take place in other ombudsman programs (i.e., those operated by counties, cities, or area agencies on aging).

 3/We note that there will no doubt be information coming to the attention of the Ombudsman that could be useful to divisions of DSHS other than those having supervisory responsibility over the Ombudsman.  However, the statute imposes separate duties on the Ombudsman to provide that information.  RCW 43.190.060(3); RCW 43.190.070.

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