Mr. Ray Scott, Director Arkansas Department of Human Services Donaghey Building, Suite 300 Seventh and Main Streets Little Rock, Arkansas 72201
Dear Director Scott:
This is in response to your January 28, 1987, opinion request wherein you posed the following questions:
Is House Bill 1112 (attached) constitutional in view of Article 2, 13 of the Arkansas Constitution and Arkansas case law granting limited charitable immunity from tort liability?
Does Act 42 of 1981 and proposed House Bill 1112 protect Department of Human Services foster parents from civil liability for personal injury or property damage resulting from acts or omissions committed in carrying out their foster parent duties?
The answer to the first question is yes. House Bill 1112 should not be found unconstitutional unless it arbitrarily or unreasonably abolishes a cause of action protected by Article 2,13 of the Arkansas Constitution. The purpose of H.B. 1112, stated in 1, demonstrates it is a reasonable and proper exercise of the state's police power and is in the interest of the general welfare. Emberson v. Buffington, 228 Ark. 120, 306 S.W.2d 327 (1957). Arkansas' case law recognizing "charitable immunity" is inapplicable here because charitable immunity is applicable only to institutions, not individuals.
In answer to your second question, the provisions of Act 42 of 1981 (Ark. Stat. Ann. 12-3701 et seq.) and the proposed House Bill 1112 are applicable to Department of Human Services foster parents if they are persons who, of their own free will, provide goods or services without any financial gain [See Ark. Stat. Ann. 12-3702(1)] or financial compensation [See 3(1) of H.B. 1112). Extrinsic information furnished in connection in preparation of this opinion indicates foster parents are paid a fee to cover expenses incurred as foster parents. Whether such fee constitutes "financial compensation" pursuant to 3(1) is a mixed question of law and fact which only a court can determine.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General David S. Mitchell.