H-1127

AN ACT Relating to establishing an office of children's services ombuds; amending RCW 26.44.030; adding new sections to chapter 43.63A RCW; creating a new section; repealing RCW 26.44.070; and making an appropriation.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. (1) The legislature finds that, despite the best efforts and intentions of the department of social and health services, some families in Washington state have unresolved disputes with the department relating to actions taken by the division of children and family services, and that there is no independent and nonadversarial process in place to resolve these disputes. The legislature further finds that the availability of an independent and nonadversarial process for complaint investigation and dispute resolution can further the goal of maintaining children in safe and healthy families.

(2) It is the purpose of this act to establish a procedure that is responsive to the needs of families in Washington state who are the subject of actions taken by the department of social and health services pursuant to chapters 74.13, 74.14A, 74.15, 26.44, 13.32A, and 13.34 RCW, that benefits children, their families, and the department by providing an independent and nonadversarial mechanism to resolve disputes.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section shall apply throughout sections 2 through 9 of this act.

(1) "Department" means the department of social and health services.

(2) "Administrative act" means any action, omission, decision, recommendation, practice, or procedure of the department relating to its activities according to chapters 74.13, 74.14A, 74.15, 26.44, 13.32A, and 13.34 RCW, but does not include the preparation, presentation, or introduction of legislation.

NEW SECTION. Sec. 3. (1) There is established in the department of community development the office of the children's services ombuds.

(2) The department of community development shall appoint the children's services ombuds, who shall be a person having training or experience in the provision or administration of services to children and families and in complaint investigation or nonadversarial dispute resolution mechanisms. The ombuds shall not be removed from his or her office unless good cause for removal is shown.

NEW SECTION. Sec. 4. (1) The children's services ombuds shall investigate a complaint from any citizen relating to administrative acts by the department, regardless of whether the administrative act is final, when the complaint indicates that:

(a) The administrative act was not in accordance with legislative declarations relating to children and family services in RCW 74.13.010, 74.14A.010, 74.15.010, 26.44.010, 13.32A.010, and 13.34.020;

(b) The administrative act was not in accordance with the requirements of chapter 74.13, 74.14A, 74.15, 26.44, 13.32A, or 13.34 RCW;

(c) The administrative act may have been unreasonable, unfair, oppressive, or discriminatory, although in accordance with the legislative declarations of RCW 74.13.010, 74.14A.010, 74.15.010, 26.44.010, 13.32A.010, 13.34.020, and the requirements of chapters 74.13, 74.14A, 74.15, 26.44, 13.32A, and 13.34 RCW; or

(d) The administrative act was not in accordance with departmental rules, procedures, or guidelines.

Priority shall be given to complaints regarding decisions of the department to place a child in an out-of-home placement or maintain a child in the family home if allegations of abuse or neglect have been made.

(2) The office of the children's services ombuds shall maintain an accessible toll-free telephone line to receive complaints from throughout Washington regarding administrative acts of the department.

(3) The children's services ombuds shall act independently of the department in the performance of his or her duties.

NEW SECTION. Sec. 5. The children's services ombuds shall determine whether a complaint is or is not an appropriate subject for investigation under section 4 of this act, and shall inform the complainant of that decision, stating his or her reasons. If the ombuds decides that a complaint is an appropriate subject for investigation under section 4 of this act, he or she shall notify the department of his or her decision and the specifics of the complaint.

NEW SECTION. Sec. 6. In carrying out investigative or dispute resolution activities under sections 2 through 9 of this act, the children's services ombuds shall have the right:

(1) To communicate privately by mail or orally with a parent who is the subject of investigative or dispute resolution activities by the ombuds; and

(2) To have access, including the right to inspect, copy, and subpoena child welfare records held by the department, facilities where a child has been placed for care or treatment, the clerk of a superior court of the state of Washington, or law enforcement agencies. Unless otherwise authorized by law, the ombuds shall not have access to identifying information regarding a person making a confidential referral of suspected child abuse or neglect or a police informant; mental health or substance abuse treatment information governed by federal confidentiality provisions; or information pertaining to the testing, diagnosis, or treatment of any person for HIV infection, AIDS, or any sexually transmitted disease. Information obtained pursuant to this subsection shall be kept confidential and shall not be further disseminated.

NEW SECTION. Sec. 7. If after investigation the children's services ombuds finds that:

(1) A complaint should be further considered by the department;

(2) An administrative act should be modified or canceled; or

(3) Reasons or more complete reasons should be given for an administrative act;

the ombuds shall prepare recommendations and may request that the department notify the ombuds, within a specified time, of the action taken on his or her recommendations or may provide services to assist the complainant and the department in resolving the dispute that led to the complaint if the complainant requests such services.

NEW SECTION. Sec. 8. After a reasonable time has elapsed, the children's services ombuds shall notify the complainant of any action taken by the ombuds and by the department as a result of the investigation.

NEW SECTION. Sec. 9. (1) The children's services ombuds shall maintain records indicating the final disposition of any complaint forwarded to the department.

(2) All records of the children's services ombuds pertaining to investigative or dispute resolution activities undertaken by the ombuds shall be confidential. Information contained in those records may not be disclosed publicly in a manner that might identify individuals. However, records shall be available to persons approved by a superior court of the state of Washington upon application for good cause. Any information obtained pursuant to section 6(2) of this act shall be kept confidential and shall not be further disseminated except as specifically authorized or required by federal or state law.

Sec. 10. RCW 26.44.030 and 1989 c 22 s 1 are each amended to read as follows:

(1) When any practitioner, professional school personnel, registered or licensed nurse, social service counselor, psychologist, pharmacist, licensed or certified child care providers or their employees, employee of the department, children's services ombuds or duly designated representative of the ombuds, or ((~~juvenile~~)) probation or parole officer has reasonable cause to believe that a child or adult dependent or developmentally disabled person has suffered abuse or neglect, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040. The report shall be made at the first opportunity, but in no case longer than forty-eight hours after there is reasonable cause to believe that the child or adult has suffered abuse or neglect.

(2) Any other person who has reasonable cause to believe that a child or adult dependent or developmentally disabled person has suffered abuse or neglect may report such incident to the proper law enforcement agency or to the department of social and health services as provided in RCW 26.44.040.

(3) The department, upon receiving a report of an incident of abuse or neglect pursuant to this chapter, involving a child or adult dependent or developmentally disabled person who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means or who has been subjected to sexual abuse, shall report such incident to the proper law enforcement agency. In emergency cases, where the child, adult dependent, or developmentally disabled person's welfare is endangered, the department shall notify the proper law enforcement agency within twenty-four hours after a report is received by the department. In all other cases, the department shall notify the law enforcement agency within seventy-two hours after a report is received by the department. If the department makes an oral report, a written report shall also be made to the proper law enforcement agency within five days thereafter.

(4) Any law enforcement agency receiving a report of an incident of abuse or neglect pursuant to this chapter, involving a child or adult dependent or developmentally disabled person who has died or has had physical injury or injuries inflicted upon him or her other than by accidental means, or who has been subjected to sexual abuse, shall report such incident in writing as provided in RCW 26.44.040 to the proper county prosecutor or city attorney for appropriate action whenever the law enforcement agency's investigation reveals that a crime may have been committed. The law enforcement agency shall also notify the department of all reports received and the law enforcement agency's disposition of them. In emergency cases, where the child, adult dependent, or developmentally disabled person's welfare is endangered, the law enforcement agency shall notify the department within twenty-four hours. In all other cases, the law enforcement agency shall notify the department within seventy-two hours after a report is received by the law enforcement agency.

(5) Any county prosecutor or city attorney receiving a report under subsection (4) of this section shall notify the victim, any persons the victim requests, and the local office of the department, of the decision to charge or decline to charge a crime, within five days of making the decision.

(6) The department may conduct ongoing case planning and consultation with those persons or agencies required to report under this section, with consultants designated by the department, and with designated representatives of Washington Indian tribes if the client information exchanged is pertinent to cases currently receiving child protective services or department case services for the developmentally disabled. Upon request, the department shall conduct such planning and consultation with those persons required to report under this section if the department determines it is in the best interests of the child or developmentally disabled person. Information considered privileged by statute and not directly related to reports required by this section shall not be divulged without a valid written waiver of the privilege.

(7) Any case referred to the department by a physician licensed under chapter 18.57 or 18.71 RCW on the basis of an expert medical opinion that child abuse, neglect, or sexual assault has occurred and that the child's safety will be seriously endangered if returned home, the department shall file a dependency petition unless a second licensed physician of the parents' choice believes that such expert medical opinion is incorrect. If the parents fail to designate a second physician, the department may make the selection. If a physician finds that a child has suffered abuse or neglect but that such abuse or neglect does not constitute imminent danger to the child's health or safety, and the department agrees with the physician's assessment, the child may be left in the parents' home while the department proceeds with reasonable efforts to remedy parenting deficiencies.

(8) Persons or agencies exchanging information under subsection (6) of this section shall not further disseminate or release the information except as authorized by state or federal statute. Violation of this subsection is a misdemeanor.

(9) Upon receiving reports of abuse or neglect, the department or law enforcement agency may interview children. The interviews may be conducted on school premises, at day-care facilities, at the child's home, or at other suitable locations outside of the presence of parents. Parental notification of the interview shall occur at the earliest possible point in the investigation that will not jeopardize the safety or protection of the child or the course of the investigation. Prior to commencing the interview the department or law enforcement agency shall determine whether the child wishes a third party to be present for the interview and, if so, shall make reasonable efforts to accommodate the child's wishes. Unless the child objects, the department or law enforcement agency shall make reasonable efforts to include a third party in any interview so long as the presence of the third party will not jeopardize the course of the investigation.

(10) Upon receiving a report of incidents, conditions, or circumstances of child abuse and neglect, the department shall have access to all relevant records of the child in the possession of mandated reporters and their employees.

(11) The department shall maintain investigation records and conduct timely and periodic reviews of all cases constituting abuse and neglect. The department shall maintain a log of screened-out nonabusive cases.

(12) The department of social and health services shall, within funds appropriated for this purpose, use a risk assessment tool when investigating child abuse and neglect referrals. The tool shall be used, on a pilot basis, in three local office service areas. The department shall, within funds appropriated for this purpose, offer enhanced community-based services to persons who are determined not to require further state intervention.

The department shall report to the ways and means committees of the senate and house of representatives on the use of the tool by December 1, 1989. The report shall include recommendations on the continued use and possible expanded use of the tool.

(13) Upon receipt of such report the law enforcement agency may arrange to interview the person making the report and any collateral sources to determine if any malice is involved in the reporting.

NEW SECTION. Sec. 11. RCW 26.44.070 and 1987 c 524 s 12, 1987 c 206 s 6, 1986 c 269 s 3, 1984 c 97 s 6, 1981 c 164 s 4, 1977 ex.s. c 80 s 29, 1975 1st ex.s. c 217 s 7, 1972 ex.s. c 46 s 1, & 1969 ex.s. c 35 s 6 are each repealed.

NEW SECTION. Sec. 12. Sections 2 through 9 of this act are each added to chapter 43.63A RCW.

NEW SECTION. Sec. 13. The sum of two hundred fifty thousand dollars, or as much thereof as may be necessary, is appropriated from the general fund to the department of community development for the biennium ending June 30, 1993, to carry out the purposes of this act.

NEW SECTION. Sec. 14. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.