2856-S2 AMS HSC S5443.2

2856-S2 AMS HSC S5443.2

2SHB 2856 - S COMM AMD

By Committee on Human Services & Corrections

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. This chapter may be known and cited as the family and children's ombudsman act.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Administrative act" means any of the following, whether final or not:

(a) An action, omission, decision, recommendation, practice, or other procedure of the department or a child-placing agency with respect to a particular family or child relating to family and children's services as defined in subsection (3) of this section; or

(b) An action, omission, decision, recommendation, practice, or other procedure of a state institution that receives children, or a facility or residence subject to licensing under chapter 74.15 RCW, with respect to a particular family member or child that may adversely affect the health, safety, welfare, and rights of the family member or child.

(2) "Child-placing agency" has the same meaning as in RCW 74.15.020.

(3) "Family and children's services" means adoption, out-of-home care, child day care, child protective services, child welfare services, and juvenile rehabilitative services provided by the department or through contract, and services provided by the department or through contract for sexually aggressive youth, at-risk youth and families in conflict, children with mental health or substance abuse problems, and children with developmental disabilities.

(4) "Child or children" means any unemancipated person under the age of eighteen.

(5) "Committee" means the legislative ombudsman committee.

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

(7) "Office" means the office of the family and children's ombudsman.

(8) "Ombudsman" means the family and children's ombudsman.

(9) "Secretary" means the secretary of the department of social and health services or the secretary's designee.

(10) "State-licensed facility or residence" means those facilities or residences that directly serve children and are subject to licensing by the department or have programs subject to certification by the department, or a facility where a child has been placed by superior court or the department.

NEW SECTION. Sec. 3. As a means of monitoring and ensuring compliance with administrative acts, relevant statutes, rules, and policies pertaining to family and children services and the placement, supervision, and treatment of children in the state's care or in state-licensed facilities or residences, there is created the legislative ombudsman committee. The committee shall consist of three senators and three representatives from the legislature. The senate members of the committee shall be appointed by the president of the senate. The house members of the committee shall be appointed by the speaker of the house. Not more than two members from each chamber shall be from the same political party. Members shall be appointed before the close of each regular session of the legislature during an odd-numbered year.

NEW SECTION. Sec. 4. The term of membership of the committee shall be from the close of the session in which they were appointed or elected as provided in RCW 44.28.010 until the close of the next regular session during an odd-numbered year so long as they remain members. A position that becomes vacant prior to the expiration of the members's term shall be filled by the appointing authority.

NEW SECTION. Sec. 5. The committee shall have the following powers:

(1) Selection of its officers and adopt rules for orderly procedure;

(2) Provide a list of candidates for the governor to utilize in nominating the ombudsman. No person may be placed on the list without an affirmative vote of at least two members from each chamber;

(3) Request investigations by the ombudsman of administrative acts;

(4) Receive reports of the ombudsman;

(5)(a) Obtain access to all relevant records in the possession of the ombudsman, except as prohibited by law; and (b) make recommendations to all branches of government;

(6) Request legislation;

(7) Conduct hearings into such matters as it deems necessary.

NEW SECTION. Sec. 6. Upon receipt of records from the ombudsman, the committee is subject to the same confidentiality restrictions as the ombudsman under section 20 of this act.

NEW SECTION. Sec. 7. Members of the committee shall serve without additional compensation, but shall be reimbursed in accordance with RCW 44.04.120 while on business authorized by the committee.

NEW SECTION. Sec. 8. As a means of promoting public awareness and understanding of family and children services, identifying system issues and responses for the governor and the legislature to act upon, and monitoring and ensuring compliance with administrative acts, relevant statutes, rules, and policies pertaining to family and children's services and the placement, supervision, and treatment of children in the state’s care or in state-licensed facilities or residences, the office of the family and children's ombudsman is established within the office of the governor. The ombudsman shall report directly to the governor and shall exercise his or her powers and duties independently of the secretary.

NEW SECTION. Sec. 9. (1) The governor shall appoint the ombudsman from the list submitted by the committee under section 5(2) of this act, subject to confirmation by the senate. The ombudsman shall be a person of recognized judgment, independence, objectivity, and integrity, and shall be qualified by training or experience, or both, in family and children's services law and policy. The governor shall consult with and receive recommendations from the committee prior to the appointment.

(2) An ombudsman shall not have been employed by the department within two years immediately preceding his or her appointment to the office.

(3) No ombudsman or any member of his or her immediate family may have or have had within two years immediately preceding his or her appointment to the office any contract with the department for the provision of family and children's services or for consultative services.

NEW SECTION. Sec. 10. (1) The ombudsman may appoint such personnel as necessary for the general administration of the office. The ombudsman and personnel appointed by the ombudsman are exempt from state civil service law, chapter 41.06 RCW.

(2) Any power or duty vested in or transferred to the ombudsman by law or executive order may be delegated by the ombudsman to any other assistant or subordinate, but the ombudsman shall be responsible for the official acts of the officers and employees of the office.

NEW SECTION. Sec. 11. The person appointed ombudsman shall hold office for a term of three years and shall continue to hold office until reappointed or until his or her successor is appointed and confirmed. The governor may remove the ombudsman only for neglect of duty, misconduct, or inability to perform duties. Any vacancy shall be filled by similar appointment for the remainder of the unexpired term.

NEW SECTION. Sec. 12. The ombudsman shall perform the following duties:

(1) Provide information as appropriate on the rights and responsibilities of individuals receiving family and children's services, and on the procedures for providing these services;

(2) Investigate, upon his or her own initiative or upon receipt of a complaint, an administrative act alleged to be contrary to law, rule, or policy, imposed without an adequate statement of reason, or based on irrelevant, immaterial, or erroneous grounds; however, the ombudsman may decline to investigate any complaint as provided by rules adopted under this chapter;

(3) Monitor the procedures as established, implemented, and practiced by the department to carry out its responsibilities in delivering family and children's services with a view toward appropriate preservation of families and ensuring children’s health and safety;

(4) Review periodically the facilities and procedures of state institutions serving children, and state-licensed facilities or residences;

(5) Review reports relating to the unexpected deaths of minors in the care of the department receiving family and children's services and make recommendations as appropriate;

(6) Recommend changes in the procedures for addressing the needs of families and children;

(7) Submit annually to the committee and to the governor by November 1 a report analyzing the work of the office including recommendations;

(8) Coordinate the activities of the regional offices throughout the state;

(9) Grant the committee access to all relevant records in the possession of the ombudsman unless prohibited by law;

(10) Provide for recruiting and training of volunteers and promoting the development of citizen organizations to assist the office. A volunteer shall be able to identify problems of individuals receiving family and children's services and of children in state-licensed facilities or residences. Volunteers may be used to assist the ombudsman in carrying out the duties of the office;

(11) Establish procedures for the administration of the office;

(12) Take whatever steps are appropriate to make persons aware of the services of the office, its purpose, and how it can be contacted; and

(13) Adopt rules necessary to implement this chapter.

NEW SECTION. Sec. 13. (1) Upon deciding to investigate a complaint, the ombudsman shall notify the complainant and the department, child-placing agency, or state-licensed facility or residence of the ombudsman's intention to investigate. If the ombudsman declines to investigate a complaint he or she shall notify the complainant. If the ombudsman discontinues an investigation he or she shall notify the complainant and the department, child-placing agency, or state-licensed facility or residence of the decision and the reasons for the action.

(2) The ombudsman may require a complainant to pursue all administrative remedies or means of complaint open to the complainant before pursuing a complaint with the ombudsman.

(3) If the ombudsman determines in the course of an investigation that an individual’s action is likely to have been in violation of state or federal criminal law, the ombudsman shall immediately report that fact to the appropriate law enforcement agency and the department and, if the complaint is against a child-placing agency or state-licensed facility or residence, the ombudsman shall report that fact to the secretary.

(4) The ombudsman or any volunteer shall report suspected abuse or neglect of any child, adult dependent, or developmentally disabled person as required in chapter 26.44 RCW.

NEW SECTION. Sec. 14. The department, a child-placing agency, and a family and children's services provider shall do all of the following:

(1) Upon the ombudsman’s request, grant the ombudsman or the ombudsman's designee access to all relevant information, records, and documents in their possession that the ombudsman considers necessary in an investigation except as prohibited by law;

(2) Assist the ombudsman to obtain releases of confidential records when necessary;

(3) When deciding whether to initiate or continue an administrative act, consider any findings or recommendations made by the ombudsman;

(4) Upon deciding not to act on a finding or recommendation made by the ombudsman, provide the ombudsman with a written statement setting forth the reason or reasons for the decision; and

(5) Provide the ombudsman upon request with progress reports concerning their administrative processing of a complaint.

NEW SECTION. Sec. 15. A new section is added to chapter 43.20A RCW to read as follows:

The secretary shall provide the employees of the department, licensees, contractors, and all other relevant individuals, including the public, information regarding the office of the family and children's ombudsman created under chapter 44.-- RCW (sections 1 through 14 and 17 through 22 of this act) and the rights and responsibilities established under that chapter.

Sec. 16. RCW 13.50.010 and 1994 sp.s. c 7 s 541 are each amended to read as follows:

(1) For purposes of this chapter:

(a) "Juvenile justice or care agency" means any of the following: Police, diversion units, court, prosecuting attorney, defense attorney, detention center, attorney general, the legislative ombudsman committee, the office of family and children's ombudsman, the department of social and health services and its contracting agencies, schools; and, in addition, persons or public or private agencies having children committed to their custody;

(b) "Official juvenile court file" means the legal file of the juvenile court containing the petition or information, motions, memorandums, briefs, findings of the court, and court orders;

(d) "Records" means the official juvenile court file, the social file, and records of any other juvenile justice or care agency in the case.

(2) Each petition or information filed with the court may include only one juvenile and each petition or information shall be filed under a separate docket number. The social file shall be filed separately from the official juvenile court file.

(3) It is the duty of any juvenile justice or care agency to maintain accurate records. To this end:

(a) The agency may never knowingly record inaccurate information. Any information in records maintained by the department of social and health services relating to a petition filed pursuant to chapter 13.34 RCW that is found by the court, upon proof presented, to be false or inaccurate shall be corrected or expunged from such records by the agency;

(b) An agency shall take reasonable steps to assure the security of its records and prevent tampering with them; and

(c) An agency shall make reasonable efforts to insure the completeness of its records, including action taken by other agencies with respect to matters in its files.

(4) Each juvenile justice or care agency shall implement procedures consistent with the provisions of this chapter to facilitate inquiries concerning records.

(5) Any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency and who has been denied access to those records by the agency may make a motion to the court for an order authorizing that person to inspect the juvenile justice or care agency record concerning that person. The court shall grant the motion to examine records unless it finds that in the interests of justice or in the best interests of the juvenile the records or parts of them should remain confidential.

(6) A juvenile, or his or her parents, or any person who has reasonable cause to believe information concerning that person is included in the records of a juvenile justice or care agency may make a motion to the court challenging the accuracy of any information concerning the moving party in the record or challenging the continued possession of the record by the agency. If the court grants the motion, it shall order the record or information to be corrected or destroyed.

(7) The person making a motion under subsection (5) or (6) of this section shall give reasonable notice of the motion to all parties to the original action and to any agency whose records will be affected by the motion.

(8) The court may permit inspection of records by, or release of information to, any clinic, hospital, or agency which has the subject person under care or treatment. The court may also permit inspection by or release to individuals or agencies, including juvenile justice advisory committees of county law and justice councils, engaged in legitimate research for educational, scientific, or public purposes. The court may also permit inspection of, or release of information from, records which have been sealed pursuant to RCW 13.50.050(11). Access to records or information for research purposes shall be permitted only if the anonymity of all persons mentioned in the records or information will be preserved. Each person granted permission to inspect juvenile justice or care agency records for research purposes shall present a notarized statement to the court stating that the names of juveniles and parents will remain confidential.

(9) Juvenile detention facilities shall release records to the juvenile disposition standards commission under RCW 13.40.025 upon request. The commission shall not disclose the names of any juveniles or parents mentioned in the records without the named individual's written permission.

(10) Requirements in this chapter relating to the court's authority to compel disclosure shall not apply to the legislative ombudsman committee or the office of the family and children's ombudsman.

NEW SECTION. Sec. 17. (1) The ombudsman shall prepare a report of the findings of an investigation and make recommendations to the department, child-placing agency, or state-licensed facility or residence if the ombudsman finds one or more of the following:

(a) A matter should be further considered by the department, child-placing agency, or state-licensed facility or residence;

(b) An administrative act should be upheld, modified, or canceled;

(d) Other action should be taken by the department, child-placing agency, or state-licensed facility or residence.

(2) Before publicly announcing a conclusion or recommendation that expressly or by implication criticizes an individual, the department, child-placing agency, or state-licensed facility or residence, the ombudsman shall consult with that individual, the secretary, child-placing agency, or state-licensed facility or residence for purposes of comment. When publishing an opinion adverse to the individual, the department, child-placing agency, or state-licensed facility or residence, the ombudsman shall include in the publication any written statement of reasonable length made to the ombudsman by the individual, secretary, child-placing agency, or state-licensed facility or residence in defense or mitigation of the action. The ombudsman may request to be notified by the secretary, child-placing agency, or state-licensed facility or residence, within a specified time, of any action taken on any recommendation presented.

(3) The ombudsman shall notify the complainant of the actions taken by the ombudsman and by the secretary, child-placing agency, or state-licensed facility or residence.

(4) The ombudsman shall provide the complainant with a copy of his or her recommendations on a complaint.

NEW SECTION. Sec. 18. (1) The ombudsman shall have the following rights and powers:

(a) To copy and subpoena records held by the department except as prohibited by law;

(b) To apply for and accept grants, gifts, and bequests of funds from other states, federal and interstate agencies, independent authorities, and private firms, individuals, and foundations, for the purpose of carrying out his or her lawful responsibilities. The funds shall be deposited in the child, youth, and family ombudsman account created in section 19 of this act;

(d) To request legal assistance, including appointment of special counsel through the office of the attorney general;

(e) To mediate disputes between a complainant and the department where appropriate; and

(f) To submit to the governor and legislature budgetary and legislative recommendations relating to children and family services.

(2) Actions of the office shall be solely advisory to the governor and the department. The office shall not be delegated any administrative authority or responsibility, and its functions shall not supplant existing avenues for recourse or appeals.

NEW SECTION. Sec. 19. The ombudsman may apply for and accept contributions, grants, gifts in cash or otherwise, and bequests of funds from other states, federal and interstate agencies, independent authorities, and private firms, individuals, and foundations, for the purpose of carrying out his or her lawful responsibilities. All moneys received by the ombudsman or any employee thereof from contributions, grants, or gifts and not through appropriation by the legislature shall be deposited in an account in the custody of the state treasurer to be known as the child, youth, and family ombudsman account. Disbursements of such funds shall be on the authorization of the ombudsman or a duly authorized representative of the ombudsman and only for the purposes stated in this chapter. The account is subject to chapter 43.88 RCW, but no appropriation is required to permit expenditure of the funds.

NEW SECTION. Sec. 20. The ombudsman shall treat all matters under investigation, including the identities of service recipients, complainants, and individuals from whom information is acquired, as confidential, except as far as disclosures may be necessary to enable the ombudsman to perform the duties of the office and to support any recommendations resulting from an investigation. However, the ombudsman shall honor the request of a service recipient, complainant, or individual from whom information is acquired, or the legal representative of any of these individuals, not to disclose his or her identity. Upon receipt of information that by law is confidential or privileged, the ombudsman shall maintain the confidentiality of such information and shall not further disclose or disseminate the information except as provided by applicable state or federal law. A record of the office of the ombudsman is confidential, shall only be used for purposes set forth in this chapter, and is not subject to court subpoena.

NEW SECTION. Sec. 21. (1) An ombudsman, including a volunteer ombudsman, is not liable for good faith performance of responsibilities under this chapter.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against any employee of the department, child-placing agency, or state-licensed facility or residence, a recipient of family and children's services, or a volunteer, for any communication made, or information given or disclosed, to aid the ombudsman in carrying out his or her responsibilities, unless the communication or information is knowingly false or made, given, or disclosed in violation of law. This subsection does not infringe the rights of an employer to supervise, discipline, or terminate an employee for other reasons.

(3) An individual, the department, a child-placing agency, or a state-licensed facility or residence shall not hinder the lawful actions of the ombudsman or members of the ombudsman's office.

(4) All communications by the ombudsman, if reasonably related to the requirements of that individual’s responsibilities under this chapter and done in good faith, are privileged and that privilege shall serve as a defense in any defamation action.

(5) A representative of the office shall not be required to testify in court as to any confidential matter.

NEW SECTION. Sec. 22. The authority granted the ombudsman under this chapter is in addition to the authority granted under the provisions of any other act or rule under which the remedy or right of appeal or objection is provided for a person, or any procedures provided for the inquiry into or investigation of any matter. The authority granted the ombudsman does not limit or affect the remedy or right of appeal or objection and is not an exclusive remedy or procedure.

NEW SECTION. Sec. 23. A new section is added to chapter 41.06 RCW to read as follows:

In addition to the exemptions under RCW 41.06.070, the provisions of this chapter shall not apply in the office of the family and children's ombudsman to the ombudsman and all personnel in the office.

Sec. 24. RCW 26.44.030 and 1995 c 311 s 17 are each amended to read as follows:

(1)(a) When any practitioner, county coroner or medical examiner, law enforcement officer, 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, or juvenile probation officer or state family and children's ombudsman or any volunteer in the ombudsman's office 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.

(b) The reporting requirement shall also apply to any adult who has reasonable cause to believe that a child or adult dependent or developmentally disabled person, who resides with them, has suffered severe abuse, and is able or capable of making a report. For the purposes of this subsection, "severe abuse" means any of the following: Any single act of abuse that causes physical trauma of sufficient severity that, if left untreated, could cause death; any single act of sexual abuse that causes significant bleeding, deep bruising, or significant external or internal swelling; or more than one act of physical abuse, each of which causes bleeding, deep bruising, significant external or internal swelling, bone fracture, or unconsciousness.

(c) 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. The report shall include the identity of the accused if known.

(2) The reporting requirement of subsection (1) of this section does not apply to the discovery of abuse or neglect that occurred during childhood if it is discovered after the child has become an adult. However, if there is reasonable cause to believe other children, dependent adults, or developmentally disabled persons are or may be at risk of abuse or neglect by the accused, the reporting requirement of subsection (1) of this section shall apply.

(3) 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.

(4) 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.

(5) 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.

(6) Any county prosecutor or city attorney receiving a report under subsection (5) 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.

(7) 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.

(8) 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.

(9) Persons or agencies exchanging information under subsection (7) 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.

(10) 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.

(11) Upon receiving a report of child abuse and neglect, the department or investigating law enforcement agency shall have access to all relevant records of the child in the possession of mandated reporters and their employees.

(12) 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.

(13) The department shall use a risk assessment process when investigating child abuse and neglect referrals. The department shall present the risk factors at all hearings in which the placement of a dependent child is an issue. 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 provide annual reports to the legislature on the effectiveness of the risk assessment process.

(14) Upon receipt of a report of abuse or neglect 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. 25. The family and children's ombudsman office shall commence operation not later than January 1, 1997.

NEW SECTION. Sec. 26. Sections 1 through 14 and 17 through 22 of this act shall constitute a new chapter in Title 44 RCW.

NEW SECTION. Sec. 27. Sections 2 through 11, 19, and 23 of this act are necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and shall take effect immediately."

2SHB 2856 - S COMM AMD

By Committee on Human Services & Corrections

On page 1, line 2 of the title, after "ombudsman;" strike the remainder of the title and insert "amending RCW 13.50.010 and 26.44.030; adding a new section to chapter 43.20A RCW; adding a new section to chapter 41.06 RCW; adding a new chapter to Title 44 RCW; creating a new section; and declaring an emergency."