H-2549

AN ACT Relating to the long-term care ombudsman program; adding a new chapter to Title 71A RCW; creating a new section; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. LEGISLATIVE FINDINGS AND INTENT. The legislature finds that an increasing number of individuals with developmental disabilities are receiving services in community and home-based settings.

In creating an office for developmental disabilities ombudsman, the legislature intends to enhance the quality of state services rendered. The legislature further intends that such services are provided in a manner that assures the individual's health and safety and that is respectful of individual dignity and human rights as enumerated in federal and state laws.

NEW SECTION. Sec. 2. OFFICE OF DEVELOPMENTAL DISABILITIES OMBUDSMAN CREATED. (1) The office of developmental disabilities ombudsman is created. The office shall be charged with protecting the civil and human rights of persons with developmental disabilities as they relate to the provision of services by the state of Washington and by individuals and entities that contract with the state of Washington. All individuals with developmental disabilities as defined under Title 71A RCW are eligible for ombudsman services.

(2) The department of community, trade, and economic development shall contract with a private agency to serve as the office of developmental disabilities ombudsman. The department shall select a panel to review bids and select the most qualified, private organization from the bids determined to meet the minimum qualifications. The panel shall consist of two people with developmental disabilities, two parents or family members of a person with a developmental disability, and one service provider for individuals with developmental disabilities. Individuals with financial relationships to any of the bidders, state employees, and members of state or federally funded committees, commissions, or councils dealing with disability issues on which any of the bidders' employees or volunteers serve shall not be eligible to serve on the panel. Individuals serving on the panel must be able to act using independent judgment and have no real or apparent conflicts of interests. The panel shall select by September 30, 1997, an independent and qualified private organization that has demonstrated the ability to carry out the responsibilities of the office of developmental disabilities ombudsman and that:

(a) Has the capacity to deliver services to individuals in all areas of the state;

(b) Has staff with experience in dispute or problem resolution techniques, including investigation, mediation, and negotiation;

(c) Has knowledge and experience necessary to train staff and volunteers of the office of developmental disabilities ombudsman.

(3) Three years after the selection of a developmental disabilities ombudsman contractor by the process described in subsection (2) of this section, the department, at its option, shall redesignate the contractor as developmental disabilities ombudsman through a sole source contract, or shall solicit competitive bids pursuant to the process described in subsection (2) of this section. The department shall redesignate or use the described competitive process every three years thereafter.

(4) State funds appropriated by the legislature for use by the office of developmental disabilities ombudsman shall be awarded to the office of developmental disabilities ombudsman and shall not be diverted to any other provider, person, or agency by any state agency or entity, except by action of the legislature.

NEW SECTION. Sec. 3. DUTIES OF THE DEPARTMENT. The department of community, trade, and economic development shall, consistent with state and federal laws:

(1) Monitor the expenditure of state funds under the contract for appropriate utilization of funds and the fulfillment of state and federal laws;

(2) Facilitate the exchange of information among appropriate state agencies and organizations regarding issues relating to the office of developmental disabilities ombudsman;

(3) Ensure that the office of developmental disabilities ombudsman has direct access to the directors of state governmental entities with responsibilities that impact on persons with developmental disabilities;

(4) Ensure that the services provided by long-term care ombudsman, mental health ombudsman, or developmental disabilities are not duplicative, that these offices work collaboratively with one another, and that only one office of ombudsman has responsibility for on-site monitoring of any facility;

(5) Provide all program and staff support necessary to carry out the functions provided in subsections (1) through (4) of this section.

NEW SECTION. Sec. 4. OFFICE OF DEVELOPMENTAL DISABILITIES OMBUDSMAN‑-SERVICES TO BE PROVIDED. The office of developmental disabilities ombudsman shall maintain a state-wide presence and shall be responsible for protecting the rights and interests of individuals with developmental disabilities as they relate to the provision of services by the state of Washington or by individuals and entities contracting with the state of Washington. The office shall, to the extent that sufficient funds are available:

(1) Investigate and resolve, at the lowest possible intervention level, complaints made by or on behalf of persons with developmental disabilities relating to the provision of services by the state of Washington or by individuals and entities that contract with the state of Washington. Such services include, but are not limited to residential, personal care, educational, vocational, social service, rehabilitative, medical, and educational services;

(2) Recruit, train, and supervise volunteer ombudsmen to perform the functions of the office of developmental disabilities ombudsman, develop procedures for the certification of volunteer ombudsman, and develop standards that define the permissible scope of duties of volunteer ombudsmen; and

(3) Provide training to volunteer ombudsmen regarding the mental health system and the aging and adult service system, in collaboration with the mental health ombudsman and long-term care ombudsman, and assist the mental health ombudsman and long-term care ombudsman in providing training to their staff and volunteers regarding the developmental disabilities service system.

NEW SECTION. Sec. 5. REPORT TO THE LEGISLATURE. The office of developmental disabilities ombudsman shall provide the legislature with an annual report that includes:

(1) An identification of the demographic status of those served by the office;

(2) A description of the issues addressed by the office, and a brief description of case scenarios in a form that does not compromise confidentiality;

(3) An accounting of the number of residential facilities monitored and of the number of on-site visits made;

(4) An identification of specific deficiencies on the part of identified service providers and service systems and recommendations for remedial action;

(5) Recommendations for regulatory action by agencies that would improve the quality of service to individuals with developmental disabilities; and

(6) Recommendations for legislative action that would result in improved services to individuals with developmental disabilities.

NEW SECTION. Sec. 6. LIMITATION OF LIABILITY FOR GOOD FAITH PERFORMANCE‑-PRIVILEGED COMMUNICATIONS. (1) No ombudsman is liable for good faith performance of responsibilities under this chapter.

(2) Communications received by developmental disabilities ombudsmen from recipients of developmental disability services in the course of his or her official duties shall be privileged, and no ombudsman shall be required to testify or produce evidence in any civil or criminal proceeding except by court order.

NEW SECTION. Sec. 7. COOPERATION BY AGENCIES WITH OMBUDSMAN‑-PENALTIES FOR INTERFERENCE‑-RETALIATORY ACTION PROHIBITED. (1) A state provider of services to individuals with developmental disabilities, or a provider who contracts with the state to provide such services, shall not willfully interfere with a representative of the office of developmental disabilities ombudsman in the performance of his or her official duties.

(2) No state provider or contracted provider of service shall attempt to intimidate, threaten, coerce, or command any employee, service recipient, family member of a service recipient, or any volunteer for the purpose of preventing communication with the developmental disabilities ombudsman concerning information of assistance to the ombudsman in the performance of his or her duties. Nothing in this section authorizes an individual to disclose information prohibited by law.

(3) No discriminatory, disciplinary, or retaliatory action may be taken against any employee of a facility or agency, any service recipient, family member of a recipient, or any volunteer for any communication made or information disclosed for the purpose of aiding an ombudsman in the performance of his or her official duties, unless the same was done maliciously or without good faith. This subsection is not intended to infringe on the rights of an employer to supervise, discipline, or terminate an employee for other reasons.

(4) For the purposes of this chapter, the meaning of "retaliatory action" shall be consistent with the definition of "reprisal and retaliatory action" in RCW 42.40.050.

NEW SECTION. Sec. 8. POSTING OF NOTICE BY RESIDENTIAL FACILITIES‑-DISTRIBUTION OF INFORMATION TO RESIDENTS AND SERVICE RECIPIENTS. (1) Every residential care facility providing services to individuals with developmental disabilities shall post in a conspicuous location a notice of developmental disability ombudsman's toll-free number and the name, address, and phone number of the office of developmental disabilities ombudsman. The form of the notice shall be developed by the office of developmental disabilities ombudsman.

(2) The information provided for in subsection (1) of this section shall be distributed individually to residents, family members, and legal guardians upon the admission of a person with a developmental disability to a residential care facility and upon such an individual's application for any community service or support by any state-funded provider engaged in the provision of services to persons with developmental disabilities.

(3) The department of social and health services division of developmental disabilities shall, at least once every twelve months, provide in written form easily accessible to persons with developmental disabilities the information provided in subsection (1) of this section to every client for which it presently provides services.

NEW SECTION. Sec. 9. DEVELOPMENT OF RULES PROVIDING FOR RIGHT OF ENTRY TO FACILITIES‑-ACCESS TO RESIDENTS AND RECORDS. (1) The department of community, trade, and economic development shall adopt such rules as are necessary to establish a right of entry on behalf of developmental disabilities ombudsmen to the residential care facilities identified in section 4(3) of this chapter and for reasonable access to residents with developmental disabilities at any time deemed necessary and reasonable by the office of developmental disabilities ombudsman to effectively carry out the provisions of this chapter. Such rules shall make adequate provision for privacy for the purpose of hearing, investigating, resolving complaints, and rendering advice to residents.

(2) The department shall in addition adopt rules to ensure reasonable access by ombudsmen to the records of clients of the division of developmental disabilities and to ensure that such access will require the consent of the client or his or her guardian or legal representative.

NEW SECTION. Sec. 10. 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.

NEW SECTION. Sec. 11. This act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect July 1, 1997.

NEW SECTION. Sec. 12. If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 1998, in the omnibus appropriations act, this act is null and void.

NEW SECTION. Sec. 13. Sections 1 through 9 of this act constitute a new chapter in Title 71A RCW.