[atlas:bill]

AN ACT Relating to creating a developmental disabilities ombudsman; amending RCW 43.190.060 and 43.06A.030; adding a new chapter to Title 43 RCW; providing an effective date; and declaring an emergency.

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

NEW SECTION. Sec. 1. The legislature recognizes that an increasing number of individuals with developmental disabilities receive services in home and community-based settings. The legislature intends to promote the quality of services and increase consumer protections for individuals with developmental disabilities by creating ombudsman services for individuals with developmental disabilities.

The legislature finds that individuals with developmental disabilities have the right to choose the appropriate services and supports they need within the appropriated funds available. The services and supports must be appropriate to the needs of the individual with developmental disabilities, designed to maximize the developmental potential of the individual, and be provided in the setting that is least restrictive to the individual's personal liberty. The services and supports must be provided in a manner that promotes the individual's health and safety and is respectful of individual self-dignity and human rights as enumerated in federal and state laws.

Therefore the legislature intends to create an independent developmental disabilities ombudsman to promote quality services, the protection of rights, and provide the necessary assistance to individuals with developmental disabilities consistent with this chapter.

NEW SECTION. Sec. 2. (1) The developmental disabilities ombudsman is created.

(2) All individuals with developmental disabilities who are eligible persons as defined in RCW 71A.10.020 are eligible for developmental disabilities ombudsman services, except for those individuals who reside in facilities licensed under chapter 70.128, 18.51, 18.20, or 74.15 RCW and therefore are eligible for ombudsman services under chapter 43.190 or 43.06A RCW.

(3) Within available funding, priority consideration shall be given to medicaid-funded individuals receiving community-based services.

NEW SECTION. Sec. 3. (1) The department of community, trade, and economic development shall contract with a private, nonprofit organization to provide ombudsman services to individuals with developmental disabilities.

(2) The organization selected to provide ombudsman services for individuals with developmental disabilities must be an independent, competent advocacy organization and must:

(a) Not be a provider of paid services to individuals with developmental disabilities, except advocacy services;

(b) Have the capacity to deliver services to individuals in all areas of the state;

(c) Have staff with experience and knowledge in dispute or problem resolution techniques, including investigation, mediation, and negotiation, have a wide range of experience and expertise with social and legal systems, and have knowledge of developmental disabilities;

(d) Have experience in managing a large budget, particularly a budget with reporting requirements;

(e) Have private nonprofit status and eligibility for tax exempt status under section 501(c)(3) of the internal revenue code; and

(f) Have the knowledge and commitment necessary to competently serve diverse ethnic and cultural communities.

NEW SECTION. Sec. 4. The developmental disabilities ombudsman has the following duties:

(1) To investigate, upon receipt of a complaint or when the ombudsman has reasonable cause for concern, an act or omission alleged to be contrary to law, rule, contract, or applicable policy that may adversely affect the health, safety, welfare, and rights of those eligible for services under this chapter;

(2) To protect the interests of and advocate for individuals with developmental disabilities consistent with the duties of this chapter;

(3) To provide information to those eligible for services under this chapter on the rights and responsibilities they have and provide information, as appropriate, to public agencies regarding the problems individuals with developmental disabilities are having in receiving services;

(4) To enter into coordination agreements to avoid duplication of services with the state long-term care ombudsman, the office of family and children's ombudsman, the Washington protection and advocacy system, the department of social and health services, and other ombudsman functions in the state where there is overlapping authority;

(5) To develop procedures for referral of complaints to appropriate state or local government agencies, seek to resolve complaints at the lowest, most appropriate level possible, and follow up on cases referred;

(6) To report abandonment, abuse, neglect, or financial exploitation of vulnerable adults in accordance with RCW 74.34.035 and report abuse and neglect of children in accordance with RCW 26.44.030;

(7) To establish procedures consistent with this chapter, chapters 26.44, 42.17, and 74.34 RCW, and other applicable federal and state laws, for access to the records of the department of social and health services, including procedures to protect the confidentiality of the records and ensure that the identity of any individual with developmental disabilities will not be disclosed without the written consent of the individual, or the individual's legal representative, or upon court order;

(8) To establish a statewide uniform reporting system to collect and analyze data relating to complaints, for the purpose of identifying and resolving significant problems;

(9) As necessary, to contract with local advocacy agencies to fulfill the duties of the developmental disabilities ombudsman services and, as necessary, recruit volunteers to perform the functions of the developmental disabilities ombudsman;

(10) To provide training for staff and volunteers to ensure they:

(a) Are qualified, through experience or training in working with people with developmental disabilities;

(b) Are able to identify and resolve problems;

(d) Know and use complaint procedures for mandatory reporting; and

(e) Are knowledgeable of the laws, rules, and policies that govern services provided under medicaid and the developmental disabilities system and other applicable statute or rule governing service settings;

(11) To develop ethical standards for the conduct of ombudsman services;

(12) To establish a toll-free number; and

(13) To engage in outreach activities to make services of the developmental disabilities ombudsman known by at least:

(a) Providing, through the department of social and health services, information describing the developmental disabilities ombudsman services to persons as they are being determined eligible under RCW 71A.16.040 and annually thereafter to eligible persons; and

(b) Providing information about ombudsman services and how individuals can contact the ombudsman to programs and individuals contracting with the department of social and health services to provide services under Title 71A RCW.

NEW SECTION. Sec. 5. The department of community, trade, and economic development, in consultation with the developmental disabilities council, shall provide the support necessary to contract out the developmental disabilities ombudsman services and adopt rules necessary to implement this chapter.

NEW SECTION. Sec. 6. The developmental disabilities ombudsman shall prepare an annual report to the legislature that identifies at least but not limited to the following:

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

(2) A description of the issues addressed by the office;

(3) A description of case scenarios without compromising confidentiality;

(4) The number of visits made, number of complaints received, and the types of investigations conducted;

(5) Recommendations of actions by agencies that would improve the quality of services to individuals with developmental disabilities and how the agency responded to the recommendations; and

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

NEW SECTION. Sec. 7. The developmental disabilities 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 developmental disabilities ombudsman to perform its duties, comply with abuse reporting requirements, and to support any recommendations resulting from an investigation. Upon receipt of information that by law is confidential or privileged, the developmental disabilities ombudsman shall maintain confidentiality of such information and shall not further disclose or disseminate the information except as provided by applicable state or federal law. Investigative records of the developmental disabilities ombudsman are confidential and are exempt from public disclosure under chapter 42.17 RCW.

NEW SECTION. Sec. 8. (1) The developmental disabilities ombudsman may not be compelled, in any judicial or administrative proceeding, to testify or to produce evidence regarding:

(a) The exercise of the official duties of the developmental disabilities ombudsman;

(b) Identifying information about complainants or witnesses;

(c) Memoranda, work products, notes, and case files relating to the official duties of the developmental disabilities ombudsman.

(2) For the purposes of this section, "identifying information" includes the complainant's or witness's name, location, telephone number, likeness, social security number, or other identification number or identification of immediate family members and employees of the department of social and health services and its contractors.

NEW SECTION. Sec. 9. The privilege in sections 7 and 8 of this act does not apply when:

(1) The complainant or witness waives confidentiality;

(2) The developmental disabilities ombudsman, staff, or volunteer has direct knowledge of an alleged crime or becomes aware of a risk of harm to any person and the testimony, evidence, or discovery sought in a judicial or adjudicative proceeding is relevant to the action;

(3) The developmental disabilities ombudsman, staff, or volunteers have reported as required under chapter 74.34 or 26.44 RCW.

NEW SECTION. Sec. 10. (1) An employee or volunteer of the developmental disabilities ombudsman is not liable for good faith performance of responsibilities under this chapter.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against an employee of the department of social and health services, an employee of a contracting agency, or a recipient of services for any communication made, or information given or disclosed, to aid the developmental disabilities ombudsman in carrying out its responsibilities, unless the communication or information is made, given, or disclosed maliciously or without good faith. This subsection is not intended to infringe on the rights of the employer to supervise, discipline, or terminate an employee for other reasons.

(3) All communications by an ombudsman, if reasonably related to the requirements of that individual's responsibilities under this chapter and done in good faith, are privileged under RCW 9.58.070 and that privilege is a defense in any action in libel or slander.

NEW SECTION. Sec. 11. (1) The department of social and health services shall:

(a) Allow the developmental disabilities ombudsman to communicate privately with any client eligible for services under this chapter for the purposes of carrying out the duties of this chapter;

(b) Permit the developmental disabilities ombudsman physical access to all facilities and programs serving clients eligible for services under this chapter for the purpose of carrying out the duties of this chapter; and

(c) Provide, upon the request of the developmental disabilities ombudsman, and in accordance with applicable laws and rules, immediate access to all relevant information, records, case files, reports, or documents in possession or control of the department of social and health services or its contractors that the developmental disabilities ombudsman considers necessary in an investigation.

(2) The same access applies to all records of related services received by an eligible client that the developmental disabilities ombudsman considers necessary in an investigation.

Sec. 12. RCW 43.190.060 and 1999 c 133 s 1 are each amended to read as follows:

A long-term care ombudsman shall:

(1) Identify, investigate, and resolve complaints made by or on behalf of residents of long-term care facilities relating to administrative action, inaction, or decisions which may adversely affect the health, safety, welfare, and rights of these individuals;

(2) Coordinate with the developmental disabilities ombudsman when investigating complaints involving individuals with developmental disabilities, and where advocacy by other ombudsman programs are necessary to resolve a problem;

(3) Monitor the development and implementation of federal, state, and local laws, rules, regulations, and policies with respect to long-term care facilities in this state;

((~~(3)~~)) (4) Provide information as appropriate to residents, resident representatives, and others regarding the rights of residents, and to public agencies regarding the problems of individuals residing in long-term care facilities; and

((~~(4)~~)) (5) Provide for training volunteers and promoting the development of citizen organizations to participate in the ombudsman program. A trained volunteer long-term care ombudsman, in accordance with the policies and procedures established by the state long-term care ombudsman program, shall inform residents, their representatives, and others about the rights of residents, and may identify, investigate, and resolve complaints made by or on behalf of residents of long-term care facilities relating to action, inaction, or decisions, that may adversely affect the health, safety, welfare, and rights of these individuals.

Nothing in chapter 133, Laws of 1999 shall be construed to empower the state long-term care ombudsman or any local long-term care ombudsman with statutory or regulatory licensing or sanctioning authority.

Sec. 13. RCW 43.06A.030 and 1996 c 131 s 4 are each amended to read as follows:

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) Coordinate as appropriate with the developmental disabilities ombudsman when investigating complaints involving children with developmental disabilities residing in facilities, and collaborate when action by both ombudsman programs is necessary to investigate or resolve a complaint or systemic issue;

(3) 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)~~)) (4) 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)~~)) (5) Review periodically the facilities and procedures of state institutions serving children, and state-licensed facilities or residences;

((~~(5)~~)) (6) Recommend changes in the procedures for addressing the needs of families and children;

((~~(6)~~)) (7) Submit annually to the committee and to the governor by November 1st a report analyzing the work of the office including recommendations;

((~~(7)~~)) (8) Grant the committee access to all relevant records in the possession of the ombudsman unless prohibited by law; and

((~~(8)~~)) (9) Adopt rules necessary to implement this chapter.

NEW SECTION. Sec. 14. Sections 1 through 11 of this act constitute a new chapter in Title 43 RCW.

NEW SECTION. Sec. 15. 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. 16. 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, 2001.