BILL REQ. #:  H-4437.1 

Read first time 01/23/2006.   Referred to Committee on Children & Family Services.

     AN ACT Relating to the office of the ombudsman for persons with developmental disabilities; and adding a new chapter to Title 43 RCW.

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

NEW SECTION.  Sec. 1   An office of the ombudsman for persons with developmental disabilities is created within the office of the governor for the purpose of promoting public awareness and understanding of developmental disabilities, 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 services for persons with developmental disabilities. The ombudsman shall report directly to the governor and shall exercise his or her powers and duties independently of the secretary of the department of social and health services.

NEW SECTION.  Sec. 2   (1) Subject to confirmation by the senate, the governor shall appoint an ombudsman who shall be a person of recognized judgment, independence, objectivity, and integrity, and shall be qualified by training or experience, or both, in developmental disability services law and policy. Prior to the appointment, the governor shall consult with, and may receive recommendations from the appropriate committees of the legislature, regarding the selection of the ombudsman.
     (2) 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. 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. 3   The ombudsman shall perform the following duties:
     (1) Provide information as appropriate on the rights and responsibilities of individuals with developmental disabilities receiving 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 of social and health services to carry out its responsibilities in delivering services to persons with developmental disabilities;
     (4) Review periodically the facilities and procedures of state institutions serving persons with developmental disabilities, and state licensed facilities or residences;
     (5) Recommend changes in the procedures for addressing the needs of persons with developmental disabilities;
     (6) Submit annually to the appropriate committees of the legislature and to the governor by November 1st a report analyzing the work of the office including recommendations;
     (7) Grant the appropriate committees of the legislature access to all relevant records in the possession of the ombudsman unless prohibited by law; and
     (8) Adopt rules necessary to implement this chapter.

NEW SECTION.  Sec. 4   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. Upon receipt of information that by law is confidential or privileged, the ombudsman shall maintain the confidentiality of the information and shall not further disclose or disseminate the information, except as provided by applicable state or federal law. Investigative records of the office of the ombudsman are confidential and are exempt from public disclosure under chapter 42.56 RCW.

NEW SECTION.  Sec. 5   Neither the ombudsman nor the ombudsman's staff may be compelled, in any judicial or administrative proceeding, to testify or to produce evidence regarding the exercise of the official duties of the ombudsman or of the ombudsman's staff. All related memoranda, work product, notes, and case files of the ombudsman's office are confidential, are not subject to discovery, judicial or administrative subpoena, or other method of legal compulsion, and are not admissible in evidence in a judicial or administrative proceeding.

NEW SECTION.  Sec. 6   (1) Identifying information about complainants or witnesses shall not be subject to any method of legal compulsion, nor shall such information be revealed to the governor except under the following circumstances:
     (a) The complainant or witness waives confidentiality;
     (b) Under a legislative subpoena when there is a legislative investigation for neglect of duty or misconduct by the ombudsman or ombudsman's office when the identifying information is necessary to the investigation of the ombudsman's acts; or
     (c) Under an investigation or inquiry by the governor as to neglect of duty or misconduct by the ombudsman or ombudsman's office when the identifying information is necessary to the investigation of the ombudsman's acts.
     (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.

NEW SECTION.  Sec. 7   The privilege described in section 5 of this act does not apply when:
     (1) The ombudsman or ombudsman's staff member has direct knowledge of an alleged crime, and the testimony, evidence, or discovery sought is relevant to that allegation;
     (2) The ombudsman or a member of the ombudsman's staff has received a threat of, or becomes aware of a risk of, imminent serious harm to any person, and the testimony, evidence, or discovery sought is relevant to that threat or risk; or
     (3) The ombudsman has been asked to provide general information regarding the general operation of, or the general processes employed at, the ombudsman's office.

NEW SECTION.  Sec. 8   (1) An employee of the office of the ombudsman for persons with developmental disabilities 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 of the department of social and health services, or a family member or recipient of developmental disability services for any communication made, or information given or disclosed, to aid the office of the ombudsman for persons with developmental disabilities 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 shall serve as a defense in any action in libel or slander.

NEW SECTION.  Sec. 9   When the ombudsman or ombudsman's staff member has reasonable cause to believe that any public official, employee, or other person has acted in a manner warranting criminal or disciplinary proceedings, the ombudsman or ombudsman's staff member shall report the matter, or cause a report to be made, to the appropriate authorities.

NEW SECTION.  Sec. 10   The department of social and health services shall:
     (1) Allow the ombudsman or the ombudsman's designee to communicate privately with any person with developmental disabilities who is receiving services through the department for the purposes of carrying out its duties under this chapter;
     (2) Permit the ombudsman or the ombudsman's designee physical access to state institutions serving persons with developmental disabilities, and state-licensed facilities or residences for the purpose of carrying out its duties under this chapter; and
     (3) Upon the ombudsman's request, grant the ombudsman or the ombudsman's designee the right to access, inspect, and copy all relevant information, records, or documents in the possession or control of the department that the ombudsman considers necessary in an investigation.

NEW SECTION.  Sec. 11   Sections 1 through 10 of this act constitute a new chapter in Title 43 RCW.