5522-S.E AMS .... S3503.1

5522-S.E AMS .... S3503.1

ESSB 5522 - S AMD 496

By Senators Kastama and Hewitt

ADOPTED 01/30/02

Strike everything after the enacting clause and insert the following:

"NEW SECTION. Sec. 1. The legislature finds that in order to comply with the community mental health services act, chapter 71.24 RCW, and the medicaid managed care mental health waiver, and to effectively assist persons with mental illness and consumers of mental health services in the assertion of their civil and human rights, and to improve the quality of services available and promote the rehabilitation, recovery, and reintegration of these persons, an independent mental health ombudsman program should be instituted.

NEW SECTION. Sec. 2. As used in this chapter, "mental health provider or facility" means any of the following:

(1) An agency, individual, or facility that is part of the community mental health service delivery system, as defined in RCW 71.24.025;

(2) A long-term care facility, as defined in RCW 43.190.020, in which adults or children with mental illness reside;

(3) A state hospital, as defined in RCW 72.23.010; and

(4) A facility or agency that receives funds from the state of Washington to provide residential or treatment services to adults or children with mental illness.

NEW SECTION. Sec. 3. (1) The department of community, trade, and economic development shall contract with a private nonprofit organization to be the office of mental health ombudsman and to provide mental health ombudsman services as specified under, and consistent with, the medicaid managed care mental health waiver, state law, the goals of the state, and the needs of its citizens. The department of community, trade, and economic development shall ensure that all program and staff support necessary to enable the ombudsman to effectively protect the interests of persons with mental illness is provided by the nonprofit organization that contracts to be the office of mental health ombudsman and to provide independent mental health ombudsman services. The department shall designate the organization to be the office of mental health ombudsman and to provide mental health ombudsman services by a competitive bidding process which shall include direct stakeholder participation in the development of the request for proposal, evaluation of bids, and final selection. The department shall ensure that the designated agency has demonstrated financial stability and meets the qualifications for ombudsman identified in section 4 of this act. The department shall undertake an annual review of the designated agency to ensure compliance with the provisions of the contract. The department shall not redesignate the agency serving as the office of mental health ombudsman except upon a showing of good cause for redesignation, and after notice and opportunity for agency and public comment have been made and there has been an opportunity to appeal the redesignation to the director.

(2) The department of community, trade, and economic development shall adopt rules to carry out this chapter.

(3) The office of mental health ombudsman shall have the following powers and duties:

(a) Provide services for coordinating the activities of mental health ombudsmen throughout the state;

(b) Carry out such other activities as the department of community, trade, and economic development deems appropriate;

(c) Establish procedures consistent with section 10 of this act for appropriate access by mental health ombudsmen to mental health providers and facilities and the records of patients, residents, and clients, including procedures to protect the confidentiality of the records and ensure that the identity of any complainant or resident will not be disclosed without the written consent of the complainant or resident, or upon court order;

(d) Establish a statewide uniform reporting system to collect and analyze data relating to complaints, conditions, and service quality provided by mental health providers and facilities for the purpose of identifying and resolving significant individual problems and analyzing, developing, and advocating remedies in policy, practice, or legislation for systemic problems, with provision for submission of such data to the department of social and health services, the state block grant mental health advisory committee, and to the federal department of health and human services, or its successor agency, on a regular basis. This reporting system must be compatible with uniform child and adult consumer service outcomes, where such outcome measures are established;

(e) Establish procedures to assure that any files maintained by ombudsman programs shall be disclosed only at the discretion of the ombudsman having authority over the disposition of such files, except that the identity of a complainant or patient, resident, or client of a mental health provider or facility may not be disclosed by the ombudsman unless:

(i) The complainant or resident, or the complainant or resident's legal representative, consents in writing to such disclosure; or

(ii) Such disclosure is required by court order; and

(f) Establish ombudsman services that are available statewide, and at eastern state and western state hospitals.

NEW SECTION. Sec. 4. (1) The agency designated by the department of community, trade, and economic development as the office of mental health ombudsman and any mental health ombudsman authorized by this chapter or a local governmental authority must have training or experience in all of the following areas:

(a) Mental health and other related social services programs;

(b) The legal system;

(d) Dispute or problem resolution techniques, including investigation, mediation, and negotiation.

(2) A mental health ombudsman or quality review team member must not have been employed by a regional support network or any mental health provider or facility within the past three years, except where prior to the adoption of this chapter he or she has been employed by or volunteered for a regional support network or subcontractor thereof or a state hospital to provide mental health ombudsman services pursuant to the requirements of the federal medicaid managed care mental health waiver. The office of mental health ombudsman shall actively recruit persons who provided ombudsman services through a regional support network or subcontractor thereof or a state hospital.

(3) No mental health ombudsman or any member of his or her immediate family may have, or have had within the past three years, any pecuniary interest in the provision of mental health services.

(4) The office of mental health ombudsman shall maintain a toll-free telephone number.

(5) Mental health ombudsmen shall assist and advocate on behalf of patients, residents, and clients of mental health providers and facilities and shall attempt to resolve complaints informally, using complaint and grievance processes and, if applicable, the fair hearing process. Mental health ombudsmen shall attempt to resolve all disputes at the lowest possible level.

(6) The office of mental health ombudsman shall ensure that there are quality review teams established to evaluate quality and consumer satisfaction and provide recommendations for service improvements, as required by the medicaid managed care waiver. Quality review teams shall define, establish, and measure systemic consumer outcomes and report on systemic causes of consumer access barrier service problems.

(7) Where consented to by the patient, resident, or client, ombudsmen shall involve family members and friends in the process of resolving complaints.

(8) The office of mental health ombudsman shall support mental health service recipient participation in treatment planning and delivery, both on an individual basis and systemwide, and shall actively recruit and support the participation of consumers, parents, and guardians of minor children recipients, and family members of adult service recipients as mental health ombudsmen and quality review team members.

NEW SECTION. Sec. 5. (1) The office of mental health ombudsman shall provide information relevant to the quality of mental health services, and recommendations for improvements in the quality of mental health services, to regional support networks and the mental health division.

(2) The mental health division and the regional support networks shall work in cooperation with the office of mental health ombudsman to develop agreements regarding how this quality information will be incorporated into their quality management system. These agreements must ensure that information related to complaints and grievances conforms to a standardized form.

(3) The office of mental health ombudsman shall ensure that its reports and recommendations are broadly distributed and shall report annually regarding its activities, findings, and recommendations to at least the following: The mental health division, the mental health advisory board, the state long-term care ombudsman, the state family and children's ombudsman, the state designated protection and advocacy system, the department of community, trade, and economic development, regional support networks, and mental health advocacy groups.

(4) Regional support networks and the mental health division shall promptly provide the office of mental health ombudsman with demographic information they possess regarding the diversity of individuals applying for, receiving, and denied services in each region, service utilization information, contract and subcontract requirements, the results of all audits and reviews conducted by the regional support networks or the mental health division, and such other information collected or produced by the regional support networks or the mental health division as may be necessary for mental health ombudsman and quality review team members in the performance of their duties.

(5) Regional support networks and the mental health division shall assist mental health ombudsman and quality review team members in obtaining entry and meaningful access to mental health providers and facilities, cooperation from their staff, and access to patients and clients.

(6) Each regional support network and state hospital shall designate at least one liaison to the office of mental health ombudsman who shall be responsible for ensuring that mental health ombudsman and quality review team members are actively included in quality management planning and assessment, for providing assistance in resolving issues regarding access to information and patients or clients, and for resolving individual and systemic issues where requested by the mental health ombudsman or quality review team.

(7) Regional support networks, state hospitals, and their subcontractors shall respond in writing to all recommendations regarding quality improvement made by mental health ombudsmen and quality review teams within thirty days of issuance, and shall identify what action will be taken in response, and if no action or action other than that which is recommended by the mental health ombudsman or quality review team is taken, the reasons for the variance must be explained in writing.

NEW SECTION. Sec. 6. The office of mental health ombudsman shall provide the legislature with an annual report that includes:

(1) An identification of the demographic status of those served by the mental health ombudsman;

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

(3) An accounting of the monitoring activities of the ombudsman;

(4) An identification of the results of measurements of consumer satisfaction and other outcome measures;

(5) An identification of the numbers of volunteers used and in what capacity;

(6) An identification of deficiencies in the service system and recommendations for remedial action;

(7) Recommendations for regulatory action by agencies that would improve the quality of service to individuals with mental illness; and

(8) Recommendations for legislative action that would result in improved services to individuals with mental illness.

NEW SECTION. Sec. 7. Every mental health provider and facility shall post in a conspicuous location a notice providing the office of mental health ombudsman's toll‑free number, and the name, address, and phone number of the office of the appropriate local mental health ombudsman and quality review team and a brief description of the services provided. The form of the notice must be approved by the office of mental health ombudsman. This information must also be distributed to the patients, residents, and clients, and their family members and legal guardians, upon application for mental health provider services, and upon admission to a mental health facility.

NEW SECTION. Sec. 8. The office of mental health ombudsman shall:

(1) Identify, investigate, and resolve complaints made by or on behalf of patients, residents, clients of mental health providers and facilities, and individuals denied services relating to administrative action, inaction, or decisions, that may adversely affect the rehabilitation, recovery, reintegration, health, safety, welfare, and rights of these individuals;

(2) Monitor the development and implementation of federal, state, and local laws, rules, regulations, and policies with respect to mental health service provision in this state;

(3) Provide information as appropriate to patients, residents, clients, individuals denied services, family members, guardians, resident representatives, employees of mental health providers and facilities, and others regarding the rights of residents, and to public agencies regarding the quality of service, complaints, and problems of individuals receiving or denied services from mental health providers and facilities; and

(4) Provide for the training and certification of paid and volunteer mental health ombudsmen. Paid mental health ombudsmen shall recruit, supervise, and provide ongoing training of certified volunteer mental health ombudsmen. Volunteers may be recruited to otherwise assist with mental health ombudsman and quality review team services.

(5) A trained and certified mental health ombudsman, in accordance with the policies and procedures established by the office of mental health ombudsman, shall inform residents, their representatives, and others about the rights of residents, and may identify, investigate, and resolve complaints and monitor the quality of services provided to patients, residents, and clients of mental health providers and facilities.

NEW SECTION. Sec. 9. (1) The office of mental health ombudsman shall develop referral procedures for all mental health ombudsmen to refer any complaint to an appropriate state or local government agency. The department of social and health services shall act as quickly as possible on any complaint referred to them by a mental health ombudsman.

(2) The department of social and health services shall respond to any complaint against a mental health provider or facility that was referred to it by a mental health ombudsman and shall forward to that ombudsman a summary of the results of the investigation and action proposed or taken.

(3) The office of mental health ombudsman, and all local mental health ombudsmen and related volunteers, shall work in cooperation with the state designated protection and advocacy agency, the long-term care ombudsman, and the children and family ombudsman. The office of mental health ombudsman shall develop and implement a working agreement with the protection and advocacy agency, the long-term care ombudsman, and the children and family ombudsman, to ensure efficient, coordinated service.

(4) The office of mental health ombudsman shall develop working agreements with each regional support network, the state psychiatric hospitals, the mental health division, and such other entities as necessary to accomplish the goals of the program.

NEW SECTION. Sec. 10. (1) The office of mental health ombudsman shall develop procedures governing the right of entry of all mental health ombudsmen to mental health providers and facilities, jails, and correctional facilities.

(2) Mental health ombudsmen and quality review team members shall have access to patients, residents, and clients of mental health providers and facilities, other entities providing inpatient or outpatient social services, and jails, with provisions made for privacy, for the purpose of hearing, investigating, and resolving complaints and monitoring the quality of services, at any time deemed necessary and reasonable by the office of mental health ombudsman to effectively carry out the provisions of this chapter. Ombudsmen and quality review team members who have passed criminal background checks must have access to inmates at correctional facilities with reasonable notice to the department of corrections, with provisions made for privacy, for the purpose of hearing, investigating, and resolving complaints and monitoring the quality of services, at any time deemed necessary and reasonable by the office of mental health ombudsman to effectively carry out the provisions of this chapter.

(3) Nothing in this chapter restricts, limits, or increases any existing right of an organization or individual not described in subsections (1) and (2) of this section to enter or provide assistance to patients, residents, or clients of mental health providers or facilities.

(4) Nothing in this chapter restricts any right or privilege of a patient, resident, or client of a mental health provider or facility to receive visitors of his or her choice.

NEW SECTION. Sec. 11. (1) No mental health ombudsman, volunteer, or quality review team member is liable for good faith performance of responsibilities under this chapter.

(2) No discriminatory, disciplinary, or retaliatory action may be taken against an employee of a mental health provider or facility, or a patient, resident, or client of a mental health provider or facility, or a volunteer, for any communication made, or information given or disclosed, to aid the mental health ombudsman or quality review team in carrying out duties and responsibilities under this chapter, unless the same was done 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 a mental health ombudsman or quality review team member, 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 to any action in libel or slander.

(4) A representative of the office of mental health ombudsman is exempt from being required to testify in court as to any confidential matters except as the court may deem necessary to enforce this chapter.

NEW SECTION. Sec. 12. All records and files of mental health ombudsmen relating to any complaint or investigation made pursuant to carrying out their duties and the identities of complainants, witnesses, patients, or residents shall remain confidential unless disclosure is authorized by the client or his or her guardian or legal representative. No disclosures may be made outside the office without the consent of any named witnesses, resident, patient, client, or complainant unless the disclosure is made without the identity of any of these individuals being disclosed.

NEW SECTION. Sec. 13. (1) It is the intent of the legislature that the state mental health ombudsman program make reasonable efforts to maintain and improve the current level and quality of care, taking into account the transition period from the current system of ombudsman programs and quality review teams within the regional support networks and state hospitals.

(2) It is the intent of the legislature that federal medicaid requirements be complied with and the department of community, trade, and economic development expend no more than the amount currently expended on mental health ombudsman services and quality review team services by regional support networks and state hospitals and their subcontractors, including related administrative costs, pursuant to contracts with the department of social and health services, to establish the mental health ombudsman program established by this chapter, and the amount annually expended by the mental health division in staff support, monitoring, oversight, and subcontracted training and consultation for community mental health ombudsman and quality review team services and state hospital mental health patient advocate or ombudsman services, except to the extent that additional funds are appropriated by the legislature, for the first two years after the enactment 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.

NEW SECTION. Sec. 15. This act takes effect July 1, 2003.

NEW SECTION. Sec. 16. Sections 1 through 15 of this act constitute a new chapter in Title 71 RCW."

ESSB 5522 - S AMD 496

By Senators Kastama and Hewitt

ADOPTED 01/30/02

On page 1, line 1 of the title, after "ombudsman;" strike the remainder of the title and insert "adding a new chapter to Title 71 RCW; and providing an effective date."