BILL REQ. #:  S-2036.2 

READ FIRST TIME 03/05/03.   

     AN ACT Relating to creating an office of mental health ombudsman; adding a new chapter to Title 43 RCW; creating a new section; and providing an effective date.

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

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   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Department" means the department of community, trade, and economic development.
     (2) "Immediate family member," as pertaining to conflicts of interest, means the spouse, parents, children, and siblings of the mental health ombudsman.
     (3) "Mental health consumer" or "consumer" means any individual who is a current or past client, patient, or resident of a mental health provider or facility, or an applicant for such mental health services.
     (4) "Mental health ombudsman" or "ombudsman" means the state mental health ombudsman, regional mental health ombudsmen, staff of the state and regional mental health ombudsmen, and certified volunteer mental health ombudsmen. A mental health ombudsman shall not be considered to be a mental health provider.
     (5) "Mental health provider or facility" means any of the following:
     (a) An agency, individual, or facility that is part of the community mental health service delivery system, as defined in RCW 71.24.025;
     (b) An evaluation and treatment facility, as defined in RCW 71.05.020 or 71.34.020;
     (c) A long-term care facility, as defined in RCW 43.190.020, in which adults or children with mental illness reside;
     (d) A state hospital, as defined in RCW 72.23.010; and
     (e) 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.
     (6) "Office" means the office of the state mental health ombudsman.

NEW SECTION.  Sec. 3   (1) The office of the state mental health ombudsman is hereby created. The office shall be headed by an individual known as the state mental health ombudsman, who shall be selected from among individuals with expertise and experience in the fields of mental health services, policy, and advocacy. The office shall carry out, directly and through the use of mental health ombudsmen, an independent statewide program known as the state mental health ombudsman program.
     (2) The department shall contract with a private nonprofit organization to operate the office of the state mental health ombudsman and to provide, directly or through subcontracts, 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 residents. The organization that operates the office of the state mental health ombudsman shall select the individual to serve as the state mental health ombudsman, with opportunity for prior stakeholder input, and shall revoke the designation only upon a showing of neglect of duty, misconduct, or inability to perform duties. The department shall ensure that all program and staff support necessary to enable the mental health ombudsman program to protect the interests of persons with mental illness is provided, directly or through subcontracts, by the organization that operates the office of the state mental health ombudsman. The contracting organization and the office shall not be considered to be state agencies or departments, but instead shall be private entities operating under contract with the state.
     (3) The department shall designate by a competitive bidding process the organization that will contract to operate the office of the state mental health ombudsman. The selection process 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 organization is free from conflicts of interest and has the demonstrated capacity to ensure that the responsibilities of the office of the state mental health ombudsman are carried out. The department shall undertake an annual review of the designated organization to ensure compliance with the provisions of the contract. The department shall not revoke the designation of the organization operating the office of the state mental health ombudsman except upon a showing of neglect of duty, misconduct, or inability to perform duties. Prior to revoking the designation, the department shall provide notice and an opportunity for the organization, the state ombudsman, and the public to comment upon the proposed revocation, and shall provide the organization an opportunity to appeal the decision to the director of the department.
     (4) The department shall adopt rules to carry out this chapter.

NEW SECTION.  Sec. 4   The office has the following powers and duties:
     (1) Establish appropriate procedures: For access by mental health ombudsmen to all mental health consumers, consistent with section 12 of this act; for ombudsman access to the records of mental health consumers, with provisions to ensure confidentiality, consistent with sections 12 and 13 of this act; and for the protection of the ombudsman program's records and files, consistent with section 13 of this act;
     (2) Maintain a statewide toll-free telephone number for the receipt of complaints and inquiries;
     (3) Offer and provide services to assist mental health consumers and their representatives in order to assist in protecting the health, safety, welfare, and rights of mental health consumers;
     (4) Offer and provide information as appropriate to mental health consumers, family members, guardians and other representatives, employees of mental health providers and facilities, and others regarding the rights of mental health consumers;
     (5) Identify, investigate, and resolve complaints made by or on behalf of mental health consumers that relate to action, inaction, or decisions which:
     (a) May adversely affect the rehabilitation, recovery, reintegration, health, safety, welfare, or rights of mental health consumers; and
     (b) Involve a mental health provider or facility; a regulatory, governmental, health, or social service agency; a guardian or other representative; a family member; or another mental health consumer, friend, or associate;
     (6) Support and encourage mental health consumer participation in treatment planning, delivery, and complaint resolution, both on an individual basis and systemwide, and recruit and support the participation of family members of the mental health consumer, close friends, and guardians and other representatives in the consumer's treatment and complaint resolution, unless the mental health consumer expressly objects to such participation;
     (7) Represent the interests of mental health consumers before governmental agencies, and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of mental health consumers;
     (8) Monitor the development and implementation of federal, state, and local laws, regulations, and policies with respect to mental health services in this state, and provide information that the office determines to be appropriate to the public, legislators, public and private agencies, and other persons;
     (9) Provide for the training, certification, and decertification for good cause, of paid and volunteer mental health ombudsmen. Paid mental health ombudsmen shall recruit, supervise, and provide ongoing training of certified volunteer mental health ombudsmen, in accordance with the policies and procedures established by the office;
     (10) Where necessary to fulfill the purposes of this chapter, subcontract with nonprofit organizations or individuals to perform the functions of mental health ombudsman, provided however, that the state office shall provide services for coordinating the activities of mental health ombudsmen throughout the state;
     (11) 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, jails, and correctional facilities, for the purpose of identifying and resolving significant individual problems and analyzing, developing, and advocating remedies in policy, practice, rule, or legislation for systemic problems, with provision for submission of such data to relevant agencies and entities on at least an annual basis, as specified in sections 8 and 9 of this act. This reporting system must be compatible with uniform child and adult consumer service outcomes, where such outcome measures are established; and
     (12) Carry out such other activities as the department deems appropriate.

NEW SECTION.  Sec. 5   All mental health ombudsmen must receive certification by the state mental health ombudsman and have training or experience in the following areas prior to serving as mental health ombudsmen:
     (1) Mental health programs, other related social services programs, and community resources;
     (2) Mental health diagnoses, care, and treatment approaches;
     (3) Advocacy and supporting consumer self-advocacy;
     (4) The legal system; and
     (5) Dispute resolution techniques, including investigation, mediation, and negotiation.

NEW SECTION.  Sec. 6   (1) All mental health ombudsmen must be free from conflicts of interest, including:
     (a) No mental health ombudsman shall have been employed by, or participated in the management of, a regional support network or any mental health provider or facility within the past year, except where prior to the effective date of this act he or she has been employed by or volunteered for a regional support network, 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 shall actively recruit persons who provided ombudsman services through a regional support network, subcontractor thereof, or state hospital;
     (b) No mental health ombudsman or any member of his or her immediate family may have, or have had within the past year, any significant ownership or investment interest in the provision of mental health services or in a mental health provider or facility;
     (c) No mental health ombudsman shall have been employed in a governmental position with direct involvement in the licensing, certification, or regulation of a mental health provider or facility within the past year; and
     (d) No mental health ombudsman shall be assigned to a mental health facility in which a member of that ombudsman's immediate family resides.
     (2) No individual, or immediate family member of such an individual, who is involved in the designation or removal of the state mental health ombudsman, or the designation or revocation of the contractor or subcontractors, or who administers the contractor's or subcontractor's contract, may be an official or employee with responsibility for the licensing, certification, or regulation of mental health providers or facilities or may be employed by, own, operate, or manage mental health providers or facilities.

NEW SECTION.  Sec. 7   (1) Mental health ombudsmen shall act in accordance with the policies and procedures established by the office, and shall have the following authority and duties:
     (a) Offer and provide services to assist mental health consumers and their representatives in order to assist in protecting the health, safety, welfare, and rights of mental health consumers;
     (b) Offer and provide information as appropriate to mental health consumers, family members of mental health consumers, guardians and other representatives, employees of mental health providers and facilities, and others regarding the rights of mental health consumers;
     (c) Identify, investigate, and resolve complaints made by or on behalf of mental health consumers that relate to action, inaction, or decisions which:
     (i) May adversely affect the rehabilitation, recovery, reintegration, health, safety, welfare, or rights of mental health consumers; and
     (ii) Involve a mental health provider or facility; a regulatory, governmental, health, or social service agency; a guardian or other representative; a family member; or another mental health consumer, friend, or associate;
     (d) Support and encourage mental health consumer participation in treatment planning, delivery, and complaint resolution, both on an individual basis and systemwide, and recruit and support the participation of family members, close friends, guardians, and other representatives in the consumer's treatment and complaint resolution, unless the mental health consumer expressly objects to such participation;
     (e) Represent the interests of mental health consumers before governmental agencies, and seek administrative, legal, and other remedies to protect the health, safety, welfare, and rights of mental health consumers; and
     (f) Perform other duties assigned by the office or its subcontractors, consistent with the purposes of this chapter.
     (2) Mental health ombudsmen shall attempt to resolve complaints informally and at the lowest level possible, using direct discussion with care providers and personnel, complaint and grievance processes, and the fair hearing process if applicable, unless such avenues appear to be futile, not feasible, or not in the best interest of the mental health consumer.

NEW SECTION.  Sec. 8   (1) The office 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 of the department of social and health services.
     (2) The mental health division and the regional support networks shall work in cooperation with the office to develop agreements regarding how this quality information will be incorporated into their quality management systems. These agreements must ensure that information related to complaints and grievances conforms to a standardized form.
     (3) The office 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 entities: 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 with demographic information they possess regarding the diversity of individuals applying for, receiving, and being 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 ombudsmen in the performance of their duties.
     (5) Regional support networks and the mental health division shall assist mental health ombudsmen in obtaining entry and meaningful access to mental health providers and facilities, cooperation from their staff, and access to mental health consumers.
     (6) Regional support networks, state hospitals, and their subcontractors shall respond in writing to all written recommendations regarding quality improvement made by the office 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 was recommended is taken, the reasons for the variance must be explained in writing.

NEW SECTION.  Sec. 9   The office 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 program;
     (2) A description of the issues addressed during the past year and a brief description of case scenarios in a form that does not compromise confidentiality;
     (3) An accounting of the monitoring activities by the mental health ombudsman program;
     (4) An identification of the results of measurements of consumer satisfaction and other outcome measures;
     (5) An identification of the numbers of certified volunteer mental health ombudsmen;
     (6) An identification of deficiencies in the mental health service system and recommendations for remedial action in policy or practice;
     (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. 10   Every mental health provider and facility shall post in a conspicuous location a notice providing the office's toll-free number, and the name, address, and phone number of the office of the appropriate local mental health ombudsman if any and a brief description of the services provided. The form of the notice must be approved by the office. This information must also be distributed to mental health consumers, their legal guardians or representatives, and family members of mental health consumers if appropriate, upon application for mental health provider services and upon admission to a mental health facility.

NEW SECTION.  Sec. 11   (1) The office shall develop referral procedures for mental health ombudsmen to refer appropriate complaints to state or local government agencies, consistent with the confidentiality provisions of this chapter. The state and local agencies shall act promptly 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 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, and its subcontractors if any, shall work in cooperation with the state designated protection and advocacy agency, the long-term care ombudsman program, and the office of children and family ombudsman. The office shall develop and implement working agreements with these advocacy organizations to ensure efficient, coordinated services.
     (4) The office shall develop and implement working agreements with each regional support network, the state psychiatric hospitals, the mental health division, and such other entities as necessary to accomplish the purposes of this chapter.

NEW SECTION.  Sec. 12   (1) The office shall develop appropriate procedures governing the right of entry of all mental health ombudsmen to mental health providers and facilities, jails, and correctional facilities, for the purpose of carrying out the provisions of this chapter.
     (2) Mental health ombudsmen shall have private access to all mental health consumers at any time deemed necessary and reasonable by the office to effectively carry out the provisions of this chapter. Mental health ombudsmen shall be provided access to all mental health consumers receiving or seeking services from mental health providers or facilities, and to detainees and inmates of jails and correctional facilities who have a mental illness, with provisions made for privacy, for the purposes of providing information, hearing, investigating, and resolving complaints, and monitoring the quality of mental health services. Access shall be deemed necessary and reasonable during a facility's regular visiting hours, other periods the facility or provider is open to the public, and any other time access may be required by the particular complaint or condition to be monitored or investigated. Mental health ombudsmen seeking access to jails, juvenile detention facilities, and correctional facilities must successfully pass a criminal history background check as provided by chapter 43.43 RCW.
     (3) Nothing in this chapter restricts any right or privilege of a mental health consumer to receive visitors of his or her choice. 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 mental health consumers.
     (4) Ombudsmen shall be permitted to review and copy the medical, social, legal, and mental health records of a mental health consumer if:
     (a) The ombudsman has the written permission of the mental health consumer or the representative of the consumer;
     (b) The mental health consumer is unable to give informed consent to the review and has no representative; or
     (c) The representative of an incapacitated mental health consumer refuses to give permission, the ombudsman reasonably believes the representative is not acting in the consumer's best interest, and the ombudsman receives prior written approval from the state mental health ombudsman or his or her designee.
     (5) Mental health ombudsmen shall be given prompt and timely access to the mental health consumer's records, which in no case shall be longer than the time period governing the consumer's access to his or her records from the mental health provider or facility. The mental health provider or facility may not refuse access to records to the ombudsman on the basis that it is medically contraindicated or for similar grounds. The identities of other patients, clients, residents, or mental health consumers, if contained in the records of the mental health consumer to which the ombudsman has access, must be redacted prior to review by the ombudsman, if permission is not obtained by the ombudsman from these individuals.
     (6) The provisions of this section apply to accessing the records of detainees and inmates of jails and correctional facilities who have a mental illness.
     (7) The office shall have timely access to, and copies when requested of, the licensing, complaint investigation, and certification records maintained by the state with respect to mental health providers and facilities.
     (8) For any copies obtained under this section, the ombudsman may be charged a reasonable rate, which for public agencies or facilities may not exceed the copying rate adopted under the public disclosure laws, and for private facilities and providers may not exceed the rate charged by commercial copy centers in the community.

NEW SECTION.  Sec. 13   (1) All records and files, and the information therein, maintained by the mental health ombudsman program shall remain confidential. Any disclosure of ombudsman program records or files is subject to both of the following provisions:
     (a) No disclosure may be made without the prior approval of the state mental health ombudsman or his or her designee, provided however, that requests to the ombudsman program by mental health consumers or their representatives for assistance in obtaining service or better service, or to file a complaint, may be communicated directly by the mental health ombudsman to the mental health provider or facility or oversight entity, without requiring prior approval of the state ombudsman; and
     (b) No disclosure of the identity or identifying information regarding a mental health consumer, complainant, or witness shall be made unless that individual or his or her representative consents in writing to the disclosure, or disclosure is authorized by court order.
     (2) Statistics, aggregate data, nonidentifying information and case studies, and analysis may be disclosed at the discretion of the state mental health ombudsman or his or her designee.
     (3) All communications by a mental health ombudsman, if done in good faith and reasonably related to the requirements of the ombudsman's responsibilities under this chapter, are privileged, and that privilege shall serve as a defense to any action in libel or slander.
     (4) All mental health ombudsmen are exempt from being required to testify in any judicial or administrative proceeding as to any confidential matters or records, except as a court may deem necessary to enforce this chapter.
     (5) In monitoring the office and its subcontractors, access to the ombudsman program's files and records, minus identifying information regarding any mental health consumer, complainant, or witness, shall be available to the director or one senior manager of the department or the contracting or subcontracting organization in which the state or local ombudsman office is administratively located. The individuals who perform the monitoring function must have no conflict of interest, as provided in section 6 of this act.

NEW SECTION.  Sec. 14   (1) It is unlawful to willfully interfere with a mental health ombudsman in the performance of his or her duties under this chapter.
     (2) No discriminatory, disciplinary, or retaliatory action may be taken against an employee of a mental health provider or facility, an employee of a jail or correctional facility, an employee of a public, health, or social service agency, or a mental health consumer or family member, for any communication made, or information given or disclosed, to aid a mental health ombudsman in carrying out his or her duties under this chapter. This prohibition does not apply to communications or false information provided 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 permissible reasons.

NEW SECTION.  Sec. 15   (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 mental health ombudsman services, taking into account the transition period from the current system of ombudsman programs within the regional support networks and state hospitals.
     (2) It is the intent of the legislature that federal medicaid requirements be complied with, and that the department of social and health services no longer provide mental health ombudsman services through the regional support networks and state hospitals effective July 1, 2005.
     (3) It is the intent of the legislature that commencing July 1, 2005, the funds currently expended by the regional support networks through their contracts with the department of social and health services to provide mental health ombudsman services, and expended by the department of social and health services to provide ombudsman or patient advocate services at Western state hospital and Eastern state hospital, shall be transferred to the department of community, trade, and economic development for use by the office of mental health ombudsman.

NEW SECTION.  Sec. 16   Effective July 1, 2004, the department of social and health services shall transfer three hundred twenty-two thousand eight hundred dollars from funding the office of consumer affairs and training funds provided for the ombudsman quality review teams within the mental health division of the department of social and health services for mental health ombudsman services through the regional support networks and state hospitals to the department of community, trade, and economic development to provide funding for the office of mental health ombudsman created in this act.

NEW SECTION.  Sec. 17   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. 18   This act takes effect July 1, 2004.

NEW SECTION.  Sec. 19   Sections 1 through 15 of this act constitute a new chapter in Title 43 RCW.