BILL REQ. #: H-0643.1
| State of Washington | 60th Legislature | 2007 Regular Session |
Read first time 01/12/2007. Referred to Committee on Human 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, monitoring and ensuring
compliance with administrative acts, relevant statutes, rules, and
policies pertaining to services for persons with developmental
disabilities, and to ensure that services and supports are of good
quality and improve a person's quality of life.
The ombudsman shall be an independent function within state
government and shall exercise his or her powers and duties without
interference from either public or private agencies or organizations.
NEW SECTION. Sec. 2 (1) The governor shall appoint a
developmental disabilities ombudsman from a list of six to ten
candidates certified by the developmental disabilities council as
qualified for the position. Each certified candidate 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, policy, and advocacy within the community
system of developmental disabilities services. Prior to certifying
qualified candidates, the developmental disabilities council shall
consult with, and may receive recommendations from the appropriate
committees of the legislature and developmental disabilities
stakeholders, regarding candidates for consideration as the ombudsman.
(2) The person appointed developmental disabilities ombudsman shall
hold office for a term of five 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. The governor
shall solicit recommendations from the developmental disabilities
council and the developmental disabilities ombudsman advisory
committee, established in section 11 of this act, as to whether or not
to reappoint the ombudsman to another five-year term. If the governor
decides not to reappoint the developmental disabilities ombudsman the
process set forth in subsection (1) of this section will be used to
appoint a new ombudsman.
NEW SECTION. Sec. 3 The developmental disabilities 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) Impartially 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, develop findings in each case and, to the extent the
findings favor the complainant with a developmental disability, follow
through on behalf of the complainant to the resolution of the
complaint, 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 or other
public or private agency to carry out their responsibilities in
delivering services and supports to persons with developmental
disabilities;
(4) Review periodically the procedures for providing services and
supports to individuals with developmental disabilities and their
families, including programs or individuals under contract to provide
services, state licensed facilities, and state institutions serving
persons with developmental disabilities;
(5) 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;
(6) Grant the appropriate committees of the legislature access to
all relevant records in the possession of the ombudsman unless
prohibited by law; and
(7) Adopt rules necessary to implement this chapter.
NEW SECTION. Sec. 4 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 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 developmental disabilities 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
developmental disabilities ombudsman are confidential and are exempt
from public disclosure under chapter 42.56 RCW.
NEW SECTION. Sec. 5 Neither the developmental disabilities
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 developmental disabilities 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 developmental
disabilities ombudsman or ombudsman's office when the identifying
information is necessary to the investigation of the ombudsman's acts;
(c) Under an investigation or inquiry by the governor as to neglect
of duty or misconduct by the developmental disabilities 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 developmental disabilities 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 developmental disabilities 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 developmental disabilities 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 disabilities 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
purposes 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 A developmental disabilities ombudsman
consumer advisory committee of nine people shall be established, a
majority of the composition being individuals with developmental
disabilities or family members of individuals with developmental
disabilities. Five of the members shall be appointed by the governor;
at least one of the governor's appointees shall be an immediate family
member of a person with a developmental disability living in an
institution and at least one of the governor's appointees shall be an
immediate family member of a person with a developmental disability in
a noninstitutional setting. Two of the members shall be appointed by
the developmental disabilities council and two of the members shall be
appointed by the Washington protection and advocacy system. At least
one each of the appointees of the governor, developmental disabilities
council, and Washington protection and advocacy system shall be
individuals with developmental disabilities. The developmental
disabilities ombudsman shall submit a written progress report in
formats accessible to advisory committee members at least two weeks
prior to each of four quarterly meetings. The advisory committee will
produce an annual written evaluation of the developmental disabilities
ombudsman program which shall be approved by a majority of the advisory
committee and submitted to the governor no later than August 31st of
each year. Three months prior to the end of the developmental
disabilities ombudsman term, the advisory council will submit a
recommendation to the governor and developmental disabilities council
as to whether or not they believe the developmental disabilities
ombudsman should be reappointed with a explanation as to why they
reached this conclusion. Advisory committee members shall serve for
three-year terms with a limit of two consecutive terms. Initial
members shall be appointed to term lengths necessary to assure the
terms of three members expire each year. Members appointed to a
vacancy that came about prior to the expiration of a three-year term
shall be appointed to complete that term. Members who serve less than
one-half of their predecessor's term may be appointed to two more
terms. Advisory council meetings shall be open and allow time for
public comment.
NEW SECTION. Sec. 12 The developmental disabilities ombudsman
shall collaborate with the long-term care ombudsman, the family and
children ombudsman, the Washington protection and advocacy system, and
the special education ombudsman to clarify authority in those
situations where their mandates overlap.
The developmental disabilities ombudsman may recommend changes in
the procedures for addressing the needs of persons with developmental
disabilities and share them with the developmental disabilities council
and the Washington protection and advocacy system.
NEW SECTION. Sec. 13 The developmental disabilities ombudsman
shall give priority for its services to clients of the department of
social and health services division of developmental disabilities who
are receiving, are eligible for, or have applied for services.
NEW SECTION. Sec. 14 Sections 1 through 13 of this act
constitute a new chapter in Title