BILL REQ. #:  S-1737.3 

READ FIRST TIME 02/15/07.   

     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   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Advisory committee" means the developmental disabilities ombudsman consumer advisory committee established in section 4 of this act.
     (2) "Council" means the developmental disabilities council.
     (3) "Office" means the office of the ombudsman for persons with developmental disabilities.
     (4) "Ombudsman" means the ombudsman for persons with developmental disabilities.

NEW SECTION.  Sec. 2   An office of the ombudsman for persons with developmental disabilities is created for the purpose of promoting public awareness and understanding of developmental disabilities, identifying system issues, and 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. 3   (1) The council shall select the ombudsman and contract with a nonprofit agency to house the office. The ombudsman 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 system of developmental disabilities services. Prior to selecting the ombudsman, the 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. The nonprofit agency housing the office shall: (a) Not be a provider of supports or services to persons with developmental disabilities; (b) agree to assume fiduciary responsibility for the office; and (c) agree not to interfere with the independence of the ombudsman in his or her performance of the duties set forth in section 4 of this act.
     (2) The person selected to be the ombudsman shall hold the position for a term of five years and shall continue to hold the position until reappointed or until his or her successor is appointed. The council may remove the ombudsman only for neglect of duty, misconduct, or inability to perform duties. Any vacancy shall be filled by similar selection for the remainder of the unexpired term. The council shall solicit recommendations from the developmental disabilities ombudsman advisory committee, established in section 5 of this act, as to whether or not to reappoint the ombudsman to another five-year term. If the council decides not to reappoint the ombudsman, the process set forth in subsection (1) of this section will be used to select a new ombudsman.

NEW SECTION.  Sec. 4   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) 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, or based on irrelevant, immaterial, or erroneous grounds, including acts related to the administration of trust funds for special needs that result from a medical malpractice or personal injury settlement; 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. However, the ombudsman may decline to investigate any complaint as provided by rules adopted under this chapter;
     (3) Submit a written progress report in formats accessible to advisory committee members at least two weeks prior to each of four quarterly meetings of the advisory committee;
     (4) Submit an annual report to the governor and the legislature describing issues and concerns regarding the policies, procedures, and practices within the developmental disabilities service delivery system that may need to be addressed through system reform. The developmental disabilities service delivery system includes but is not limited to programs or individuals under contract to provide services, state licensed facilities, and state institutions serving persons with developmental disabilities.
     (5) Grant the appropriate committees of the legislature access to all relevant records in the possession of the ombudsman unless prohibited by law; and
     (6) Adopt rules necessary to implement this chapter.

NEW SECTION.  Sec. 5   A developmental disabilities ombudsman consumer advisory committee of nine people shall be established with 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 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 council and the Washington protection and advocacy system shall be individuals with developmental disabilities. The advisory committee shall produce an annual written evaluation of the ombudsman program which shall be approved by a majority of the advisory committee and submitted to the council no later than August 31st of each year. Three months prior to the end of the ombudsman term, the advisory committee shall submit a recommendation to the council as to whether or not they believe the ombudsman should be reappointed with an 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 that 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. 6   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 are confidential and are exempt from public disclosure under chapter 42.56 RCW.

NEW SECTION.  Sec. 7   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. 8   (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;
     (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. 9   The privilege described in section 7 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. 10   (1) An employee of the office 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 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. 11   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. 12   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. 13   The ombudsman shall collaborate and have memoranda of agreement with the long-term care ombudsman, the family and children ombudsman, the Washington protection and advocacy system, the mental health ombudsmen, and the special education ombudsman to clarify authority in those situations where their mandates overlap. The ombudsman shall report to the legislature on the content of the memoranda of agreement and how overlapping authority has been clarified by January 1, 2008.
     The ombudsman may recommend changes in the procedures for addressing the needs of persons with developmental disabilities and share them with the council and the Washington protection and advocacy system.

NEW SECTION.  Sec. 14   The 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. 15   Sections 1 through 14 of this act constitute a new chapter in Title 43 RCW.