WSR 00-05-036

PERMANENT RULES

OFFICE OF THE FAMILY

AND CHILDREN'S OMBUDSMAN

[ Filed February 10, 2000, 11:56 a.m. ]

Date of Adoption: January 25, 2000.

Purpose: To modify and clarify administrative proceedings.

Citation of Existing Rules Affected by this Order: Amending WAC 112-10-010 through 112-10-060.

Statutory Authority for Adoption: RCW 43.06A.030(6).

Adopted under notice filed as WSR 00-01-099 on January 5, 2000 [December 16, 1999].

Number of Sections Adopted in Order to Comply with Federal Statute: New 0, Amended 0, Repealed 0; Federal Rules or Standards: New 0, Amended 0, Repealed 0; or Recently Enacted State Statutes: New 0, Amended 0, Repealed 0.

Number of Sections Adopted at Request of a Nongovernmental Entity: New 0, Amended 0, Repealed 0.

Number of Sections Adopted on the Agency's Own Initiative: New 2, Amended 6, Repealed 0.

Number of Sections Adopted in Order to Clarify, Streamline, or Reform Agency Procedures: New 2, Amended 6, Repealed 0.

Number of Sections Adopted Using Negotiated Rule Making: New 0, Amended 0, Repealed 0; Pilot Rule Making: New 0, Amended 0, Repealed 0; or Other Alternative Rule Making: New 2, Amended 6, Repealed 0. Effective Date of Rule: Thirty-one days after filing.

February 9, 2000

Charlotte E. Clark-Mahoney

Assistant Attorney General

Title 112 WAC

OFFICE OF THE FAMILY AND CHILDREN'S OMBUDSMAN

Chapter 112-10 WAC

AGENCY ORGANIZATION

WAC 112-10-010 Purpose is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-010
Purpose.

The Office of the Family and Children's Ombudsman (((OFCO) was established)) is intended to promote public awareness and understanding of family and children's services, ((to)) identify systems issues, ((to)) and monitor and ensure compliance with administrative acts, statutes, rules, and policies pertaining to family and children's services ((and to those pertaining to)) including the placement, supervision, and treatment of children in the state's care, ((or in state operated facilities)) or in state-licensed facilities or residences.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-010, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

WAC 112-10-020 Definitions is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-020
Definitions.

For purposes of these rules the following terms have the meanings indicated:

(1) "Administrative Act" means an act((ion)), decision recommendation, or omission made by a: (a) government((al)) agency or ((a)) its contracting entity, or (b) state-licensed, or state - certified, agency or facility, that affects: (((a))) (i) a child who was, is, or may be, in need of state protection due to child abuse or neglect; (((b))) (ii) a family who, was or is, under state supervision or receiving state services due to allegations or findings of child abuse or neglect; or (iii) a child who was, is, or may be in need of state services under RCW 13.32A.030; or (c) ((or a child who is in state custody.)) provided that, an administrative act does not include a specific act, decision, recommendation, or omission made by: (i) a judge, commissioner, administrative law judge, hearing examiner, attorney, court - appointed special advocate, guardian ad litem, or parenting investigator in a legal or adjudicative proceeding; (ii) a law enforcement official in a criminal investigation; (iii) a member of the legislature or the member's staff; or (iv) the governor or the governor's staff.

(2) (("Family and children's services" are services provided by or through the Department of Social and Health Services (DSHS), or state-licensed agencies, to families who are: (a) at risk of child abuse or neglect; (b) are under state supervision due to allegations or findings of child abuse or neglect; or (c) to children who are in state custody. These services include those provided by or through the Department of Social and Health Services, Children's Administration, Juvenile Rehabilitation Administration, and Health and Rehabilitative Services Administration.)) "Child abuse or neglect" means child abuse, neglect, or abandonment, or parental incapacity, as defined in RCW 13.34.030(4) and RCW 26.44.020.

(3) (("Confidential" and "confidentiality" refer to information that OFCO deems to be protected by federal and state law from public disclosure or further dissemination.)) "Committee" means the Legislative Children's Oversight Committee.

(4) (("Department" means the Department of Social and Health Services.)) "Confidential" refers to information that the ombudsman determines is protected by federal or state law from public disclosure or further dissemination.

(5) (("Investigative records" refers to all records obtained, held, or generated by OFCO in the performance of its duties.)) "Department" or "DSHS" means the Department of Social and Health Services.

(6) "Family and children's services" are services provided by or through the Department or other government agencies, or state-licensed agencies, to: (a) children who are, or may be, at risk of child abuse or neglect, and their families; (b) children and families who are the subject of allegations or findings of child abuse or neglect; or (c) to children who are, or may be, in need of services under Chapter 13.32A RCW.

(7) "Investigative records" refers to all records generated by OFCO that relate to an inquiry or complaint to OFCO, or to an OFCO investigation or intervention, or materials obtained by OFCO from complainants or witnesses.

(8) "OFCO" refers to the Office of the Family and Children's Ombudsman.

(9) "Ombudsman" refers to the director of the Office of Family and Children's Ombudsman.

(10) "Secretary" means the secretary of the Department.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-020, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

WAC 112-10-030 Location is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-030
((Location.

OFCO is located organizationally within the Office of the Governor, reports directly to the Governor, and exercises the powers of the office and duties independently of the Secretary of the Department of Social and Health Services.)) Authority. OFCO was created and receives its authority from RCW 43.06A.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-030, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

WAC 112-10-040 Authority is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-040
((Authority.

OFCO was created and receives its authority from RCW 43.06A.)) Duties.

OFCO shall:

(1) Provide information as appropriate on the rights and responsibilities of individuals receiving family and children's services, and on the procedures for providing these services.

(2) Investigate administrative acts alleged to be: (a) contrary to law, rule, or policy((,)); (b) imposed without an adequate statement or reason((,)) or; (c) based on irrelevant, immaterial, or erroneous grounds.

(3) Monitor the procedures of ((DSHS)) the Department in carrying out its responsibilities in delivering family and children's services((.)) with a view toward appropriate preservation of families and ensuring children's health and safety.

(4) Review periodically the facilities and procedures of state institutions serving children and state licensed facilities or residences.

(5) Recommend changes in the procedures for addressing the needs of families and children.

(6) Submit an annual report to the Governor and the ((Legislative Oversight)) Committee analyzing the work of OFCO, including recommendations.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-040, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

WAC 112-10-050 Duties is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-050
((Duties.

OFCO shall:

(1) Provide information as appropriate on the rights and responsibilities of individuals receiving family and children's services and on the procedures for providing these services.

(2) Investigate administrative acts alleged to be contrary to law, rule, or policy, imposed without an adequate statement of reason, or based on irrelevant, immaterial, or erroneous grounds.

(3) Monitor the procedures of DSHS in carrying out its responsibilities in delivering family and children's services.

(4) Review periodically the facilities and procedures of state institutions serving children and state licensed facilities or residences.

(5) Recommend changes in the procedures for addressing the needs of families and children.

(6) Submit an annual report to the Governor and the Legislative Oversight Committee (LOC) analyzing the work of OFCO, including recommendations.)) Duty to report. When the ombudsman's staff has reasonable cause to believe that any person has acted in a manner warranting criminal or disciplinary proceedings, he or she shall report the matter, or cause a report to be made, to the appropriate authorities. Reasonable cause means that the ombudsman or the ombudsman's staff has direct knowledge of the action warranting criminal or disciplinary proceedings or has determined through an investigation that the allegations or information provided by another person relating to such actions are credible. The ombudsman or the ombudsman's staff shall monitor and document the response by the agency or agencies to which the report was made.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-050, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: The typographical error in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

WAC 112-10-060 Implementation of duties is amended to read as follows:

[AMENDATORY SECTION (Amending WSR 97-21-066, filed 10/14/97)]WAC 112-10-060
((Implementation of duties.

(1) Investigations.

(a) OFCO investigates administrative acts.

(b) OFCO investigations may be initiated based upon receipt of a complaint or on its own initiative.

(c) OFCO may decline to investigate any complaint that is not within the scope and/or priorities of OFCO's policies and resources.

(d) OFCO may conduct its investigation based upon records review, interviews, and any other investigative tools necessary to carry out its duties.

(e) Actions to be taken by OFCO after an investigation may include:

(i) Recommendations to the agency for changes in policy, procedure, or practice that should be implemented to improve service delivery and/or accountability;

(ii) Recommendations to the Legislature for legislative enactments that would improve services and/or accountability; and/or

(iii) Recommendations to the Governor for legislation, policy, and/or executive order changes that would improve services an/or accountability.

(2) Periodic Review of Facilities.

(a) OFCO will periodically review the policies and procedures of state institutions serving children and state-licensed or operated facilities where children reside.

(b) OFCO may review physical facilities based upon review of agency records or reports; review of agency policies and procedures; receipt of a complaint; or as patterns raising concern arise through other investigations.

(3) Handling of DSHS Records.

(a) As provided by applicable federal and state law, OFCO shall have access to, and permission to copy, all records held or accessible by Children's Administration that are relevant to any OFCO investigation. Access may be established pursuant to interagency protocol.

(b) Any records received from DSHS shall be deemed to be OFCO investigative records.

(c) The determination of relevance of records held or accessible by DSHS shall be made by OFCO.

(4) Release of Confidential Records.

(a) OFCO investigative records are confidential and exempt from disclosure under the Public Disclosure Act, RCW 42.17.

(b) Records received by OFCO shall be maintained as provided for under the law.

(c) Relevant investigative records created by OFCO shall be released to the Legislative Oversight Committee upon request, unless prohibited by law.

(d) The determination of relevance of records to be released to the LOC shall be made by OFCO. This determination may be based on criteria established pursuant to OFCO/LOC protocol.

(e) OFCO shall treat all matters under investigation and investigative records as confidential.)) Duty to Report Abuse. When the ombudsman, ombudsman's staff, or any volunteer, has reasonable cause to believe that a child or adult dependent or developmentally disabled person has suffered abuse or neglect, he or she shall report such incident, or cause a report to be made, to the proper law enforcement agency or to the department as provided in RCW 26.44.040.

[Statutory Authority: RCW 43.06A.030(6). 97-21-066, 112-10-060, filed 10/14/97, effective 11/14/97.]

Reviser's note: The bracketed material preceding the section above was supplied by the code reviser's office.

Reviser's note: RCW 34.05.395 requires the use of underlining and deletion marks to indicate amendments to existing rules. The rule published above varies from its predecessor in certain respects not indicated by the use of these markings.

New Section number for Implementation of Duties (formerly under WAC 112-10-060)


NEW SECTIONWAC 112-10-070
Implementation of duties.

OFCO's fulfills its duties through the following activities: (1) information and referral; (2) interventions; (3) systemic investigations; (4) administrative investigations; (5) complaint tracking and referral; and (6) an annual report.

((1. Investigations.)) 1. Information and Referral.

(a) OFCO ((investigates administrative acts)) responds to requests for information that relates to the rights and responsibilities of a family or child who is receiving family and children's services, and the procedures for providing such services, by providing information directly to the inquiring individual.

(b) OFCO ((investigations may be initiated based upon receipt of a complaint or on its own initiative)) may respond to requests for information pertaining to legal rights, responsibilities and procedures, but may not provide legal advice.

(c) OFCO ((may decline to investigate any complaint that is not within the scope and/or priorities of OFCO's policies and resources)) responds to requests for other information by referring the inquiring individual to the appropriate agency.

(((d) OFCO may conduct its investigation based upon records review, interviews, and any other investigative tools necessary to carry out its duties.))

(((e) Actions to be taken by OFCO after an investigation may include:

(i) Recommendations to the agency for changes in policy, procedure, or practice that should be implemented to improve service delivery and/or accountability;

(ii) Recommendations to the Legislature for legislative enactments that would improve services and/or accountability; and/or

(iii) Recommendations to the Governor for legislation, policy, and/or executive order changes that would improve services an/or accountability.))

((2. Periodic Review of Facilities)) 2. Interventions.

(a) OFCO ((will periodically review the policies and procedures of state institutions serving children and state-licensed or operated facilities where children reside.)) may act to prevent or mitigate harm to a child or parent resulting from an administrative act.

(b) OFCO ((may review physical facilities based upon review of agency records or reports; review of agency policies and procedures; receipt of a complaint; or as patterns raising concern arise through other investigations.)) interventions may be initiated when, upon investigation, the ombudsman determines that an administrative act is harming or has placed at risk of harm a particular child or parent. OFCO may not intervene until the ombudsman has made such a determination.

(c) OFCO's investigations may be initiated upon receipt of a complaint or upon its own initiative.

(d) OFCO may investigate only those administrative acts that meet the definition established in WAC 112-10-020(1); provided that OFCO may conduct an investigation to determine whether an administrative act meets the aforementioned definition.

(e) OFCO may decline a request to intervene on behalf of a particular child or parent when, upon investigation, the ombudsman determines that the complaint does not meet the criteria or priorities specified in law, rule, or OFCO policy.

(f) OFCO interventions include, but are not limited to, informal contacts with front-line workers and supervisors to express concerns, provide information, and explore other possible responses by the agency or facility. OFCO may also recommend a particular course of action to supervisors, managers, and administrators.

(((3) Handling of DSHS Records.)) 3. Systemic Investigations.

(a) As provided by applicable federal and state law, OFCO shall have access to, and permission to copy, all records held or accessible by Children's Administration that are relevant to any OFCO investigation. Access may be established pursuant to interagency protocol. OFCO may conduct a systemic investigation. A systemic investigation is intended to produce information that will enable OFCO to identify systemic issues and recommend appropriate changes in law, policy, procedure, or practice.

(b) ((Any records received from DSHS shall be deemed to be OFCO investigative records.)) OFCO systemic investigations may be initiated when, upon preliminary investigation, the ombudsman determines that a chronic and/or system-wide administrative practice appears to exist that adversely affects children and/or their parents. OFCO may not conduct a systemic investigation unless the ombudsman has made such a determination.

(c) ((The determination of relevance of records held or accessible by DSHS shall be made by OFCO.)) A preliminary investigation may be initiated upon receipt of a complaint requesting such an investigation or upon the ombudsman's own initiative.

(d) OFCO may investigate only those chronic and/or system-wide administrative acts that meet the definition in WAC 112-10-020(1).

(e) OFCO may decline a request to conduct a systemic investigation if the ombudsman determines that the request in not consistent with the criteria or priorities specified in law, rule, or OFCO policy.

(f) The findings and recommendations resulting from a systemic investigation shall be published in a report to the Governor, the Committee, and the affected agency or facility.

((4. Release of Confidential Records.)) 4. Administrative Investigations.

(a) OFCO ((investigative records are confidential and exempt from disclosure under the Public Disclosure Act, RCW 42.17.)) may conduct an administrative investigation. An administrative investigation is intended to produce information that will enable OFCO to assess compliance with law, policy, or procedure, and/or the need for new or modified laws, policies, or procedures.

(b) ((Records received by OFCO shall be maintained as provided for under the law.)) OFCO administrative investigations may be initiated when, upon preliminary investigation, the ombudsman determines that an administrative act appears to have been harmful to a child or parent, and is: (i) a clear violation of law, policy, or procedure, or (ii) clearly unreasonable or inappropriate under the circumstances. OFCO may not conduct an administrative investigation unless the ombudsman has made such a determination.

(c) ((Relevant investigative records created by OFCO shall be released to the Legislative Oversight Committee upon request, unless prohibited by law.)) A preliminary investigation may be initiated upon receipt of a complaint requesting an investigation or upon the ombudsman's own initiative.

(d) ((The determination of relevance of records to be released to the LOC shall be made by OFCO. This determination may be based on criteria established pursuant to OFCO/LOC protocol.)) OFCO may investigate only those administrative acts that meet the definition in WAC 112-10-020(1).

(e) ((OFCO shall treat all matters under investigation and investigative records as confidential.)) OFCO may decline a request to conduct an administrative investigation if the ombudsman determines that the request is not consistent with the criteria or priorities specified in law, rule, or OFCO policy.

(f) The findings and recommendations resulting from an administrative investigation may be published in a report to the Governor, the Committee, and the affected agency or facility.

5. Complaint Tracking and Referral.

(a) OFCO shall enter each complaint it receives in an automated database for the purpose of identifying and reporting complaint trends and patterns.

(b) OFCO responds to complaints that are not within its jurisdiction, priorities, or resources, by referring the complainant to the Governor's Office, the Legislative hot line, and/or the appropriate agency.

(c) With regard to complaints that are not within OFCO's jurisdiction, but that raise child health and safety concerns, OFCO may forward the concern directly to the appropriate agency for response.

(6) Annual Report. OFCO shall, at a minimum, report annually on:

(a) The number and types of complaints received by OFCO;

(b) OFCO's response to requests for interventions and investigations;

(c) The number and type of OFCO-initiated interventions and investigations, and

(d) The results of OFCO's interventions and investigations.

[Statutory Authority: RCW 43.06A.030]

[]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The unnecessary deletion marks and underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The typographical errors in the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.
NEW SECTION
WAC 112-10-080
Release of OFCO investigative records generally.

(a) OFCO investigative records are confidential and exempt from disclosure under the Public Disclosure Act, RCW 42.17.

(b) Confidential records received by OFCO shall be maintained as provided for under the law.

(c) OFCO shall treat all matters under investigation and investigative records as confidential, except so far as disclosures may be necessary to enable the office to perform its duties and to support recommendations resulting from an investigation.

(d) For the purpose of enabling the Committee to carry out its OFCO oversight duties, OFCO shall release relevant investigative records to the Committee upon request, unless prohibited by law.

[Statutory Authority: RCW 43.06A.030]

[]

Reviser's note: The brackets and enclosed material in the text of the above section occurred in the copy filed by the agency and appear in the Register pursuant to the requirements of RCW 34.08.040.

Reviser's note: The unnecessary underscoring in the above section occurred in the copy filed by the agency and appears in the Register pursuant to the requirements of RCW 34.08.040.

Washington State Code Reviser's Office