Bill Text: PA HB788 | 2009-2010 | Regular Session | Introduced

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Bill Title: Providing for a children's ombudsman and remedial powers, for response to complaints, for cooperation of agencies and providers, for confidentiality of investigations and records, for findings and recommendations, for protection from retaliation and for nonexclusivity of remedy.

Spectrum: Slight Partisan Bill (Republican 9-4)

Status: (Introduced - Dead) 2009-03-06 - Referred to CHILDREN AND YOUTH [HB788 Detail]

Download: Pennsylvania-2009-HB788-Introduced.html

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PRINTER'S NO. 877
THE GENERAL ASSEMBLY OF PENNSYLVANIA
HOUSE BILL
No. 788 Session of2009
INTRODUCED BY PETRI, BELFANTI, CLYMER, GEIST, GINGRICH, HENNESSEY, MUNDY, MURT, PHILLIPS, J. TAYLOR AND YOUNGBLOOD, MARCH 6, 2009
REFERRED TO COMMITTEE ON CHILDREN AND YOUTH, MARCH 6, 2009
AN ACT
Amending Title 23 (Domestic Relations) of the Pennsylvania
Consolidated Statutes, providing for a children's ombudsman
and remedial powers, for response to complaints, for
cooperation of agencies and providers, for confidentiality of
investigations and records, for findings and recommendations,
for protection from retaliation and for nonexclusivity of
remedy.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
Section 1. Section 6303 of Title 23 of the Pennsylvania
Consolidated Statutes is amended by adding a definition to read:
§ 6303. Definitions.
(a) General rule.--The following words and phrases when used
in this chapter shall have the meanings given to them in this
section unless the context clearly indicates otherwise:
* * *
"Ombudsman." The children's ombudsman established under
section 6379.3 (relating to children's ombudsman).
* * *
Section 2. Section 6340 of Title 23 is amended by adding a
paragraph to read:
§ 6340. Release of information in confidential reports.
(a) General rule.--Reports specified in section 6339
(relating to confidentiality of reports) shall only be made
available to:
* * *
(18) The ombudsman.
* * *
Section 3. Chapter 63 of Title 23 is amended by adding a
subchapter to read:
SUBCHAPTER D.1
CHILDREN’S OMBUDSMAN
Sec.
6379.1. Scope of subchapter.
6379.2. Definitions.
6379.3. Children’s ombudsman.
6379.4. Powers and duties of ombudsman.
6379.5. Investigative and remedial powers.
6379.6. Response to complaints.
6379.7. Cooperation of agencies and providers.
6379.8. Confidentiality of investigations and records.
6379.9. Findings and recommendations.
6379.10. Protection from retaliation.
6379.11. Nonexclusivity of remedy.
§ 6379.1. Scope of subchapter.
This subchapter relates to the children's ombudsman.
§ 6379.2 Definitions.
The following words and phrases when used in this subchapter
shall have the meanings given to them in this section unless the
context clearly indicates otherwise:
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"Administrative agency." A State or county agency that
provides services to a child who is the subject of an
investigation conducted by the ombudsman under this subchapter.
"Child welfare services" or "child-care services." As
defined in section 6303 (relating to definitions). The term does
not include services provided by a child day-care center or
group and family day-care home.
"Complainant." An individual who makes a complaint under
this subchapter.
"Remediable action." An action by an administrative agency
or an agent of the administrative agency that is:
(1) contrary to law, rule or policy;
(2) imposed without adequate statement of reason; or
(3) based on irrelevant or erroneous grounds.
§ 6379.3. Children's ombudsman.
(a) Appointment.--The Governor shall appoint a children’s
ombudsman, subject to confirmation by a majority of the
membership of the Senate. The ombudsman shall be qualified by
training and experience to perform the duties and exercise the
powers of the ombudsman as provided in this subchapter.
(b) Term of office.--The ombudsman shall hold office for a
term of five years and shall continue to hold office until a
successor is appointed. The Governor may reappoint the ombudsman
then serving for one additional term, subject to Senate
confirmation. A vacancy shall be filled by appointment for the
remainder of the unexpired term. An ombudsman who has served
part of an unexpired term may serve up to two additional terms.
(c) Removal.--The Governor may remove the ombudsman only for
neglect of duty, misconduct or inability to perform duties. The
Governor shall provide a report to the General Assembly citing
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the reasons for removal.
(d) Administrative support.--The ombudsman shall be
established as an autonomous entity in the department for
purposes of administrative support. The ombudsman shall exercise
its powers and duties independently of the department.
§ 6379.4. Powers and duties of ombudsman.
(a) General rule.--The ombudsman shall have the following
powers and duties:
(1) To receive, process and investigate complaints under
this subchapter.
(2) To pursue legislative advocacy in the best interests
of children.
(3) To identify and make appropriate recommendations to
the Governor, General Assembly and the Supreme Court
concerning issues affecting the welfare of children.
(4) Subject to annual appropriations, to employ
sufficient personnel to carry out the powers and duties
prescribed by this subchapter.
(5) To manage the expenditure of budgeted funds.
(6) To advise the public of services of the ombudsman,
the purposes of the office and the procedures to contact the
office.
(7) To prescribe procedures necessary to carry out the
powers and duties of the ombudsman.
(b) Limitation.--The ombudsman may not overrule an action by
an administrative agency or court.
§ 6379.5 Investigative and remedial powers.
The ombudsman may:
(1) Investigate alleged remediable actions concerning
child welfare services throughout this Commonwealth.
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(2) Investigate received complaints concerning child
welfare services in this Commonwealth.
(3) Investigate complaints involving violations of
applicable law or regulation or the alleged mismanagement of
the department or administrative agency which directly or
indirectly placed a child in danger.
(4) Hold informal hearings and request that individuals
appear before the ombudsman and give testimony or produce
documentary evidence that the ombudsman considers relevant to
a matter under investigation.
(5) Report findings and recommendations under section
6379.9 (relating to findings and recommendations).
§ 6379.6. Response to complaints.
(a) Notice.--
(1) The ombudsman shall notify the complainant of the
decision to investigate and shall notify the department,
county agency, provider of child welfare services and other
interested parties of the decision to investigate.
(2) If the ombudsman declines to investigate a complaint
or to continue an investigation, the ombudsman shall notify
the complainant and the department, county agency, provider
of child welfare services and other interested parties of the
decision and the reasons for the ombudsman’s action.
(b) Professional discipline.--
(1) If the investigation of a complaint leads the
ombudsman to believe the matter complained of may involve
professional misconduct, the ombudsman shall bring the matter
to the attention of the authorities responsible for
professional discipline.
(2) If the complaint refers to conduct by an attorney,
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guardian ad litem or court-appointed special advocate, the
ombudsman shall perform a preliminary investigation and
transmit the results of the investigation with the referral.
(c) Referrals.--In the case of a complaint brought to the
attention of the ombudsman but not within the ombudsman’s powers
under this section, the ombudsman shall refer the person making
the complaint to a person with the authority or ability to
assist that person.
(d) Alternative responses.--
(1) The ombudsman shall advise a person making a
complaint to pursue all administrative remedies or channels
of complaint available to the person before pursuing a
complaint with the ombudsman.
(2) Subsequent to the administrative processing of a
complaint, the ombudsman may conduct further investigations.
(e) Criminal violations.--
(1) If the ombudsman finds in the course of an
investigation that an individual's action is in violation of
Federal or State criminal law, the ombudsman shall
immediately report that fact to the district attorney or the
Attorney General.
(2) If the complaint is against a provider of child
welfare services, the ombudsman shall refer the matter to the
department for further action.
§ 6379.7. Cooperation of agencies and providers.
(a) Investigations.--The department, county agency,
administrative agency or provider of child welfare services
shall:
(1) Upon the ombudsman's request, grant the ombudsman or
the ombudsman's designee access to all information, records
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and documents in its possession that the ombudsman considers
necessary to the investigation.
(2) Assist the ombudsman in obtaining the necessary
releases for those documents that are specifically
restricted.
(3) Provide the ombudsman upon request with progress
reports concerning the administrative processing of a
complaint.
(4) Upon the ombudsman’s request, provide the ombudsman
information requested within ten business days after the
request. If the department determines that that release of
the information would violate Federal or State law, the
ombudsman shall be notified of that determination within the
ten-day deadline.
(b) Public awareness.—-The department, county agency or
provider of child welfare services shall provide information to
a biological parent, prospective adoptive parent or foster
parent regarding the provisions of this subchapter. The
ombudsman shall develop written materials for public
distribution regarding the provisions of this subchapter.
§ 6379.8 Confidentiality of investigations and records.
(a) Matters.--
(1) The ombudsman shall treat all matters under
investigation as confidential, including the identities of
recipients of information, individuals from whom information
is acquired and persons seeking assistance from the
ombudsman.
(2) Upon receipt of information that by law is
confidential or privileged, the ombudsman shall maintain the
confidentiality of the information and shall not further
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disclose or disseminate the information except as provided by
Federal or State law.
(b) Records.--
(1) A record of the office of the ombudsman is
confidential, shall be used only for the purposes of this
subchapter and is not subject to subpoena.
(2) Information contained in the records may not be
disclosed in such a manner as to identify individuals, except
for good cause shown on order of a court.
(3) The ombudsman or other agency may not disclose a
record of the ombudsman or a record received from the
ombudsman under the act of February 14, 2008 (P.L.6, No.3),
known as the Right-to-Know Law, except for good cause shown
on order of a court.
(4) No person may disclose any record under this
subsection without the consent of the complainant.
§ 6379.9 Findings and recommendations.
(a) Report of findings.--The ombudsman shall make a report
of the findings of an investigation.
(b) Recommendations.--The ombudsman may make recommendations
to the department, the county agency, the provider of child
welfare services and other appropriate entities if the ombudsman
finds any of the following:
(1) A matter should be further considered by the
department, the county agency or provider of child welfare
services.
(2) An administrative action should be modified or
canceled.
(3) Reasons should be given for an administrative
action.
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(4) Other action should be taken by the department, the
county agency or a provider of child welfare services.
(c) Subjects of report.--
(1) Before announcing a conclusion or recommendation
that expressly or by implication criticizes an individual,
the department, the county agency or a provider of child
welfare services, the ombudsman shall provide the subject of
the report with reasonable advance notice and an opportunity
to respond.
(2) When making a report adverse to the department,
county agency or provider, the ombudsman shall include in the
report any written statement made to the ombudsman by the
department, county agency or provider of child welfare
services in defense or mitigation of the administrative
action. The ombudsman may request to be notified by the
subject of the report within a specified time of any
administrative action taken on the recommendations of the
ombudsman.
(d) Notice to complainant--The ombudsman shall provide a
person making a complaint with a copy of the ombudsman's
recommendations regarding the complaint and shall notify the
person of any action taken by the ombudsman and by the
department, county agency or provider of child welfare services.
The ombudsman may not release to the person any report
information or other material required to be kept confidential
under section 6339 (relating to confidentiality of reports).
(e) Annual report.--The ombudsman shall submit to the
Governor, the General Assembly, the administrative office of the
Supreme Court and the department an annual report on the conduct
of the ombudsman, including any recommendations regarding the
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need for legislation or for change in rules or policies.
§ 6379.10. Protection from retaliation.
(a) General rule.--An official, the department, the county
agency or a provider of child welfare services may not penalize
a person for filing a complaint in good faith or cooperating
with the ombudsman in investigating a complaint under this
subchapter.
(b) Obstruction.--An individual, the department, the county
agency or a provider of child welfare services may not hinder
the lawful actions of the ombudsman or employees of the
ombudsman.
§ 6379.11. Nonexclusivity of remedy.
(a) General rule.--The authority granted the ombudsman under
this subchapter is in addition to the authority granted under
the provisions of:
(1) any other statute or rule under which the remedy or
right of appeal or objection is provided for a person; or
(2) any procedure provided for the inquiry into or
investigation of any matter.
(b) Authority of ombudsman.--The authority granted the
ombudsman does not limit or affect the remedy or right of appeal
or objection and is not an exclusive remedy or procedure.
Section 4. This act shall take effect in 180 days.
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