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| THE GENERAL ASSEMBLY OF PENNSYLVANIA |
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| SENATE BILL |
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| INTRODUCED BY WASHINGTON, BOSCOLA, BREWSTER, BROWNE, COSTA, FARNESE, HUGHES, RAFFERTY, SCHWANK, SOLOBAY AND WILLIAMS, DECEMBER 14, 2011 |
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| REFERRED TO AGING AND YOUTH, DECEMBER 14, 2011 |
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| AN ACT |
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1 | Amending Title 23 (Domestic Relations) of the Pennsylvania |
2 | Consolidated Statutes, in child protective services, further |
3 | providing for definitions; and providing for a children's |
4 | ombudsman and remedial powers, for response to complaints, |
5 | for cooperation of agencies and providers, for |
6 | confidentiality of investigations and records, for findings |
7 | and recommendations, for protection from retaliation and for |
8 | nonexclusivity of remedy. |
9 | The General Assembly of the Commonwealth of Pennsylvania |
10 | hereby enacts as follows: |
11 | Section 1. Section 6303 of Title 23 of the Pennsylvania |
12 | Consolidated Statutes is amended by adding a definition to read: |
13 | § 6303. Definitions. |
14 | (a) General rule.--The following words and phrases when used |
15 | in this chapter shall have the meanings given to them in this |
16 | section unless the context clearly indicates otherwise: |
17 | * * * |
18 | "Ombudsman." The children's ombudsman established under |
19 | section 6379.3 (relating to children's ombudsman). |
20 | * * * |
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1 | Section 2. Section 6340 of Title 23 is amended by adding a |
2 | paragraph to read: |
3 | § 6340. Release of information in confidential reports. |
4 | (a) General rule.--Reports specified in section 6339 |
5 | (relating to confidentiality of reports) shall only be made |
6 | available to: |
7 | * * * |
8 | (18) The ombudsman. |
9 | * * * |
10 | Section 3. Chapter 63 of Title 23 is amended by adding a |
11 | subchapter to read: |
12 | SUBCHAPTER D.1 |
13 | CHILDREN'S OMBUDSMAN |
14 | Sec. |
15 | 6379.1. Scope of subchapter. |
16 | 6379.2. Definitions. |
17 | 6379.3. Children's ombudsman. |
18 | 6379.4. Powers and duties of ombudsman. |
19 | 6379.5. Investigative and remedial powers. |
20 | 6379.6. Response to complaints. |
21 | 6379.7. Cooperation of agencies and providers. |
22 | 6379.8. Confidentiality of investigations and records. |
23 | 6379.9. Findings and recommendations. |
24 | 6379.10. Protection from retaliation. |
25 | 6379.11. Nonexclusivity of remedy. |
26 | § 6379.1. Scope of subchapter. |
27 | This subchapter relates to the children's ombudsman. |
28 | § 6379.2. Definitions. |
29 | The following words and phrases when used in this subchapter |
30 | shall have the meanings given to them in this section unless the |
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1 | context clearly indicates otherwise: |
2 | "Administrative agency." A State or county agency that |
3 | provides services to a child who is the subject of an |
4 | investigation conducted by the ombudsman under this subchapter. |
5 | "Child welfare services" or "child-care services." As |
6 | defined in section 6303 (relating to definitions). The term does |
7 | not include services provided by a child day-care center or |
8 | group and family day-care home. |
9 | "Complainant." An individual who makes a complaint under |
10 | this subchapter. |
11 | "Remediable action." An action by an administrative agency |
12 | or an agent of the administrative agency that is: |
13 | (1) contrary to law, rule or policy; |
14 | (2) imposed without adequate statement of reason; or |
15 | (3) based on irrelevant or erroneous grounds. |
16 | § 6379.3. Children's ombudsman. |
17 | (a) Appointment.--The Governor shall appoint a children's |
18 | ombudsman, subject to confirmation by a majority of the |
19 | membership of the Senate. The ombudsman shall be qualified by |
20 | training and experience to perform the duties and exercise the |
21 | powers of the ombudsman as provided in this subchapter. |
22 | (b) Term of office.--The ombudsman shall hold office for a |
23 | term of five years and shall continue to hold office until a |
24 | successor is appointed. The Governor may reappoint the ombudsman |
25 | then serving for one additional term, subject to Senate |
26 | confirmation. A vacancy shall be filled by appointment for the |
27 | remainder of the unexpired term. An ombudsman who has served |
28 | part of an unexpired term may serve up to two additional terms. |
29 | (c) Removal.--The Governor may remove the ombudsman only for |
30 | neglect of duty, misconduct or inability to perform duties. The |
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1 | Governor shall provide a report to the General Assembly citing |
2 | the reasons for removal. |
3 | (d) Administrative support.--The ombudsman shall be |
4 | established as an autonomous entity in the department for |
5 | purposes of administrative support. The ombudsman shall exercise |
6 | its powers and duties independently of the department. |
7 | § 6379.4. Powers and duties of ombudsman. |
8 | (a) General rule.--The ombudsman shall have the following |
9 | powers and duties: |
10 | (1) To receive, process and investigate complaints under |
11 | this subchapter. |
12 | (2) To pursue legislative advocacy in the best interests |
13 | of children. |
14 | (3) To identify and make appropriate recommendations to |
15 | the Governor, General Assembly and the Supreme Court |
16 | concerning issues affecting the welfare of children. |
17 | (4) Subject to annual appropriations, to employ |
18 | sufficient personnel to carry out the powers and duties |
19 | prescribed by this subchapter. |
20 | (5) To manage the expenditure of budgeted funds. |
21 | (6) To advise the public of services of the ombudsman, |
22 | the purposes of the office and the procedures to contact the |
23 | office. |
24 | (7) To prescribe procedures necessary to carry out the |
25 | powers and duties of the ombudsman. |
26 | (b) Limitation.--The ombudsman may not overrule an action by |
27 | an administrative agency or court. |
28 | § 6379.5. Investigative and remedial powers. |
29 | The ombudsman may: |
30 | (1) Investigate alleged remediable actions concerning |
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1 | child welfare services throughout this Commonwealth. |
2 | (2) Investigate received complaints concerning child |
3 | welfare services in this Commonwealth. |
4 | (3) Investigate complaints involving violations of |
5 | applicable law or regulation or the alleged mismanagement of |
6 | the department or administrative agency which directly or |
7 | indirectly placed a child in danger. |
8 | (4) Hold informal hearings and request that individuals |
9 | appear before the ombudsman and give testimony or produce |
10 | documentary evidence that the ombudsman considers relevant to |
11 | a matter under investigation. |
12 | (5) Report findings and recommendations under section |
13 | 6379.9 (relating to findings and recommendations). |
14 | § 6379.6. Response to complaints. |
15 | (a) Notice.-- |
16 | (1) The ombudsman shall notify the complainant of the |
17 | decision to investigate and shall notify the department, |
18 | county agency, provider of child welfare services and other |
19 | interested parties of the decision to investigate. |
20 | (2) If the ombudsman declines to investigate a complaint |
21 | or to continue an investigation, the ombudsman shall notify |
22 | the complainant and the department, county agency, provider |
23 | of child welfare services and other interested parties of the |
24 | decision and the reasons for the ombudsman's action. |
25 | (b) Professional discipline.-- |
26 | (1) If the investigation of a complaint leads the |
27 | ombudsman to believe the matter complained of may involve |
28 | professional misconduct, the ombudsman shall bring the matter |
29 | to the attention of the authorities responsible for |
30 | professional discipline. |
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1 | (2) If the complaint refers to conduct by an attorney, |
2 | guardian ad litem or court-appointed special advocate, the |
3 | ombudsman shall perform a preliminary investigation and |
4 | transmit the results of the investigation with the referral. |
5 | (c) Referrals.--In the case of a complaint brought to the |
6 | attention of the ombudsman but not within the ombudsman's powers |
7 | under this section, the ombudsman shall refer the person making |
8 | the complaint to a person with the authority or ability to |
9 | assist that person. |
10 | (d) Alternative responses.-- |
11 | (1) The ombudsman shall advise a person making a |
12 | complaint to pursue all administrative remedies or channels |
13 | of complaint available to the person before pursuing a |
14 | complaint with the ombudsman. |
15 | (2) Subsequent to the administrative processing of a |
16 | complaint, the ombudsman may conduct further investigations. |
17 | (e) Criminal violations.-- |
18 | (1) If the ombudsman finds in the course of an |
19 | investigation that an individual's action is in violation of |
20 | Federal or State criminal law, the ombudsman shall |
21 | immediately report that fact to the district attorney or the |
22 | Attorney General. |
23 | (2) If the complaint is against a provider of child |
24 | welfare services, the ombudsman shall refer the matter to the |
25 | department for further action. |
26 | § 6379.7. Cooperation of agencies and providers. |
27 | (a) Investigations.--The department, county agency, |
28 | administrative agency or provider of child welfare services |
29 | shall: |
30 | (1) Upon the ombudsman's request, grant the ombudsman or |
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1 | the ombudsman's designee access to all information, records |
2 | and documents in its possession that the ombudsman considers |
3 | necessary to the investigation. |
4 | (2) Assist the ombudsman in obtaining the necessary |
5 | releases for those documents that are specifically |
6 | restricted. |
7 | (3) Provide the ombudsman upon request with progress |
8 | reports concerning the administrative processing of a |
9 | complaint. |
10 | (4) Upon the ombudsman's request, provide the ombudsman |
11 | information requested within ten business days after the |
12 | request. If the department determines that that release of |
13 | the information would violate Federal or State law, the |
14 | ombudsman shall be notified of that determination within the |
15 | ten-day deadline. |
16 | (b) Public awareness.--The department, county agency or |
17 | provider of child welfare services shall provide information to |
18 | a biological parent, prospective adoptive parent or foster |
19 | parent regarding the provisions of this subchapter. The |
20 | ombudsman shall develop written materials for public |
21 | distribution regarding the provisions of this subchapter. |
22 | § 6379.8. Confidentiality of investigations and records. |
23 | (a) Matters.-- |
24 | (1) The ombudsman shall treat all matters under |
25 | investigation as confidential, including the identities of |
26 | recipients of information, individuals from whom information |
27 | is acquired and persons seeking assistance from the |
28 | ombudsman. |
29 | (2) Upon receipt of information that by law is |
30 | confidential or privileged, the ombudsman shall maintain the |
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1 | confidentiality of the information and shall not further |
2 | disclose or disseminate the information except as provided by |
3 | Federal or State law. |
4 | (b) Records.-- |
5 | (1) A record of the office of the ombudsman is |
6 | confidential, shall be used only for the purposes of this |
7 | subchapter and is not subject to subpoena. |
8 | (2) Information contained in the records may not be |
9 | disclosed in such a manner as to identify individuals, except |
10 | for good cause shown on order of a court. |
11 | (3) The ombudsman or other agency may not disclose a |
12 | record of the ombudsman or a record received from the |
13 | ombudsman under the act of February 14, 2008 (P.L.6, No.3), |
14 | known as the Right-to-Know Law, except for good cause shown |
15 | on order of a court. |
16 | (4) No person may disclose any record under this |
17 | subsection without the consent of the complainant. |
18 | § 6379.9. Findings and recommendations. |
19 | (a) Report of findings.--The ombudsman shall make a report |
20 | of the findings of an investigation. |
21 | (b) Recommendations.--The ombudsman may make recommendations |
22 | to the department, the county agency, the provider of child |
23 | welfare services and other appropriate entities if the ombudsman |
24 | finds any of the following: |
25 | (1) A matter should be further considered by the |
26 | department, the county agency or provider of child welfare |
27 | services. |
28 | (2) An administrative action should be modified or |
29 | canceled. |
30 | (3) Reasons should be given for an administrative |
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1 | action. |
2 | (4) Other action should be taken by the department, the |
3 | county agency or a provider of child welfare services. |
4 | (c) Subjects of report.-- |
5 | (1) Before announcing a conclusion or recommendation |
6 | that expressly or by implication criticizes an individual, |
7 | the department, the county agency or a provider of child |
8 | welfare services, the ombudsman shall provide the subject of |
9 | the report with reasonable advance notice and an opportunity |
10 | to respond. |
11 | (2) When making a report adverse to the department, |
12 | county agency or provider, the ombudsman shall include in the |
13 | report any written statement made to the ombudsman by the |
14 | department, county agency or provider of child welfare |
15 | services in defense or mitigation of the administrative |
16 | action. The ombudsman may request to be notified by the |
17 | subject of the report within a specified time of any |
18 | administrative action taken on the recommendations of the |
19 | ombudsman. |
20 | (d) Notice to complainant.--The ombudsman shall provide a |
21 | person making a complaint with a copy of the ombudsman's |
22 | recommendations regarding the complaint and shall notify the |
23 | person of any action taken by the ombudsman and by the |
24 | department, county agency or provider of child welfare services. |
25 | The ombudsman may not release to the person any report |
26 | information or other material required to be kept confidential |
27 | under section 6339 (relating to confidentiality of reports). |
28 | (e) Annual report.--The ombudsman shall submit to the |
29 | Governor, the General Assembly, the administrative office of the |
30 | Supreme Court and the department an annual report on the conduct |
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1 | of the ombudsman, including any recommendations regarding the |
2 | need for legislation or for change in rules or policies. |
3 | § 6379.10. Protection from retaliation. |
4 | (a) General rule.--An official, the department, the county |
5 | agency or a provider of child welfare services may not penalize |
6 | a person for filing a complaint in good faith or cooperating |
7 | with the ombudsman in investigating a complaint under this |
8 | subchapter. |
9 | (b) Obstruction.--An individual, the department, the county |
10 | agency or a provider of child welfare services may not hinder |
11 | the lawful actions of the ombudsman or employees of the |
12 | ombudsman. |
13 | § 6379.11. Nonexclusivity of remedy. |
14 | (a) General rule.--The authority granted the ombudsman under |
15 | this subchapter is in addition to the authority granted under |
16 | the provisions of: |
17 | (1) any other statute or rule under which the remedy or |
18 | right of appeal or objection is provided for a person; or |
19 | (2) any procedure provided for the inquiry into or |
20 | investigation of any matter. |
21 | (b) Authority of ombudsman.--The authority granted the |
22 | ombudsman does not limit or affect the remedy or right of appeal |
23 | or objection and is not an exclusive remedy or procedure. |
24 | Section 4. This act shall take effect in 180 days. |
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