HB377 By Representatives Beckman, Farley, Ledbetter, Hanes, Harper, Rich, Pettus, Williams (JW), Shedd, Sessions, Gaston, Wilcox, Davis, Faust, Nordgren, Fridy, McCutcheon, Patterson, Ball, Whorton (R), Pringle, Boothe, Greer, Williams (JD), Sells, Lee, Shiver, Johnson (R), Millican, Tuggle, Hurst, Brown, Butler, Beech and Wood RFD Public Safety and Homeland Security Rd 1 08-MAR-16

SYNOPSIS: This bill would establish the Office of the Ombudsman for Child Welfare. The bill would provide for the duties and powers of the ombudsman. The bill would prohibit discrimination or retaliation against persons filing complaints with the ombudsman.

A BILL TO BE ENTITLED AN ACT

To establish the Office of the Ombudsman for Child Welfare; to provide for the Statewide Advisory Committee to the Ombudsman; to provide for the appointment of the ombudsman and the powers and duties of the ombudsman; and to prohibit discrimination or retaliation for complaints.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:

Section 1. For the purposes of this act, the following words have the following meanings:

(1) DEPARTMENT. The Department of Human Resources.

(2) OFFICE OF THE OMBUDSMAN. The Office of the Ombudsman for Child Welfare.

(3) OMBUDSMAN. The director or agent for the Office of the Ombudsman for Child Welfare charged with carrying out the duties and responsibilities in this act.

Section 2. (a) There is created the Office of the Ombudsman for Child Welfare. The Office of the Ombudsman shall be located within the Department of Early Childhood Education for administrative and budgetary purposes.

(b) The Director of the Office of the Ombudsman shall be a licensed attorney of this state and shall have knowledge of the child welfare system and the juvenile justice system and shall be qualified to perform the duties of the office as set forth in this act.

(c) There is hereby created an Ombudsman Selection Committee for the purpose of appointment of the Director of the Office of the Ombudsman. The committee shall be comprised of the following members:

(1) The Chair of the Department of Human Resources Task Force.

(2) The Speaker of the House of Representatives.

(3) The President of the Senate.

(4) The Chair of the Senate Committee for Education and Youth Affairs, or its successor committee.

(5) The Chair of the House Committee for Children and Senior Advocacy, or its successor committee.

(d) Within 60 days from the effective date of this act, the committee shall meet and set policies and procedures for the selection of the Director of the Office of the Ombudsman.

(e) If the position of the Director of the Office of the Ombudsman becomes vacant for any reason, the Governor shall appoint an interim ombudsman until a new ombudsman has been appointed for a full term by the Ombudsman Selection Committee.

(f) The ombudsman shall act independently of any state official, department, or agency in the performance of his or her duties.

(g) The Governor shall provide office space for the use of the ombudsman and staff, which shall not be located within the Department of Human Resources. The ombudsman may employ and secure the necessary staff, supplies, and materials to carry out this act, and the staff shall be employed as unclassified service state employees.

(h) Employees of the Office of the Ombudsman shall serve at the pleasure of the director.

(i) Each employee in the Office of the Ombudsman shall be entitled to the same benefits as any person in the classified service.

(j) The ombudsman shall have the authority to contract with experts in fields including, but not limited to, medicine, psychology, education, child development, juvenile justice, mental health, and child welfare as needed to support the work of the ombudsman, utilizing funds appropriated for the purposes of the ombudsman.

(k) The ombudsman, or his or her designee, shall be a member of the State Child Death Review Team.

Section 3. The purpose of the ombudsman is to conduct an independent and neutral investigation of any complaint that an action or failure to act has adversely affected the health, safety, or welfare of a child or the reunification of families and seek a resolution of the complaint. The ombudsman shall perform the following duties:

(1) Receive complaints concerning any action, inaction, or decision of the department or any contractor or agent thereof or any provider that receives public monies that may adversely affect the health, safety, or welfare of children or reunification of families.

(2) Investigate a complaint the ombudsman deems necessary and seek resolution of the complaint by appropriate action, which may include, but is not limited to, referring the complaint to the appropriate department, contractor, agent, provider, or law enforcement agency and making recommendations as needed for any action to resolve the complaint.

(3) Review findings and recommendations by the State Advisory Committee to the ombudsman.

(4) Periodically review the facilities and procedures of any and all public or private institutions and residences where a juvenile has been placed by the juvenile court or the department.

(5) Prepare a written annual report to the Governor and the Legislature on the summary of the actions taken by the ombudsman during the previous year.

(6) Receive complaints regarding violations of the Foster Parents Bill of Rights, as provided by in Section 38-12A-2, Code of Alabama 1975, to ensure compliance by the department.

(7) Promote best practices and effective programs relating to the child protection system and to work collaboratively with the state and county departments of human resources regarding improvement of policies.

(8) Promote cooperation between all agencies involved in cases handled by the department so as to increase the efficiency of all agencies involved, and to encourage agencies to proactively prevent abuse and neglect.

(9) Establish policies and procedures for the Office of the Ombudsman to accomplish the purposes of this act.

Section 4. (a) The ombudsman shall have all of the following powers:

(1) To conduct whatever investigation he or she deems necessary, including an investigation on his or her own initiative.

(2) To make such inquiries and obtain such assistance and information from the department or persons related to the duties of the ombudsman. Communications pursuant to this subdivision shall be confidential and shall not be subject to disclosure except to carry out the duties and responsibilities of the ombudsman.

(3) To have access to, including the right to inspect and copy, any records necessary to carry out the responsibilities of the ombudsman. All records obtained by the ombudsman shall be confidential, except disclosures may be permitted if the ombudsman deems it necessary to enable the ombudsman to perform his or her duties and to support any recommendations resulting from an investigation. Anyone wishing to obtain records held by the ombudsman shall petition the original source where the records are kept.

(4) To apply to the Governor to bring legal action to require a department or contractor or agent thereof to take or refrain from taking any action required or prohibited by law involving the protection of children.

(5) To apply for and accept grants, gifts, and bequests of funds from other states, federal and interstate agencies, independent authorities, private firms, individuals, and foundations for the purpose of carrying out the lawful responsibilities of the ombudsman.

(6) To recommend changes that would promote the child's best interest by amendment or addition to the department's administrative code or policies and to the Legislature.

(7) When less formal means of resolution do not achieve appropriate results, to pursue remedies provided by this act on behalf of children for the purpose of effectively carrying out this act.

(8) To provide education relating to the protection of children and the reunification of families.

(9) To establish policies and procedures for the Office of the Ombudsman to accomplish the purposes of this act.

(10) To mediate and resolve disputes between the department and other participants in the juvenile system.

(11) If the ombudsman believes that any department official or employee has acted in a manner warranting criminal or disciplinary proceedings, to refer the matter to the appropriate authorities without notice to that person.

(b) Nothing in this act shall be construed to allow the ombudsman to interfere with a criminal investigation.

Section 5. (a) Before formally releasing a conclusion or recommendation that is significantly critical or adverse to the department, the ombudsman shall have consulted with the department and permitted the department reasonable opportunity to reply. If the ombudsman makes a conclusion or recommendation available to the department to facilitate a reply, the conclusion or recommendation is confidential and may not be disclosed by the department unless the ombudsman releases it.

(b) The ombudsman shall not disclose any conclusion or recommendation that involves an active criminal investigation or case until the conclusion of the investigation or case.

Section 6. Upon the opening of a case by the department, the department shall provide the child and his or her parent, legal custodian, or guardian with the contact information for the ombudsman and an explanation of purpose of the ombudsman.

Section 7. (a) The substantive content of any finding, conclusion, recommendation, or report of the ombudsman or member of the ombudsman's staff shall not be reviewable in any court.

(b) The ombudsman shall have the same immunities from civil and criminal liabilities as a judge of this state.

(c) The ombudsman shall not be compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of his or her official duties except as may be necessary to enforce this act.

Section 8. No person shall discriminate or retaliate in any manner against any child, parent, guardian, or legal custodian of a child, employee of a facility, agency, institution, or other type of provider, or any other person because of the making of a complaint or providing of information in good faith to the ombudsman or willfully interfere with the ombudsman in the performance of his or her official duties.

Section 9. (a) There is established the State Advisory Committee to the Ombudsman. The advisory committee shall consist of the following members: One attorney appointed by the Alabama State Bar Association; one district attorney appointed by the Director of the Office of Prosecution Services; one sheriff appointed by the Alabama Sheriff's Association; one juvenile court judge appointed by the Chief Justice of the Alabama Supreme Court; one pediatrician with expertise in child and adolescent treatment or child abuse and neglect appointed by the Medical Association of the State of Alabama; one psychologist with expertise in child and adolescent treatment appointed by the Alabama Psychological Association; one licensed independent clinical social worker appointed by the Alabama State Board of Social Work Examiners; one psychiatrist with expertise in child and adolescent treatment appointed by the Medical Association of the State of Alabama; one person appointed by the Governor; one person appointed by the Speaker of the House of Representatives; one person appointed by the President of the Senate; and three members, one of whom is a parent or a person who as a child was formerly involved in the state child welfare system, appointed by the ombudsman.

(b) No member of the advisory committee shall be a person who is a volunteer for, a board member of, or is employed by or contractor of, any entity or agency subject to the review of, or evaluation or monitoring by the ombudsman, or who lobbies on behalf of any entity or agency subject to the review of, or evaluation or monitoring by, the ombudsman.

(c) Each member of the advisory committee shall serve a term of three years and may be reappointed at the conclusion of the term. All initial appointments to the advisory committee shall be made no later than October 1, 2016. Any vacancy in the membership of the committee shall be filled by the appointing authority for the unexpired portion of the term. The committee shall elect from among the members a chair and a vice chair.

(d) It shall be the duty of the advisory committee to provide advice and support to the ombudsman related to the duties described in this act. The committee's duties include, but are not limited to, the following:

(1) To establish a regular meeting schedule and form subcommittees as may be appropriate.

(2) To meet with the ombudsman and staff to review and assess patterns of treatment and services, policy implications, and necessary systemic improvements.

(3) To provide an annual report on its activities and recommendations in conjunction with the ombudsman, and submit the report to the Governor, the President of the Senate, and the Speaker of the House of Representatives, by December 31, 2017, and annually thereafter.

(e) The advisory committee shall maintain confidentiality of any personal information obtained by the committee.

Section 10. All laws or parts of laws which conflict with this act are repealed.

Section 11. This act shall be operative upon funding by the Legislature.

Section 12. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Human Resources Department

Ombudsman for Child Welfare

Child Abuse

Crimes and Offenses

Criminal Law and Procedure

Children