THE GENERAL ASSEMBLY OF PENNSYLVANIA

HOUSE BILL

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:

"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

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.

(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,

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

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

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.

(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

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.