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SB 479 - Mental Disabilities, Substance Abuse - state ombudsman

Madden, Eddie M (47th)	Meyer von Bremen, Michael S. (12th)	Smith, Faye (25th)

Status Summary	SC:	I&L	HC:	H&E	FR:	02/22/00	LA:	04/19/00	Signed by Governor

First Reader Summary

A bill to be entitled an Act to amend Chapter 2 of Title 37 of the Official Code of Georgia Annotated, relating to the administration of certain mental disability services, so as to provide for a state ombudsman and for community ombudsmen for mental health, mental retardation, and substance abuse; to provide for the duties of such state ombudsman; to provide that the state ombudsman will be under the supervision and direction of the consumers' insurance advocate; to provide for contracts for the operation of a community ombudsman program for this state and for the components of that program; to provide for reviews, responses, recommendations, and actions regarding community ombudsman investigations; to repeal conflicting laws; and for other purposes.

Code Sections - 37-2-30/ 37-2-31/ 37-2-32/ 37-2-33/ 37-2-34/ 37-2-35/ 37-2-36/ 37-2-37/ 37-2-38/ 37-2-39/ 37-2-40/ 37-2-41/ 37-2-42/ 37-2-43/ 37-2-44

SB 479 00                                            SB479/AP 
 
      SENATE BILL 479 
 
      By:  Senators Madden of the 47th, Meyer von Bremen of 
           the 12th, Smith of the 25th and others 
 
                        A BILL TO BE ENTITLED 
                               AN ACT 
 
 
  1- 1  To amend Chapter 2 of Title 37 of the Official Code of 
  1- 2  Georgia Annotated, relating to the administration of certain 
  1- 3  mental disability services, so as to provide for a state 
  1- 4  ombudsman and community ombudsmen for mental health, mental 
  1- 5  retardation, and substance abuse; to provide for 
  1- 6  definitions; to provide for the state ombudsman and for such 
  1- 7  position to be under the supervision and direction of the 
  1- 8  consumers' insurance advocate; to provide for 
  1- 9  qualifications, conflicts of interest, powers, and duties of 
  1-10  the state ombudsman; to provide for contracts to operate a 
  1-11  community ombudsman program and for certification, powers, 
  1-12  and duties of community ombudsmen; to provide for 
  1-13  investigations regarding disability services providers and 
  1-14  standards and procedures relating thereto; to provide for 
  1-15  complaint resolution and actions and referrals relating 
  1-16  thereto; to provide for reports and legal representation; to 
  1-17  provide for confidentiality of information; to provide for 
  1-18  notices; to prohibit certain conduct and provide for 
  1-19  sanctions and penalties; to provide for immunity from 
  1-20  liability; to provide for statutory construction, rules, and 
  1-21  regulations; to provide for ineligibility of persons as 
  1-22  community service board and regional board members; to 
  1-23  provide an effective date; to repeal conflicting laws; and 
  1-24  for other purposes. 
 
  1-25       BE IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA: 
 
  1-26                           SECTION 1. 
 
  1-27  Chapter 2 of Title 37 of the Official Code of Georgia 
  1-28  Annotated, relating to the administration of certain mental 
  1-29  disability services, is amended by adding at the end a new 
  1-30  article to read as follows: 
 
 
 
  1-31    37-2-30. 
 
  1-32    As used in this article, the term: 
 
 
 
                                 -1- 
 
 
 
  2- 1      (1) 'Community ombudsman' means a person certified as a 
  2- 2      community ombudsman pursuant to Code Section 37-2-32. 
 
  2- 3      (2) 'Disability' and 'disability services' have the same 
  2- 4      meaning as provided in Code Section 37-2-2. 
 
  2- 5      (3) 'Nonprofit corporation' means a nonprofit 
  2- 6      corporation which is exempt from taxation under Section 
  2- 7      501(c)(3) of the Internal Revenue Code of 1986 and which 
  2- 8      is not a services provider. 
 
  2- 9      (4) 'Program' means the community ombudsman program 
  2-10      operated pursuant to Code Section 37-2-32. 
 
  2-11      (5) 'Service recipient' means a person with a disability 
  2-12      who receives or is eligible to receive disability 
  2-13      services from a services provider which provides 
  2-14      disability services in a regional board district in 
  2-15      which the program is operated. 
 
  2-16      (6) 'Services provider' means a community service board 
  2-17      or state or local governmental entity, but not a 
  2-18      regional board, which provides disability services to 
  2-19      service recipients in a regional board district in which 
  2-20      the program is operated or which contracts for the 
  2-21      provision of those services or any person, corporation, 
  2-22      or business which provides disability services to 
  2-23      service recipients in a regional board district in which 
  2-24      the program is operated. 
 
  2-25      (7) 'State ombudsman' means the state ombudsman for 
  2-26      mental health, mental retardation, and substance abuse 
  2-27      created under Code Section 37-2-31. 
 
  2-28    37-2-31. 
 
  2-29    There is created the state ombudsman for mental health, 
  2-30    mental retardation, and substance abuse who shall be a 
  2-31    full-time state employee under the supervision and 
  2-32    direction of the consumers' insurance advocate in the 
  2-33    Governor's Office of Consumer Affairs under Code Section 
  2-34    33-57-3. The state ombudsman shall have the powers and 
  2-35    duties set forth in this article.  The state ombudsman 
  2-36    shall be a person qualified by training and experience in 
  2-37    the field of disability services, have experience 
  2-38    advocating for the rights of people with disabilities, and 
  2-39    have the skills to perform the duties set forth in this 
  2-40    article.  The state ombudsman shall be free of a conflict 
  2-41    of interest.  The state ombudsman shall promote the 
  2-42    well-being and quality of life of service recipients and 
 
 
                                 -2- 
 
 
 
  3- 1    encourage the development of community ombudsman 
  3- 2    activities at the local level. 
 
  3- 3    37-2-32. 
 
  3- 4    The state ombudsman shall contract with one or more 
  3- 5    nonprofit corporations to operate a community ombudsman 
  3- 6    program in one or more regional board districts in this 
  3- 7    state.  A nonprofit corporation shall not be eligible for 
  3- 8    such contract unless that corporation has experience in 
  3- 9    complaint resolution for service recipients and secures as 
  3-10    community ombudsmen only such persons as are certified as 
  3-11    such by the state ombudsman. The state ombudsman may 
  3-12    certify community ombudsmen and such certified ombudsmen 
  3-13    shall have the powers and duties set forth in this 
  3-14    article.  The state ombudsman shall require such community 
  3-15    ombudsmen to receive appropriate training as determined 
  3-16    and approved by the state ombudsman prior to 
  3-17    certification. 
 
  3-18    37-2-33. 
 
  3-19    The state ombudsman shall: 
 
  3-20      (1) Establish policies and procedures  for receiving, 
  3-21      investigating, referring, and attempting to resolve 
  3-22      complaints made by or on behalf of  service recipients 
  3-23      concerning any act, omission to act, practice, policy, 
  3-24      or procedure of a services provider that may adversely 
  3-25      affect the health, safety, or welfare of any service 
  3-26      recipient or the delivery of disability services to such 
  3-27      service recipient; 
 
  3-28      (2) Investigate and make reports and recommendations to 
  3-29      the department and other appropriate agencies concerning 
  3-30      any act or failure to act by any services provider with 
  3-31      respect to its responsibilities and duties in connection 
  3-32      with service recipients receiving or eligible to receive 
  3-33      disability services from such provider; 
 
  3-34      (3) Establish a uniform state-wide reporting system to 
  3-35      record data about complaints and conditions with regard 
  3-36      to services providers and collect and analyze such data 
  3-37      in order to identify significant problems affecting 
  3-38      service recipients receiving or eligible to receive 
  3-39      disability services from such providers; 
 
  3-40      (4) Promote the development of community ombudsmen 
  3-41      activities and provide technical assistance as 
  3-42      necessary; 
 
 
                                 -3- 
 
 
 
  4- 1      (5) Promote the interests of service recipients before 
  4- 2      governmental agencies and seek administrative and other 
  4- 3      remedies to protect the health, safety, welfare, and 
  4- 4      rights of the service recipients; and 
 
  4- 5        (A) Analyze, comment on, and monitor the development 
  4- 6        and implementation of federal, state, and local laws, 
  4- 7        regulations, and other governmental policies and 
  4- 8        actions that pertain to the health, safety, welfare, 
  4- 9        and rights of the service recipients with respect to 
  4-10        the adequacy of disability services in the state; 
 
  4-11        (B) Recommend any changes in such laws, regulations, 
  4-12        policies, and actions as the state ombudsman 
  4-13        determines to be appropriate; and 
 
  4-14        (C) Facilitate public comment on the laws, 
  4-15        regulations, policies, and actions; and 
 
  4-16      (6) Make an annual written report, documenting the types 
  4-17      of complaints and problems reported by service 
  4-18      recipients and others on their behalf and include 
  4-19      recommendations concerning needed policy, regulatory, 
  4-20      and legislative changes.  The annual report shall be 
  4-21      submitted to the Governor and General Assembly and other 
  4-22      appropriate agencies and organizations and made 
  4-23      available to the public. 
 
  4-24    37-2-34. 
 
  4-25    Pursuant to policies and procedures established by the 
  4-26    state ombudsman, each community ombudsman shall: 
 
  4-27      (1) Learn about the general conditions affecting service 
  4-28      recipients and work for the best interest of these 
  4-29      service recipients; 
 
  4-30      (2) Receive, investigate, and attempt to resolve 
  4-31      complaints made by or on behalf of service recipients; 
 
  4-32      (3) Collect data about the number and types of 
  4-33      complaints handled; and 
 
  4-34      (4) Report regularly to the state ombudsman about the 
  4-35      data collected and the activities of the community 
  4-36      ombudsmen. 
 
  4-37    37-2-35. 
 
  4-38    (a) The state ombudsman or a community ombudsman, on his 
  4-39    or her initiative or in response to complaints made by or 
  4-40    on behalf of service recipients, may conduct 
 
 
                                 -4- 
 
 
 
  5- 1    investigations in matters within his or her powers and 
  5- 2    duties as provided by this article. 
 
  5- 3    (b) The state ombudsman or a community ombudsman shall 
  5- 4    have the authority to enter any facility, premises, or 
  5- 5    property where disability services are provided  and shall 
  5- 6    use his or her best efforts to enter such facility, 
  5- 7    premises, or property during normal business hours.  Upon 
  5- 8    entering such facility, premises, or property, the 
  5- 9    ombudsman shall notify the administrator or, in the 
  5-10    absence of the administrator, the person in charge of such 
  5-11    facility, premises, or property, before speaking to any 
  5-12    service recipient.  After notifying the administrator or 
  5-13    the person in charge of such facility, premises, or 
  5-14    property, the ombudsman may communicate privately and 
  5-15    confidentially with service recipients in such facility, 
  5-16    premises, or property, individually or in groups.  The 
  5-17    ombudsman shall have access to the medical, social, and 
  5-18    disability records of any service recipient if: 
 
  5-19      (1) The ombudsman has the permission of the service 
  5-20      recipient or the legal representative or guardian of the 
  5-21      service recipient; 
 
  5-22      (2) The service recipient is unable to consent to the 
  5-23      review and has no legal representative or guardian; or 
 
  5-24      (3) There is a guardian of the person of the service 
  5-25      recipient and that guardian refuses to permit access to 
  5-26      the records necessary to investigate a complaint, and: 
 
  5-27        (A) There is reasonable cause to believe that the 
  5-28        guardian is not acting in the best interest of the 
  5-29        service recipient; and 
 
  5-30        (B) A community ombudsman obtains the approval of the 
  5-31        state ombudsman. 
 
  5-32    As used in this Code section, the term 'legal 
  5-33    representative' means an agent under a valid power of 
  5-34    attorney, provided that the agent is acting within the 
  5-35    scope of his or her agency; an agent under a durable power 
  5-36    of attorney for health care; or an executor, executrix, 
  5-37    administrator, or administratrix of the estate of a 
  5-38    deceased service recipient.  The ombudsman shall have the 
  5-39    authority to inspect the physical plant and have access to 
  5-40    the administrative records, policies, and documents of the 
  5-41    facility, premises, or property to which the service 
  5-42    recipients have or the general public has access.  Entry 
 
 
 
                                 -5- 
 
 
 
  6- 1    and investigation as provided by this Code section shall 
  6- 2    be conducted in a manner which will not significantly 
  6- 3    disrupt the provision of disability services to service 
  6- 4    recipients. 
 
  6- 5    (c) The state ombudsman or community ombudsman shall 
  6- 6    identify himself or herself as such to the service 
  6- 7    recipient, and the service recipient shall have the right 
  6- 8    to communicate or refuse to communicate with the 
  6- 9    ombudsman. 
 
  6-10    (d) The service recipient or the service recipient's legal 
  6-11    representative shall have the right to participate in 
  6-12    planning any course of action to be taken on the service 
  6-13    recipient's behalf by the state ombudsman or community 
  6-14    ombudsman, and the service recipient or such 
  6-15    representative shall have the right to approve or 
  6-16    disapprove any proposed action to be taken on the service 
  6-17    recipient's behalf by such ombudsman. 
 
  6-18    (e) The state ombudsman or community ombudsman shall have 
  6-19    the authority to obtain from any governmental agency or 
  6-20    services provider which receives state funds for 
  6-21    disability services, and such agency or provider shall 
  6-22    provide cooperation and assistance, services, data, and 
  6-23    access to, such files and records as will enable the 
  6-24    ombudsman properly to perform his or her duties and 
  6-25    exercise his or her powers, provided that such information 
  6-26    is not privileged under any law. 
 
  6-27    (f) Where the subject of the investigation involves 
  6-28    suspected abuse, neglect, or exploitation of a service 
  6-29    recipient by his or her guardian, the state ombudsman or 
  6-30    community ombudsman shall have the authority to 
  6-31    communicate with the service recipient in a private and 
  6-32    confidential setting notwithstanding any objection by the 
  6-33    guardian to such meeting and communication. 
 
  6-34    (g) The state ombudsman shall advise the service recipient 
  6-35    of the need for adequate legal counsel as well as 
  6-36    consultation needed to protect the health, safety, 
  6-37    welfare, and rights of the service recipient. 
 
  6-38    37-2-36. 
 
  6-39    (a) Following an investigation, the state ombudsman or 
  6-40    community ombudsman may report his or her opinions or 
  6-41    recommendations to the party or parties affected thereby 
  6-42    and shall attempt to resolve the complaint using, whenever 
 
 
 
                                 -6- 
 
 
 
  7- 1    possible, informal techniques of mediation, conciliation, 
  7- 2    and persuasion.  With respect to a complaint against the 
  7- 3    services provider, the ombudsman may first notify the 
  7- 4    administrator or person in charge of that provider in 
  7- 5    writing and give such person a reasonable opportunity to 
  7- 6    correct any alleged defect.  If so notified and the 
  7- 7    administrator or person in charge fails to take corrective 
  7- 8    action after a reasonable amount of time or if the defect 
  7- 9    seriously threatens the safety or well-being of any 
  7-10    service recipient, the state ombudsman or community 
  7-11    ombudsman may refer the complaint to the appropriate 
  7-12    regional board and any other appropriate agency. 
 
  7-13    (b) Complaints or conditions adversely affecting service 
  7-14    recipients which cannot be resolved in the manner 
  7-15    described in subsection (a) of this Code section shall, 
  7-16    whenever possible, be referred by the state ombudsman or 
  7-17    community ombudsman to the appropriate regional board and 
  7-18    any other appropriate agency. 
 
  7-19    (c) A community ombudsman shall not disclose to the 
  7-20    public, either directly or indirectly, the identity of any 
  7-21    services provider which is the subject of an investigation 
  7-22    unless and until the matter has been reviewed by the 
  7-23    office of the state ombudsman and the matter has been 
  7-24    referred to the appropriate regional board and any other 
  7-25    appropriate governmental agency for action. 
 
  7-26    37-2-37. 
 
  7-27    Any person who has reasonable cause to believe that a 
  7-28    service recipient is being or has been abused, neglected, 
  7-29    exploited, or abandoned or is in a condition which is the 
  7-30    result of abuse, neglect, exploitation, or abandonment, or 
  7-31    is being denied disability services for which such service 
  7-32    recipient is eligible may report such information or cause 
  7-33    a report to be made in any reasonable manner to the state 
  7-34    ombudsman or community ombudsman, if any. 
 
  7-35    37-2-38. 
 
  7-36    The identity of any complainant, service recipient on 
  7-37    whose behalf a complaint is made, or individual providing 
  7-38    information on behalf of the service recipient or 
  7-39    complainant relevant to the investigation of a complaint 
  7-40    shall be confidential and may be disclosed only with the 
  7-41    express permission of such person.  The information 
  7-42    produced by an investigation may be disclosed by the state 
  7-43    ombudsman or community ombudsman only if the identity of 
 
 
                                 -7- 
 
 
 
  8- 1    any such person is not disclosed by name or inference.  If 
  8- 2    the identity of any such person is disclosed by name or 
  8- 3    inference in such information, the information may be 
  8- 4    disclosed only with his or her express permission.  If the 
  8- 5    complaint becomes the subject of a judicial proceeding, 
  8- 6    such investigative information may be disclosed for the 
  8- 7    purpose of the proceeding. 
 
  8- 8    37-2-39. 
 
  8- 9    The state ombudsman shall prepare and distribute to each 
  8-10    services provider in the state and regional board in which 
  8-11    the program is operated a written notice describing the 
  8-12    program and the procedure to follow in making a complaint, 
  8-13    including the address and telephone number of the state 
  8-14    ombudsman and community ombudsman.  The administrator or 
  8-15    person in charge of such provider shall give the written 
  8-16    notice required by this Code section to each service 
  8-17    recipient who receives disability services from such 
  8-18    provider and his or her legally appointed guardian, if 
  8-19    any, upon first providing such services.  The 
  8-20    administrator or person in charge shall also post such 
  8-21    written notice in conspicuous public places in the 
  8-22    facility, premises, or property in which disability 
  8-23    services are provided in accordance with procedures 
  8-24    provided by the state ombudsman and shall give such notice 
  8-25    to any service recipient and his or her legally appointed 
  8-26    guardian, if any, who did not receive it upon the service 
  8-27    recipient's first receiving disability services.  The 
  8-28    failure to provide the notices required by this Code 
  8-29    section shall be a ground upon which the director of the 
  8-30    division may impose the civil penalty authorized by 
  8-31    paragraph (2) of subsection (c) of Code Section 37-2-40 
  8-32    under the conditions specified in subsection (d) of Code 
  8-33    Section 37-2-40. 
 
  8-34    37-2-40. 
 
  8-35    (a) No person shall discriminate or retaliate in any 
  8-36    manner against any service recipient or relative or 
  8-37    guardian of a service recipient, any employee of a 
  8-38    services provider, or any other person because of the 
  8-39    making of a complaint or the providing of information in 
  8-40    good faith to the state ombudsman or community ombudsman. 
  8-41    No person shall willfully interfere with the state 
  8-42    ombudsman or community ombudsman in the performance of his 
  8-43    or her official duties. 
 
 
 
                                 -8- 
 
 
 
  9- 1    (b) A member of a regional board or community service 
  9- 2    board who violates subsection (a) of this Code section 
  9- 3    shall be subject to permanent removal from such board by 
  9- 4    the director of the division. 
 
  9- 5    (c) A services provider which violates subsection (a) of 
  9- 6    this Code section shall be subject to one or more of the 
  9- 7    following sanctions which may be imposed by the director 
  9- 8    of the division: 
 
  9- 9      (1) The termination of any contract for which state 
  9-10      funds are received for the provision of disability 
  9-11      services if such contract was executed on or after the 
  9-12      date this article becomes effective; 
 
  9-13      (2) The payment of a civil penalty not to exceed 
  9-14      $5,000.00 for each violation; or 
 
  9-15      (3) Having to suspend without pay for a period of at 
  9-16      least two months or terminate any employee of such 
  9-17      provider determined to have committed the violation. 
 
  9-18    (d) An action against a member of a regional board, 
  9-19    community service board, or services provider under this 
  9-20    Code section shall be a contested case within Article 1 of 
  9-21    Chapter 13 of Title 50, relating to administrative 
  9-22    procedure. 
 
  9-23    37-2-41. 
 
  9-24    Notwithstanding any other provision of law, no person 
  9-25    providing information, including but not limited to 
  9-26    service recipient records, to the state ombudsman or 
  9-27    community ombudsman shall be held, by reason of having 
  9-28    provided such information, to have violated any criminal 
  9-29    law or to be civilly liable under any law unless such 
  9-30    information is false and the person providing such 
  9-31    information knew or had reason to believe that it was 
  9-32    false. 
 
  9-33    37-2-42. 
 
  9-34    Any person who, in good faith, makes a complaint or 
  9-35    provides information as authorized in this article shall 
  9-36    incur no civil or criminal liability therefor. Any state 
  9-37    or community ombudsman who, in good faith, performs his or 
  9-38    her official duties, including but not limited to making a 
  9-39    statement or communication relevant to a complaint 
  9-40    received or an investigative activity conducted pursuant 
 
 
 
 
                                 -9- 
 
 
 
 10- 1    to this article, shall incur no civil or criminal 
 10- 2    liability therefor. 
 
 10- 3    37-2-43. 
 
 10- 4    Nothing in this article shall be construed to limit the 
 10- 5    power of the department to investigate complaints where 
 10- 6    otherwise authorized by law. 
 
 10- 7    37-2-44. 
 
 10- 8    The state ombudsman shall promulgate rules and regulations 
 10- 9    to implement this article." 
 
 10-10                           SECTION 2. 
 
 10-11  Said chapter is further amended by striking subsection (b.2) 
 10-12  of Code Section 37-2-5, relating to policy duties of 
 10-13  regional boards, and inserting in its place the following: 
 
 10-14      "(b.2)(1) A member of the community service board may 
 10-15      not also serve as a member of the regional board or be 
 10-16      an employee or board member of any private or public 
 10-17      group, organization, or service provider which contracts 
 10-18      with or receives funds from the community service board. 
 10-19      A person shall not be eligible to be appointed to or 
 10-20      serve on a community service board if such person is: 
 
 10-21        (A) A member of the regional board which serves the 
 10-22        region in which that community service board is 
 10-23        included; or 
 
 10-24        (B) An employee of that community service board or 
 10-25        employee or board member of any private or public 
 10-26        group, organization, or service provider which 
 10-27        contracts with or receives funds from that community 
 10-28        service board. 
 
 10-29      (2) A person shall not be eligible to be appointed to or 
 10-30      serve on a community service board if such person's 
 10-31      spouse, parent, child, or sibling is a member of that 
 10-32      community service board or a member, employee, or board 
 10-33      member specified in subparagraph (A) or (B) of paragraph 
 10-34      (1) of this subsection.  With respect to appointments by 
 10-35      the same county governing authority, no person who has 
 10-36      served a full term or more on a community service board 
 10-37      may be appointed to a regional board until a period of 
 10-38      at least two years have passed since the time such 
 10-39      person served on the community service board, and no 
 10-40      person who has served a full term or more on a regional 
 10-41      board may be appointed to a community service board 
 
 
                                 -10- 
 
 
 
 11- 1      until a period of at least two years have passed since 
 11- 2      the time such person served on the regional board." 
 
 11- 3                           SECTION 3. 
 
 11- 4  Section 1 of this Act shall become effective only if funds 
 11- 5  are specifically appropriated for the purposes of this Act 
 11- 6  in an appropriations Act making specific reference to this 
 11- 7  Act and shall become effective when funds so appropriated 
 11- 8  become available for expenditure.  The remaining provisions 
 11- 9  of this Act shall become effective upon the approval of this 
 11-10  Act by the Governor or upon its becoming law without such 
 11-11  approval. 
 
 11-12                           SECTION 4. 
 
 11-13  All laws and parts of laws in conflict with this Act are 
 11-14  repealed. 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                 -11-