II

103D CONGRESS

2D SESSION S. 2214

To amend the Social Security Act to establish grants for States to carry

out Children’s Ombudsman programs, and for other purposes.

IN THE SENATE OF THE UNITED STATES

JUNE 20 (legislative day, JUNE 7), 1994

Mr. RIEGLE (for himself and Mrs. BOXER) introduced the following bill; which

was read twice and referred to the Committee on Finance

A BILL

To amend the Social Security Act to establish grants for

States to carry out Children’s Ombudsman programs,

and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Children’s Ombuds5 man Act’’.

6 SEC. 2. GRANTS FOR STATE CHILDREN’S OMBUDSMAN PRO7 GRAMS.

8 Title IV of the Social Security Act (42 U.S.C. 601

9 et seq.) is amended by adding at the end the following:
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1 ‘‘PART G—STATE CHILDREN’S OMBUDSMAN PROGRAMS

2 ‘‘STATE PROGRAMS

3 ‘‘SEC. 491. (a) DEFINITIONS.—As used in this sec4 tion:

5 ‘‘(1) CHILD.—The term ‘child’ means an indi6 vidual who is younger than 18 years of age.

7 ‘‘(2) CHILDREN’S SERVICES.—The term ‘chil8 dren’s services’ means child welfare services, as de9 fined in section 425, child protective services, includ10 ing investigation and intervention in response to

11 cases of reported child abuse and neglect, and serv12 ices authorized to be provided under part E.

13 ‘‘(3) FACILITY.—The term ‘facility’ means—

14 ‘‘(A) a child-care institution, or a foster

15 family home, as defined in section 472(c), or an

16 entity eligible to carry out activities under part

17 E;

18 ‘‘(B) an entity eligible to carry out activi19 ties under part B; and

20 ‘‘(C) an entity providing child protective

21 services, including investigation and interven22 tion in response to cases of reported child abuse

23 and neglect.

24 ‘‘(4) LEGAL ASSISTANCE.—The term ‘‘legal as25 sistance’’—
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1 ‘‘(A) means legal advice provided by an at2 torney to children; and

3 ‘‘(B) includes—

4 ‘‘(i) to the extent feasible, counseling

5 or other appropriate assistance by a para6 legal or law student under the direct su7 pervision of an attorney; and

8 ‘‘(ii) counseling by a nonlawyer where

9 permitted by law.

10 ‘‘(5) LOCAL OMBUDSMAN ENTITY.—The term

11 ‘local Ombudsman entity’ means an entity des12 ignated under subsection (c)(5)(A) to carry out the

13 duties described in subsection (c)(5)(B) with respect

14 to a service area described in subsection

15 (c)(1)(D)(iii) or other substate area.

16 ‘‘(6) NONPROFIT.—The term ‘nonprofit’, as ap17 plied to any organization or entity, means an organi18 zation or entity that is, or is owned and operated by,

19 one or more corporations or associations no part of

20 the net earnings of which inures, or may lawfully

21 inure, to the benefit of any private shareholder or in22 dividual.

23 ‘‘(7) OFFICE.—The term ‘Office’ means the of24 fice established in subsection (c)(1)(D)(i).
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1 ‘‘(8) OMBUDSMAN.—The term ‘Ombudsman’

2 means the individual described in subsection (c)(2).

3 ‘‘(9) PROGRAM.—The term ‘program’ means

4 the State Children’s Ombudsman program estab5 lished in subsection (c)(1)(D)(ii).

6 ‘‘(10) REPRESENTATIVE.—The term ‘represent7 ative’ includes an employee or volunteer who rep8 resents an entity designated under subsection

9 (c)(5)(A) and who is individually designated by the

10 Ombudsman.

11 ‘‘(11) RECIPIENT.—The term ‘recipient’ means

12 a child who receives, or who is eligible to receive,

13 children’s services.

14 ‘‘(12) STATE AGENCY.—The term ‘State agen15 cy’ means the agency designated under subsection

16 (c)(1)(A).

17 ‘‘(b) GRANTS.—

18 ‘‘(1) IN GENERAL.—The Secretary shall award

19 grants to not more than 10 States to carry out Chil20 dren’s Ombudsman programs.

21 ‘‘(2) AWARD OF GRANTS.—In awarding grants

22 under paragraph (1), the Secretary shall—

23 ‘‘(A) award the grants so as to support a

24 variety of approaches to carrying out the pro25 grams;
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1 ‘‘(B) award at least one such grant to a

2 State to carry out a program by contract or

3 other arrangement with a nonprofit private or4 ganization; and

5 ‘‘(C) give preference in the award of grants

6 to States that have demonstrated the availabil7 ity of non-Federal sources of funds to carry out

8 State Children’s Ombudsman programs.

9 ‘‘(3) PERIOD.—In awarding a grant under

10 paragraph (1), the Secretary shall award the grant

11 for a period of 3 years.

12 ‘‘(4) LIMITATION.—A State that receives a

13 grant under paragraph (1) shall use not more than

14 10 percent of the amounts made available through

15 the grant to conduct the evaluation described in sub16 section (c)(1)(C).

17 ‘‘(c) ESTABLISHMENT.—

18 ‘‘(1) IN GENERAL.—

19 ‘‘(A) STATE AGENCY.—In order for a

20 State to be eligible to receive a grant under

21 subsection (b), the State shall, in accordance

22 with guidance provided by the Secretary, des23 ignate a State agency as the sole State agency

24 to carry out the duties described in subpara25 graphs (B), (C), and (D). The State may not
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1 designate a State agency that is responsible for

2 the licensing or regulation of a facility in the

3 State.

4 ‘‘(B) STATE PLAN.—

5 ‘‘(i) IN GENERAL.—In order for a

6 State to be eligible to receive such a grant,

7 the State agency shall submit an applica8 tion to the Secretary at such time, in such

9 manner, and containing such information

10 as the Secretary may require.

11 ‘‘(ii) CONTENTS.—The application

12 shall include, at a minimum, a State plan

13 that contains information indicating the

14 manner in which the State will carry out

15 a program in accordance with the require16 ments of this section.

17 ‘‘(C) IMPLEMENTATION.—The State agen18 cy shall administer the State plan within such

19 State, and be primarily responsible for the plan20 ning, policy development, administration, co21 ordination, priority setting, and evaluation of

22 all State activities carried out under the State

23 plan.

24 ‘‘(D) PROGRAM.—The State agency shall,

25 in accordance with this section—
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1 ‘‘(i) establish and operate an Office of

2 the State Children’s Ombudsman;

3 ‘‘(ii) carry out through the Office a

4 State Children’s Ombudsman program;

5 and

6 ‘‘(iii) divide the State into distinct

7 service areas, or designate the entire State

8 as a single service area, in accordance with

9 guidelines issued by the Secretary.

10 ‘‘(2) OMBUDSMAN.—The Office shall be headed

11 by an individual, to be known as the State Chil12 dren’s Ombudsman, who shall be selected from

13 among individuals with expertise and experience in

14 the fields regarding care and advocacy for children.

15 ‘‘(3) FUNCTIONS.—The Ombudsman shall serve

16 on a full-time basis, and shall, personally or through

17 representatives of the Office—

18 ‘‘(A) identify, investigate, and resolve com19 plaints that—

20 ‘‘(i) are made by, or on behalf of, re21 cipients or the parents or guardians of re22 cipients; and

23 ‘‘(ii) relate to action, inaction, or deci24 sions, that may adversely affect the health,
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1 safety, welfare, or rights of the recipients,

2 of—

3 ‘‘(I) providers, or representatives

4 of providers, of children’s services;

5 ‘‘(II) public agencies; or

6 ‘‘(III) health and social service

7 agencies;

8 ‘‘(B) inform the parents or guardians of

9 recipients about means of obtaining children’s

10 services provided by providers or agencies de11 scribed in subparagraph (A)(ii);

12 ‘‘(C) provide administrative and technical

13 assistance to entities designated under para14 graph (5) to assist the entities in participating

15 in the program;

16 ‘‘(D)(i) analyze, comment on, and monitor

17 the development and implementation of Fed18 eral, State, and local laws, regulations, and

19 other governmental policies and actions, that

20 pertain to the health, safety, welfare, and rights

21 of the recipients, with respect to the adequacy

22 of facilities and children’s services for children

23 in the State;

24 ‘‘(ii) recommend to the Governor of the

25 State, the State legislature, and appropriate
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1 State agencies, such changes in State laws, reg2 ulations, policies, and actions as the Office de3 termines to be appropriate; and

4 ‘‘(iii) facilitate public comment on the Fed5 eral, State, and local laws, regulations, policies,

6 and actions;

7 ‘‘(E)(i) provide for recruiting and training

8 representatives of the Office; and

9 ‘‘(ii) promote the development of citizen

10 organizations, to participate in the program;

11 and

12 ‘‘(F) carry out such other activities as the

13 Secretary determines to be appropriate.

14 ‘‘(4) CONTRACTS AND ARRANGEMENTS.—

15 ‘‘(A) IN GENERAL.—Except as provided in

16 subparagraph (B), the State agency may estab17 lish and operate the Office, and carry out the

18 program, directly, or by contract or other ar19 rangement with any public agency or nonprofit

20 private organization.

21 ‘‘(B) LICENSING OR REGULATION ENTI22 TIES; ASSOCIATIONS.—Except as provided in

23 subparagraph (C), the State agency may not

24 enter into the contract or other arrangement

25 described in subparagraph (A) with—
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1 ‘‘(i) an agency or organization that is

2 responsible for the licensing or regulation

3 of a facility in the State; or

4 ‘‘(ii) an association (or an affiliate of

5 such an association) of facilities.

6 ‘‘(C) WAIVER.—The Secretary may waive

7 the requirements of subparagraph (B) with re8 spect to not more than 3 programs.

9 ‘‘(5) DESIGNATION OF LOCAL OMBUDSMAN EN10 TITIES AND REPRESENTATIVES.—

11 ‘‘(A) DESIGNATION.—In carrying out the

12 duties of the Office, the Ombudsman may des13 ignate an entity as a local Ombudsman entity,

14 and may designate a full-time employee or a

15 volunteer to represent the entity.

16 ‘‘(B) DUTIES.—An individual so des17 ignated shall, in accordance with the policies

18 and procedures established by the Office and

19 the State agency—

20 ‘‘(i) identify, investigate, and resolve

21 complaints as described in paragraph

22 (3)(A);

23 ‘‘(ii)(I) review, and if necessary, com24 ment on any existing and proposed laws,

25 regulations, and other government policies
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1 and actions, that pertain to the rights and

2 well-being of recipients or of the parents or

3 guardians of recipients; and

4 ‘‘(II) facilitate the ability of the public

5 to comment on the laws, regulations, poli6 cies, and actions; and

7 ‘‘(iii) carry out other activities that

8 the Ombudsman determines to be appro9 priate.

10 ‘‘(C) ELIGIBILITY FOR DESIGNATION.—

11 Entities eligible to be designated as local Om12 budsman entities, and individuals eligible to be

13 designated as representatives of such entities,

14 shall—

15 ‘‘(i) have demonstrated capability to

16 carry out the responsibilities of the Office;

17 ‘‘(ii) be free of conflicts of interest;

18 ‘‘(iii) in the case of the entities, be

19 public or nonprofit private entities; and

20 ‘‘(iv) meet such additional require21 ments as the Ombudsman may specify.

22 ‘‘(D) POLICIES AND PROCEDURES.—

23 ‘‘(i) IN GENERAL.—The State agency

24 shall establish, in accordance with the Of25 fice, policies and procedures for monitoring
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1 local Ombudsman entities designated to

2 carry out the duties of the Office.

3 ‘‘(ii) CONFIDENTIALITY AND DISCLO4 SURE.—The State agency shall develop the

5 policies and procedures in accordance with

6 all provisions of this part regarding con7 fidentiality and conflict of interest.

8 ‘‘(d) PROCEDURES FOR ACCESS.—

9 ‘‘(1) IN GENERAL.—The State shall ensure that

10 representatives of the Office shall have—

11 ‘‘(A) access to facilities, recipients, and the

12 parents or guardians of recipients;

13 ‘‘(B) appropriate access to review the med14 ical and social records of a recipient;

15 ‘‘(C) access to the administrative records,

16 policies, and documents, of facilities, in any

17 case in which the parents or guardians of re18 cipients have access, or the general public has

19 access, to such records, policies, and documents;

20 and

21 ‘‘(D) access to and, on request, copies of

22 all licensing or oversight records maintained by

23 the State with respect to facilities.
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1 ‘‘(2) PROCEDURES.—The State agency shall es2 tablish procedures to ensure the access described in

3 paragraph (1).

4 ‘‘(e) REPORTING SYSTEM.—The State agency shall

5 establish a statewide uniform reporting system to—

6 ‘‘(1) collect and analyze data relating to com7 plaints and conditions in facilities, to recipients, and

8 to the parents or guardians of recipients, for the

9 purpose of identifying and resolving significant prob10 lems; and

11 ‘‘(2) submit the data, on a regular basis, to—

12 ‘‘(A) the agency of the State responsible

13 for licensing, regulation, or oversight of facili14 ties in the State;

15 ‘‘(B) the Governor of the State, the State

16 legislature, and other State and Federal entities

17 that the Ombudsman determines to be appro18 priate; and

19 ‘‘(C) the Secretary.

20 ‘‘(f) DISCLOSURE.—

21 ‘‘(1) IN GENERAL.—The State agency shall es22 tablish procedures for the disclosure by the Ombuds23 man or local Ombudsman entities of files maintained

24 by the program, including records described in sub25 section (d)(1) or (e).
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1 ‘‘(2) IDENTITY OF COMPLAINANT OR RECIPI2 ENT.—The procedures described in paragraph (1)

3 shall—

4 ‘‘(A) provide that, subject to subparagraph

5 (B), the files and records described in para6 graph (1) may be disclosed only at the discre7 tion of the Ombudsman (or the person des8 ignated by the Ombudsman to disclose the files

9 and records); and

10 ‘‘(B) prohibit the disclosure of the identity

11 of any complainant, recipient, or parent or

12 guardian of a recipient, with respect to whom

13 the Office maintains such files or records un14 less—

15 ‘‘(i) the complainant, the parent or

16 guardian of the recipient, or the legal rep17 resentative of the complainant or recipient,

18 parent, or guardian, consents to the disclo19 sure and the consent is given in writing;

20 ‘‘(ii)(I) the complainant, or the parent

21 or guardian of the recipient gives consent

22 orally; and

23 ‘‘(II) the consent is documented con24 temporaneously in a writing made by a

25 representative of the Office in accordance
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1 with such requirements as the State agen2 cy shall establish; or

3 ‘‘(iii) the disclosure is required by

4 court order.

5 ‘‘(g) CONSULTATION.—In planning and operating the

6 program, the State agency shall consider the views of—

7 ‘‘(1) agencies providing services for children;

8 ‘‘(2) children;

9 ‘‘(3) providers of care for children;

10 ‘‘(4) State child advocacy groups and local child

11 advocacy groups;

12 ‘‘(5) juvenile court judges and family court

13 judges; and

14 ‘‘(6) persons representing programs that pro15 vide court-appointed representation for children.

16 ‘‘(h) CONFLICT OF INTEREST.—The State agency

17 shall—

18 ‘‘(1) ensure that no individual, or member of

19 the immediate family of an individual, involved in

20 the designation of the Ombudsman (whether by ap21 pointment or otherwise) or the designation of an en22 tity designated under subsection (c)(5), is subject to

23 a conflict of interest;

24 ‘‘(2) ensure that no officer or employee of the

25 Office, representative of a local Ombudsman entity,
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1 or member of the immediate family of the officer,

2 employee, or representative, is subject to a conflict

3 of interest;

4 ‘‘(3) ensure that the Ombudsman—

5 ‘‘(A) except in the case of an Ombudsman

6 with a waiver under subsection (c)(4)(C), does

7 not have a direct involvement in the licensing or

8 regulation of a facility or of a provider of chil9 dren’s services;

10 ‘‘(B) does not have an ownership or invest11 ment interest (represented by equity, debt, or

12 other financial relationship) in a facility or in

13 children’s services;

14 ‘‘(C) is not employed by, or participating

15 in the management of, a facility; and

16 ‘‘(D) does not receive, or have the right to

17 receive, directly or indirectly, remuneration (in

18 cash or in kind) under a compensation arrange19 ment with an owner or operator of a facility;

20 and

21 ‘‘(4) establish, and specify in writing, mecha22 nisms to identify and remove conflicts of interest re23 ferred to in paragraphs (1) and (2), and to identify

24 and eliminate the relationships described in subpara-
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1 graphs (A) through (D) of paragraph (3), including

2 such mechanisms as—

3 ‘‘(A) the methods by which the State agen4 cy will examine individuals, and immediate fam5 ily members, to identify the conflicts; and

6 ‘‘(B) the actions that the State agency will

7 require the individuals and such family mem8 bers to take to remove such conflicts.

9 ‘‘(i) LEGAL COUNSEL.—The State agency shall en10 sure that—

11 ‘‘(1) adequate legal counsel is available, and is

12 able, without conflict of interest, to—

13 ‘‘(A) provide advice and consultation need14 ed to protect the health, safety, welfare, and

15 rights of recipients; and

16 ‘‘(B) assist the Ombudsman and represent17 atives of the Office in the performance of the

18 official duties of the Ombudsman and rep19 resentatives; and

20 ‘‘(2) legal representation is provided to any rep21 resentative of the Office against whom suit or other

22 legal action is brought or threatened to be brought

23 in connection with the performance of the official

24 duties of the Ombudsman or such a representative.
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1 ‘‘(j) ADMINISTRATION.—The State agency shall re2 quire the Office to—

3 ‘‘(1) prepare an annual report—

4 ‘‘(A) describing the activities carried out

5 by the Office in the year for which the report

6 is prepared;

7 ‘‘(B) containing and analyzing the data

8 collected under subsection (e);

9 ‘‘(C) evaluating the problems experienced

10 by, and the complaints made by or on behalf of,

11 recipients or parents or guardians of recipients;

12 ‘‘(D) containing recommendations for—

13 ‘‘(i) improving quality of the care and

14 life of the recipients; and

15 ‘‘(ii) protecting the health, safety, wel16 fare, and rights of the recipients;

17 ‘‘(E)(i) analyzing the success of the activi18 ties of the Office; and

19 ‘‘(ii) identifying barriers that prevent the

20 optimal operation of the Office; and

21 ‘‘(F) providing policy, regulatory, and leg22 islative recommendations to solve identified

23 problems, to resolve the complaints, to improve

24 the quality of care and life of recipients, to pro-
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1 tect the health, safety, welfare, and rights of re2 cipients, and to remove the barriers;

3 ‘‘(2) analyze, comment on, and monitor the de4 velopment and implementation of Federal, State,

5 and local laws, regulations, and other government

6 policies and actions that pertain to facilities and

7 children’s services, and to the health, safety, welfare,

8 and rights of recipients, in the State, and rec9 ommend any changes in such laws, regulations, and

10 policies as the Office determines to be appropriate;

11 ‘‘(3)(A) provide such information as the Office

12 determines to be necessary to public and private

13 agencies, legislators, and other persons, regarding—

14 ‘‘(i) the problems and concerns of recipi15 ents, and parents or guardians of recipients;

16 and

17 ‘‘(ii) recommendations related to the prob18 lems and concerns; and

19 ‘‘(B) make available to the public, and submit

20 to the Secretary, the chief executive officer of the

21 State, the State legislature, the State agency respon22 sible for licensing, regulation, or oversight of facili23 ties, and other appropriate governmental entities,

24 each report prepared under paragraph (1);
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1 ‘‘(4) disseminate information regarding the

2 services provided through the Office—

3 ‘‘(A) by providing a toll-free telephone

4 number for inquiries about the services;

5 ‘‘(B) through television, radio, and news6 paper advertising; and

7 ‘‘(C) through placement of notices in facili8 ties and other appropriate locations;

9 ‘‘(5)(A) not later than 1 year after the date of

10 the enactment of this section, establish procedures

11 for the training of the representatives of the Office,

12 including unpaid volunteers, based on model stand13 ards established by the Secretary, in consultation

14 with representatives of citizen groups, providers of

15 care for children, and the Office, that—

16 ‘‘(i) specify a minimum number of hours of

17 initial training;

18 ‘‘(ii) specify the content of the training, in19 cluding training relating to—

20 ‘‘(I) Federal, State, and local laws,

21 regulations, and policies, with respect to

22 facilities in the State;

23 ‘‘(II) investigative techniques;

24 ‘‘(III) alternative dispute resolution,

25 including mediation; and
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1 ‘‘(IV) such other matters as the State

2 determines to be appropriate; and

3 ‘‘(iii) specify an annual number of hours of

4 in-service training for all designated representa5 tives; and

6 ‘‘(B) require implementation of the procedures

7 not later than 21 months after the date of the enact8 ment of this section;

9 ‘‘(6) prohibit any representative of the Office

10 (other than the Ombudsman) from carrying out any

11 activity described in subparagraphs (A) through (D)

12 of subsection (c)(3) unless the representative—

13 ‘‘(A) has received the training required

14 under paragraph (5); and

15 ‘‘(B) has been approved by the Ombuds16 man as qualified to carry out the activity on be17 half of the Office; and

18 ‘‘(7) permit any local Ombudsman entity to

19 carry out the responsibilities described in paragraph

20 (1), (2), (3), or (4).

21 ‘‘(k) LIABILITY.—The State shall ensure that no rep22 resentative of the Office will be liable under State law for

23 the good faith performance of official duties.

24 ‘‘(l) NONINTERFERENCE.—The State shall—
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1 ‘‘(1) ensure that willful interference with rep2 resentatives of the Office in the performance of the

3 official duties of the representatives (as defined by

4 the Secretary) shall be unlawful;

5 ‘‘(2) prohibit retaliation and reprisals by a facil6 ity or other entity with respect to any recipient, em7 ployee, or other person for filing a complaint with,

8 providing information to, or otherwise cooperating

9 with any representative of, the Office; and

10 ‘‘(3) provide for appropriate sanctions with re11 spect to the interference, retaliation, and reprisals.

12 ‘‘(m) GUIDANCE.—The Secretary shall issue and pe13 riodically update guidance respecting—

14 ‘‘(1) conflicts of interest by persons described in

15 paragraphs (1) and (2) of subsection (h); and

16 ‘‘(2) the relationships described in subpara17 graphs (A) through (D) of subsection (h)(3).

18 ‘‘(n) TRAINING, TECHNICAL ASSISTANCE, AND RE19 SEARCH.—The Secretary shall reserve not more than 10

20 percent of the amounts appropriated under subsection (p)

21 to provide technical assistance and training to Offices and

22 local Ombudsman entities, and to conduct research related

23 to the State and local operation of programs. The Sec24 retary may provide such technical assistance and training,
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1 and conduct such research, directly or by awarding grants

2 to appropriate entities.

3 ‘‘(o) COORDINATION WITH DEPARTMENT OF JUS4 TICE.—To carry out this Act and the State challenge ac5 tivities under section 285 of the Juvenile Justice and De6 linquency Prevention Act of 1974 (42 U.S.C. 5667c), in

7 planning for, and awarding, grants under this section, the

8 Secretary shall coordinate the award of such grants

9 with—

10 ‘‘(1) the Coordinating Council on Juvenile Jus11 tice and Delinquency Prevention, established under

12 section 206 of Juvenile Justice and Delinquency

13 Prevention Act of 1974 (42 U.S.C. 5616); and

14 ‘‘(2) the Office of Justice and Delinquency Pre15 vention of the Department of Justice, created under

16 section 201 of such Act (42 U.S.C. 5611).

17 ‘‘(p) AUTHORIZATION OF APPROPRIATIONS.—There

18 are authorized to be appropriated to carry out this section

19 $7,000,000 for fiscal year 1995 and such sums as may

20 be necessary for each subsequent fiscal year.’’.

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