Bill Text: PA HB788 | 2009-2010 | Regular Session | Introduced


Bill Title: 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.

Spectrum: Slight Partisan Bill (Republican 9-4)

Status: (Introduced - Dead) 2009-03-06 - Referred to CHILDREN AND YOUTH [HB788 Detail]

Download: Pennsylvania-2009-HB788-Introduced.html

  

 

    

PRINTER'S NO.  877

  

THE GENERAL ASSEMBLY OF PENNSYLVANIA

  

HOUSE BILL

 

No.

788

Session of

2009

  

  

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

  

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Amending Title 23 (Domestic Relations) of the Pennsylvania

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Consolidated Statutes, providing for a children's ombudsman

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and remedial powers, for response to complaints, for

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cooperation of agencies and providers, for confidentiality of

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investigations and records, for findings and recommendations,

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for protection from retaliation and for nonexclusivity of

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remedy.

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The General Assembly of the Commonwealth of Pennsylvania

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hereby enacts as follows:

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Section 1.  Section 6303 of Title 23 of the Pennsylvania

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Consolidated Statutes is amended by adding a definition to read:

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§ 6303.  Definitions.

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(a)  General rule.--The following words and phrases when used

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in this chapter shall have the meanings given to them in this

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section unless the context clearly indicates otherwise:

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* * *

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"Ombudsman."  The children's ombudsman established under

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section 6379.3 (relating to children's ombudsman).

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* * *

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Section 2.  Section 6340 of Title 23 is amended by adding a

 


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paragraph to read:

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§ 6340.  Release of information in confidential reports.

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(a)  General rule.--Reports specified in section 6339

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(relating to confidentiality of reports) shall only be made

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available to:

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* * *

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(18)  The ombudsman.

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* * *

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Section 3.  Chapter 63 of Title 23 is amended by adding a

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subchapter to read:

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SUBCHAPTER D.1

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CHILDREN’S OMBUDSMAN

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Sec.

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6379.1.  Scope of subchapter.

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6379.2.  Definitions.

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6379.3.  Children’s ombudsman.

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6379.4.  Powers and duties of ombudsman.

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6379.5.  Investigative and remedial powers.

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6379.6.  Response to complaints.

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6379.7.  Cooperation of agencies and providers.

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6379.8.  Confidentiality of investigations and records.

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6379.9.  Findings and recommendations.

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6379.10.  Protection from retaliation.

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6379.11.  Nonexclusivity of remedy.

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§ 6379.1.  Scope of subchapter.

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This subchapter relates to the children's ombudsman.

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§ 6379.2  Definitions.

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The following words and phrases when used in this subchapter

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shall have the meanings given to them in this section unless the

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context clearly indicates otherwise:

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"Administrative agency."  A State or county agency that

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provides services to a child who is the subject of an

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investigation conducted by the ombudsman under this subchapter.

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"Child welfare services" or "child-care services."  As

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defined in section 6303 (relating to definitions). The term does

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not include services provided by a child day-care center or

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group and family day-care home.

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"Complainant."  An individual who makes a complaint under

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this subchapter.

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"Remediable action."  An action by an administrative agency

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or an agent of the administrative agency that is:

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(1)  contrary to law, rule or policy;

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(2)  imposed without adequate statement of reason; or

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(3)  based on irrelevant or erroneous grounds.

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§ 6379.3.  Children's ombudsman.

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(a)  Appointment.--The Governor shall appoint a children’s

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ombudsman, subject to confirmation by a majority of the

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membership of the Senate. The ombudsman shall be qualified by

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training and experience to perform the duties and exercise the

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powers of the ombudsman as provided in this subchapter.

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(b)  Term of office.--The ombudsman shall hold office for a

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term of five years and shall continue to hold office until a

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successor is appointed. The Governor may reappoint the ombudsman

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then serving for one additional term, subject to Senate

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confirmation. A vacancy shall be filled by appointment for the

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remainder of the unexpired term. An ombudsman who has served

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part of an unexpired term may serve up to two additional terms.

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(c)  Removal.--The Governor may remove the ombudsman only for

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neglect of duty, misconduct or inability to perform duties. The

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Governor shall provide a report to the General Assembly citing

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the reasons for removal.

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(d)  Administrative support.--The ombudsman shall be

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established as an autonomous entity in the department for

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purposes of administrative support. The ombudsman shall exercise

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its powers and duties independently of the department.

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§ 6379.4.  Powers and duties of ombudsman.

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(a)  General rule.--The ombudsman shall have the following

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powers and duties:

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(1)  To receive, process and investigate complaints under

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this subchapter.

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(2)  To pursue legislative advocacy in the best interests

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of children.

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(3)  To identify and make appropriate recommendations to

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the Governor, General Assembly and the Supreme Court

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concerning issues affecting the welfare of children.

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(4)    Subject to annual appropriations, to employ

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sufficient personnel to carry out the powers and duties

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prescribed by this subchapter.

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(5)  To manage the expenditure of budgeted funds.

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(6)  To advise the public of services of the ombudsman,

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the purposes of the office and the procedures to contact the

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office.

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(7)  To prescribe procedures necessary to carry out the

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powers and duties of the ombudsman.

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(b)  Limitation.--The ombudsman may not overrule an action by

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an administrative agency or court.

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§ 6379.5  Investigative and remedial powers.

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The ombudsman may:

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(1)    Investigate alleged remediable actions concerning

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child welfare services throughout this Commonwealth.

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(2)  Investigate received complaints concerning child

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welfare services in this Commonwealth.

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(3)    Investigate complaints involving violations of

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applicable law or regulation or the alleged mismanagement of

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the department or administrative agency which directly or

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indirectly placed a child in danger.

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(4)    Hold informal hearings and request that individuals

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appear before the   ombudsman and give testimony or produce

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documentary evidence that the ombudsman considers relevant to

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a matter under investigation.

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(5)  Report findings and recommendations under section

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6379.9 (relating to findings and recommendations).

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§ 6379.6.  Response to complaints.

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(a)  Notice.--

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(1)    The ombudsman shall notify the complainant of the

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decision to investigate and shall notify the department,

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county agency, provider of child welfare services and other

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interested parties of the decision to investigate.

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(2)  If the ombudsman declines to investigate a complaint

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or to continue an investigation, the ombudsman shall notify

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the complainant and the department, county agency, provider

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of child welfare services and other interested parties of the

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decision and the reasons for the ombudsman’s action.

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(b)  Professional discipline.--

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(1)    If the investigation of a complaint leads the

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ombudsman to believe the matter complained of may involve

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professional misconduct, the ombudsman shall bring the matter

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to the attention of the authorities responsible for

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professional discipline.

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(2)  If the complaint refers to conduct by an attorney,

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guardian ad litem or court-appointed special advocate, the

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ombudsman shall perform a preliminary investigation and

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transmit the results of the investigation with the referral.

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(c)  Referrals.--In the case of a complaint brought to the

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attention of the ombudsman but not within the ombudsman’s powers

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under this section, the ombudsman shall refer the person making

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the complaint to a person with the authority or ability to

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assist that person.

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(d)  Alternative responses.--

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(1)    The ombudsman shall advise a person making a

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complaint to pursue all administrative remedies or channels

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of complaint available to the person before pursuing a

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complaint with the ombudsman.

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(2)  Subsequent to the administrative processing of a

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complaint, the ombudsman may conduct further investigations.

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(e)  Criminal violations.--

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(1)    If the ombudsman finds in the course of an

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investigation that an individual's action is in violation of

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Federal or State criminal law, the ombudsman shall

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immediately report that fact to the district attorney or the

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Attorney General.

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(2)  If the complaint is against a provider of child

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welfare services, the ombudsman shall refer the matter to the

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department for further action.

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§ 6379.7.  Cooperation of agencies and providers.

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(a)  Investigations.--The department, county agency,

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administrative agency or provider of child welfare services

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shall:

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(1)    Upon the ombudsman's request, grant the ombudsman or

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the ombudsman's designee access to all information, records

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and documents in its possession that the ombudsman considers

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necessary to the investigation.

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(2)  Assist the ombudsman in obtaining the necessary

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releases for those documents that are specifically

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restricted.

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(3)  Provide the ombudsman upon request with progress

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reports concerning the administrative processing of a

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complaint.

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(4)  Upon the ombudsman’s request, provide the ombudsman

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information requested within ten business days after the

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request. If the department determines that that release of

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the information would violate Federal or State law, the

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ombudsman shall be notified of that determination within the

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ten-day deadline.

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(b)  Public awareness.—-The department, county agency or

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provider of child welfare services shall provide information to

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a biological parent, prospective adoptive parent or foster

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parent regarding the provisions of this subchapter. The

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ombudsman shall develop written materials for public

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distribution regarding the provisions of this subchapter.

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§ 6379.8  Confidentiality of investigations and records.

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(a)  Matters.--

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(1)    The ombudsman shall treat all matters under

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investigation as confidential, including the identities of

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recipients of information, individuals from whom information

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is acquired and persons seeking assistance from the

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ombudsman.

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(2)  Upon receipt of information that by law is

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confidential or privileged, the ombudsman shall maintain the

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confidentiality of the information and shall not further

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disclose or disseminate the information except as provided by

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Federal or State law.

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(b)  Records.--

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(1)    A record of the office of the ombudsman is

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confidential, shall be used only for the purposes of this

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subchapter and is not subject to subpoena.

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(2)  Information contained in the records may not be

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disclosed in such a manner as to identify individuals, except

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for good cause shown on order of a court.

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(3)  The ombudsman or other agency may not disclose a

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record of the ombudsman or a record received from the

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ombudsman under the act of February 14, 2008 (P.L.6, No.3),

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known as the Right-to-Know Law, except for good cause shown

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on order of a court.

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(4)  No person may disclose any record under this

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subsection without the consent of the complainant.

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§ 6379.9  Findings and recommendations.

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(a)  Report of findings.--The ombudsman shall make a report

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of the findings of an investigation.

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(b)    Recommendations.--The ombudsman may make recommendations

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to the department, the county agency, the provider of child

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welfare services and other appropriate entities if the ombudsman

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finds any of the following:

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(1)  A matter should be further considered by the

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department, the county agency or provider of child welfare

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services.

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(2)  An administrative action should be modified or

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canceled.

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(3)    Reasons should be given for an administrative

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action.

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(4)    Other action should be taken by the department, the

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county agency or a provider of child welfare services.

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(c)  Subjects of report.--

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(1)  Before announcing a conclusion or recommendation

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that expressly or by implication criticizes an individual,

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the department, the county agency or a provider of child

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welfare services, the ombudsman shall provide the subject of

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the report with reasonable advance notice and an opportunity

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to respond.

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(2)  When making a report adverse to the department,

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county agency or provider, the ombudsman shall include in the

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report any written statement made to the ombudsman by the

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department, county agency or provider of child welfare

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services in defense or mitigation of the administrative

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action. The ombudsman may request to be notified by the

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subject of the report within a specified time of any

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administrative action taken on the recommendations of the

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ombudsman.

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(d)  Notice to complainant--The ombudsman shall provide a

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person making a complaint with a copy of the ombudsman's

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recommendations regarding the complaint and shall notify the

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person of any action taken by the ombudsman and by the

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department, county agency or provider of child welfare services.

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The ombudsman may not release to the person any report

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information or other material required to be kept confidential

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under section 6339 (relating to confidentiality of reports).

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(e)  Annual report.--The ombudsman shall submit to the

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Governor, the General Assembly, the administrative office of the

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Supreme Court and the department an annual report on the conduct

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of the ombudsman, including any recommendations regarding the

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need for legislation or for change in rules or policies.

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§ 6379.10.  Protection from retaliation.

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(a)  General rule.--An official, the department, the county

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agency or a provider of child welfare services may not penalize

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a person for filing a complaint in good faith or cooperating

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with the ombudsman in investigating a complaint under this

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subchapter.

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(b)  Obstruction.--An individual, the department, the county

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agency or a provider of child welfare services may not hinder

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the lawful actions of the ombudsman or employees of the 

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ombudsman.

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§ 6379.11.  Nonexclusivity of remedy.

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(a)  General rule.--The authority granted the ombudsman under

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this subchapter is in addition to the authority granted under

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the provisions of:

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(1)    any other statute or rule under which the remedy or

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right of appeal or objection is provided for a person; or

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(2)  any procedure provided for the inquiry into or

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investigation of any matter.

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(b)  Authority of ombudsman.--The authority granted the

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ombudsman does not limit or affect the remedy or right of appeal

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or objection and is not an exclusive remedy or procedure.

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Section 4.  This act shall take effect in 180 days.

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