RD117 - Final Report on the Establishment of an Office of Children's Services Ombudsman


Executive Summary:
At its May 17, 2006 meeting, the Commission on Youth approved the study of the Establishment of an Office of Children’s Services Ombudsman. The study directly relates to a 2006 General Assembly legislative proposal, Senate Bill (SB) 208, which proposed to create an Office of Children’s Services Ombudsman within the legislative branch of state government. On January 10, 2006, SB 208 was referred to the Senate Committee on General Laws and Technology. The Senate Committee reviewed the bill and heard testimonies on January 25, 2006. Committee members expressed concerns about the bill, particularly with the provisions addressing child protection and child welfare laws. Committee members unanimously agreed that it would be appropriate to have the Commission on Youth study the impact of this bill. Subsequently, the Committee sent a letter requesting the Commission to study the Establishment of a Children’s Services Ombudsman Office in Virginia.

The Commission directed staff to study the impact of SB 208 in three areas:

• Evaluate the need for the establishment of an Office of Children’s Services Ombudsman;
• Identify the appropriate administrative structure of an Office of Children’s Services Ombudsman; and
• Determine the cost to establish an Office of Children’s Services Ombudsman.

As proposed in SB 208, the mission of the Office of Children's Services Ombudsman in Virginia would be to:

• Protect children and parents from harmful agency action or inaction;
• Investigate the acts of state and local administrative agencies adversely affecting children;
• Recommend appropriate changes toward the goals of safeguarding the rights of children, parents and caregivers and
• Promote higher standards of competency, efficiency and justice in the administration of the child protection and child welfare laws, juvenile justice services and education of children.

SB 208 also set forth requirements for receiving complaints.

In subsequent months, the Commission undertook various activities to evaluate the need for the establishment of an Office of Children’s Services Ombudsman. Activities included holding three public hearings throughout the Commonwealth and convening multiple advisory group meetings, conducting key informant interviews, conducting extensive research of existing legislative, judicial and executive studies, and analyzing Virginia’s current children services complaint systems and viable children’s services ombudsman services in other states.

At the November 28, 2006 Commission meeting, Commission staff presented initial findings and recommendations to the Commission. The Commission unanimously agreed to continue the study of the Establishment of an Office of Children’s Ombudsman. The Commission further directed staff to present final findings and recommendations from this study to the Commission prior to the 2008 General Assembly Session.

On January 19, 2007, the Commission submitted an interim study report, Establishment of an Office of Children’s Services Ombudsman, Report Document 81. This report further detailed the Commission’s activities, initial findings and research, essential characteristics of a children’s services ombudsman, various types of ombudsman services, the need for a children’s services ombudsman and current structures in Virginia.

During the 2007 study year, the Commission undertook various activities in order to identify the appropriate administrative structure of an Office of Children’s Ombudsman and to determine the cost of such an Office.

At its December 5, 2007 meeting, the Commission on Youth approved recommendations which follow.

Recommendation 1
Establishment of Office

Introduce legislation during the 2008 General Assembly Session to create an Office of the Children’s Ombudsman (Office) as a separate and independent state agency.

Recommendation 2
Resource Assessment for Office

Introduce an enactment clause of the legislation creating the Office of the Children’s Ombudsman to 1) direct the Office of the Governor to conduct a needs assessment of resources and to work with General Services to provide for the Ombudsman’s office space needs and 2) clarify that the Office of the Children’s Ombudsman is an independent agency and technical support of the establishment of the Office shall not give such an entity any authority over the operation or function of the Office of the Children’s Ombudsman.

Recommendation 3
Phase-in of Ombudsman Services

The Office of the Children’s Ombudsman should provide ombudsman services for children served by the following departments:

• During the first year of operation: Departments of Social Services and Juvenile Justice;
• During the second year of operation: Departments of Social Services, Juvenile Justice, Mental Health, Mental Retardation and Substance Abuse Services, Education, and Correctional Education.; and
• During the third year of operation: Departments of Social Services, Juvenile Justice, Health, Mental Health, Mental Retardation and Substance Abuse Services, Education, Office of Comprehensive Services for At Risk Youth and Families, and Correctional Education, as well as any entities, program or services that the departments may license, fund or operate.

Recommendation 4
Mission of Office – Investigation

The Office of the Children’s Ombudsman shall be authorized to investigate complaints regarding actions of child-serving agencies. The Office of the Children’s Ombudsman shall conduct investigations for the purposes of resolving and mediating complaints from children, parents and citizens concerning harmful actions or inactions of any child-serving agency. After initial investigation, the Ombudsman may decline to accept any complaint it determines is frivolous or not made in good faith. The Office of the Children’s Ombudsman shall attempt to resolve the complaint at the lowest appropriate level, unless otherwise provided by law. The Ombudsman shall develop written procedures and guidelines for the handling of complaints, which shall be made available on its website.

Recommendation 5
Mission of Office – Systemic Improvements & Recommendations

The Office of the Children’s Ombudsman shall promote continuous quality improvement in the administration of children’s services. If the Ombudsman identifies systemic problems that may hinder child-serving agencies from achieving comprehensive, positive outcomes for children, then the Office shall recommend policy, regulatory and legislative changes toward the goal of safeguarding the well-being of children to the appropriate child-serving agencies. These recommendations shall be included in their annual report to the Governor, General Assembly and Virginia Commission on Youth.

Recommendation 6
Mission of Office – Standards

The Office of the Children’s Ombudsman shall promote higher standards of competency, efficiency and justice in the administration of children’s services with considerations given to best-practices for serving children within the state system.

Recommendation 7
Mission of Office – Information and Referral

The Office of the Children’s Ombudsman shall serve as a resource for information, referral and guidance for children, parents, caregivers, providers and citizens of the Commonwealth.

Recommendation 8
Operational – Management of Office

The Children’s Ombudsman shall be authorized to operate and manage the Office of the Children’s Ombudsman and to employ the personnel required to carry out duties and responsibilities of the Office. In addition, the Children’s Ombudsman shall be authorized to make and enter into contracts and agreements that may be necessary and incidental to carry out the duties and responsibilities of the Office, and to apply for and accept grants from the United States government, agencies and instrumentalities thereof, and any other source, in furtherance of the provisions of this article.

Recommendation 9
Operational – Appointment of the Children’s Ombudsman

The Children’s Ombudsman shall be appointed by the Governor, initially for a term that expires one full year following the end of the Governor's term of office, and, thereafter, the term shall be for four years and the Ombudsman may be reappointed for subsequent terms. Vacancies shall be filled by appointment by the Governor for the unexpired term and shall be effective until 30 days after the next meeting of the ensuing General Assembly and, if confirmed, thereafter for the remainder of the term. The Governor may remove the Children’s Ombudsman from office for just cause.

Recommendation 10
Rights and Powers of the Children’s Ombudsman

The Office of the Children’s Ombudsman shall have the following rights and powers:
In response to a complaint, to enter and inspect any and all institutions, facilities, and residences, public and private, where a child has been placed by a court or a child-serving agency and is currently residing. These inspections may be conducted unannounced.

To make such inquiries and obtain such assistance from any child-serving agency as the Ombudsman requires in the discharge of the Ombudsman's duties. Agencies shall not restrict the Ombudsman's access to agency personnel. Notwithstanding any other provision of state law, the Ombudsman has access to and can examine and copy, without payment of a fee, any child-serving agency records, including records which are confidential by state law. The Ombudsman shall not disclose confidential records and shall be subject to the same penalties as the legal custodian of the records for any unlawful or unauthorized disclosure.

Recommendation 11
Operational – Reports

The Office of the Children’s Ombudsman shall have the duty to keep the Governor, General Assembly, the Virginia Commission on Youth and the public fully and currently informed concerning significant problems, abuses and deficiencies relating to the administration of the specified programs and child services; to recommend corrective actions concerning the problems, abuses and deficiencies of such programs and services; and to report on the progress made in implementing the corrective actions.

Recommendation 12
Reports – Annual Report

The Children’s Ombudsman shall provide periodic reports on the work of the Office of the Children’s Ombudsman, including but not limited to an annual written report to the Governor, General Assembly, and the Virginia Commission on Youth. The annual report shall be prepared not later than November 30 of each year and shall summarize the activities of the Office to the Governor, General Assembly and the Virginia Commission on Youth. The report shall include:

1. Information concerning the numbers of complaints received and types of investigations completed by the Office during the reporting period and recommendations made to child-serving agencies;
2. Information concerning child-serving agency responses to complaints brought to their attention by the Ombudsman and any barriers to compliance with the Ombudsman’s recommendations;
3. A summary of matters referred to the attorneys for the Commonwealth, law enforcement, and agency heads, and actions taken on them during the reporting period;
4. Recommendations for improvements or needed changes concerning the provision of services to children by the child-serving agencies of the state; and
5. Recommendations for systemic improvements in the provision of services to children, including and legislative changes necessary to promote positive changes in policy and procedure.

Recommendation 13
Operational – Notification

The Office of the Children’s Ombudsman shall notify, in a timely manner, the attorney for the Commonwealth for the locality in which a state facility, shelter care facility or detention home, as defined in §16.1-228, or residential public charter school is located and law enforcement, as appropriate, whenever the Children’s Ombudsman has reasonable grounds to believe there has been a violation of state criminal law. However, where the Children’s Ombudsman has reason to believe that a criminal offense has been committed in a state facility, notification of that suspicion shall be given to the agency head of that department.

Recommendation 14
Reports – Notification of Serious Problems

The Children’s Ombudsman shall report immediately to the Governor and the Commissioners of the Department of Social Services, and Mental Health, Mental Retardation and Substance Abuse Services, the Director of Juvenile Justice, Health, and the Comprehensive Services for At Risk Youth and Families, or the Superintendent of the Department of Education and Department of Correctional Education, as may be appropriate, whenever the Office becomes aware of serious problems, abuses or deficiencies relating to the administration of the programs and services of state facilities and of providers.

Recommendation 15
Reports – Direct Reporting

The reports, information, or documents required by or under this section shall be transmitted directly to the Governor, the General Assembly and the Virginia Commission on Youth without preliminary clearances or approvals. The Children’s Ombudsman shall, insofar as feasible, provide copies of the annual report to the Governor in advance of the date for their submission to allow a reasonable opportunity for comments of the Governor to be appended to the reports.

Recommendation 16
Reports – Confidential Records

Records that are confidential under federal or state law shall be maintained by the Office of the Children’s Ombudsman as confidential by the Ombudsman and shall not be further disclosed, except as permitted by law.

Recommendation 17
Cooperation of Other State Agencies

The Office of the Children’s Ombudsman may request and shall receive from every department, division, board, bureau, commission, authority, or other agency created by the Commonwealth, or to which the Commonwealth is a party, or from any political subdivision of the Commonwealth, cooperation and assistance in the performance of its duties.

Recommendation 18
Cooperative Agreements with State Agencies Regarding Advocacy Services

Notwithstanding the foregoing, state agencies providing services to children may develop and maintain advocacy, client assistance or ombudsman services for their clients, which services may be within the agency and independent of the Office of the Children’s Ombudsman. The Office may enter into cooperative agreements with any state agency providing advocacy, client assistance or ombudsman services for the agency's clients, in order to ensure the protection of and advocacy for children, provided that such agreements do not restrict such authority as the Office may otherwise have to pursue any legal or administrative remedy on behalf of children.

Recommendation 19
Budget – Operating

Introduce a budget amendment providing the monies necessary for the Office of the Children’s Ombudsman to carry out its duties and responsibilities. In addition, the budget amendment shall include funding for marketing the services of the agency. This budget amendment will set forth the operating budget for the Office of the Children’s Ombudsman, as well as the number of full time equivalents (FTEs).