08 LC 33
2511S
The
House Committee on Health and Human Services offers the following substitute to
HB 535:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend Chapter 2 of Title 37 of the Official Code of Georgia Annotated, relating
to the administration of mental health, developmental disabilities, addictive
diseases, and other disability services, so as to create the state ombudsman for
mental health disorders and co-occurring disorders; to provide for the
appointment, qualifications, and term of the ombudsman; to provide for a
nominating committee for selecting the ombudsman; to provide for the
organization of the office of the ombudsman; to provide for the duties of the
ombudsman; to provide that certain matters be reported to the ombudsman; to
provide for the ombudsman to investigate complaints and make recommendations to
agencies and other officials and programs; to provide for immunity; to provide
for the membership, terms, selection, and duties of an ombudsman committee; to
provide for related matters; to provide for a contingent effective date; to
repeal conflicting laws; and for other purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Chapter
2 of Title 37 of the Official Code of Georgia Annotated, relating to the
administration of mental health, developmental disabilities, addictive diseases,
and other disability services, is amended by revising Article 2, relating to
administration of mental disability services, in its entirety, as
follows:
"ARTICLE
2
37-2-30.
As
used in this article, the term:
(1)
'Agency' means the divisions, officials, or employees of the department, the
Department of Education, and of local school systems and county social service
agencies engaged in monitoring, providing, or regulating services or treatment
for mental health disorders and co-occurring disorders.
(2)
'Consumer' means a person served by an agency, facility, or program who is or
has been receiving services or treatment for mental health disorders and
co-occurring disorders.
(3)
'Facility' or 'program' means an acute care inpatient facility that provides
services or treatment for mental health disorders and co-occurring disorders and
a nonresidential or residential program that is required to be licensed by the
department.
(4)
'Mental health disorder and co-occurring disorder' means:
(A)
Both a mental health disorder and a substance abuse disorder; or
(B)
Both a mental health disorder and a developmental disability.
The
term is also known as a 'dual diagnosis' or 'co-morbidity.'
(5)
'Ombudsman' means the state ombudsman for mental health disorders and
co-occurring disorders.
(6)
'Regional hospital' means one of the state operated hospitals in this state
serving consumers of the division.
(7)
'Serious injury' means:
(A)
Fractures;
(B)
Dislocations;
(C)
Evidence of internal injuries;
(D)
Head injuries with loss of consciousness;
(E)
Lacerations involving injuries to tendons or organs and other lacerations for
which complications are present;
(F)
Extensive second degree or third degree burns and other burns for which
complications are present;
(G)
Extensive second degree or third degree frostbite and others for which
complications are present;
(H)
Irreversible mobility or avulsion of teeth;
(I)
Injuries to the eyeball;
(J)
Ingestion of foreign substances and objects that are harmful;
(K)
Near drowning;
(L)
Heat exhaustion or sunstroke; and
(M)
All other injuries considered serious by a physician.
37-2-31.
There
is created the state ombudsman for mental health disorders and co-occurring
disorders. The ombudsman shall have the powers and duties set forth in this
article. The ombudsman shall be a resident of this state and shall serve a term
of five years. The ombudsman shall not be eligible to hold public office. The
ombudsman may be removed for good cause by the ombudsman committee created in
Code Section 37-2-41. The ombudsman may be appointed to serve successive terms
and shall serve until a successor is appointed and qualified.
37-2-32.
(a)
The Governor shall appoint an individual qualified by education, training, and
experience to perform the duties of the ombudsman as set forth in this article.
The appointment shall be made from a list of at least three persons prepared and
submitted by a nominating committee appointed by the Governor and consisting
of:
(1)
One consumer currently in recovery;
(2)
One representative of the division;
(3)
One representative of an advocacy organization for consumers served by an
agency, facility, or program;
(4)
One representative of law enforcement; and
(5)
One psychologist with a Ph.D.
(b)
Three members of the committee shall constitute a quorum. The nominating
committee shall elect from among the members a chairperson and a vice
chairperson.
37-2-33.
(a)
The ombudsman shall act independently of any state official, department, or
agency in the performance of his or her duties. The ombudsman shall be assigned
to the Governor´s Office of Consumer Affairs for administrative purposes
only.
(b)
The General Assembly shall annually appropriate those sums it deems necessary
for the payment of the salaries and related costs of qualified staff and for the
payment of office expenses and other actual expenses incurred by the
ombudsman.
(c)
Any advocacy function performed on behalf of any mental disorder and
co-occurring disorder consumer of the department shall be transferred to the
ombudsman.
37-2-34.
(a)
The ombudsman shall have the following duties:
(1)
To communicate privately with any consumer;
(2)
At the request of a consumer, or upon receiving a complaint or other information
affording reasonable grounds to believe that the rights of a consumer who is not
capable of requesting assistance have been adversely affected, to gather
information about and analyze, on behalf of the consumer, the actions of an
agency, facility, or program;
(3)
To examine, on behalf of a consumer, records of an agency, facility, or program
if the records relate to a matter that is within the scope of the
ombudsman´s authority. If the records are private and the consumer is
capable of providing consent, the ombudsman shall first obtain the
consumer´s consent. The ombudsman shall not be required to obtain consent
for access to private data on consumers with developmental disabilities. The
ombudsman shall not be required to obtain consent for access to private data on
decedents who were receiving services for mental health disorders and
co-occurring disorders. All records of the ombudsman pertaining to the care and
treatment of a consumer shall be confidential. Information contained in such
records may not be disclosed publicly in any manner that would identify
individuals;
(4)
To subpoena a person to appear, give testimony, or produce documents or other
evidence that the ombudsman considers relevant to a matter under inquiry. The
ombudsman may petition the appropriate court to enforce the subpoena. A witness
who is at a hearing or is part of an investigation possesses the same privileges
that a witness possesses in the courts or under the laws of this state. Data
obtained from a person under this paragraph shall be considered private
data;
(5)
Without advance notice, but at reasonable times in the course of conducting a
review, to enter and inspect premises within the control of an agency, facility,
or program;
(6)
To access data of agencies, facilities, or programs classified as private or
confidential regarding services provided to consumers with developmental
disabilities;
(7)
To prescribe the methods by which complaints to the ombudsman´s office are
to be made, reviewed, and acted upon;
(8)
To mediate or advocate on behalf of a consumer;
(9)
To investigate the quality of services provided to consumers and determine the
extent to which quality assurance mechanisms within state and county government
work to promote the health, safety, and welfare of consumers;
(10)
To place trained ombudsman advocates in each regional board district which shall
be phased-in with a pilot program in two regions and rolled out in accordance
with a time frame established by the ombudsman;
(11)
To prepare and distribute to each facility, program, and regional hospital in
this state a written notice describing the office of ombudsman and the procedure
to follow in making a complaint, including the address and telephone number of
the ombudsman. The administrator or person in charge of such facility, program,
and regional hospital shall give the written notice required by this paragraph
to each consumer and his or her legally appointed guardian, if any, upon first
providing services. The administrator or person in charge shall also post such
written notice in conspicuous public places in the facility, program, and
regional hospital in accordance with procedures provided by the ombudsman and
shall give such notice to any consumer and his or her legally appointed
guardian, if any, who did not receive it upon first receiving
services;
(12)
To attend proceedings regarding the transfer of patients or residents between
institutions operated by the department and, subject to the consent of the
affected consumer, other proceedings affecting the rights of consumers. The
ombudsman shall not be required to obtain consent to attend meetings or
proceedings and to have access to private data on consumers with developmental
disabilities;
(13)
To take all possible action including, but not limited to, programs of public
education and legislative advocacy to secure and ensure the legal, civil, and
special rights of consumers; and
(14)
To apply for and accept grants, gifts, and bequests of funds from other states,
federal and interstate agencies and independent authorities, and private firms,
individuals, and foundations for the purpose of carrying out his or her lawful
responsibilities.
(b)(1)
In selecting matters for review, the ombudsman shall give particular attention
to unusual deaths or injuries of a consumer or actions of an agency, facility,
or program that:
(A)
May be contrary to law or rule;
(B)
May be unreasonable, unfair, oppressive, or inconsistent with a policy or order
of an agency, facility, or program;
(C)
May be mistaken in law or arbitrary in the ascertainment of facts;
(D)
May be unclear or inadequately explained, when reasons should have been
revealed;
(E)
May result in abuse or neglect of a person receiving treatment;
(F)
May disregard the rights of a consumer or other individual served by an agency
or facility;
(G)
May impede or promote independence, community integration, and productivity for
consumers; or
(H)
May impede or improve the monitoring or evaluation of services provided to
consumers.
(2)
The ombudsman shall have access to all records associated with other
investigations, regulatory actions, and other relevant information as the
ombudsman deems necessary to address complaints.
37-2-35.
Within
24 hours after a consumer suffers death or serious injury, the agency, facility,
or program director shall notify the ombudsman of such death or serious
injury.
37-2-36.
The
ombudsman may receive a complaint from any source concerning an action of an
agency, facility, or program. After completing a review, the ombudsman shall
inform the complainant and the agency, facility, or program of the results of
the ombudsman´s investigation. No consumer shall be punished nor may the
general condition of the consumer´s treatment be unfavorably altered as a
result of an investigation or a complaint by the consumer or by another person
on the consumer´s behalf. An agency, facility, or program shall not
retaliate or take adverse action against a consumer or other person who in good
faith makes a complaint or assists in an investigation. The ombudsman shall
classify as confidential the identity of a complainant.
37-2-37.
(a)
If, after reviewing a complaint or conducting an investigation and considering
the response of an agency, facility, or program and any other pertinent
material, the ombudsman determines that the complaint has merit or the
investigation reveals a problem, the ombudsman may recommend that the agency,
facility, or program:
(1)
Consider the matter further;
(2)
Modify or cancel its actions;
(3)
Alter a rule, order, or internal policy;
(4)
Explain more fully the action in question; or
(5)
Take other action.
(b)
At the ombudsman´s request, the agency, facility, or program shall, within
a reasonable time, inform the ombudsman about the action taken on the
recommendation or the reasons for not complying with it.
37-2-38.
The
ombudsman and commissioner shall obtain federal financial participation for
eligible activity by the ombudsman. The ombudsman shall maintain and transmit
to the department documentation that is necessary in order to obtain federal
funds which shall be applied to the budget of the ombudsman.
37-2-39.
(a)
The ombudsman may send conclusions and suggestions concerning any matter
reviewed to the Governor and General Assembly.
(b)
In addition to whatever conclusions or recommendations the ombudsman may make to
the Governor and General Assembly on an ad hoc basis, the ombudsman shall report
to the Governor and General Assembly biennially concerning the exercise of the
ombudsman´s functions during the preceding years, including a detailed
report analyzing the work of the office and any recommendations resulting
therefrom.
(c)
The ombudsman shall also provide the biennial report made pursuant to subsection
(b) of this Code section to the commissioner and to the director of the
division.
37-2-40.
(a)
Any person who, in good faith, makes a complaint or provides information as
authorized in this article shall incur no civil or criminal liability
therefor.
(b)
The State of Georgia shall protect and hold harmless the ombudsman and employees
of the office of ombudsman, including legal fees and costs, if any, arising out
of any claim, demand, or suit for damages resulting from acts or omissions
committed in the discharge of his or her duties for any action taken under this
article if the action was taken in good faith, was within the scope of the
ombudsman´s authority, and did not constitute willful or reckless
misconduct.
37-2-41.
(a)
The ombudsman committee shall consist of 12 members who shall be appointed by
the Governor, Lieutenant Governor, and Speaker of the House of Representatives.
Ombudsman committee members shall serve three-year terms and may be
reappointed.
(1)
The Governor shall appoint:
(A)
One consumer currently in recovery;
(B)
One representative of the division;
(C)
One representative of law enforcement; and
(D)
One psychologist with a Ph.D.
(2)
The Lieutenant Governor shall appoint:
(A)
A registered nurse who practices in the area of mental disorders and
co-occurring disorders;
(B)
One psychiatrist;
(C)
One physician whose specialty is internal medicine; and
(D)
One representative of an advocacy organization for consumers and other
individuals served by an agency, facility, or program.
(3)
The Speaker of the House of Representatives shall appoint:
(A)
One former consumer of the division;
(B)
One forensic pathologist;
(C)
One medical doctor who is a general practitioner; and
(D)
One citizen representative with no affiliation or connection to the mental
disorders and co-occurring disorders system in any manner.
(b)
Members shall not receive compensation, but shall be entitled to receive
reimbursement for reasonable and necessary expenses incurred. The ombudsman
committee shall elect a chairperson and vice chairperson at its first meeting
who shall serve in those roles for their terms on the committee.
(c)
The ombudsman committee shall meet at least four times a year at the request of
the chairperson or the ombudsman.
(d)
The ombudsman committee shall advise and assist the ombudsman in selecting
matters for attention; developing policies, plans, and programs to carry out the
ombudsman´s functions and powers; and making reports and recommendations
for changes designed to improve standards of competence, efficiency, justice,
and protection of consumers´ rights. The ombudsman committee shall function
as an advisory body except as otherwise provided in this Code
section.
(e)
Five members of the committee, including at least three physicians, one of whom
is a psychiatrist, shall be designated by the ombudsman to serve as a medical
review subcommittee. The ombudsman shall designate one of the members to serve
as chairperson of the subcommittee. The medical review subcommittee
may:
(1)
Make a preliminary determination of whether the death of a consumer that has
been brought to its attention is unusual or reasonably appears to have resulted
from causes other than natural causes and warrants investigation;
(2)
Review the causes of and circumstances surrounding the death;
(3)
Request the county coroner or medical examiner to conduct an
autopsy;
(4)
Assist an agency in its investigations of unusual deaths and deaths from causes
other than natural causes;
(5)
Submit a report regarding the death of a consumer to the ombudsman committee,
the ombudsman, the consumer´s next of kin, and the facility where the death
occurred and, where appropriate, make recommendations to prevent recurrence of
similar deaths to the head of each affected agency, facility, or program;
and
(6)
Remove the ombudsman from office for good cause."
SECTION
2.
Section
1-8 of the Act creating the state ombudsman for mental health, developmental
disabilities, and addictive disease, approved May 16, 2002 (Ga. L. 2002, p.
1324) is repealed in its entirety.
SECTION
3.
This
Act shall become effective only if funds are specifically appropriated for the
purposes of this Act in a General Appropriations Act making specific reference
to this Act and shall become effective when funds so appropriated become
available for expenditure.
SECTION
4.
All
laws and parts of laws in conflict with this Act are repealed.