08 LC 36
1059S
The
Senate Health and Human Services Committee offered the following substitute to
HB 535:
A
BILL TO BE ENTITLED
AN ACT
AN ACT
To
amend an Act providing for the state ombudsman and community ombudsmen for
mental health, mental retardation, and substance abuse, approved April 19, 2000
(Ga. L. 2000, p. 440), so as to repeal certain provisions providing for state
and community officials; to amend an Act providing for the state ombudsman and
community ombudsmen for mental health, developmental disabilities, and addictive
diseases, approved May 16, 2002 (Ga. L. 2002, p. 1324), so as to repeal certain
provisions providing for state and community officials; 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 office of disability services
ombudsman; to provide for definitions; to provide for the appointment,
qualifications, and term of a disability services ombudsman; to provide for a
nominating committee for selecting the ombudsman; to provide for the
organization of the office of disability services ombudsman; to provide for
duties; to provide for the release of certain information to the ombudsman; to
provide for penalties; to provide for a medical review group to review the
deaths of consumers; to provide for the appointment, duties, and compensation of
the medical review group; to provide for related matters; to provide a
contingent effective date; to repeal conflicting laws; and for other
purposes.
BE
IT ENACTED BY THE GENERAL ASSEMBLY OF GEORGIA:
SECTION
1.
Section
1 of the Act providing for a state ombudsman and community ombudsmen for mental
health, mental retardation, and substance abuse, approved April 19, 2000 (Ga. L.
2000, p. 440) is repealed in its entirety.
SECTION
2.
Section
1-8 of the Act providing for a state ombudsman and community ombudsmen for
mental health, developmental disabilities, and addictive diseases, approved May
16, 2002 (Ga. L. 2002, p. 1324) is repealed in its entirety.
SECTION
3.
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 adding a new Article 2 to read as
follows:
"ARTICLE
2
Part 1
Part 1
37-2-30.
As
used in this article, the term:
(1)
'Advance directive for health care' means a written document voluntarily
executed by a patient in accordance with the requirements of Code Section
31-32-5.
(2)
'Clinical record' means a written record pertaining to an individual consumer
and shall include all medical records, progress notes, charts, admission and
discharge data, and all other information which is recorded by a services
provider or other entities responsible for a consumer´s care and treatment
under this chapter and which pertains to the consumer´s hospitalization,
treatment, or habilitation.
(3)
'Consumer' means a natural person who has been or is a recipient of disability
services as defined in Code Section 37-2-2 and shall include natural persons who
are seeking disability services.
(4)
'Durable power of attorney for health care' means a written document voluntarily
executed by an individual creating a health care agency in accordance with
Chapter 36 of Title 31, as such chapter existed on and before June 30,
2007.
(5)
'Estate representative' means an executor, executrix, administrator, or
administratrix of the estate of a deceased consumer.
(6)
'Guardian' shall have the same meaning as provided in Code Section 29-1-1.
(7)
'Health care agent' means an agent under a durable power of attorney for health
care or health care agent under an advance directive for health
care.
(8)
'Office' means the office of disability services ombudsman created pursuant to
subsection (a) of Code Section 37-2-31.
(9)
'Ombudsman' means the disability services ombudsman appointed as provided for in
Code Section 37-2-32.
(10)
'Rights' means such rights as provided by statute, rule, or regulation for a
consumer of a services provider.
(11)
'Services provider' means a public or private person, corporation, or business
which provides disability services operated by the division, under letter of
agreement with the division, or under contract with the division.
(12)
'Safety' means freedom from physical harm.
(13)
'Well-being' means quality of life of a consumer, including the environment of
care.
37-2-31.
(a)
There is created the office of disability services ombudsman. The chief officer
of such office shall be the ombudsman.
(b)
The office and the ombudsman shall:
(1)
Be charged with promoting the safety, well-being, and rights of consumers;
(2)
Have the powers and duties set forth in this article; and
(3)
Act independently of any state official, department, or agency in the
performance of duties.
(c)
The office and ombudsman shall be assigned to the Governor´s Office of
Consumer Affairs for administrative purposes only.
37-2-32.
(a)
A nominating committee appointed by the Governor shall identify at least three
qualified persons to serve as ombudsman. In making the appointment of the
ombudsman, the Governor shall consider, but not be limited to, the nominations
furnished by the nominating committee. The ombudsman shall have knowledge and
experience concerning the safety, well-being, and rights of consumers and shall
have the skills to perform the duties set forth in this article.
(b)
The nominating committee shall have at least five members, who are residents of
this state, appointed by the Governor and selected from the
following:
(1)
A former consumer of the division;
(2)
A current consumer of the division;
(3)
A representative of the department;
(4)
A representative of an advocacy organization for consumers;
(5)
A representative of law enforcement;
(6)
A licensed psychiatrist;
(7)
A psychologist;
(8)
A registered professional nurse; and
(9)
A representative of the executive branch of the state government of
Georgia.
(c)
Three members of the committee shall constitute a quorum. The nominating
committee shall elect from among the members a chairperson and a vice
chairperson.
(d)
The ombudsman shall serve a term of five years and until his or her successor is
appointed and qualified. The ombudsman may be reappointed. No person shall
serve as ombudsman while holding another public office or while being an owner
or operator of a services provider or in the employ of or under contract with a
services provider; nor shall such person be a spouse, parent, or child of such
an owner, operator, employee, or contractor.
37-2-33.
(a)
The ombudsman may appoint such deputy ombudsmen and staff as may be deemed
necessary to effectively fulfill the purposes of this article and establish the
compensation thereof, within the limits of the funds available for the purposes
of the ombudsman. The duties of the deputy ombudsmen and staff may include the
duties and powers of the ombudsman if performed under the direction of the
ombudsman. The deputy ombudsmen shall be removable at the discretion of the
ombudsman.
(b)
The ombudsman shall have the authority to contract with experts in fields
including but not limited to medicine, psychology, child development, mental or
emotional illness, developmental disability, addictive disease, and child
welfare, as needed to support the work of the ombudsman, utilizing funds
appropriated for the purposes of the ombudsman.
37-2-34.
The
ombudsman and persons employed by or acting as agents of the ombudsman shall be
deemed members of the work force of the department solely for the purposes
of:
(1)
Allowing the department to disclose confidential clinical records and protected
health information to the ombudsman as provided for in Code Section
37-2-36;
(2)
Protecting confidential clinical records and protected health information from
further disclosure through or by the ombudsman and the office of the ombudsman;
and
(3)
Ensuring the department´s compliance with the federal Health Insurance
Portability and Accountability Act of 1996, P.L. 104-191, and the Standards for
Privacy of Individually Identifiable Health Information promulgated pursuant
thereto.
37-2-35.
The
ombudsman shall:
(1)
Establish priorities, policies and procedures for receiving, investigating,
referring, and attempting to resolve complaints made by or on behalf of
consumers concerning any act, omission to act, practice, policy, or procedure of
a services provider that may adversely affect the safety, well-being, and rights
of consumers and any policies and procedures necessary to implement the
provisions of this article;
(2)
Investigate and make reports and recommendations to the department and other
appropriate agencies concerning any act or failure to act by any services
provider with respect to the safety, well-being, and rights of consumers and is
authorized to:
(A)
Prioritize investigations, reporting, and recommendations based on the
seriousness and pervasiveness of the alleged act or failure to act;
and
(B)
Refer to the services provider those complaints deemed appropriate for
resolution by the services provider;
(3)
Establish a uniform state-wide complaint process;
(4)
Collect and record data relating to complaints and findings with regard to
services providers and analyze such data in order to identify adverse effects
upon the safety, well-being, and rights of consumers;
(5)
Promote the interests of consumers before governmental agencies and seek
administrative and other remedies to protect the safety, well-being, and rights
of consumers by:
(A)
Analyzing, commenting on, and monitoring the development and implementation of
federal, state, and local laws, regulations, and other governmental policies and
actions that pertain to the safety, well-being, and rights of consumers;
and
(B)
Recommending any changes in such laws, regulations, policies, and actions as the
ombudsman determines to be appropriate;
(6)
Make an annual written report documenting the types of complaints and problems
reported by consumers and others on their behalf and include recommendations
concerning needed policy, regulatory, and legislative changes. The annual
report shall be submitted to the Governor, the General Assembly, the
commissioner, and other appropriate agencies and organizations and made
available to the public. The ombudsman shall not be required to distribute
copies of the annual report to the members of the General Assembly but shall
notify the members of the availability of the report in the manner which he or
she deems to be most effective and efficient. The report shall not identify any
consumer by name or by implication without the express written consent of the
consumer, or if applicable the parent of a minor consumer, the guardian of the
consumer, or the health care agent of the consumer if the agent is so authorized
to make such a decision and the consumer is unable to do so; and
(7)
Serve as a member of the medical review group established pursuant to Code
Section 37-2-45.
37-2-36.
(a)
The ombudsman on his or her initiative or in response to complaints made by or
on behalf of consumers may conduct investigations in matters within his or her
powers and duties as provided by this article.
(b)
The ombudsman shall have the authority to enter any facility, premises, or
property where disability services are provided. Upon entering such facility,
premises, or property, the ombudsman shall notify the administrator or, in the
absence of the administrator, the person in charge of such facility, premises,
or property before speaking to any consumer. After notifying the administrator
or the person in charge of such facility, premises, or property, the ombudsman
may communicate privately and confidentially with consumers in such facility,
premises, or property individually or in groups.
(c)
The ombudsman shall have the authority to inspect the entire facility, premises,
or property and have access to the administrative records, policies, and
documents of the facility, premises, or property to which the consumers have or
the general public has access. Entry and investigation as provided by this Code
section shall be conducted in a manner which will not significantly disrupt the
provision of disability services to consumers.
(d)
The ombudsman shall have access to the clinical records of any consumer
if:
(1)
The ombudsman has written consent of the consumer, or if applicable the parent
of a minor consumer, the guardian of the consumer, or the health care agent of
the consumer if the agent is authorized to make such a decision and the consumer
is unable to do so; or
(2)
The consumer lacks the capacity to consent to the review and has no guardian of
the consumer or health care agent who is authorized to make such a
decision.
(e)
The ombudsman shall identify himself or herself as such to the consumer, and the
consumer shall have the right to communicate or refuse to communicate with the
ombudsman.
(f)
The consumer, the parent of a minor consumer, the consumer´s guardian, or
the health care agent of the consumer if the health care agent is authorized to
make such a decision and the consumer is unable to do so, shall have the right
to participate in planning any course of action to be taken on the
consumer´s behalf by the ombudsman, and the consumer, parent of a minor
consumer, guardian, or health care agent of the consumer if the agent is so
authorized, shall have the right to approve or disapprove any proposed action to
be taken on the consumer´s behalf by the ombudsman.
(g)
The ombudsman shall have the authority to obtain from any department,
governmental agency, or services provider, and such department, agency, or
services provider shall provide cooperation and assistance, services, data, and
access to, such files and records as will enable the ombudsman properly to
perform his or her duties and exercise his or her powers, provided that such
information is not privileged under any law.
(h)
The ombudsman shall report for investigative purposes any and all:
(1)
Suspected criminal activity to the appropriate law enforcement
agency;
(2)
Suspected abuse, neglect, exploitation, or abandonment of a consumer by any
person to the appropriate federal or state regulatory authority;
and
(3)
Suspected violations of any professional code of conduct to the appropriate
licensing board.
(i)
The ombudsman shall provide information and procedural guidance to any person
who requests assistance in making a report of suspected abuse, neglect,
exploitation, or abandonment of a consumer by any person:
(1)
To the appropriate law enforcement agency if criminal activity is suspected;
or
(2)
To the appropriate federal or state regulatory authority if abuse, neglect,
exploitation, or abandonment of a consumer is suspected.
37-2-37.
(a)
Following an investigation, the ombudsman shall report his or her opinions or
recommendations to the following, as applicable: the consumer, parent of a minor
consumer, guardian of the consumer, health care agent of the consumer, estate
representative, services provider, and the division and shall attempt to resolve
the complaint using, whenever possible, informal techniques of mediation,
conciliation, and persuasion. With respect to a complaint against the services
provider, the ombudsman shall first notify the administrator or person in charge
of that services provider in writing and give such person a reasonable
opportunity to correct any alleged defect. If so notified and the administrator
or person in charge fails to take corrective action after a reasonable amount of
time or if the defect seriously threatens the safety or well-being of any
consumer, the ombudsman may refer the complaint to the division and any other
appropriate agency.
(b)
Complaints or conditions adversely affecting consumers which cannot be resolved
in the manner described in subsection (a) of this Code section shall, whenever
possible, be referred by the ombudsman to the division and any other appropriate
agency.
37-2-38.
(a)
The identity of any complainant or individual providing information on behalf of
the consumer or complainant relevant to the investigation of a complaint shall
be confidential and shall not be disclosed without the express written
permission of such person, unless such disclosure is necessary for the
department or services provider to protect the safety, well-being, or rights of
a consumer; provided, however, that if the complaint becomes the subject of a
judicial or administrative proceeding, the identity of such persons may be
disclosed for the purpose of the proceeding.
(b)
The identity of any and all consumers involved in or mentioned in an
investigation, whether as a complainant or otherwise, shall be confidential and
shall not be disclosed without the express written consent of the consumer or a
person legally authorized to consent for the consumer.
37-2-39.
The
ombudsman shall prepare and distribute to each services provider in the state a
written notice describing the procedure to follow in making a complaint,
including the address and telephone number of the office and the ombudsman. The
administrator or person in charge of such services provider shall give the
written notice required by this Code section to each consumer who receives
disability services from such services provider and the consumer´s
guardian, parent of a minor consumer, or health care agent, if any, upon first
providing such disability services. The administrator or person in charge of
such services provider shall also post such written notice in conspicuous public
places in the facility, premises, or property in which disability services are
provided in accordance with procedures provided by the ombudsman and shall give
such notice to any consumer and his or her guardian, parent of a minor consumer,
or health care agent, if any, who did not receive it upon the consumer´s
first receiving disability services.
37-2-40.
(a)
No person shall discriminate or retaliate in any manner against any consumer,
relative of a consumer, guardian or health care agent of a consumer, any
employee of a services provider, or any other person for making a complaint or
providing information in good faith to the ombudsman.
(b)
Any person violating this Code section shall be guilty of a
misdemeanor.
37-2-41.
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.
37-2-42.
No
person providing information, including but not limited to a consumer´s
records, to the ombudsman shall be held, by reason of having provided such
information, to have violated any criminal law or to be civilly liable under any
law unless such information is false and the person providing such information
knew or had reason to believe that it was false.
37-2-43.
Any
person who makes a complaint or provides information relating to a complaint as
authorized in this article shall incur no civil or criminal liability therefor
unless such complaint or information is false and the person making such
complaint or providing such information knew or had reason to believe that it
was false.
37-2-44.
Nothing
in this article shall be construed to limit the power of the department to
investigate complaints where otherwise authorized by law.
37-2-45.
(a)
The Governor shall appoint a medical review group to conduct medical reviews of
all deaths of consumers in state hospitals or state operated community
residential services, which shall serve at the pleasure of the Governor. The
medical review group shall consist of the ombudsman and four board certified
physicians, one of whom shall be a psychiatrist. Three members of the medical
review group shall constitute a quorum. The members shall select a chairperson
and vice chairperson.
(b)
The physician members of the medical review group shall receive such
compensation, if any, as may be fixed by the Governor. Such physician members
shall be reimbursed for expenses incurred by them in performance of their duties
such as transportation, lodging, and subsistence, at the same rate as members of
the General Assembly.
(c)
The medical review group:
(1)
Shall be a review organization and shall conduct reviews of deaths of consumers
in state hospitals and state operated community residential services as peer
reviews pursuant to Article 6 of Chapter 7 of Title 31;
(2)
Shall review, within 60 days of notice of the death, all deaths of
consumers:
(A)
Occurring on site of a state hospital or state operated community residential
services providing services under this title;
(B)
In the company of staff of a state hospital or state operated community
residential services providing services under this title; or
(C)
Occurring within two weeks following the consumer´s discharge from a state
hospital or state operated community residential services;
(3)
Shall have access to all clinical records of the consumer, all investigations
conducted by the department, state hospitals, or state operated community
residential services regarding the death, and all reviews of the death,
including peer reviews;
(4)
May interview staff of the state hospitals and state operated community
residential services, and other persons involved in the events immediately
preceding and involving the death;
(5)
Shall determine whether the death was the result of natural causes or may have
resulted from other than natural causes;
(6)
Shall determine whether the death requires further investigation or review, and
shall report such conclusion to the division;
(7)
May make confidential recommendations to the ombudsman, the department, the
division, the state hospitals, and state operated community residential services
regarding consumer treatment and care, policies, and procedures, which may
assist in the prevention of deaths;
(8)
Shall make a summary report quarterly to the ombudsman and the department, to
include data analysis and identified trends regarding causes of consumer deaths
and to include the types of recommendations made to assist in reducing morbidity
and mortality, which reports shall not identify any consumer or consumers
explicitly or by implication; and
(9)
Shall report to the appropriate law enforcement agency any suspected criminal
activity or suspected abuse and shall report any suspected violation of any
professional code of conduct to the appropriate licensing board.
(d)
All peer review records submitted to or produced or created by the medical
review group and the findings and recommendations of the medical review group,
except for the quarterly reports, shall remain confidential and shall not be
considered public records under Article 4 of Chapter 18 of Title
50.
37-2-46.
The
medical reviews of deaths in state hospitals and state operated community
residential services as provided for in Code Section 37-2-45 shall not be
limited by the type of disability services received or applied for by the
consumer at any time after the effective date of this part and such reviews
shall be of the death of all consumers, the provisions of Code Section 37-2-47
notwithstanding.
37-2-47.
Commencing
with the calendar month immediately following the month in which this part
becomes effective, for the purposes of this article, the office and the
ombudsman shall receive, investigate, refer, and attempt to resolve complaints
made by or on behalf of only those consumers with mental or emotional illness,
consumers with mental or emotional illness and co-occurring developmental
disability, and consumers with mental or emotional illness and co-occurring
addictive disease.
Part
2
37-2-50.
Commencing
with the calendar month immediately following the month in which this part
becomes effective, for the purposes of this article, the office and ombudsman
shall, in addition to those powers and duties provided by Code Section 37-2-47,
receive, investigate, refer, and attempt to resolve complaints made by or on
behalf of all consumers with developmental disability or addictive
disease."
SECTION
4.
This
Act shall become effective on July 1, 2008, except that:
(1)
Part 1 of Article 2 of Chapter 2 of Title 37 as enacted by this Act shall become
effective only if funds are specifically appropriated for the purposes of said
part in a General Appropriations Act making specific reference to said part and
shall become effective when funds so appropriated become available for
expenditure; and
(2)
Part 2 of Article 2 of Chapter 2 of Title 37 as enacted by this Act shall become
effective only if funds are specifically appropriated for the purposes of said
part in a General Appropriations Act making specific reference to said part and
shall become effective when funds so appropriated become available for
expenditure.
SECTION
5.
All
laws and parts of laws in conflict with this Act are repealed.