D.C. Law 23-270. Office of the Ombudsperson for Children Establishment Amendment Act of 2020.
AN ACT
To establish the Office of the Ombudsperson for Children as an independent, impartial office, responsible to the Council and tasked with improving outcomes for children involved with, previously involved with, or otherwise known to the Child and Family Services Agency; to amend the Prevention of Child Abuse and Neglect Act of 1977 to permit the Office of the Ombudsperson for Children to access information contained in the Child Protection Register and from staff of the Child and Family Services Agency that identifies individual children reported as or found to be abused or neglected or which identifies other members of their families or other persons otherwise considered confidential; and to make additional conforming amendments.
BE IT ENACTED BY THE COUNCIL OF THE DISTRICT OF COLUMBIA, That this act may be cited as the "Office of the Ombudsperson for Children Establishment Amendment Act of 2020".
TITLE I. OFFICE OF THE OMBUDSPERSON FOR CHILDREN.
Sec. 101. Definitions.
For the purposes of
(1) "Administrative act" means any action, decision, adjudication, omission, rule, regulation, interpretation, recommendation, policy, practice, or procedure of an agency, agency-licensed or contracted service and placement provider, or entity that must operate under or comply with guidance from an agency.
(2) "Agency" means any officer, employee, office, department, division, board, commission, or agency of the government of the District, including independent agencies, but does not include:
(A) The District of Columbia Courts, as that term is defined in
(B) The Council;
(C) Any instrumentality formed pursuant to an interstate compact; or
(D) The Office of the Inspector General.
(3) "CFSA" means the Child and Family Services Agency.
(4) "CFSA affiliate" means a CFSA-licensed or contracted service and placement provider or entity that must operate under or comply with guidance from CFSA.
(5) "CFSA child" means an individual who is 21 years of age or younger and involved with, previously involved with, or otherwise known to CFSA.
(6) "CFSA constituent" includes:
(A) A CFSA child;
(B) A former CFSA child;
(C) The following individuals in relation to a CFSA child:
(i) A parent by birth, adoption, or marriage;
(ii) A relative caregiver, as that term is defined in
(ii) A grandparent, as that term is defined in
(iv) A close relative, as that term is defined in
(v) A court-ordered legal custodian or guardian;
(D) A foster parent, as that term is defined in
(E) An employee of CFSA;
(F) A contracted employee of CFSA;
(G) A court-appointed special advocate or guardian ad litem, an attorney of a CFSA child, or a CFSA child's parent or caregiver; and
(H) An individual with first-hand knowledge of an administrative act of CFSA or a CFSA affiliate.
(7) "Office" means the Office of the Ombudsperson for Children.
(8) "Ombudsperson" or "Ombudsperson for Children" means the administrator of the Office.
(9) "Record" means any record, document, book, paper, file, photograph, microfilm, sound recording, video recording, magnetic storage media, computer data, or other material, regardless of physical form or characteristics, created, generated, recorded, received, possessed, controlled, accessible, or auditable by an agency.
Sec. 102. Office of the Ombudsperson for Children; establishment; term.
(a) There is established for the District of Columbia the Office of the Ombudsperson for Children, which, in addition to other remedies or rights of appeal available under the law, shall be an independent, impartial office responsible to the Council and tasked with improving outcomes for CFSA children by holding agencies accountable for fulfilling their responsibilities under the law.
(b) The Office shall be headed by the Ombudsperson for Children, who shall be appointed by the Chairman of the Council, subject to the approval of a majority of the Council.
(c)(1) The Ombudsperson shall serve for a term of 5 years and may be reappointed.
(2) The Ombudsperson shall be paid at a rate of compensation as may be established from time to time by the Council.
(3) The Ombudsperson shall receive 2-weeks' notice of removal and may be removed only for cause by a majority of the Council.
(4) If the position of Ombudsperson becomes vacant, the Chief Deputy Ombudsperson shall serve as acting Ombudsperson until an Ombudsperson has been appointed for a full term.
(d) The Ombudsperson shall appoint a Chief Deputy Ombudsperson, who shall serve under the direction and control of the Ombudsperson and perform such duties as may be assigned by the Ombudsperson.
(e)(1) The Ombudsperson shall appoint a Deputy CFSA Ombudsperson, who shall have primary responsibility for performing the duties under
(A) The CFSA Internal Child Fatality Review Committee;
and
(B) The Mayor's Advisory Committee on Child Abuse and Neglect.
(2) The Mayor shall furnish the Deputy CFSA Ombudsperson with such office space at CFSA's main office that is necessary for the discharge of the Deputy CFSA Ombudsperson's duties.
(f) The Ombudsperson shall serve as the personnel authority for the Office and shall have such staff as is appropriated in an approved budget. The Ombudsperson and all employees of the Office shall be appointed in
(g) The Ombudsperson shall have exclusive authority to administer the Office's budget.
Sec. 103. Qualifications.
(a) The Ombudsperson shall:
(1) Be a person of recognized judgment, objectivity, and integrity, and qualified by training or experience to analyze problems of law, administration, and public policy;
(2) Possess experience in the field of social work, counseling, healthcare, mediation, law, policy, or public administration or auditing, accounting, or other investigative field;
(3) Have management experience that demonstrates an ability to hire and supervise qualified staff; and
(4) Become a member of the United States Ombudsman Association ("USOA") and, upon appointment, attend the new ombudsman training offered by USOA.
(b) The Ombudsperson shall not:
(1) Participate in partisan political activities;
(2) Be a candidate for or hold any other elective or appointive government office; or
(3) Engage in any other occupation, business, or profession that may detract from the performance of the Ombudsperson's duties or result in a conflict of interest or an appearance of impropriety or partiality with the duties of the Ombudsperson.
Sec. 104. Duties of the Office.
The Office shall:
(1) Facilitate interagency communication and coordination related to issues impacting CFSA children;
(2) Receive requests to reconsider complaints dismissed by the Deputy CFSA Ombudsperson;
(3) Develop and maintain a database that tracks complaints received by the Office and disposition of those complaints;
(4) Investigate on the Office's own initiative:
(A) Systemic concerns relating to CFSA children, including issues relating to interagency communication and coordination; or
(B) An administrative act of CFSA or a CFSA affiliate, without regard to the finality of the administrative act, that the Office believes to be:
(i) Inconsistent with District or federal law, regulation, or policy, or standards of good practice;
(ii) Based on mistaken facts or irrelevant considerations;
(iii) Unsupported by an adequate statement of reasons;
(iv) Performed in an unprofessional manner that is detrimental to the safety, permanency, or well-being of a CFSA child or the CFSA child's family; or
(v) Unreasonable, unfair, not aligned with standards of practice and care, or otherwise objectionable, even though in accordance with law;
(5) Provide recommendations to policies and procedures, staff training, regulations, and strategies based on investigations performed pursuant to this section;
(6) Submit reports required by
(7) Develop regulations and standard operating procedures, including those related to interagency communication and coordination, ensuring confidentiality, the development of a complaint database, standards for investigations, and any other issues necessary for meeting the responsibilities of the Office;
(8) Create and maintain a website for the Office, which shall allow for the online submission of complaints;
(9) Coordinate with the Office of the Inspector General or the Office of the District of Columbia Auditor regarding any matter that may fall within the jurisdiction and mission of one of those offices;
(10) If the Ombudsperson believes that an agency official or employee has acted in a manner warranting criminal or disciplinary proceedings, refer the matter to the appropriate authority; and
(11) Perform the duties in
Sec. 105. Duties of the Deputy CFSA Ombudsperson.
In addition to any other duties that the Ombudsperson may assign, the Deputy CFSA Ombudsperson shall:
(1) Provide information, as appropriate, on the rights and responsibilities of CFSA constituents;
(2) Facilitate communication between CFSA and CFSA constituents as needed;
(3) Review the policies, procedures, regulations, and directives as established, implemented, or practiced by CFSA or a CFSA affiliate;
(4) Receive and process complaints from CFSA constituents involving an administrative act of CFSA or a CFSA affiliate, without regard to the finality of the administrative act by:
(A) Receiving complaints by phone, in writing, electronically, or in person at multiple locations, including at the office of the Deputy CFSA Ombudsperson, the Office of the Ombudsperson for Children, or in the community if requested by, and necessary to protect the privacy interests of, the complainant;
(B) Acknowledging complaints in a timely fashion;
(C) Providing accurate and helpful information in response to a complaint when appropriate; and
(D) Determining the validity of a complaint quickly and professionally and investigating all valid complaints that the Deputy CFSA Ombudsperson reasonably believes to be:
(i) Inconsistent with District or federal law, regulation, or policy, or standards of good practice;
(ii) Based on mistaken facts or irrelevant considerations;
(iii) Unsupported by an adequate statement of reasons;
(iv) Performed in an unprofessional manner that is detrimental to the safety, permanency, or well-being of a CFSA child and the CFSA child's family; or
(v) Unreasonable, unfair, not aligned with standards of practice and care, or otherwise objectionable, even though in accordance with law;
(5) Dismiss or refrain from investigating a complaint if the Deputy CFSA Ombudsperson reasonably believes:
(A) It is plain on the face of the complaint that an adequate remedy is presently available such that an investigation is unwarranted, and the Deputy CFSA Ombudsperson can provide information to the complainant about the remedy;
(B) The complaint relates to a matter that is outside the purpose of the Office;
(C) The complaint is not made in good faith;
(D) The complaint has been too long delayed to justify present examination; or
(E) Investigation of the complaint would not facilitate an action authorized by
(6) Make recommendations for the resolution of a complaint in a timely fashion; and
(7) Offer voluntary conflict resolution services, including mediation or an opportunity for the complainant to meet with the subject of the complaint, with respect to complaints submitted, when appropriate and at the discretion of the Deputy CFSA Ombudsperson.
Sec. 106. Powers.
(a) Notwithstanding any other provision of law, the Ombudsperson shall have the power to:
(1) Access, examine, and copy, without payment of a fee, any agency record that is required for the discharge of the Ombudsperson's duties;
(2) Make inquiries and obtain assistance and information from an agency, an agency-licensed or contracted service and placement provider, or an entity that must operate under or comply with guidance from an agency that is required for the discharge of the Ombudsperson's duties;
(3) Log-in directly to CFSA's web-based case management and electronic data systems that service CFSA children without having to first obtain CFSA's consent or provide notice;
(4) Conduct inspections of the premises, or any part thereof, without prior notice, of CFSA and licensed or contracted placement providers, including secure facilities and group homes, but excluding licensed single-family foster homes, that are necessary for the discharge of the Ombudsperson's duties;
(5) Conduct inspections of the premises, or any part thereof, with prior notice and consent, of single-family foster homes, contracted or licensed service providers, and any entity that must operate under or comply with guidance from CFSA that are necessary for the discharge of the Ombudsperson's duties;
(6) Issue a subpoena, enforceable in Superior Court of the District of Columbia, to compel the attendance and testimony of any person or to produce any record from an agency, an agency-licensed or contracted service and placement provider, or an entity that must operate under or comply with guidance from an agency that is required for the discharge of the Ombudsperson's duties;
(7) Communicate privately with a CFSA child who wishes to speak to the Ombudsperson, without prior notice to, or consent or interference from, CFSA; and
(8) Communicate privately with an agency employee without prior notice to, consent or interference from, or in the presence of, that employee's supervisor, manager, or any other senior managers of the agency.
(b) If the Ombudsperson, during the course of an investigation, requests to communicate with a CFSA child who is not the complainant:
(1) The CFSA child shall have the opportunity to consult with counsel before communicating with the Ombudsperson; and
(2) The Ombudsperson shall not compel a CFSA child to communicate with the Ombudsperson.
(c) The Ombudsperson shall not:
(1) Take any personnel action, except with regard to the employees of the Office; or
(2) Provide legal advice or legal representation.
Sec. 107. Enforcement of a subpoena.
(a) In a case of contumacy or refusal to obey a subpoena issued to a person under
(b) If the Ombudsperson prevails, in whole or in part, in an application to the Superior Court of the District of Columbia in a suit to enforce a subpoena issued pursuant to
(c) If the Ombudsperson prevails, in whole or in part, in an application to the Superior Court of the District of Columbia in a suit to enforce a subpoena issued pursuant to
Sec. 108. Reporting.
(a) The Ombudsperson may from time to time report the Office's activities to the Council or any of its committees, the Citizen Review Panel established by
(b) Beginning on December 31, 2022, and every December 31 thereafter, the Ombudsperson shall provide an annual report to the Council, which shall contain the following sections and information collected over the course of the prior fiscal year:
(1) The general work of the Office, which shall include:
(A) The number, general sources and origins, and the nature of complaints made to the Office and the Deputy CFSA Ombudsperson, and the methods by which the complaints were received;
(B) The number of complaints pending, dismissed, investigated, mediated, and concluded;
(C) Trend analyses that include an examination of:
(i) Common root causes, structural issues, or systemic problems underlying complaints;
(ii) Common solutions or methods for resolving complaints; and
(iii) The amount of time to investigate and provide recommendations on resolving complaints, and the factors affecting how quickly complaints are investigated and recommendations provided; and
(D) A summary of systemic investigations undertaken at the Ombudsperson's own initiative;
(2) The CFSA children data reporting section, which shall include metrics related to:
(A) Placement stability;
(B) Hospitalizations and placements in residential treatment facilities;
(C) Access to behavioral health services; and
(D) Any other metrics that the Ombudsperson considers necessary and relevant;
(3) The crossover youth section, which shall include:
(A) The number, demographics, and other relevant characteristics of the crossover-youth population;
(B) Data, metrics, and trend analyses related to outcomes for crossover youth;
(C) Assessment of interagency communication and coordination related to crossover youth and its impact on outcomes for crossover youth; and
(D) Any other information the Ombudsperson considers relevant to the outcomes for crossover youth; and
(4) The conclusions and policy recommendations section, which shall include:
(A) Conclusions and policy recommendations based on the information provided in paragraphs (1) through (3) of this subsection; and
(B) A status update on policy recommendations from prior annual reports, if applicable.
(c) Before issuing a report in accordance with subsection (a) and (b) of this section, the Ombudsperson shall provide an agency referenced in the report a reasonable opportunity to provide a written response. The Ombudsperson may request an agency to notify the Office within a reasonable specified amount of time of any action taken on the data, conclusions, or recommendations included in the report.
(d) For purposes of this section, the term "crossover youth" means a CFSA child who is currently or has previously been the subject of a petition alleging delinquency filed by the Office of the Attorney General, pursuant to
Sec. 109. Immunity.
(a) A civil action may not be brought against the Office for anything done, said, or omitted in the performance of the Office's duties or responsibilities under
(b) No finding, conclusion, recommendation, or report of the Office shall be reviewable in court.
(c) Neither the Ombudsperson nor the Office's staff shall be:
(1) Compelled to testify or produce evidence in any judicial or administrative proceeding with respect to any matter involving the exercise of the Office's official duties, except in the circumstances provided in paragraph (2) of this subsection. All related memoranda, work product, notes, and case files of the Office are confidential, are not subject to discovery, judicial or administrative subpoena, or other method of legal compulsion, and are not admissible in evidence in a judicial or administrative proceeding;
(2) Held personally liable for the good faith performance of the Office's responsibilities under
(3) Subject to retaliatory action for the good faith performance of the Office's responsibilities under
Sec. 110. Confidentiality and privilege.
(a) The Office shall keep confidential:
(1) All information received pursuant to a complaint filed or a matter investigated, except as may be necessary to enable the Office to perform its duties and to support any resulting recommendations; and
(2) Identifying information of complainants and witnesses, unless:
(A) The complainant or witness waives confidentiality; or
(B) The information is compelled by a Council subpoena pursuant to a Council investigation for neglect of duty or misconduct by the Ombudsperson or the Office when the identifying information is necessary to the investigation.
(b) Upon receipt of information that is subject to confidentiality by law or a privilege, the Office shall maintain the confidentiality or privilege of such information and shall not disclose the information unless permitted by District or federal law and reasonably necessary to protect a CFSA child from imminent harm.
(c)(1) Whoever willfully discloses, receives, makes use of, or knowingly permits the use of confidential information concerning a CFSA child or individual in violation of
(2) A violation of this subsection shall be prosecuted by the Office of the Attorney General for the District of Columbia.
Sec. 111. Reprisals prohibited.
(a) No person, including a CFSA constituent, an employee of an agency, an employee of an agency's licensed or contracted service and placement provider, or an employee of any entity that must operate under or comply with guidance from an agency, who files a complaint or participates in an investigation or proceeding pursuant to
(b) A person who alleges a violation of this section may bring a civil action for appropriate injunctive relief, actual damages, and punitive damages. Punitive damages shall not exceed $10,000.
(c) The provisions of this section shall not limit the availability of any other remedy under the law.
Sec. 112. Budgeting.
Beginning in Fiscal Year 2022, the Chief Financial Officer shall assign an individual agency-level code for the Office of the Ombudsperson for Children in the District's financial system.
TITLE II. CONFORMING AMENDMENTS.
Sec. 201. The Prevention of Child Abuse and Neglect Act of 1977, effective September 23, 1977 (D.C. Law 2-22; D.C. Official Code § 4-1301.01 et seq.), is amended as follows:
(a) Section 203(a) (D.C. Official Code § 4-1302.03(a)) is amended as follows:
(1) Paragraph (9) is amended by striking the phrase "; and" and inserting a semicolon in its place.
(2) Paragraph (10) is amended by striking the period and inserting the phrase "; and" in its place.
(3) A new paragraph (11) is added to read as follows:
"(11) The Office of the Ombudsperson for Children, established by
(b) Section 306(a) (D.C. Official Code § 4-1303.06(a)) is amended as follows:
(1) Paragraph (5) is amended by striking the phrase "; or" and inserting a semicolon in its place.
(2) Paragraph (6) is amended by striking the period and inserting the phrase "; or" in its place.
(3) A new paragraph (7) is added to read as follows:
"(7) An investigation by the Office of the Ombudsperson for Children established by
(c) A new section 311 is added to read as follows:
"Sec. 311. Agency's responsibilities to the Office of the Ombudsperson for Children.
"(a) The Agency shall:
"(1) Notify the Office of the Ombudsperson for Children ("Ombudsperson for Children"), established by
"(2) Provide the Ombudsperson for Children with copies of proposed revisions to current policies or regulations, or proposed new policies or regulations, including administrative issuances, at least 10 days prior to issuance; except, that the 10-day notice requirement shall not apply to the issuance of emergency regulations; and
"(3) Post the Ombudsperson's report issued pursuant to
"(b) For purposes of this section, the term:
"(1) "Critical incident" means:
"(A) The death of a child known or who has been known to the Agency within 4 years prior to the child's death;
"(B) A near fatality or serious bodily injury resulting from child abuse or neglect or caused by any other means while a child is under the Agency's care and custody; or
"(C) An act that causes significant impairment to a child's physical or mental condition, as determined by qualified medical personnel, including instances of sexual assault, sex trafficking, or broken bones that come to the attention of the Agency.
"(2) "Near fatality" means any act that threatens the life of a child as determined by a medical or other qualified professional.
"(3) "Serious bodily injury" shall have the same meaning as provided in
Sec. 202. Section 4604 of the Child Fatality Review Committee Establishment Act of 2001, effective October 3, 2001 (D.C. Law 14-28; D.C. Official Code § 4-1371.04), is amended as follows:
(a) A new subsection (c-1) is added to read as follows:
"(c-1) The Council shall appoint a minimum of one representative from the Office of the Ombudsperson for Children.".
(b) Subsection (d) is amended by striking the phrase "or of the federal or judicial body designating their availability for appointment." and inserting the phrase "the Council in the case of the Office of the Ombudsperson for Children, or of the federal or judicial body designating their availability for appointment." in its place.
Sec. 203. Section 4 of the Students in the Care of D.C. Coordinating Committee Act of 2018, effective April 11, 2019 (D.C. Law 22-303; D.C. Official Code § 2-1599.03), is amended as follows:
(a) Subsection (a) is amended by striking the phrase "shall consist of 25 voting members" and inserting the phrase "shall consist of 26 voting members" in its place.
(b) Subsection (a)(1) is amended as follows:
(1) Sub-paragraph (O) is amended by striking the phrase "; and" and inserting a semicolon in its place.
(2) Sub-paragraph (P) is amended by striking the semicolon and inserting the phrase "; and" in its place.
(3) A new sub-paragraph (Q) is added to read as follows:
"(Q) Ombudsperson for Children, Office of the Ombudsperson for Children;".
Sec. 204. Section 1816a of the Office of the Chief Technology Officer Establishment Act of 1998, effective March 3, 2010 (D.C. Law 18-111; D.C. Official Code § 1-1406), is amended by striking the phrase "Council of the District of Columbia, the Office of the District of Columbia Auditor, or the Office of the Attorney General;" and inserting the phrase "Council of the District of Columbia, the Office of the District of Columbia Auditor, the Office of the Ombudsperson for Children, or the Office of the Attorney General;" in its place.
Sec. 205. Section 2c of the Council of the District of Columbia Independence Act of 1982, effective March 11, 2010 (D.C. Law 18-119; D.C. Official Code § 1-301.44c), is amended as follows:
(a) The section heading is amended to read as follows:
"Sec. 2c. Disclosure of information to the Council; District of Columbia Auditor; Ombudsperson for Children; conditions on disclosure.
(b) Subsection (a) is amended as follows:
(1) Paragraph (4) is amended by striking the phrase "; or" and inserting a semicolon in its place.
(2) Paragraph (5) is amended by striking the period and inserting the phrase "; or" in its place.
(3) A new paragraph (6) is added to read as follows:
"(6) The Ombudsperson for Children or an employee of the Office of the Ombudsperson for Children.".
Sec. 206. Section 406(b) of the District of Columbia Government Comprehensive Merit Personnel Act of 1978, effective March 3, 1979 (D.C. Law 2-139; D.C. Official Code § 1-604.06(b)), is amended as follows:
(a) Paragraph (27) is amended by striking the phrase "; and" and inserting a semicolon in its place.
(b) Paragraph (28) is amended by striking the period and inserting the phrase "; and" in its place.
(c) A new paragraph (29) is added to read as follows:
"(29) For employees of the Office of the Ombudsperson for Children, the personnel authority is the Ombudsperson for Children.".
Sec. 207. Section 204(a-1)(2) of the District of Columbia Administrative Procedure Act, effective March 29, 1977 (D.C. Law 1-96; D.C. Official Code § 2-534(a-1)(2)), is amended as follows:
(a) Sub-paragraph (D) is amended by striking the phrase "; or" and inserting a semicolon in its place;
(b) Sub-paragraph (E) is amended by striking the period and inserting the phrase "; or" in its place;
(c) A new sub-paragraph (F) is added to read as follows:
"(F) The Ombudsperson for Children or an employee of the Office of the Ombudsperson for Children.".
TITLE III. APPLICABILITY; FISCAL IMPACT; EFFECTIVE DATE.
Sec. 301. Applicability.
(a) This act shall apply upon the date of inclusion of its fiscal effect in an approved budget and financial plan.
(b) The Chief Financial Officer shall certify the date of the inclusion of the fiscal effect in an approved budget and financial plan, and provide notice to the Budget Director of the Council of the certification.
(c)(1) The Budget Director shall cause the notice of the certification to be published in the District of Columbia Register.
(2) The date of publication of the notice of the certification shall not affect the applicability of this act.
Sec. 302. Fiscal impact statement.
The Council adopts the fiscal impact statement in the committee report as the fiscal impact statement required by section 4a of the General Legislative Procedures Act of 1975, approved October 16, 2006 (120 Stat. 2038; D.C. Official Code § 1-301.47a).
Sec. 303. Effective date.
This act shall take effect following approval by the Mayor (or in the event of veto by the Mayor, action by the Council to override the veto), a 30-day period of congressional review as provided in section 602(c)(1) of the District of Columbia Home Rule Act, approved December 24, 1973 (87 Stat. 813; D.C. Official Code § 1-206.02(c)(1)), and publication in the District of Columbia Register.
