Report Title:

Ombudsman; Expand Jurisdiction; Private Contractors

Description:

Expands jurisdiction of ombudsman to include private agencies providing health services and human services under contract to a governmental agency. Changes first assistant to deputy ombudsman.

HOUSE OF REPRESENTATIVES

H.B. NO.

440

TWENTY-THIRD LEGISLATURE, 2005

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to the ombudsman.

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

SECTION 1. Chapter 96, Hawaii Revised Statutes, is amended as follows:

1. By amending section 96-1, Hawaii Revised Statutes, to read:

"§96-1 Definitions. [(a)] For the purposes of this chapter, unless the context clearly requires otherwise:

"Agency" includes any permanent governmental entity, department, organization, or institution, and any officer, employee, or member thereof acting or purporting to act in the exercise of the officer's, employee's, or member's official duties, except:

(1) The judiciary and its staff;

(2) The legislature, its committees, and its staff;

(3) An entity of the federal government;

(4) A multistate governmental entity;

(5) The governor and the governor's personal staff;

(6) The lieutenant governor and the lieutenant governor's personal staff;

(7) The mayors of the various counties; and

(8) The councils of the various counties.

[(b)] "Administrative act" includes any action, omission, decision, recommendation, practice, or procedure, but does not include the preparation or presentation of legislation.

"Private agency" means any private, nongovernmental agency or organization that provides health services or human services under contract to an agency."

2. By amending section 96-2, Hawaii Revised Statutes to read:

"§96-2 Ombudsman; office established, appointment, tenure, removal, qualifications, salary, vacancy. The office of ombudsman is established. The legislature, by a majority vote of each house in joint session, shall appoint an ombudsman who shall serve for a period of six years and thereafter until a successor shall have been appointed. An ombudsman may be reappointed but may not serve for more than three terms. The legislature, by two-thirds vote of the members in joint session, may remove or suspend the ombudsman from office, but only for neglect of duty, misconduct, or disability.

No person may serve as ombudsman within two years of the last day on which the person served as a member of the legislature, or while the person is a candidate for or holds any other state office, or while the person is engaged in any other occupation for reward or profit. Effective January 1, 1989, and January 1, 1990, the salary of the ombudsman shall be $81,629 and $85,302 a year, respectively. The salary of the ombudsman shall not be diminished during the ombudsman's term of office, unless by general law applying to all salaried officers of the State.

If the ombudsman dies, resigns, becomes ineligible to serve, or is removed or suspended from office, the [first assistant] deputy to the ombudsman becomes the acting ombudsman until a new ombudsman is appointed for a full term."

3. By amending section 96-3, Hawaii Revised Statutes, to read:

"§96-3 Assistance, staff, delegation, funding. The ombudsman shall appoint a [first assistant] deputy ombudsman, and such other officers and employees as may be necessary to carry out this chapter. All employees, including the [first assistant,] deputy ombudsman, shall be hired by the ombudsman and shall serve at the ombudsman's pleasure. In determining the salary of each such employee, the ombudsman shall consult with the department of human resources development and shall follow as closely as possible the recommendations of the department. Effective January 1, 1989, and January 1, 1990, the [first assistant's] deputy ombudsman's salary shall be $69,748 and $72,886 a year, respectively. The ombudsman and the ombudsman's full-time staff shall be entitled to participate in any employee benefit plan.

The ombudsman may delegate to the ombudsman's appointees any of the ombudsman's duties except those specified in sections 96-12 and 96-13; provided that during the absence of the ombudsman from the island of Oahu, or the ombudsman's temporary inability to exercise and discharge the powers and duties of the ombudsman's office, such powers and duties as contained in sections 96-12 and 96-13 shall devolve upon the [first assistant] deputy ombudsman during such absence or inability.

The funds for the support of the office of the ombudsman shall be provided for in the act providing for the expenses of the legislature."

4. By amending section 96-5, Hawaii Revised Statutes, to read:

"§96-5 Jurisdiction. The ombudsman has jurisdiction to investigate the administrative acts of agencies and the contractual acts of private agencies. The ombudsman may exercise the ombudsman's powers without regard to the finality of any administrative act."

5. By amending section 96-7, Hawaii Revised Statutes, to read:

"§96-7 Notice to complainant and agency[.] or private agency. If the ombudsman decides not to investigate, [he] the ombudsman shall inform the complainant of that decision and shall state [his] the reasons.

If the ombudsman decides to investigate, [he] the ombudsman shall notify the complainant of [his] the decision and [he] the ombudsman shall also notify the agency or private agency of [his] the intention to investigate."

6. By amending section 96-8, Hawaii Revised Statutes, to read:

"§96-8 Appropriate subjects for investigation. An appropriate subject for investigation is an administrative act of an agency [which] or contractual act of any private agency that might be:

(1) Contrary to law;

(2) Unreasonable, unfair, oppressive, or unnecessarily discriminatory, even though in accordance with law;

(3) Based on a mistake of fact;

(4) Based on improper or irrelevant grounds;

(5) Unaccompanied by an adequate statement of reasons;

(6) Performed in an inefficient manner; [or]

(7) Otherwise erroneous[.]; or

(8) In noncompliance with contractual terms.

The ombudsman may investigate to find an appropriate remedy."

7. By amending subsection (a) of section 96-9, Hawaii Revised Statutes, to read:

"(a) In an investigation, the ombudsman may make inquiries and obtain information as the ombudsman thinks fit, enter without notice to inspect the premises of an agency[,] or private agency, and hold private hearings."

8. By amending section 96-11, Hawaii Revised Statutes, read:

"§96-11 Consultation with agency or private agency. Before giving any opinion or recommendation that is critical of an agency, private agency, or person, the ombudsman shall consult with that agency, private agency, or person."

9. By amending section 96-12, Hawaii Revised Statutes, to read:

"§96-12 Procedure after investigation. If, after investigation, the ombudsman finds that:

(1) A matter should be further considered by the agency[;] or private agency;

(2) An administrative act should be modified or cancelled[;] or a contractual term or condition should be modified;

(3) A statute or [regulation on] rule upon which an administrative act is based should be altered;

(4) Reasons should be given for an administrative act[;] or a contractual term or condition; or

(5) Any other action should be taken by the agency[;] or private agency;

the ombudsman shall report the ombudsman's opinion and recommendations to the agency[.] or private agency. The ombudsman may request the agency or private agency to notify the ombudsman, within a specified time, of any action taken on the ombudsman's recommendations."

10. By amending section 96-13, Hawaii Revised Statutes, to read:

"§96-13 Publication of recommendations. After a reasonable time has elapsed, the ombudsman may present the ombudsman's opinion and recommendations to the governor, the legislature, the public, or any of these. The ombudsman shall include with this opinion any reply made by the agency[.] or private agency."

11. By amending section 96-15, Hawaii Revised Statutes, to read:

"§96-15 Misconduct by agency or private agency personnel. If the ombudsman has a reasonable basis to believe that there may be a breach of duty or misconduct by any officer or employee of an agency, or by any employee or agent of a private agency, the ombudsman may refer the matter to the appropriate authorities without notice to that person."

12. By amending section 96-18, Hawaii Revised Statutes, to read:

"§96-18 Agencies and private agencies may not open letters or other communications to ombudsman. A letter or other communication to the ombudsman from a person held in custody by an agency or private agency shall be forwarded immediately, unopened, to the ombudsman."

SECTION 2. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 3. This Act shall take effect upon its approval.

INTRODUCED BY:

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