Recommendations

The five recommendations below are based on OFCO's investigative work during the past six months. Note that all but the last recommendation can be achieved through administrative policy and do not necessarily require a change in state statutes.

Placement Resource Conflict of Interest Policy
RECOMMENDATION #1: The Children's Administration within the Department of Social and Health Services (DSHS) should adopt a policy that creates a presumption against recommending placement with a person who has a conflict of interest as a result of his or her dual role as a placement resource and a professional involved in the child's life. A conflict of interest should be deemed to exist in situations where the person's dual role may now or in the future place a child's best interests in jeopardy. Whether the presumption against placement should be overcome should be determined solely by the child's bests interests. In determining the child's best interest, it would be appropriate for the Department to consider the person's willingness to participate in a plan that addresses and sufficiently mitigates the potential harm the conflict may cause. A panel consisting of community professionals and others should be used to assist the Department in determining whether a conflict exists and/or the presumption against placement has been overcome.

BASIS: In reviewing the Department's actions during the 1994-95 Wenatchee child sex abuse investigation, OFCO found the placement of two girls in the home of the police detective who was investigating sexual abuse allegations against their parents to be detrimental to the girls' best interests. At a minimum, the placement clearly affected perceptions of the girls' credibility with regard to their disclosures of abuse by their parents and, later, by others. OFCO is aware of other conflict-of-interest situations that have arisen with placement resources who are employed by DSHS, with school personnel, and even lawyers and law offices involved in the prosecution or defense of a child's custody or dependency case, or the criminal case of the child's parent.

DISCUSSION: This recommendation is intended to ensure that the Department's placement recommendations are consistent with children's best interest. It does so by defining and discouraging inappropriate placements. This recommendation is in no way intended to limit the range of appropriate placement options for children. It does not constitute an absolute prohibition against departmental recommendations in favor of professionals who are involved with children needing placement (i.e., the Department could still recommend a school teacher as a placement resource for a child in his or her class). This recommendation simply aims to ensure that conflicts are identified and addressed in a way that ensures the Department is acting in the best interests of children.

Client and Citizen Complaints
RECOMMENDATION #2: The DSHS Children's Administration should provide parents with whom Child Protective Services (CPS) comes into contact and foster children age 12 and older with concise written information that outlines their rights under the Department's complaint policy and their right to contact OFCO. With regard to foster children, the Department should consider developing a Child's Guide to Foster Care and/or alternative strategies for advising them on their rights and what they can expect while in foster care. Parents should receive this information at the time of initial contact with CPS and children should receive it when they enter an out-of-home placement. The Department should also begin training caseworkers on the complaint policy.

In addition, relatives, community professionals, service providers, and concerned citizens should be advised on how to obtain information about their rights under the Department's complaint policy and their right to contact OFCO. This information should be provided by departmental employees whenever they are contacted with a concern or complaint.

Consideration should be given to establishing a toll-free number with a recorded message where client or citizen complainants may be referred for information about their rights.

BASIS: DSHS is required by RCW 74.13.045 to develop procedures to assure that clients are informed of the Department's complaint-resolution process and how to access it. Moreover, information regarding the complaint resolution process is to be incorporated into training for caseworkers.

Despite these requirements, complainants often tell OFCO they do not know how to pursue their complaints with the Department. OFCO recently conducted a phone survey of selected OFCO complainants and local Department managers to assess the Children's Administration complaint policy. Selected complainants included parents, children, relatives, and concerned citizens. The survey was responded to by 20 complainants and 21 of 22 area managers in the Division of Children and Family Services (DCFS). The survey revealed that complainants are rarely provided with the Department's written complaint policy and that, until complainants learned otherwise from entities outside the Department, most were unaware they could complain to anyone other than a supervisor. The survey also revealed that caseworkers receive no formal or regular training on the complaint policy.

DSHS's written complaint policy provides complainants with the right to pursue their complaint up the Department's chain of command. Specifically, complainants have the right to: (1) have their complaint reviewed and responded to within a specified time period by a supervisor, area manager, and regional administrator; (2) file a complaint with the Office of Constituent Relations (OCR) in Olympia; and (3) request a panel review of their complaint.

OFCO's survey findings include the following:

• Local offices rarely provide complainants with the Department's written complaint policy, although some offices make the policy and a complaint form available in reception areas. Other offices provide the policy upon request. The informal practice in most offices is to advise complainants that they may contact a supervisor.
• Most managers agreed that caseworkers in their area receive no formal or regular training on the complaint policy. Supervisors may periodically review the policy with caseworkers at unit meetings, but most caseworkers learn about the policy informally while on the job. Noting the high turnover among caseworker staff, one manager acknowledged that new caseworkers often don't know about the policy.
• All area managers agreed that panel reviews have been convened only rarely in recent years.
• Sixteen of 20 complainants did not know about the Department's complaint policy. Of the four who were aware of the policy, three had been advised of it by an entity other than the Department.
• Eight complainants knew to contact a supervisor with their complaint. Of these, four knew about the policy, while four knew to do so because they had been told by a caseworker or because doing so was "common sense."
• Eleven complainants knew to contact OCR with their complaint. Of these, six were advised of the option to do so by an entity other than the Department.
• Four complainants who knew about the policy knew to contact an area manager or regional administrator with their complaint. Of these, three had been advised of the policy by an entity other than the Department.
• All complainants agreed the Department should provide complainants with notice of the policy. One complainant noted that unless clients are notified of their right to pursue a complaint up the chain of command, caseworkers and supervisors have all the power. Another stated that because citizens aren't given adequate information, those with legitimate complaints don't know where to go. He added that he was a police officer for 20 years, but was still "stumped" on how to pursue his complaint with the Department.

DISCUSSION: This recommendation is intended to give effect to the statutory mandate requiring the Department to ensure that clients are informed of its complaint resolution policy and how to access it. It is also intended to promote children's safety, well-being and permanency and parents' fair treatment by ensuring that parents, children, relatives and others in the community know they can take their concerns or grievances up the Department's chain of command and, if necessary, to OFCO. Providing parents and children with notice of the Department's policy and information about OFCO will help reduce the power imbalance in their relationship with front-line workers. Providing notice to relatives, community professionals, service providers and concerned citizens will help reduce their frustration by making the process clear and eliminating the need to "call around" in order to figure out how to pursue their complaint.

Complaint Tracking and Client Satisfaction
RECOMMENDATION #3: The Children's Administration within DSHS should ensure that the Office of Constituent Relations (OCR) continues to track the volume and nature of complaints it receives and should use this information as a tool to continuously improve and assure the Department's quality of services. Moreover, consideration should be given to providing complaint data to the Department's Risk Management unit for review.

BASIS: The Children's Administration currently is required by RCW 74.13.045 to compile complaint-resolution data, including the nature of the complaint and the outcome of the process. The Department is also required to submit semiannual reports containing this data to the Legislature. Although the Department has produced the required reports, OFCO has found that it has not ever used this or other complaint data to help identify and eliminate the cause of complaints. Now the Department is proposing legislation that would eliminate the mandate to submit the semiannual reports to the Legislature.

According to the Attorney General's Office (AGO), tort lawsuits against the Children's Administration have significantly increased in recent years, particularly with respect to wrongful adoption cases, children injured in foster care, and CPS worker cases (both for illegally taking children from their homes and for failing to remove them from abusive homes.) The AGO believes this increase reflects the tendency toward increased liability generally, plus the effects of several court decisions in the past five years which have specifically increased the scope of the Department's liability.

DISCUSSION: Whether or not the legislative report mandate is eliminated, the Department should continue tracking the volume and nature of complaints received by OCR. The Department should also begin using OCR complaint data as part of its ongoing quality improvement and quality assurance activities. Client feedback is a vital part of the information system for continuous improvement. Complaints provide the broadest evaluation of a service and help identify system failures. The strength of complaint information is due to it being direct, unfiltered feedback from the people who are using the service and who are directly affected by the system. Although OFCO also tracks complaints against DSHS, it is the Department's responsibility to track client complaint information on its own as part of its internal quality improvement and quality assurance systems. It is OFCO's role to independently track complaints against DSHS to help identify when the Department's quality assurance system has broken down.

In light of the Department's increased scope of liability in recent years, it should consider providing complaint data to the risk management unit to help identify and avoid potential tort litigation.

RECOMMENDATION #4: Area managers should establish formal or informal mechanisms for monitoring the volume and nature of complaints received by caseworkers and supervisors, and should begin using this information to help identify and eliminate the cause of complaints. Moreover, regular surveys should be conducted at the local office level to assess the satisfaction of clients (parents and children) with the services provided . Local complaint and survey information should be integrated into the Department's overall quality improvement and assurance activities.

BASIS: The Department's complaint policy states that each region shall submit a monthly statistical report on the number and type of complaints, and the level at which resolution occurred. Through its area manager survey, OFCO found that complaints are rarely tracked in local offices because they object to the increased workload associated with this activity (the Department's semiannual report to the Legislature does not include complaint data from local offices). Moreover, OFCO found that most area managers do not monitor the volume, type, or resolution of complaints that do not reach their level.

While acknowledging they don't monitor how front-line caseworkers and supervisors process complaints, most area managers stated the vast majority of complaints received by front-line staff are resolved there. One area manager said she had received only one complaint in the past six months. Another area manager stated that, because the Department's policy is to work a complaint up the chain of command until it is resolved, he assumes problems have been resolved if they don't reach him.

In addition, OFCO has found that the Department last conducted a client survey in 1995. One of the findings in this statewide survey stated that future surveys might be more useful if the feedback was focused at the office level, so that supervisors were provided with "the information they need to make changes and/or appreciate their successes." In its area manager survey, OFCO found that few, if any, client surveys have been conducted since 1995.

DISCUSSION: This recommendation is intended to reduce the number of recurring complaints in local offices by ensuring that their underlying causes are identified and addressed. In addition to working to resolve complaints that arise to their level, area managers should play an active role in ensuring that local offices are responding appropriately to complaints and are using complaint information to eliminate their cause. Client surveys are a vital tool that Department managers should begin using regularly to identify problems and assess performance at the local office level. Local complaint and survey data should be integrated into the Department's overall quality improvement and assurance activities.

OFCO Shield Law
RECOMMENDATION #5: OFCO investigative records and testimony should be shielded by statute from court subpoena and civil discovery requests.

BASIS: RCW 43.06A.050 provides that OFCO's investigative records are confidential and exempt from public disclosure requirements. However, these provisions may not provide protection against court subpoena and civil discovery requests. OFCO is concerned that investigative records developed as part of its targeted Wenatchee review may become the subject of discovery requests in any of the several pending civil lawsuits against DSHS. Moreover, OFCO's future investigations may involve matters that may also be the subject of pending or future civil litigation against state agencies. OFCO has found that the records of ombudsmen's offices in other states, including Michigan's Office of the Children's Ombudsman, are protected by statute from court subpoena.

DISCUSSION: There are several reasons why OFCO's investigative records should be shielded. First, the ombudsman function fulfills all four of the traditional criteria for protected, or privileged, communication: (1) the communication to the ombudsman originates in the belief it will not be disclosed; (2) the inviolability of that confidence is essential to achieve the purpose of the relationship; (3) the relationship is one society should foster; and (4) the expected injury to the relationship due to fear of later disclosures is greater that the expected benefit to justice in obtaining evidence later. In addition, OFCO's offer of confidentiality encourages individuals to come forward and report problems they would otherwise be reluctant to reveal for fear of retaliation or retribution. Moreover, the public's confidence in OFCO's impartiality could be jeopardized if it were drawn into adversarial processes. Further, because OFCO is not a direct participant in the litigation, it not necessary to achieving justice; information is discoverable from sources with direct knowledge. Finally, each attempt to resist the subpoenaing of records or testimony would cost time and money and disrupt OFCO's ability to conduct its work.

Additional Issues of Concern

In addition to the recommendations above, OFCO has identified several other issues of concern, which will receive further review and possible investigation in the upcoming year.

• CONCERN #1: Child Protective Services (CPS) often does not respond or intervene sufficiently to protect children who are at risk of chronic neglect and about whose situations its has received multiple referrals from multiple referents. Children who are the victims of chronic neglect often suffer serious long-term effects, including delayed growth, increased illness, attachment problems, and neurological impairments. Chronic neglect also places children at greater risk of injury and death from preventable accidents.

• CONCERN #2: Many children who are subject to a legal dependency action (an action to determine whether the child should become a dependent of the state due to alleged caretaker abuse, neglect, abandonment, or inability to care for the child) are represented by neither a guardian ad litem nor an attorney, as required by RCW 13.34.100. Children who are denied representation are left without a voice in court proceedings whose decisions may dramatically affect their lives. Moreover, the court is left to proceed with incomplete information in deciding whether the department's placement, service, treatment, and permanency recommendations are in the child's best interest and/or, if the child is 12 or older, consistent with his or her wishes.

• CONCERN #3: There appears to be confusion among service professionals about their duty to report possible child abuse and neglect under the state's mandatory reporting law, RCW 26.44.030. This confusion has led to the filing of tardy and incomplete reports and, in some cases, had led to the failure to make a required report. The failure to report and the filing of delayed or incomplete reports could seriously undermine the state's efforts to protect children.

• CONCERN #4: Many decisions made by the DSHS Children's Administration involving Native American children and their families appear not to be made consistent with the federal Indian Child Welfare Act (ICWA). Through ICWA, Congress intended to end a nationwide history of family and cultural breakdown caused by the unwarranted removal of Native American children from their families and subsequent placement in culturally inappropriate homes. Non-compliance with ICWA may place Native American children at risk of emotional and social problems and injure Native American families.

• CONCERN #5: The Children's Administration appears to provide insufficient training for foster parents who care for children with serious behavioral problems and/or special needs. The lack of appropriate training for foster parents who care for these children undermines the state's ability to ensure their safety, health and well-being while in foster care.