41-3804. Independent oversight committees; membership; duties; client information; immunity; violation; classification

A. To fulfill the purposes of section 41-3803, the director of the department of administration, in conjunction with each independent oversight committee established pursuant to section 41-3803, shall adopt policies relating to the authority and responsibility of the independent oversight committees established pursuant to this article that define the processes and procedures that each independent oversight committee and each department or service provider that is subject to oversight must follow. Before adopting the policies, the director shall post the proposed policies on the department's public website for a period of thirty days and provide for public comment.  The director shall consider the public comments when adopting the proposed policies.

B. Subject to the approval of the director of the department of administration, each committee established pursuant to this article shall adopt guidelines that govern its operation, including terms of members, quorum and attendance requirements and removal of a committee member if necessary.  Each committee shall adopt these guidelines by majority vote. Each newly formed committee shall adopt these guidelines within the first three months of its formation. These guidelines shall not conflict with this article, title 38, chapter 3, article 3.1 or the policies adopted by the director. The director shall approve the guidelines unless they are inconsistent with the statutes, policies, procedures or rules that are applicable to the independent oversight committees or if the guidelines do not promote participation by all interested members of the community that the committee serves. In addition to the procedures in the guidelines, each independent oversight committee must approve the removal of any committee member on majority vote of the committee.  The director shall provide committee members the opportunity to review potential changes to rules or policies that affect the committee.

C. Employees of the department of economic security, the department of child safety, the Arizona health care cost containment system, the Arizona health care cost containment system administration, the department of health services and subject-matter experts may serve on a committee only as nonvoting members whose presence is not counted for the purpose of determining a quorum.

D. Advocacy groups, local advisory councils, committee members and the director of the department of administration may submit names of candidates to fill committee vacancies. The director of the department of administration shall appoint a person to fill a vacancy subject to the approval of the committee.

E. Each committee shall meet at least quarterly each calendar year.

F. Each committee shall provide independent oversight to:

1. Ensure that the rights of clients are protected.

2. Review incidents of possible abuse, neglect or denial of a client's rights.

3. Make recommendations to the director of any department and service provider subject to oversight under this article and to the legislature regarding laws, rules, policies, procedures and practices to ensure the protection of the rights of clients receiving behavioral health and developmental disability services.

G. Each committee shall submit written objections to specific problems or violations of client rights by the department or service provider through the director of the department of administration for review by the director of the department that is responsible for the client. The director of the department shall deliver to the committee a detailed written response to each written objection within twenty-one calendar days after receiving the objection from the department of administration.

H. Each committee shall issue an annual report of its activities and recommendations, if any, to the director of the department of administration, the director of the department of economic security, the director of the department of child safety, the director of the department of health services, the director of the Arizona health care cost containment system, the president of the senate, the speaker of the house of representatives and the chairpersons of the senate health and human services committee and the house of representatives health and human services committee, or their successor committees.

I. The department of administration shall post on the department's website a copy of the agenda of each committee's meetings and a copy of the annual report that is required by this section.

J. A committee may request from a department the services of a consultant to advise the committee on specific issues. The consultant may be a member of another independent oversight committee, an employee or consultant from a department or a service provider. Subject to the availability of monies, the department shall assume the cost of the consultant.  A consultant shall not participate in committee votes.

K. Subject to federal and state law, attorney client privilege and attorney work product doctrine and to the extent necessary to conduct committee duties, committee members and consultants shall have access to client information and records, including quality of care reports, incident reports and investigation reports and, on request, case presentations, adult protective services investigation case status and outcomes, substantiations, recommendations and other quality of care findings from peer reviews or any successor report or process, maintained by a department, service provider or regional behavioral health authorities. The department or service provider shall redact protected information in documents if the department or service provider determines in good faith that the information is protected under this section.  If the department or service provider in good faith determines that the information or records requested by a committee cannot be provided even in a redacted form pursuant to federal law, attorney client privilege or attorney work product doctrine, the department or service provider shall object in writing to the request within the time frame set forth under subsection G of this section in a manner that, without revealing the information that is believed to be protected, enables the requesting committee to understand the basis on which the department or service provider determined the information or records are protected.  Each person who receives information or records pursuant to this subsection shall maintain the information or records as strictly confidential and sign an agreement to comply with all confidentiality requirements. Any client information or records shall be released to the committee without the designation of personally identifiable information unless the personally identifiable information is required for the official purposes of the committee. A violation of this subsection is a class 2 misdemeanor. For the purposes of this subsection, "personally identifiable information" includes a person's name, address, date of birth, social security number, tribal enrollment number, telephone or fax number, e-mail address, social media identifier, driver license number, places of employment, school identification or military identification number or any other distinguishing characteristic that tends to identify a particular person.

L. For information and records requested and provided pursuant to this section regarding persons with developmental disabilities for the work of the independent oversight committee on persons with developmental disabilities established by section 41-3801, the department of economic security and not the service provider shall provide the information and records and redact any necessary information.

M. Within its jurisdiction, each committee that has oversight responsibilities for clients who are seriously mentally ill shall, for a client who needs special assistance, and may, for any other client who is seriously mentally ill make regular site visits to a residential environment and meet with the client in a residential environment to determine the client's satisfaction with the residential environment, if each client or the client's guardian is given the right to decline for any reason and without explanation to participate in any part of a site visit conducted by any independent oversight committee.

N. If a committee's request for information or records from a department or service provider is denied, including an objection pursuant to subsection G of this section, and if requested by the committee, at least one representative of the department or service provider and at least one committee member shall meet and confer within five business days after the date of the request or on a later date that is agreed to by both parties and shall in good faith attempt to resolve the objection informally and cooperatively. After meeting and conferring, the committee may request in writing that the director of a department review this decision.  The director shall timely conduct the review and, not later than twenty-one calendar days, after receiving the request for review, the director shall deliver to the committee a written decision explaining in detail the factual and legal basis and reasoning for the department's decision.  The department shall bear the costs of conducting the review.  A final agency decision made pursuant to this subsection is subject to judicial review pursuant to title 12, chapter 7, article 6. The department shall not release any information or records during the period an appeal may be filed or is pending.

O. Confidential records and information received by the committee or its consultant are subject to the same provisions concerning subpoenas, discovery and use in legal actions as are the original records and information.

P. The independent oversight committees may exchange information and engage in planning and coordination activities between committee members in the performance of committee duties pursuant to this section.

Q. The independent oversight committees may encourage public awareness and involvement in their activities by supporting committee members with affiliation agreements with postsecondary education-sponsored internship placements pursuant to the department's approved operating procedures.

R. The department shall coordinate education and training programs for committee members to facilitate their role as independent oversight committee members. The department shall coordinate statewide meetings of committees at least every two years and provide staff for the committees.

S. Any person who, in good faith and without malice and in connection with duties or functions of a committee established pursuant to this article, takes an action or makes a decision or recommendation as a member or agent of a committee or who furnishes records, information or assistance that is related to the duties of a committee is not subject to liability for civil damages in consequence of that action.  The court shall determine the presence of malice by clear and convincing evidence.

T. Title 38, chapter 3, article 8, relating to conflict of interest, applies to all committee members.

U. Each independent oversight committee and each appropriate department and service provider shall at all times conduct activities provided in this section in good faith to promote and protect the rights of persons who receive behavioral health services pursuant to title 36, chapters 5 and 34.