HB-4050, As Passed House, May 21, 2013HB-4050, As Passed Senate, May 21, 2013

SUBSTITUTE FOR

HOUSE BILL NO. 4050

     A bill to amend 1994 PA 204, entitled

"The children's ombudsman act,"

by amending sections 5a, 6, 7, 8, and 9 (MCL 722.925a, 722.926,

722.927, 722.928, and 722.929), section 5a as added and sections 6,

7, 8, and 9 as amended by 2004 PA 560; and to repeal acts and parts

of acts.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 5a. The children's ombudsman has the authority to do all

of the following:

     (a) Pursue all necessary action, including, but not limited

to, legal action, to protect the rights and welfare of a child

under the jurisdiction, control, or supervision of the department,

the Michigan children's institute, the family division of circuit

court under section 2(a)(1) of chapter XIIA of the probate code of

1939, 1939 PA 288, MCL 712A.2, a child caring institution, or a

child placing agency.

     (b) Pursue legislative advocacy in the best interests of

children.

     (c) Review policies and procedures relating to the

department's involvement with children and make recommendations for

improvement.

     (d) Review each departmental death review team study in which

the child's death may have resulted from child abuse or child

neglect. As a result of the reviews, the ombudsman may recommend

policies, measures, or procedures to prevent future similar

occurrences.

     Sec. 6. The ombudsman may do all of the following in relation

to a child who may be a victim of child abuse or child neglect,

including a child who may have died as a result of suspected child

abuse or child neglect:

     (a) Upon his or her own initiative or upon receipt of a

complaint, investigate an administrative act that is alleged to be

contrary to law or rule, contrary to policy of the department or a

child placing agency, imposed without an adequate statement of

reason, or based on irrelevant, immaterial, or erroneous grounds.

The ombudsman has sole discretion to determine if a complaint

involves an administrative act.

     (b) Decide, in his or her discretion, whether to investigate

an administrative act.

     (c) Upon its own initiative or upon receipt of a complaint

from a complainant, conduct a preliminary investigation to

determine whether an adoption attorney may have committed an

administrative act that is alleged to be contrary to law, rule, or

the Michigan rules of professional conduct adopted by the Michigan

supreme court.

(c) (d) Except as otherwise provided in this subdivision,

access records and reports necessary to carry out the ombudsman's

powers and duties under this act to the same extent and in the same

manner as provided to the department under the provisions of the

child protection law. The ombudsman shall be provided access to

medical records in the same manner as access is provided to the

department under section 16281 of the public health code, 1978 PA

368, MCL 333.16281. The ombudsman shall be provided access to

mental health records in the same manner as access is provided to

the department in section 748a of the mental health code, 1978 1974

PA 258, MCL 330.1748a, subject to section 9. The ombudsman is

subject to the same standards for safeguarding the confidentiality

of information under this section and the same sanctions for

unauthorized release of information as the department.

(d) (e) Request Beginning on the effective date of the 2013

amendatory act that amended this section, request a subpoena from a

court requiring the production of a record or report necessary to

carry out the ombudsman's duties and powers. If the person to whom

a subpoena is issued fails or refuses to produce the record or

report, the ombudsman may petition the court for enforcement of the

subpoena.

(e) (f) Hold informal hearings and request that individuals

appear before the ombudsman and give testimony or produce

documentary or other evidence that the ombudsman considers relevant

to a matter under investigation.

(f) (g) Make recommendations to the governor and the

legislature concerning the need for children's protective services,

adoption, or foster care legislation, policy, or practice without

prior review by other offices, departments, or agencies in the

executive branch in order to facilitate rapid implementation of

recommendations or for suggested improvements to the

recommendations. However, no No other office, department, or agency

shall prohibit the release of an ombudsman's recommendation to the

governor or the legislature.

     Sec. 7. (1) Upon deciding to investigate a complaint, from a

complainant and an individual not meeting the definition of

complainant, the ombudsman shall notify the complainant or the

individual not meeting the definition of complainant of the

decision to investigate and shall notify the department, adoption

attorney, or child placing agency of the intention to investigate.

If the ombudsman declines to investigate a complaint or continue an

investigation, the ombudsman shall notify the complainant or the

individual not meeting the definition of complainant and the

department, adoption attorney, or child placing agency of the

decision and of the reasons for the ombudsman's action.

     (2) If the preliminary investigation described in section 6

leads the ombudsman to believe that the matter may involve

misconduct by an adoption attorney, the ombudsman shall immediately

refer the complaint to the attorney grievance commission of the

state bar of Michigan.

(2) (3) The ombudsman shall advise a complainant of

administrative remedies and may advise the individual to pursue all

administrative remedies or channels of complaint open to the

complainant before pursuing a complaint with the ombudsman.

Subsequent to the administrative processing of a complaint, the

ombudsman may conduct further investigations of a complaint upon

the request of the complainant or upon the ombudsman's own

initiative.

(3) (4) If the ombudsman finds in the course of an

investigation that an individual's action is in violation of state

or federal criminal law, the ombudsman shall immediately report

that fact to the county prosecutor or the attorney general. If the

complaint is against a child placing agency, the ombudsman shall

refer the matter to the department for further action with respect

to licensing.

(4) (5) The ombudsman may file a petition on behalf of a child

requesting the court to take jurisdiction under section 2(b) of

chapter XIIA of the probate code of 1939, 1939 PA 288, MCL 712A.2,

or a petition for termination of parental rights under section 19b

of chapter XIIA of the probate code of 1939, 1939 PA 288, MCL

712A.19b, if the ombudsman is satisfied that the complainant has

contacted the department, the prosecuting attorney, the child's

attorney, and the child's guardian ad litem, if any, and that none

of these persons intend to file a petition as described in this

subsection.

     Sec. 8. (1) The department and a child placing agency shall do

all of the following:

     (a) Upon the ombudsman's request, grant the ombudsman or his

or her designee access to all information, records, and documents

in the possession of the department or child placing agency that

the ombudsman considers relevant and necessary in an investigation.

     (b) Assist the ombudsman to obtain the necessary releases of

those documents that are specifically restricted.

     (c) Upon the ombudsman's request, provide the ombudsman with

progress reports concerning the administrative processing of a

complaint.

     (d) Upon the ombudsman's request, provide the ombudsman

information he or she requests under subdivision (a) within 10

business days after the request. If the department determines that

release of the information would violate federal or state law, the

ombudsman shall be notified of that determination within the same

10-day deadline.

     (2) The department, an attorney involved with an adoption, and

a child placing agency shall provide information to a biological

parent, prospective adoptive parent, or foster parent regarding the

provisions of this act.

     (3) The ombudsman, the department, and the department of

information technology shall enter an agreement not later than June

30, 2005 that technology, management, and budget shall ensure that

the ombudsman has access, in the ombudsman's own office, to

departmental computer networks pertaining to protective services,

foster care, and adoption, including juvenile delinquency, and the

central registry, service workers support system/foster care,

adoption, juvenile justice (SWSS), and customer information

management system (CIMS) unless otherwise prohibited by state or

federal law, or the release of the information to the ombudsman

would jeopardize federal funding. The cost of implementing this

subsection shall be negotiated among the office of the children's

ombudsman, the department, and the department of information

technology, management, and budget.

     Sec. 9. (1) Subject to subsections (2) through (7), a record

of the children's ombudsman's office is confidential, shall only be

used for purposes set forth in this act, is not subject to court

subpoena, and is not discoverable in a legal proceeding. A record

of the children's ombudsman's office is exempt from disclosure

under the freedom of information act, 1976 PA 442, MCL 15.231 to

15.246. If the ombudsman identifies action or inaction by the

state, through its agencies or services, that failed to protect

children, the ombudsman shall provide his or her findings and

recommendations to the agency affected by those findings, and make

those findings and recommendations available to the complainant and

the legislature upon request, to the extent consistent with state

or federal law. The ombudsman shall not disclose any information

that impairs the rights of the child or the child's parents or

guardians.

     (2) The ombudsman may release information to a complainant or

to a closed session of a legislative committee that has

jurisdiction over family and children's services issues regarding

the department's handling of a case under the child protection law

that is obtained or generated during an investigation conducted by

the office.

     (3) Unless otherwise part of the public record, the office

shall not release any of the following confidential information to

the general public:

     (a) Records relating to mental health evaluation or treatment

of a parent or child.

     (b) Records relating to the evaluation or treatment of a

substance abuse-related disorder of a parent or child.

     (c) Records relating to medical diagnosis or treatment of a

parent or child.

     (d) Records relating to domestic violence-related services and

sexual assault services provided to a parent or child.

     (e) Records relating to educational services provided to a

parent or child.

     (4) Notwithstanding subsection (3), if the ombudsman

determines that disclosure of confidential information is necessary

to identify, prevent, or respond to the abuse or neglect of a

child, the ombudsman may disclose information in his or her

possession to the department, or a court, a law enforcement agency,

or a prosecuting attorney investigating a report of known or

suspected child abuse or child neglect. The ombudsman shall not

release the address, telephone number, or other information

regarding the whereabouts of a victim or suspected victim of

domestic violence unless ordered to by a court.

     (5) The Except as provided in subsection (4), the ombudsman

shall not disclose information relating to an ongoing law

enforcement investigation or an ongoing children's protective

services investigation. The ombudsman may release the results of

its investigation to a complainant, or an individual not meeting

the definition of complainant, if the ombudsman receives

notification that releasing the results of its investigation is not

related to and will not interfere with an ongoing law enforcement

investigation or ongoing child protective services investigation.

     (6) The ombudsman shall not disclose the identity of an

individual making a child abuse or child neglect complaint under

the child protection law unless that individual's written

permission is obtained first or a court has ordered the ombudsman

to release that information.

     (7) The ombudsman may release an individual's identity who

makes an intentionally false report of child abuse or child neglect

under the child protection law.

     Enacting section 1. Enacting section 2 of 2004 PA 560 is

repealed.