HB-4050, As Passed House, March 7, 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.