January 22, 2013, Introduced by Reps. Kurtz and Daley and referred to the Committee on Families, Children, and Seniors.
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.
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 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.