January 12, 2005, Introduced by Senators BERNERO and GEORGE and referred to the Committee on Health Policy.
A bill to create the office of the legislative mental health
ombudsman; to prescribe the powers and duties of the legislative
mental health ombudsman, the legislative council, certain state
departments and officers, and certain county and private agencies
serving children; and to provide remedies from certain
administrative acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 1. This act shall be known and may be cited as the
"legislative mental health ombudsman act".
Sec. 2. As used in this act:
(a) "Administrative act" includes an action, omission,
decision, recommendation, practice, or other procedure of the
department, a CMHSP, a mental health professional, a facility, or a
hospital with respect to a particular applicant for or recipient of
mental health services.
(b) "Applicant" means an individual or his or her legal
representative who makes a request for mental health services from
the department, a CMHSP, a facility, or a hospital or from a
provider or mental health professional operating under contract
with the department or a CMHSP.
(c) "CMHSP" means a community mental health services program
operated under chapter 2 of the mental health code, 1974 PA 258,
MCL 330.1200a to 330.1245, as a county community mental health
agency, a community mental health authority, or a community mental
health organization.
(d) "Complainant" means an individual who makes a complaint as
provided in section 5.
(e) "Department" means the department of community health.
(f) "Facility" means a residential facility for the care or
treatment of individuals with serious mental illness, serious
emotional disturbance, or developmental disability that is either a
state facility or a licensed facility.
(g) "Family member" means a parent, stepparent, spouse,
sibling, child, or grandparent of an applicant or recipient or an
individual upon whom an applicant or recipient is dependent for at
least 50% of his or her financial support.
(h) "Guardian" means a person appointed by the court to
exercise specific powers over an individual who is a minor, legally
incapacitated, or developmentally disabled.
(i) "Hospital" or "psychiatric hospital" means an inpatient
program operated by the department for the treatment of individuals
with serious mental illness or serious emotional disturbance or a
psychiatric hospital or psychiatric unit licensed under section 137
of the mental health code, 1974 PA 258, MCL 330.1137.
(j) "Legislative council" means the legislative council
established under section 15 of article IV of the state
constitution of 1963.
(k) "Legislator" means a member of the senate or the house of
representatives of this state.
(l) "Licensed facility" means a facility licensed by the
department under section 137 of the mental health code, 1974 PA
258, MCL 330.1137, or an adult foster care facility licensed under
the adult foster care facility licensing act, 1979 PA 218, MCL
400.701 to 400.737.
Sec. 2a. As used in this act:
(a) "Mental health professional" means an individual who is
trained and experienced in the area of mental illness or
developmental disabilities and who is 1 of the following:
(i) A physician who is licensed to practice medicine or
osteopathic medicine and surgery in this state under article 15 of
the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(ii) A psychologist licensed to practice in this state under
article 15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(iii) A registered professional nurse licensed to practice in
this state under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(iv) A licensed master's social worker licensed under article
15 of the public health code, 1978 PA 368, MCL 333.16101 to
333.18838.
(v) A licensed professional counselor licensed to practice in
this state under article 15 of the public health code, 1978 PA 368,
MCL 333.16101 to 333.18838.
(vi) A marriage and family therapist licensed under article 15
of the public health code, 1978 PA 368, MCL 333.16101 to 333.18838.
(b) "Minor" means an individual under the age of 18 years.
(c) "Office" means the office of the legislative mental health
ombudsman created under this act.
(d) "Ombudsman" means the mental health ombudsman created in
section 3.
(e) "Recipient" means an individual who receives mental health
services from the department, a CMHSP, a facility, or a hospital or
from a provider or mental health professional operating under
contract with the department or a CMHSP.
Sec. 3. (1) As a means of monitoring and ensuring compliance
with relevant statutes, rules, and policies pertaining to mental
health services, the office of the legislative mental health
ombudsman is created within the legislative council.
(2) The principal executive officer of the office of the
legislative mental health ombudsman is the legislative mental
health ombudsman, who shall be appointed by and serve at the
pleasure of the legislative council.
Sec. 4. (1) The legislative council shall establish procedures
for approving the budget for the office, expending funds, and
employing personnel. Subject to annual appropriation, the office
shall employ sufficient personnel to carry out the duties and
powers prescribed by this act.
(2) The ombudsman shall establish procedures for receiving and
processing complaints from complainants, conducting investigations,
holding hearings, and reporting findings resulting from
investigations.
Sec. 5. All of the following individuals may file a complaint
with the office with respect to a particular applicant or
recipient, alleging that an administrative act or omission is
contrary to law, rule, or policy, imposed without an adequate
statement of reason, or based on irrelevant, immaterial, or
erroneous grounds:
(a) The applicant or recipient, if he or she is able to
articulate a complaint.
(b) A minor applicant's or recipient's parent.
(c) An applicant's or recipient's guardian.
(d) An applicant's or recipient's family member.
(e) A Michigan legislator.
(f) An attorney for an individual described in subdivisions
(a) to (e).
Sec. 6. The ombudsman may do all of the following:
(a) Upon his or her own initiative or upon receipt of a
complaint from a complainant, investigate an administrative act or
omission that is alleged to be contrary to law or rule, or contrary
to the policy of the department, a CMHSP, a facility, or a hospital
imposed without an adequate statement of reason, or based on
irrelevant, immaterial, or erroneous grounds.
(b) Decide, in his or her discretion, whether to investigate a
complaint.
(c) Upon his or her own initiative or upon receipt of a
complaint from a complainant, conduct a preliminary investigation
to determine whether a mental health professional may have
committed an administrative act or omission that is alleged to be
contrary to law, rule, the Michigan rules of professional conduct
adopted by the Michigan supreme court, or the commonly accepted
practice standards of the mental health profession.
(d) 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.
(e) Make recommendations to the governor and the legislature
concerning the need for mental health services legislation.
Sec. 7. (1) Upon rendering a decision to investigate a
complaint from a complainant, the ombudsman shall notify the
complainant of the decision to investigate and shall notify the
department, CMHSP, mental health professional, facility, or
hospital of the intention to investigate. If the ombudsman declines
to investigate a complaint or continue an investigation, the
ombudsman shall notify the complainant and the department, CMHSP,
mental health professional, facility, or hospital of the decision
and reason for the ombudsman's action.
(2) The ombudsman may advise a complainant 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 a further investigation of a complaint at the
request of the complainant or on the ombudsman's own initiative.
(3) If the ombudsman finds in the course of an investigation
that an individual's action or omission is in violation of state or
federal criminal law, the ombudsman shall immediately report that
fact to the county prosecutor or the attorney general.
Sec. 8. (1) The department, CMHSP, mental health professional,
facility, and hospital shall do all of the following:
(a) Upon the ombudsman's request, grant the ombudsman or his
or her designee access to all relevant information, records, and
documents in the department's, CMHSP's, mental health
professional's, facility's, or hospital's possession that the
ombudsman considers necessary in an investigation.
(b) Assist the ombudsman to obtain the necessary releases of
documents that are specifically restricted.
(c) Provide the ombudsman upon request with progress reports
concerning the administrative processing of a complaint.
(2) The department, CMHSP, mental health professional,
facility, or hospital shall provide information to an applicant or
recipient, a minor applicant's or recipient's parent, an
applicant's or recipient's guardian, or an applicant's or
recipient's family member or an applicant's or recipient's attorney
regarding the provisions of this act.
Sec. 9. The ombudsman shall treat a matter under
investigation, including the identity of an applicant or recipient
or individual from whom information is acquired, as confidential,
except so far as disclosure is necessary to enable the ombudsman to
perform the duties of the office and to support a recommendation
resulting from an investigation. A record of the office of the
ombudsman is confidential, shall be used only for purposes set
forth in this act, and is not subject to court subpoena. A record
of the office of the ombudsman is exempt from disclosure under the
freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.
Sec. 10. (1) The ombudsman shall prepare a report of the
findings of an investigation and make a recommendation to the
department, CMHSP, mental health professional, facility, or
hospital if the ombudsman finds 1 or more of the following:
(a) A matter should be further considered by the department,
CMHSP, mental health professional, facility, or hospital.
(b) An administrative act or omission should be modified or
canceled.
(c) Reasons should be given for an administrative act or
omission.
(d) Other action should be taken by the department, CMHSP,
mental health professional, facility, or hospital.
(2) The ombudsman may request to be notified by the
department, CMHSP, mental health professional, facility, or
hospital, within a specified time, of action taken on his or her
recommendation.
(3) The ombudsman shall notify the complainant of the action
taken by the ombudsman and by the department, CMHSP, mental health
professional, facility, or hospital.
(4) The ombudsman shall provide the complainant with a copy of
the recommendation on a complaint.
(5) The ombudsman shall submit to the legislative council, the
director of the department, and the legislature an annual report on
the conduct of the ombudsman, including recommendations regarding
the need for legislation or for change in rules or policies.
Sec. 11. (1) The department, a CMHSP, a mental health
professional, a facility, or a hospital shall not penalize a person
for filing a complaint or cooperating with the ombudsman in
investigating a complaint.
(2) An individual, the department, or a CMHSP, mental health
professional, facility, or hospital shall not hinder the lawful
actions of the ombudsman or the ombudsman's employees.
Sec. 12. The authority granted the ombudsman under this act is
in addition to the authority granted under the provisions of any
other act or rule under which the remedy or right of appeal or
objection is provided for a person, or procedure provided for
inquiry into or investigation of a matter. The authority granted
the ombudsman does not limit or affect the remedy or right of
appeal or objection and is not an exclusive remedy or procedure.
Enacting section 1. This act takes effect January 1, 2006.