September 24, 2009, Introduced by Senators BRATER, JACOBS, CLARK-COLEMAN, CLARKE, SCOTT, CHERRY, OLSHOVE, ANDERSON, SWITALSKI and BASHAM and referred to the Committee on Health Policy.
A bill to amend 1974 PA 258, entitled
"Mental health code,"
by amending sections 755, 774, 776, 780, 784, and 786 (MCL
330.1755, 330.1774, 330.1776, 330.1780, 330.1784, and 330.1786), as
added by 1995 PA 290; and to repeal acts and parts of acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 755. (1) Each community mental health services program
and each licensed hospital shall establish an office of recipient
rights subordinate only to the executive director or hospital
director.
(2) Each community mental health services program and each
licensed hospital shall ensure all of the following:
(a) Education and training in recipient rights policies and
procedures are provided to its recipient rights advisory committee
and its recipient rights appeals committee.
(b) The process for funding the office of recipient rights
includes a review of the funding by the recipient rights advisory
committee.
(c) The office of recipient rights will be protected from
pressures that could interfere with the impartial, even-handed, and
thorough performance of its duties.
(d) The office of recipient rights will have unimpeded access
to all of the following:
(i) All programs and services operated by or under contract
with the community mental health services program or licensed
hospital.
(ii) All staff employed by or under contract with the community
mental health services program or licensed hospital.
(iii) All evidence necessary to conduct a thorough investigation
or to fulfill its monitoring function.
(e) Staff of the office of recipient rights receive training
each year in recipient rights protection.
(f) Each contract between the community mental health services
program or licensed hospital and a provider requires both of the
following:
(i) That the provider and his or her employees receive
recipient rights training.
(ii) That recipients will be protected from rights violations
while they are receiving services under the contract.
(3) Each community mental health services program and each
licensed hospital shall endeavor to ensure all of the following:
(a) Complainants, staff of the office of recipient rights, and
any
staff acting on behalf of a recipient will shall be
protected
from harassment or retaliation resulting from recipient rights
activities
and that appropriate disciplinary action will shall be
taken
if there is against any
staff member who has been found on
the
basis of available evidence of to have engaged in harassment or
retaliation.
(b) Appropriate remedial action is taken to resolve violations
of rights and notify the complainants of substantiated violations
in a manner that does not violate employee rights.
(c) The office of recipient rights shall conduct complaint
investigations and report its findings independent of any influence
or involvement by the executive director or hospital director.
(4) The executive director or hospital director shall select a
director of the office of recipient rights who has the education,
training, and experience to fulfill the responsibilities of the
office. The executive director shall not select, replace, or
dismiss the director of the office of recipient rights without
first consulting the recipient rights advisory committee. The
director of the office of recipient rights shall have no direct
clinical service responsibility.
(5) Each office of recipient rights established under this
section shall do all of the following:
(a) Provide or coordinate the protection of recipient rights
for all directly operated or contracted services.
(b) Ensure that recipients, parents of minor recipients, and
guardians or other legal representatives have access to summaries
of the rights guaranteed by this chapter and chapter 7a and are
notified of those rights in an understandable manner, both at the
time services are initiated and periodically during the time
services are provided to the recipient.
(c) Ensure that the telephone number and address of the office
of recipient rights and the names of rights officers are
conspicuously posted in all service sites.
(d) Maintain a record system for all reports of apparent or
suspected rights violations received within the community mental
health services program system or the licensed hospital system,
including a mechanism for logging in all complaints and a mechanism
for secure storage of all investigative documents and evidence.
(e) Ensure that each service site is visited with the
frequency necessary for protection of rights but in no case less
than annually.
(f) Ensure that all individuals employed by the community
mental health services program, contract agency, or licensed
hospital receive training related to recipient rights protection
before or within 30 days after being employed.
(g) Review the recipient rights policies and the rights system
of each provider of mental health services under contract with the
community mental health services program or licensed hospital to
ensure that the rights protection system of each provider is in
compliance with this act and is of a uniformly high standard.
(h) Serve as consultant to the executive director or hospital
director and to staff of the community mental health services
program or licensed hospital in matters related to recipient
rights.
(i) Ensure that all reports of apparent or suspected
violations of rights within the community mental health services
program system or licensed hospital system are investigated in
accordance with section 778 and that those reports that do not
warrant investigation are recorded in accordance with subdivision
(d).
(j) Semiannually provide summary complaint data consistent
with the annual report required in subsection (6), together with a
summary of remedial action taken on substantiated complaints by
category, to the department and to the recipient rights advisory
committee of the community mental health services program or
licensed hospital.
(6) The executive director or hospital director shall submit
to the board of the community mental health services program or the
governing board of the licensed hospital and the department an
annual report prepared by the office of recipient rights on the
current status of recipient rights in the community mental health
services program system or licensed hospital system and a review of
the operations of the office of recipient rights. The report shall
be submitted not later than December 30 of each year for the
preceding fiscal year or period specified in contract. The annual
report shall include, at a minimum, all of the following:
(a) Summary data by category regarding the rights of
recipients receiving services from the community mental health
services program or licensed hospital including complaints
received, the number of reports filed, and the number of reports
investigated by provider.
(b) The number of substantiated rights violations by category
and provider.
(c) The remedial actions taken on substantiated rights
violations by category and provider.
(d) Training received by staff of the office of recipient
rights.
(e) Training provided by the office of recipient rights to
contract providers.
(f) Desired outcomes established for the office of recipient
rights and progress toward these outcomes.
(g) Recommendations to the community mental health services
program board or licensed hospital governing board.
Sec. 774. (1) The director shall appoint an appeals committee
consisting of 7 individuals, none of whom shall be employed by the
department
or a community mental health services program licensed
hospital, to hear appeals of recipient rights matters. The
committee shall include at least 3 members of the state recipient
rights advisory committee and 2 primary consumers.
(2) The board of a community mental health services program
shall
do 1 of the following:
(a)
Appoint appoint an appeals committee consisting of at
least 7 individuals, none of whom shall be employed by the
department or a community mental health services program, to hear
appeals of recipients' rights matters. The appeals committee shall
include at least 3 members of the recipient rights advisory
committee, 2 board members, and 2 primary consumers. A member of
the appeals committee may represent more than 1 of these
categories.
(b)
Designate the recipient rights advisory committee as the
appeals
committee.
(3) The governing body of a licensed hospital shall designate
the appeals committee of the local community mental health services
program to hear an appeal of a decision on a recipient rights
matter brought by or on behalf of a recipient of that community
mental health services program.
(4) The governing body of a licensed hospital shall do 1 of
the following with respect to an appeal of a decision on a
recipient rights matter brought by or on behalf of an individual
who is not a recipient of a community mental health services
program:
(a) Appoint an appeals committee consisting of at least 7
members, none of whom shall be employed by the department or a
community mental health services program, 2 of whom shall be
primary consumers and 2 of whom shall be community members.
(b) By agreement with the department, designate the appeals
committee appointed by the department to hear appeals of rights
complaints brought against the licensed hospital.
(5) An appeals committee appointed under this section may
request consultation and technical assistance from the department.
(6) A member of an appeals committee who has a personal or
professional relationship with an individual involved in an appeal
shall abstain from participating in that appeal as a member of the
committee.
(7) Meetings of the appeals committee established under this
section are not subject to the open meetings act, 1976 PA 267, MCL
15.261 to 15.275.
Sec. 776. (1) A recipient, or another individual on behalf of
a recipient, may file a rights complaint with the office alleging a
violation of this act or rules promulgated under this act.
(2) A rights complaint shall contain all of the following
information:
(a) A statement of the allegations that give rise to the
dispute.
(b) A statement of the right or rights that may have been
violated.
(c) The outcome that the complainant is seeking as a
resolution to the complaint.
(3) Each rights complaint shall be recorded upon receipt by
the office, and acknowledgment of the recording shall be sent along
with a copy of the complaint to the complainant within 5 business
days.
(4) Within 5 business days after the office receives a
complaint, it shall notify the complainant if it determines that no
investigation of the rights complaint is warranted.
(5) The office shall assist the recipient or other individual
with the complaint process. The office shall advise the recipient
or other individual that there are advocacy organizations available
to assist in preparation of a written rights complaint and shall
offer to refer the recipient or other individual to those
organizations. In the absence of assistance from an advocacy
organization, the office shall assist in preparing a written rights
complaint. The office shall inform the recipient or other
individual of the option of mediation under section 786.
(6) If a rights complaint has been filed regarding the conduct
of the executive director, hospital director, or a member of the
governing board, the rights investigation shall be conducted by the
office of another community mental health services program, the
office
of another licensed hospital, or by the
state office of
recipient
rights as decided by the board department.
Sec. 780. (1) If it has been determined through investigation
that a recipient's right has been violated, the respondent shall
take appropriate remedial action that meets all of the following
requirements:
(a) Corrects or provides a remedy for the rights violations.
(b) Is implemented in a timely manner.
(c) Attempts to prevent a recurrence of the rights violation.
(2) The action shall be documented and made part of the record
maintained by the office.
Sec.
784. (1) Not later than 45 30
days after receipt of the
summary report under section 782, the complainant may file a
written appeal with the appeals committee with jurisdiction over
the
office of recipient rights responsible
mental health agency
that issued the summary report.
(2) An appeal under subsection (1) shall be based on 1 of the
following grounds:
(a) The investigative findings of the office are not
consistent with the facts or with law, rules, policies, or
guidelines.
(b)
The action taken or plan of action proposed by the
respondent
does not provide an adequate remedy. In making a
conclusion, the local office of recipient rights failed to consider
all relevant evidence that was available or made known to it before
completion of the investigation.
(c)
An investigation was not initiated or completed on a
timely
basis. The action taken or
plan of action proposed by the
responsible mental health agency does not provide an adequate
remedy.
(3)
The office shall advise the complainant that there are
advocacy
organizations available to assist the complainant in
preparing
the written appeal and shall offer to refer the
complainant
to those organizations. In the absence of assistance
from
an advocacy organization, the office shall assist the
complainant
in meeting the procedural requirements of a written
appeal.
The office shall also inform the complainant of the option
of
mediation under section 786.
(3) (4)
Within 5 business 7 days
after receipt of the written
appeal, members of the local appeals committee shall review the
appeal to determine whether it meets the criteria set forth in
subsection (2). If the appeal is denied because the criteria in
subsection
(2) were not met, the complainant appellant shall be
notified in writing. If the appeal is accepted, written notice
shall
be provided to the complainant appellant
and a copy of the
appeal
shall be provided to the respondent office and the
responsible mental health agency.
(4) (5)
Within 30 14 days
after receipt of a written appeal,
the local appeals committee shall meet and review the facts as
stated
in all complaint investigation documents. and Any member of
the committee who has a personal or professional relationship with
an individual involved in the appeal shall abstain from
participating in any manner in that appeal.
(5) At the meeting described in subsection (4), the appeals
committee shall do 1 of the following:
(a) Uphold the investigative findings and conclusion of the
office and the action taken or plan of action proposed by the
respondent
responsible mental health agency.
(b)
Return the investigation to the office and request that it
be
reopened or reinvestigated for
additional fact-finding as
specified by the appeals committee.
(c) Uphold the investigative findings and conclusion of the
office
but recommend that return
the matter to the respondent take
responsible mental health agency for additional or different action
to remedy the violation.
(d)
If the responsible mental health agency is a community
mental
health services program or a licensed hospital, recommend
that
the board of the community mental health services program or
the
governing board of the licensed hospital request an external
investigation
by the state office of recipient rights.
(6) The local appeals committee shall document its decision in
writing.
Within 10 working 7 days after reaching its decision, it
shall
provide copies of the decision to the respondent, appellant,
recipient
if different than the appellant, the recipient's guardian
if
a guardian has been appointed legal
representative, the
responsible mental health agency, and the office. Documentation
shall include the justification for the decision.
(7) If the local appeals committee returns the investigation
to the office for further fact-finding, within 30 days of receipt
of the appeals committee's written decision, the office shall
submit a written report of the additional fact-finding to the
appeals committee, the appellant, and the responsible mental health
agency. If the conclusion of the office remains the same as before
the appeal, the local appeals committee shall provide written
notice to the appellant of his or her right to appeal to the state
rights appeals committee established under section 786. If the
additional fact-finding results in the substantiation of a rights
violation, the office shall include in its report the action taken
or plan of action proposed by the responsible mental health agency
to remedy the violation. If the appellant disagrees with the
sufficiency of the remedial action, he or she may file an appeal
with the local appeals committee on the ground that the action
taken or plan of action proposed by the responsible mental health
agency does not provide appropriate remedial action as described in
section 780.
(8) If the appeals committee upholds the investigative
findings and conclusion of the office but returns the matter to the
responsible mental health agency for additional or different
action, the director of the responsible mental health agency shall,
within 14 days of receipt of the appeals committee's written
decision, submit a written report of the action taken or
justification for not taking the action to the appeals committee,
the appellant, and the office. An appellant's disagreement with the
action taken or justification for inaction is grounds for an appeal
to the state rights appeals committee established under section
786.
(9) Failure of the office or the responsible mental health
agency to provide a written report as required in subsection (7) or
(8) is grounds for the appellant to request review by the state
rights appeals committee established under section 786.
(10) The local appeals committee shall maintain a record of
the appeal. The record shall contain, but not be limited to, copies
of the initial complaint, the preliminary report of investigative
findings, the final investigative report, the written appeal, any
minutes, notes, or writings maintained by the appeals committee,
and any further information considered by the appeals committee in
its deliberations.
Sec. 786. (1) The department director shall appoint a state
rights appeals committee consisting of at least 10 individuals who
have training, experience, and expertise in rights complaint
investigation or remediation.
(2)
(1) Within 45 days after receiving written notice of the
decision
of an a local appeals committee under section 784(5)
784(6), the appellant may file a written appeal with the department
state rights appeals committee established under subsection (1).
The
appeal shall be based on the record established in the previous
appeal,
and on the allegation that the investigative findings of
the
local office of recipient rights are not consistent with the
facts
or with law, rules, policies, or guidelines documentation
contained in the entire complaint investigation case file and the
record established in the local appeal.
(3) The appeal allowed under subsection (2) shall be based on
1 of the following:
(a) The investigative findings of the office of recipient
rights are not consistent with the facts or with law, rules,
policies, or guidelines.
(b) In making a conclusion, the office of recipient rights
failed to consider all relevant evidence that was available or made
known to it before completing its investigation.
(c) Without reasonable justification, the director of the
responsible mental health agency failed to take appropriate action
as required under section 780.
(4) (2)
Upon receipt of an appeal under
subsection (1) (2),
the
department state rights appeals committee shall give written
notice
of receipt of the appeal to the appellant, respondent, local
office of recipient rights holding the record of the complaint, and
the
responsible mental health agency. The respondent, local office
of
recipient rights holding the record of the complaint , and the
responsible
mental health agency shall ensure that the department
state rights appeal committee has access to all necessary
documentation
and other evidence cited in the complaint obtained in
the course of the investigation.
(5) (3)
The department state rights appeals committee shall
review
the record based on the allegation described in subsection
(1)
established in the local
appeal. The department state rights
appeals committee shall not consider additional evidence or
information
that was not available during the local
appeal. under
section
784, although the department may return the matter to the
board
or the governing body of the licensed hospital requesting an
additional
investigation.
(6) (4)
Within 30 14 days
after receiving the appeal, the
department state rights appeals committee shall review the appeal,
and
do 1 of the following: make 1
of the following determinations,
and provide written notice to the appellant, director of the
responsible mental health agency, and the local office of recipient
rights:
(a)
Affirm the decision of the appeals committee. Uphold the
investigative findings and conclusion of the office and the action
taken or plan of action proposed by the responsible mental health
agency.
(b)
Return the matter to the board or the governing body of
the
licensed hospital with instruction for additional investigation
and
consideration.
(5)
The department shall provide copies of its action to the
respondent,
appellant, recipient if different than the appellant,
the
recipient's guardian if a guardian has been appointed, the
board
of the community mental health services program or the
governing
body of the licensed hospital, and the local office of
recipient
rights holding the record.
(b) Overturn the conclusion of the office and specify the
action to be taken. If the action to be taken includes remedial
action by the responsible mental health agency, the provisions of
section 780 apply.
(c) Determine that, without reasonable justification, the
director of the responsible mental health agency failed to take
appropriate action to remedy the violation as required under
section 780. If this determination is made, the state rights
appeals committee shall do both of the following:
(i) Specify in writing what appropriate remedial action must be
taken by the director of the responsible mental health agency.
(ii) Provide copies of the determination to the appellant and
the governing board of the community mental health services
program, the licensed hospital, or the director of the department
division that manages department-operated hospitals and centers.
(7) Within 14 days after receipt of the determination
described in subsection (6)(b) or (c), the director of the
responsible mental health agency shall submit a written response to
the state rights appeals committee, the governing board of the
community mental health services program, the licensed hospital, or
the director of the department division that manages department-
operated hospitals and centers, indicating remedial action that has
been taken or justification for failure to take the action.
(8) Following the process described in subsection (7), if the
state rights appeals committee determines that the director of the
responsible mental health agency has failed to take appropriate
remedial action without reasonable justification, notice of that
determination shall be provided to the appellant, to the director
of the department, and to the department division responsible for
contracts with community mental health boards or the department
division responsible for licensing of psychiatric hospitals.
(9) Meetings of the states rights appeals committee
established in subsection (1) are not subject to the open meetings
act, 1976 PA 267, MCL 15.261 to 15.275.
Enacting section 1. Section 788 of the mental health code,
1974 PA 258, MCL 330.1788, is repealed.