SB-0809, As Passed Senate, May 18, 2016

SUBSTITUTE FOR

SENATE BILL NO. 809

     A bill to create the office of the Michigan veterans' facility

ombudsman; and to prescribe the powers and duties of the office,

the ombudsman, the legislative council, and the department of

military and veterans affairs.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 1. As used in this act:

     (a) "Administrative act" includes an action, omission,

decision, recommendation, practice, or other procedure of the

department.

     (b) "Complainant" means a resident veteran, family member of a

resident veteran, legal guardian or individual with power of

attorney for a resident veteran, or legislator who files a

complaint under section 4.

     (c) "Council" means the legislative council established under

section 15 of article IV of the state constitution of 1963.

     (d) "Department" means the department of military and veterans

affairs.

     (e) "Legislator" means a member of the senate or the house of

representatives of this state.

     (f) "Michigan veterans' facility" or "facility" means a

Michigan veterans' facility established under 1885 PA 152, MCL 36.1

to 36.12.

     (g) "Office" means the office of the Michigan veterans'

facility ombudsman created under this act.

     (h) "Ombudsman" means the Michigan veterans' facility

ombudsman.

     (i) "Resident veteran" means a veteran who is a resident of a

Michigan veterans' facility or an individual who is a resident of a

Michigan veterans' facility by virtue of the individual's

relationship with a veteran.

     (j) "Veteran" means that term as defined in section 2a of 1885

PA 152, MCL 36.2a.

     Sec. 2. (1) The office of the Michigan veterans' facility

ombudsman is created within the legislative council.

     (2) The principal executive officer of the office is the

Michigan veterans' facility ombudsman, who shall be appointed by

and serve at the pleasure of the council.

     Sec. 3. The council shall establish procedures for approving

the budget of the office, for expending funds of the office, and

for the employment of personnel for the office.

     Sec. 4. (1) The ombudsman may commence an investigation upon

his or her own initiative or upon receipt of a complaint from a

complainant concerning an administrative act, medical treatment of

a resident veteran, or a condition existing at a facility that

poses a significant health or safety issue for which there is no

effective administrative remedy or is alleged to be contrary to law

or departmental policy. The ombudsman may interview any of the

following individuals whom the ombudsman considers necessary in an

investigation:

     (a) An individual employed by or retained under contract by

the department.

     (b) An individual employed by or retained under contract by a

private contractor that operates a facility that houses resident

veterans.

     (2) Subject to approval of the council, the ombudsman shall

establish procedures for receiving and processing complaints,

conducting investigations, holding hearings, and reporting the

findings resulting from the investigations.

     Sec. 5. (1) Upon request and without the requirement of any

release, the facility shall provide access to all information, and

the ombudsman shall be given access to all information, records,

and documents in the possession of the department or a facility

that the ombudsman deems necessary in an investigation, including,

but not limited to, resident veteran medical health records,

resident veteran mental health records, and resident veteran

mortality and morbidity records.

     (2) Upon request and without notice, the ombudsman shall be

granted entrance to inspect at any time any Michigan veterans'

facility.

     (3) The ombudsman may hold informal hearings and may request

that any person appear before the ombudsman or at a hearing and

give testimony or produce documentary or other evidence that the

ombudsman deems relevant to an investigation.

     Sec. 6. (1) The ombudsman shall advise a complainant to pursue

all administrative remedies available to the complainant. The

ombudsman may request and shall receive from the department or from

a facility a progress report concerning the administrative

processing of a complaint. After administrative action on a

complaint, the ombudsman may conduct further investigation on the

request of a complainant or on his or her own initiative.

     (2) The ombudsman is not required to conduct an investigation

or hold a hearing on a complaint brought before the ombudsman.

     Sec. 7. Upon receiving a complaint under section 4 and

deciding to investigate the complaint, within 10 business days the

ombudsman shall notify the complainant, the resident veteran or

resident veterans affected, and the department. If the ombudsman

declines to investigate, the ombudsman shall notify the complainant

within 10 business days, in writing, and inform the resident

veteran or resident veterans affected of the reasons for the

ombudsman's decision.

     Sec. 8. Upon request of the ombudsman, the council may hold a

hearing. The council may administer oaths, subpoena witnesses, and

examine the books and records of the department or of a facility in

a matter that is or was a proper subject of investigation by the

ombudsman.

     Sec. 9. (1) Correspondence between the ombudsman and a

complainant is confidential and is privileged communication.

     (2) A report prepared and recommendations made by the

ombudsman and submitted to the council under section 10 and any

record of the ombudsman are exempt from disclosure under the

freedom of information act, 1976 PA 442, MCL 15.231 to 15.246.

     (3) All records, reports, and communications relied upon,

referenced, or prepared are subject to the privacy provisions of

the health insurance portability and accountability act of 1996,

Public Law 104-191, and regulations promulgated under that act, 45

CFR parts 160 and 164.

     Sec. 10. (1) The ombudsman shall prepare and submit a report

of the findings of an investigation and make recommendations to the

council within 10 business days after completing the investigation

if the ombudsman finds any of the following:

     (a) A matter that should be considered by the department.

     (b) An administrative act that should be modified or canceled.

     (c) A statute or rule that should be altered.

     (d) Administrative acts for which justification is necessary.

     (e) Significant resident veteran health and safety issues.

     (f) Any other significant concerns.

     (2) Subject to section 11, the council shall forward the

report prepared and submitted under this section to the department,

the resident veteran or resident veterans affected, and to the

complainant who requested the report.

     Sec. 11. Before submitting a report with a conclusion or

recommendation that expressly or by implication criticizes a person

or facility or the department, the ombudsman shall consult with

that person or facility or the department. When publishing an

opinion adverse to a person or facility or the department, the

ombudsman shall include in that publication a statement of

reasonable length made to the ombudsman by that person or facility

or the department in defense or mitigation of the finding if that

statement is provided within a reasonable period of time as

determined by the council. The ombudsman may request to be notified

by a person or facility or the department, within a specified time,

of any action taken on any recommendation presented. The ombudsman

shall notify the complainant of the actions taken by the person or

facility or by the department.

     Sec. 12. The ombudsman shall submit to the council, the board

of managers, and the legislature a semiannual report on the conduct

of the office. A report under this section shall include all of the

following information for each Michigan veterans' facility during

the preceding 6 months, at a minimum:

     (a) The number of complaints received.

     (b) The number of complaints concerning each of the following

categories:

     (i) The modification or cancellation of, or justification for,

an administrative act.

     (ii) A statute or rule.

     (iii) Significant veteran health issues.

     (iv) Significant veteran safety issues.

     (c) The number of complaints resulting in the initiation of an

investigation.

     (d) The number of investigations initiated by the ombudsman.

     (e) The number of hearings.

     (f) The number of reports of findings issued.

     Sec. 13. (1) A resident veteran shall not be penalized in any

way by a person or facility or the department as a result of filing

a complaint, communicating a complaint to a legislator, or

cooperating with the ombudsman in investigating a complaint.

     (2) A person or facility or the department shall not hinder

the lawful actions of the ombudsman or employees of the office or

willfully refuse to comply with any lawful demand of the office.

     Sec. 14. The authority granted the ombudsman under this act is

in addition to the authority granted under any other act or rule

under which a remedy or right of appeal or objection is provided

for a complainant, or any procedure provided for the inquiry into

or investigation of any matter concerning a facility. The authority

granted the ombudsman under this act shall not be construed to

limit or affect any other remedy or right of appeal or objection

and shall not be deemed to be exclusionary.

     Enacting section 1. This act takes effect 90 days after the

date it is enacted into law.