LB596 LB596
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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 596
Introduced by Quick, 35.
Read first time January 23, 2019
Committee: Executive Board
1 A BILL FOR AN ACT relating to the Public Counsel; to amend section
2 81-8,240, Reissue Revised Statutes of Nebraska, and sections
3 81-8,241, 81-8,244, and 81-8,245, Revised Statutes Cumulative
4 Supplement, 2018; to adopt the Office of Inspector General of
5 Nebraska Public Health Act; to harmonize provisions; and to repeal
6 the original sections.
7 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Sections 1 to 18 of this act shall be known and may be
2 cited as the Office of Inspector General of Nebraska Public Health Act.
3 Sec. 2. For purposes of the Office of Inspector General of Nebraska
4 Public Health Act:
5 (1) Administrator means a person charged with administration of a
6 program, an office, or a division of the department or administration of
7 a facility or private agency;
8 (2) Department means the Division of Public Health of the Department
9 of Health and Human Services;
10 (3) Director means the Director of Public Health of the Division of
11 Public Health;
12 (4) Facility means a state-owned facility providing health care or a
13 state-licensed health care facility as defined in section 71-413;
14 (5) Inspector General means the Inspector General of Nebraska Public
15 Health appointed under section 3 of this act;
16 (6) Malfeasance means a wrongful act that the actor has no legal
17 right to do or any wrongful conduct that affects, interrupts, or
18 interferes with performance of an official duty;
19 (7) Management means supervision of subordinate employees;
20 (8) Misfeasance means the improper performance of some act that a
21 person may lawfully do;
22 (9) Obstruction means hindering an investigation, preventing an
23 investigation from progressing, stopping or delaying the progress of an
24 investigation, or making the progress of an investigation difficult or
25 slow;
26 (10) Office means the office of Inspector General of Nebraska Public
27 Health and includes the Inspector General and other employees of the
28 office;
29 (11) Private agency means an entity that contracts with the
30 department to provide services relating to facilities;
31 (12) Record means any recording in written, audio, electronic
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1 transmission, or computer storage form, including, but not limited to, a
2 draft, memorandum, note, report, computer printout, notation, or message,
3 and includes, but is not limited to, medical records, mental health
4 records, case files, clinical records, financial records, and
5 administrative records; and
6 (13) Responsible individual means the director or other
7 administrator or employee of a facility or private agency responsible for
8 the care or custody of records, documents, and files.
9 Sec. 3. (1) The office of Inspector General of Nebraska Public
10 Health is created within the Office of Public Counsel for the purpose of
11 conducting investigations, audits, inspections, and other reviews of
12 state-owned facilities providing health care and state-licensed health
13 care facilities as defined in section 71-413. The Inspector General shall
14 be appointed by the Public Counsel with approval from the chairperson of
15 the Executive Board of the Legislative Council and the chairperson of the
16 Health and Human Services Committee of the Legislature.
17 (2) The Inspector General shall be appointed for a term of five
18 years and may be reappointed. The Inspector General shall be selected
19 without regard to political affiliation and on the basis of integrity,
20 capability for strong leadership, and demonstrated ability in accounting,
21 auditing, financial analysis, law, management, public administration,
22 investigation, or criminal justice administration or other closely
23 related fields. No former or current executive or manager of the
24 Department of Health and Human Services shall be appointed Inspector
25 General within five years after such former or current executive's or
26 manager's period of service with the department. Not later than two years
27 after the date of appointment, the Inspector General shall obtain
28 certification as a Certified Inspector General by the Association of
29 Inspectors General, its successor, or another nationally recognized
30 organization that provides and sponsors educational programs and
31 establishes professional qualifications, certifications, and licensing
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1 for inspectors general. During his or her employment, the Inspector
2 General shall not be actively involved in partisan affairs.
3 (3) The Inspector General shall employ such investigators and
4 support staff as he or she deems necessary to carry out the duties of the
5 office within the amount available by appropriation through the office of
6 Public Counsel for the office of Inspector General. The Inspector General
7 shall be subject to the control and supervision of the Public Counsel,
8 except that removal of the Inspector General shall require approval of
9 the chairperson of the Executive Board of the Legislative Council and the
10 chairperson of the Health and Human Services Committee of the
11 Legislature.
12 Sec. 4. (1) The office shall investigate:
13 (a) Allegations or incidents of possible misconduct, misfeasance,
14 malfeasance, or violations of statutes or of rules or regulations of the
15 department by an employee of or person under contract with the
16 department, a private agency, or a facility; and
17 (b) Allegations or incidents of possible misconduct which may
18 provide a basis for discipline pursuant to the Uniform Credentialing Act
19 by an employee of or person under contract with the department, a private
20 agency, or a facility.
21 (2) Any investigation conducted by the Inspector General shall be
22 independent of and separate from an investigation pursuant to the Adult
23 Protective Services Act. The Inspector General and his or her staff are
24 subject to the reporting requirements of the Adult Protective Services
25 Act.
26 (3) Notwithstanding the fact that a criminal investigation, a
27 criminal prosecution, or both are in progress, all law enforcement
28 agencies and prosecuting attorneys shall cooperate with any investigation
29 conducted by the Inspector General and shall, immediately upon request by
30 the Inspector General, provide the Inspector General with copies of all
31 law enforcement reports which are relevant to the Inspector General's
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1 investigation. All law enforcement reports which have been provided to
2 the Inspector General pursuant to this section are not public records for
3 purposes of sections 84-712 to 84-712.09 and shall not be subject to
4 discovery by any other person or entity. Except to the extent that
5 disclosure of information is otherwise provided for in the Office of
6 Inspector General of Nebraska Public Health Act, the Inspector General
7 shall maintain the confidentiality of all law enforcement reports
8 received pursuant to its request under this section. Law enforcement
9 agencies and prosecuting attorneys shall, when requested by the Inspector
10 General, collaborate with the Inspector General regarding all other
11 information relevant to the Inspector General's investigation. If the
12 Inspector General in conjunction with the Public Counsel determines it
13 appropriate, the Inspector General may, when requested to do so by a law
14 enforcement agency or prosecuting attorney, suspend an investigation by
15 the office until a criminal investigation or prosecution is completed or
16 has proceeded to a point that, in the judgment of the Inspector General,
17 reinstatement of the Inspector General's investigation will not impede or
18 infringe upon the criminal investigation or prosecution.
19 Sec. 5. (1) The office shall have access to all information and
20 personnel necessary to perform the duties of the office.
21 (2) A full investigation conducted by the office shall consist of
22 retrieval of relevant records through subpoena, request, or voluntary
23 production, review of all relevant records, and interviews of all
24 relevant persons.
25 Sec. 6. (1) Complaints to the office may be made in writing. The
26 office shall also maintain a toll-free telephone line for complaints. A
27 complaint shall be evaluated to determine if it alleges possible
28 misconduct, misfeasance, malfeasance, or violation of a statute or of
29 rules and regulations pursuant to section 4 of this act. All complaints
30 shall be evaluated to determine whether a full investigation is
31 warranted.
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1 (2) The office shall not conduct a full investigation of a complaint
2 unless:
3 (a) The complaint alleges misconduct, misfeasance, malfeasance, or
4 violation of a statute or of rules and regulations pursuant to section 4
5 of this act;
6 (b) The complaint is against a person within the jurisdiction of the
7 office; and
8 (c) The allegations can be independently verified through
9 investigation.
10 (3) The Inspector General shall determine within fourteen days after
11 receipt of a complaint whether it will conduct a full investigation. A
12 complaint alleging facts which, if verified, would provide a basis for
13 discipline under the Uniform Credentialing Act shall be referred to the
14 appropriate credentialing board under such act.
15 Sec. 7. All employees of the department and all owners, operators,
16 managers, supervisors, and employees of facilities and private agencies
17 shall cooperate with the office. Cooperation includes, but is not limited
18 to, the following:
19 (1) Provision of full access to and production of records and
20 information. Providing access to and producing records and information
21 for the office is not a violation of confidentiality provisions under any
22 law, statute, rule, or regulation if done in good faith for purposes of
23 an investigation under the Office of Inspector General of Nebraska Public
24 Health Act;
25 (2) Fair and honest disclosure of records and information reasonably
26 requested by the office in the course of an investigation under the act;
27 (3) Encouraging employees to fully comply with reasonable requests
28 of the office in the course of an investigation under the act;
29 (4) Prohibition of retaliation by owners, operators, or managers
30 against employees for providing records or information or filing or
31 otherwise making a complaint to the office;
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1 (5) Not requiring employees to gain supervisory approval prior to
2 filing a complaint with or providing records or information to the
3 office;
4 (6) Provision of complete and truthful answers to questions posed by
5 the office in the course of an investigation; and
6 (7) Not willfully interfering with or obstructing the investigation.
7 Sec. 8. Failure to cooperate with an investigation by the office
8 may result in discipline or other sanctions.
9 Sec. 9. The Inspector General may issue a subpoena, enforceable by
10 action in an appropriate court, to compel any person to appear, give
11 sworn testimony, or produce documentary or other evidence deemed relevant
12 to a matter under his or her inquiry. A person thus required to provide
13 information shall be paid the same fees and travel allowances and shall
14 be accorded the same privileges and immunities as are extended to
15 witnesses in the district courts of this state and shall also be entitled
16 to have counsel present while being questioned. Any fees associated with
17 counsel present under this section shall not be the responsibility of the
18 office.
19 Sec. 10. (1) In conducting investigations, the office shall access
20 all relevant records through subpoena, compliance with a request of the
21 office, and voluntary production. The office may request or subpoena any
22 record necessary for the investigation from the department, a facility,
23 or a private agency. All case files, licensing files, medical records,
24 financial and administrative records, and records required to be
25 maintained pursuant to applicable licensing rules shall be produced for
26 review by the office in the course of an investigation.
27 (2) Compliance with a request of the office includes:
28 (a) Production of all records requested;
29 (b) A diligent search to ensure that all appropriate records are
30 included; and
31 (c) A continuing obligation to immediately forward to the office any
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1 relevant records received, located, or generated after the date of the
2 request.
3 (3) The office shall seek access in a manner that respects the
4 dignity and human rights of all persons involved, maintains the integrity
5 of the investigation, and does not unnecessarily disrupt facilities. The
6 office investigator shall, upon arrival at the departmental office,
7 bureau, or division, the facility, or the private agency, request that an
8 onsite employee notify the administrator or his or her designee of the
9 investigator's arrival.
10 (4) When circumstances of an investigation require, the office may
11 make an unannounced visit to a foster home, a departmental office,
12 bureau, or division, facility, or private agency to request records
13 relevant to an investigation.
14 (5) A responsible individual or an administrator may be asked to
15 sign a statement of record integrity and security when a record is
16 secured by request as the result of a visit by the office, stating:
17 (a) That the responsible individual or the administrator has made a
18 diligent search of the office, bureau, division, facility, or private
19 agency, to determine that all appropriate records in existence at the
20 time of the request were produced;
21 (b) That the responsible individual or the administrator agrees to
22 immediately forward to the office any relevant records received, located,
23 or generated after the visit;
24 (c) The persons who have had access to the records since they were
25 secured; and
26 (d) Whether, to the best of the knowledge of the responsible
27 individual or the administrator, any records were removed from or added
28 to the record since it was secured.
29 (6) The office shall permit a responsible individual, an
30 administrator, or an employee of a departmental office, bureau, or
31 divis