Michigan Votes Forum

Introduced in the Senate on February 2, 2006, to prohibit administrative rules and regulations, or exceptions to them, from being imposed on assisted living facilities, if the rules discriminate by applying different criteria for enforcement based on whether the employees of a facility are unionized. The Granholm administration has begun the process of imposing such a rule, which reportedly was proposed by the American Federal of State, City and Municipal Employers (AFSCME) union. If imposed the rule would impact 5,000 providers of long term care services for the mentally ill and others, many of which are very small facilities (such as residential group homes)

The vote was 22 in favor, 15 opposed and 0 not voting

(Senate Roll Call 67 at Senate Journal 13)

Click here to view bill details.

Senator Jacobs' first statement is as follows: This amendment tie-bars House Bill No.5149 to the bill before us today, which I know is very controversial. Quite simply, this amendment would prohibit any state funds from going to any employer who interferes with or discourages unionization. I think both the providers as well as us as legislators want to be sure that we have a level playing field. What this does is include communicating in any form that an employee should vote against unionization, consulting with other persons to advise them on means to deter unionization, holding meetings to influence employees to refrain from unionization, etc. Let's be clear. This amendment would not limit the rights of employees or labor organizations to engage in lawful activities relating to negotiation and enforcement in collective bargaining agreements. This is similar to laws that are currently on the books in other states. The National Labor Relations Act prohibits employer interference against unions for collective activity. This amendment would basically bring state law in line with federal law. If we are going to say that the state can't discriminate against or be in favor of facilities with collective bargaining agreements, it just stands to reason that we should restrict state funds that go to employers who interfere with any type of organization. In the interest of fairness, I ask my colleagues to support this amendment.

Senator Clark-Coleman's statement is as follows: It's unfortunate that we are here today discussing these measures. This is a divisive and unnecessary bill package. As we heard in committee, the workgroup set to revise these rules is still in the beginning stages of meetings. It is premature for us to pass legislation when they haven't even come to an agreement on a draft rule. The Department of Human Services assured the committee that the goal of this workgroup is to make changes where there is a consensus. I repeat--where there is a consensus. Let's be clear on that. The department testified that the rules need to be promulgated along with those who are impacted by them. The department recognizes that in order to be effective, there has to be consensus and broad participation in developing these rules. Beyond that, these bills are designed to restrict the executive branch even from considering certain reforms. Now let's take a look at how the rulemaking process is supposed to work. Before any rules could go into effect, they would, first of all, have to be cleared by the State Office of Administrative Hearings and Rules, as well as the nonpartisan Legislative Service Bureau. After a minimum of a 28-day notice period, the department would be required to hold at least one public hearing. The department would then be required to either adopt or explain their disagreement with any suggestion made at the pubic hearing. Then the rules would be submitted to the Legislature--that's us--before they could go into effect. So I ask, why are we taking up this issue now while the workgroup is in the beginning stages of meetings? We need to step back from these bills and let the department and those involved in the industry complete the drafting process. The measures before us today are premature at best and anti-worker at worst. We should be working with those involved to find solutions to the serious direct care issues facing our state rather than passing meaningless legislation that eliminates options and serves to divide all involved.

Senator Cassis' statement is as follows: Personally and rather uniquely, I have specific knowledge and experience in this area. Many, many years ago, our niece was tragically, tragically injured in an automobile accident at the age of three. She has basically remained at that mental age level ever since. Most of her family, unfortunately died, in that tragic car accident--her mother, her father, her grandfather, and her aunt--but she survived. She is doing well and there is much that reminds her of the spirit within our family. She has been in a group home for, perhaps, at least the last twenty years. It's operated by the Macomb-Oakland Regional Center, under the auspices of the Michigan Department of Community Health. It's under private operation and some four to five years ago, approximately the whole attitude and approach of how they were going to supervise and implement services to this small group home was changed. It was changed dramatically and I have to say, personally, for the better. It increased family communication--a very positive attitude--and the staff became extremely responsive and interactive with the family. They absolutely are doing a fantastic job. My observation is that they are always pleasant and happy. They are glad to be doing what they are doing. So I have to ask the question, "What's broken?" What's broken that we now need rules promulgated? I have seen no documentation or evidence that anything needs to be fixed. Adopting the same rules, whether directed at unionized or privatized approaches, I believe, are going in the wrong direction. The private sector, from my experience, is doing a great job, and it will continue to be sensitive to and meet the needs of both its employees and those whom they serve.

Senator Cropsey's first statement, in which Senator Hardiman concurred, is as follows: A couple of things to keep in mind to the argument that these bills are not needed; that they are premature because no rules have been promulgated. That argument is patently false. I have here a copy of the draft rules that are complete with typos from the Department of Community Health with a cohesive language. The draft was dated August 31, 2005. Providers were not consulted about these changes nor asked for their input. Only a public outcry is slowing down the culture of corruption that would use the power of government to deny choices to workers, throw senior citizens out on the street, and force workers to accept unionization or else. One of the things to keep in mind--and this is from the Governor's long-term care task force that was set up to take a look at the rules-this is what the long-term care task force had to say about the ad hoc revision committee that was set up then to try to jam these changes down the throats of our senior citizens. The long-term care task force process was remarkably inclusive and carefully studied through many strengths, complexities, and weakness of our long-term health care system in Michigan. The task force made very specific recommendations on how to address assisted living and how to create a talented and valued long-term care workforce. We are gravely concerned that the ad hoc workgroup has not been given the latitude to implement the task force recommendations. We are also concerned that the ad hoc rule revision workgroup has not had sufficient time to adequately review all the proposed changes and relevant statutes. The hurried schedule of meetings leaves time only for a superficial review and very little conversation. The facilitation of the workgroup needs improvement. The tone of the meetings lacks the open and collaborative spirit that was built in the task force process. This is signed by several members of the long-term care task force, saying that the process really has been coop-ed by people who have a different agenda, than truly having the concern of the people--the state of Michigan-especially our most vulnerable people, our senior citizens, at stake. Why should we support these bills? Well, let me give you a couple of comments from the newspapers just recently. This one is from The Oakland Press. It says "Granholm's new long-term care rules are gift to union." It doesn't say anything about it being good for the people of the state of Michigan; about helping or increasing the standards and making it safer for our vulnerable senior citizens. The Detroit News, December 31, 2005, which is originally when the administration wanted to see the rules implemented by truncating the time. The Detroit News editorial said, "Group home wage meddling sends a job-killing message. Proposed rules favor unions, violate worker privacy. Michigan is preparing to raise the cost of doing business here, repelling outside companies and perhaps killing existing ones in the process." The rules process that was alluded to earlier, when it talks about going through the Legislative Service Bureau to have them drafted, yes, they do that. The Service Bureau does not have any policy input. Then it goes out for hearings, and the department can have one hearing if they wish. Well, they must have one hearing; they can have more. But at that time, do they have to take into consideration and actually make any changes that are requested by people in the system, by people outside of the system? No, the department bureaucrats can be on orders from the head office and say you will do this and they will do that. Then it is talked about coming to the Legislature--submitted to the Legislature--well, submitting it to the legislature, and the legislature having to act is not there. They may submit it to the Legislature. You know what? As legislators, we don't have any power to do anything with it. All that's done is given to the legislature and it's is submitted to the Secretary of State and it becomes an administrative rule, with the force of law. So can you turn it down as a Legislature? No, we can't turn it down as a Legislature. You have no say in the process of rulemaking when it comes right down to it if the administration doesn't want you to have the say. So do these rules need to be stopped? Absolutely, they need to be stopped. First of all, they are not helping the senior citizens of this state. Secondly, if they are adopted, it will increase the cost of health care. When you increase the cost of health care, you will have homes close. When you have homes close, you will have senior citizens, vulnerable senior citizens out on the streets. Is that what this administration wants to do? Let me ask you, is that what they want to do? If we are going to stop senior citizens from being thrown out on the streets, we have to pass this legislation.

Senator Hardiman's first statement is as follows: I wish to speak also to the bills before us, the package, Senate Bill Nos. 1026-1030. It has been stated that we are in the beginning stages of the rulemaking process. This is not the beginning stage of the rulemaking process. In fact, as I stated earlier, the process was truncated. It was an advisory committee set up in August. It was told that it would meet for about a year. At the next meeting or so, it was told that it would end in April. Then at the next meeting or so, it was told that it would end in October. It ended in the middle of October. This process was truncated. I believe it is for a good reason. These rules that we are discussing are bad policy. The rules, as it has already been stated, will come before the Legislature. The Legislature cannot change or amend the rules. These bills do not take away the department's ability to promulgate rules. We support the department continuing the advisory process. Let's be quite open about that. It was stated in the Detroit Free Press-; the DHS spokesperson stated in November that the final draft would be given to the state rulemaking agency within a few weeks. The word "consensus" was not heard until we had a committee hearing on these bills. I would hope that there would be consensus that would be reached. But that had not the process that was taken place. These bills simply state that facilities should not be given preference based on the presence of collective bargaining agreements. The government should not be in that business. It has been stated previous to my comments from editorials in Michigan papers, including The Oakland Press.

Senator Jacobs' second statement is as follows: Just want to clarify one thing. As early as the end of last week, I brought together part of the provider's coalition and the department to talk about where we needed to be to move forward. There was agreement in my office that rules would not be promulgated until there was consensus, and everybody seemed to be fine leaving my office with that assurance. I recognize that the process got out of hand. I think that a lot of people looked into what was going on, perhaps with, kind of with their own blinders on. But at the end of the day--I come from the provider's community--our job is to make sure that the people who are served in the adult foster care industry is well taken care of and that there is less of a turnover; that we want to be sure of workers, we want to be sure that everyone works in a safe environment; and that the consumers are really the people who at the end of the day who we really should be caring about. So I will be voting against these bills, with the understanding that I will continue to work with the administration and the providers to get to the goals that I think all of us share.

Senator Sanborn's statement is as follows: I rise actually to commend the chairman for his leadership on this most important issue. The chairman of the committee did a great job. You know, as we were in the committee--and it was an honor to serve on the committee--the union lobbyist tried to suggest that having unionized labor in our regulated facilities that receive preferential treatment somehow could impact the quality of health care. I find this argument to be insulting. What they fail to understand is that some people care for our elderly for reasons of the heart and not necessarily reasons of the pocketbook. The compassion that these dedicated employees, who traveled to testify in the committee--the compassion that these employees show for our most vulnerable cannot be negotiated in a collective bargaining agreement. I urge your support for this package.

Senator Hammerstrom's statement is as follows: Colleagues, I rise in support of this package, and I, too, would like to commend the chairman of the Families and Human Services Committee for his timely introduction of this package of bills. It has been talked about today that this is too early in the process for us to pass this legislation. I disagree. We can continue to work on the rules that are directed at safety. What these bills do is take off the table arbitrary preferences to unionized facilities. I urge us to pass the bills and get back to the process of drafting rules that take into consideration the recommendations the long-term care task force, focused on the safety of those vulnerable individuals who reside in these facilities.

Senator Schauer's first statement is as follows: I rise to clarify an inaccurate, or at best, or misleading statement, at worst, made by the Senator from the 33rd District regarding this rulemaking process and the ability. Well, one, to clarify whether these proposed rules or eventually proposed rules would need to come to this legislative body or to the Legislature in general and as to whether this Legislature has the ability to act. Clearly, and this is important, because I know there are many people watching, some even in the Gallery following this debate and it probably is confusing. But I want to make sure that everyone understands that the Department of Human Services in this case would have to submit proposed rules to the Legislature through the Joint Committee on Administrative Rules, otherwise known as JCAR. The Legislature has an opportunity to review the actual rules, not some draft rules or workgroup product, or something like that. We don't have rules that have been submitted yet, but the Legislature would have the opportunity to review the actual rules and decide whether to object or not, and that's done through the JCAR process. And by the way, I have here in my hand MCL 24.245a of the Administrative Procedures Act, which outlines that process. The Legislature has many options. If the legislature is concerned about what is proposed in those rules, the Legislature could submit a bill at that point that would fix or address any of those concerns through specific legislation, and any of those problems could be worked out. So I just wanted to make that clarification.

Senator Cropsey's second statement is as follows: I was just referred to by the previous speaker on the rules process. Let's be very clear. When the rules are submitted to the Joint Committee on Administrative Rules, can you amend those rules as the Legislature in the administrative rules process? No, you can't amend the rules. Can you reject the rules in the Joint Committee on Administrative Rules through the legislative process there? No, you can't reject the rules. The administration can go ahead and they can force the rules upon the people of the state of Michigan. The administrative rules process, for all practical purposes, in the Legislature as far as the joint committee, is just a toothless tiger and everybody knows it. The previous speaker knows it. So to get up here and try and say that we're going to have all sorts of input and everything else is absolutely, blatantly untrue. I know because I fought Governor Engler on that very same point. I think what he did was wrong. What this Governor is doing is wrong because when it comes to vulnerable people, we ought to be the ones setting the policy and not some faceless bureaucrat somewhere who is being told by people in the front office who are committed to unionization--and only unionization--on what they are going to do. Very frankly, if we allow these type of rules to go through, then we have abdicated our responsibility as a Legislature to be setting the policy for the people of the state of Michigan.

Senator Hardiman's second statement is as follows: To the point that this package is a bit of a knee-jerk reaction to an unfinished process and that it's very early in the process, I want to be perfectly clear. The sponsoring of these bills is not a knee-jerk reaction. In fact, I contacted the director of the Department of Human Services at least 10 months ago regarding these rules. I also asked her and sent a letter to her back in April because I heard about these rules, which finally after that, I believe in July, that we actually saw a memo regarding the rules. This is not a knee-jerk reaction. That is not what we are doing. We are reacting to a real situation. I appreciate the fact that the department is willing to sit down and continue the committee process and come to a consensus. But that was stated at the hearing regarding these bills. I continue my support of the package, and I ask that this body approve the bills.

Senator Schauer's second statement is as follows: This is a great opportunity for all of us to understand the rulemaking process, the authority of JCAR, and the authority of this Legislature. So I appreciate the opportunity. I will read from MCL 24.245a of the Administrative Procedures Act, specifically subsection (3) and this refers to JCAR, the Joint Committee on Administrative Rules. It says, "If the committee"--meaning JCAR--"files a notice of objection within the time period prescribed in subsection (1), the committee chair, the alternate chair, or any member of the committee shall cause bills to be introduced in both houses of the legislature simultaneously. Each house shall place the bill or bills directly on its calendar." It means before each body. "The bills shall contain 1 or more of the following: (a) A rescission of a rule upon its effective date"--a rescission; "(b) A repeal of the statutory provision under which the rule was authorized; (c) A bill stating the effective date of the proposed rule for up to 1 year." So this is very clear, colleagues. We clearly have the ability when it's right, and we don't have rules before us, so this really is a mute point.

Senator Bishop's statement is as follows: I didn't intend to engage in this conversation, but as the chair of the Joint Committee on Administrative Rules, I want to rise in support of the good Senator from the 33rd District who referred to the committee as a toothless tiger and agree with him. The committee is set up in a way to provide some oversight on the rulemaking process, but really, indeed, has no authority to reject rules or amend rules as they come through the committee. In fact, the committee has a limited amount of time to take up the rules, to consider them, and as the good Senator previously said, we do have the authority to submit a bill into each chamber and have those passed rejecting the rule, rescinding it, or extending the time period within which it can go into effect. But let's not forget the rest of the legislative process. Those bills then have to go to the Governor for her signature. It seems to me that we've got those rules in the first place from the administration. I don't necessarily think there is a functional process in place that can address these issues. Unfortunately, this Legislature has been steamrolled by administrative rules on more than one occasion. The administrative rules process has become a process by which bureaucrats can make an end-run round on the legislative process. They circumvent the Legislature. They supplant state law with the administrative process that is our responsibility as a Legislature to create legislation, and we're being replaced by a process that has gone way wrong. Having said that, I just feel that we need to have a candid discussion. We hear this talk about how we're confused about the process, that there seems to be something in place. There, in fact, is no process in place right now. We'd like that to be in place. I would call upon this Governor to be a leader and step up and create a process to bring true accountability to this process. In fact, maybe reinstate the rules of JCAR that we once had. That seems to be the consensus agreement today that all of us have discussed and that we, indeed, want accountability in the process. I want to make that clarification, Mr.President.