Michigan Proposes Onerous, Unusual Assisted Living Regulations

Published February 1, 2006

Michigan’s long-term care organizations have banded together in opposition to the state’s effort to add new licensing provisions for assisted living providers. The provider organizations say the proposed changes seek to impose onerous administrative duties and contain an unusual provision that would give unions or employees managerial control over a facility’s staffing and salary benefit packages.

Supporters of the licensing changes say the additional language is needed to improve the quality of care in the state’s assisted living facilities. The provider organization–the Coalition for Affordable & Quality Care–says the proposed rule changes would diminish the quality of care because frontline caregivers would have to focus on mandated administrative duties rather than caring for residents.

Management Roles

The proposed changes, drafted last year by the state’s Department of Labor and Economic Growth, would require facilities to create two separate, employee-staffed committees overseeing safe staffing and health benefits. The safe staffing committee would determine a facility’s staffing levels and would oversee staffing levels to “resolve staffing problems that adversely affect residents.” The health benefits committee would identify and work to eliminate causes of injuries to workers and residents.

The committees would be required to meet regularly and would have to provide minutes of the meetings to the state. Linda Lawther, president and chief executive officer of the Michigan Center for Assisted Living (MCAL), a member of the coalition, says the costs of complying with the regulation would be too onerous for small facilities. It either would require these facilities to redirect those employees to staffing the committees or would force facilities to hire more employees, she says. “Our major concern is the moving of frontline caregiving staff into administrative roles,” said Lawther.

Other organizations of the coalition include the Health Care Association of Michigan, the Michigan Assisted Living Association, and the Michigan Association of Community Health Boards. Together, the coalition represents about 5,000 adult foster care homes and homes for the aged–Michigan’s licensing terms for assisted living. An estimated 50,000 people are being cared for in facilities that range in size from one or two beds up to 300 beds.

Costly, Unprecedented

The coalition estimates these two provisions alone would cost assisted living providers an additional $35 million per year. The coalition’s estimate does not include the costs for implementing the committees’ recommendations.

Assisted living policy experts believe the state’s proposed rules are unique.

David Kyllo, executive director of the National Center for Assisted Living, says the proposed rules are “unprecedented” for licensing requirements.

“This proposal takes overly prescriptive regulation to a new level,” says Kyllo.

Michigan providers believe union organizers were behind Gov. Jennifer Granholm’s (D) introduction of the proposed changes. The rules include language that would allow an organization representing direct caregivers to sit on the committees and be involved in determining wage and health benefit packages.

State officials have denied that unions wrote the proposed draft; however, the American Federation of State, County, and Municipal Employees publicly supports the initiative, saying it would improve the quality of care.

Providers disagree, stating that quality of care can’t be improved through administrative reporting requirements, and providers are already concerned about quality of care, including employee issues such as wages and benefits, employee safety, and staff turnover rates.

“These rules out-regulate even the tremendously over-regulated skilled nursing industry,” said Dean Solden, co-owner of the Ann Arbor, Michigan-based assisted living facility, University Living. Solden is chair of MCAL and president and chief executive officer of a skilled nursing facility.

Over-Regulation Opposed

“No state in the country has proposed anything so obviously pro-union, and so anti-privacy, as these proposed rules,” Solden said, adding concerns about employee privacy.

“Nowhere [else] is there even a nursing home provision where a facility must send to the state a list of employees, with their names, addresses, telephone numbers, and Social Security numbers. … In the age of identify theft, is this wise?” Solden said. “Let’s be leaders in innovation, not over-regulation.”

The State Office of Administrative Hearings and Rules is reviewing the changes. Under that process, the public cannot comment until the agency holds public hearings later. Providers, however, believe by then it will be too late.

The state legislature held a hearing November 30, 2005 giving providers such as Solden an opportunity to express their concerns. However, the legislature serves only as an advisor in the process and is unable to be involved in the rule-making process. Coalition members believe any bill introduced by the predominantly Republican state legislature would be vetoed by Granholm.

The coalition’s efforts have generated press coverage of their opposition to the rule changes. The State Office of Administrative Hearings and Rules has reported receiving numerous calls opposing the rule change, which, Lawther says, has slowed the rule-making process.

Lisa Gelhaus ([email protected]) is editor of the National Center for Assisted Living’s publication Focus. This article first appeared in the January 2006 issue (Vol. 11, No. 1) of Focus and is reprinted with permission.