12-3-02 U.S. Supreme
Court Allows Medicaid Suit
Senate Panel OKs Rules Change Legislation
Overhaul of Children's Ombudsman
House Passes Bill
Ending Statewide Election of University Board
Charter Schools Again Fall Short in House
For more articles visit
SUPREME COURT ALLOWS MEDICAID SUIT
The U.S. Supreme Court this week upheld the U.S. Sixth Circuit
Court of Appeals in allowing a lawsuit by human rights groups
alleging the state is not providing certain screening,
diagnosis and treatment services to low-income children as
required by federal Medicaid laws.
The state had asked the high court to review the Court of
Appeals finding (Westside Mothers v. Haveman, USSC docket No.
02-227) in May 2002 that the case should move forward, which
had overturned U.S. District Judge Robert Cleland, who had
dismissed the case in March 2001. The high court said it would
not hear the case.
Mr. Cleland had ruled the Medicaid Act was actually a contract
between the states and so not subject to the lawsuit. The
Court of Appeals found that the U.S. Supreme Court had already
ruled that the Medicaid Act was federal law, not a contract,
and was enforceable as such.
Next stages in the case have not yet been set, but both sides
claim readiness to head to trial.
The plaintiffs say the state is not reaching enough children
through the Medicaid program with recent studies of state
services showing 22 percent of children aged 0-6 getting lead
blood level tests and 34 percent getting dental inspections;
for ages 7-21, 19 percent were getting dental inspections.
But state officials argue not only are those figures
inaccurate, but that services have improved under the managed
care program that was implemented about the same time as the
lawsuit was filed in 1999.
SENATE PANEL OKS RULES CHANGE LEGISLATION
Lawmakers would have more time to review administrative rules
before they automatically take effect under a bill approved
Tuesday by the Senate Judiciary Committee.
Currently, the Joint Committee on Administrative Rules has 21
days to review an administrative rule before it becomes
effective. But under SB 1507, the committee would have 90 days
to review rules before they took effect.
A spokesperson for bill sponsor Sen. Bev Hammerstrom
(R-Temperance) said the measure was needed in light of term
limits and the lack of institutional knowledge some members
would have about rules. The 90-day period was designed to make
sure that rules would not take effect during any legislative
However, a number of Democrats and other observers, have said
the bill appeared to be designed to ensure the Republican
controlled Legislature would have oversight on any
administrative rules incoming Governor-elect Jennifer Granholm
would try to implement.
Governor John Engler has also signaled his opposition to the
bill, saying it is an intrusion into executive authority.
Despite those concerns, the bill was reported unanimously.
The Legislature and the Executive Office have tussled over
authority on administrative rules for decades. One of the two
successful veto overrides in the last half-century was over
administrative rules. Mr. Engler created the Office of
Regulatory Reform as a way of speeding through administrative
rules and promoting economic development.
HOUSE OKS OVERHAUL OF CHILDREN'S OMBUDSMAN
Case files of children who die under state supervision could
become public documents, and the Office of the Children's
Ombudsman would gain greater investigation powers under a bill
passed Tuesday by the House.
The ombudsman also would no longer be a direct gubernatorial
appointment in a move designed to give the post greater
independence and freedom to investigate the Family
Independence Agency, which runs Child Protective Services.
The bill, passed 88-13, arose in response to the killing of
Ariana Swinson, a Port Huron-area girl who was slain by her
parents while under FIA supervision. Child advocates and
lawmakers complained they could get no information about the
case because of confidentiality laws that prohibit the release
of information about children in FIA care.
"By knowing what goes on in cases like this, it will help us
as policy-makers to draft future legislation as necessary,"
said Rep. Lauren Hager (R-Port Huron Township), the bill
sponsor who has pushed for the legislation for nearly two
Mr. Hager said the bill would allow the ombudsman to "truly do
the job that he or she has been designed to do."
But the bill faces a difficult road to becoming law before all
legislation dies at the end of the year. Sen. Beverly
Hammerstrom (R-Temperance), chair of the Senate committee that
will review the bill, has told Mr. Hager it will be difficult
to complete action on the bill with so little time remaining
in the term, Mr. Hager said. Governor John Engler, who clashed
with former Ombudsman Richard Bearup over how aggressive the
position should be, also opposes the bill.
"Time is short," Mr. Hager said. "The chances will be-I won't
say slim-but we're going to keep working to get Senator
Hammerstrom to take it up."
The bill (HB 5967) would create a 13-member board comprised of
appointees by the State Bar; the Supreme Court, the speaker of
the House, the Senate majority leader, the National
Association of Social Workers of Michigan, the Michigan
Domestic Violence and Treatment Board, the Michigan State
Police, the Michigan State Medical Society and the governor,
who would have three appointees. The board would recommend
three candidates to the governor, who would select from those
The legislation also would give the ombudsman full access to
all records, subpoena power and the ability to disclose
otherwise confidential information if he or she determines
that doing so is in the public interest. The FIA would have to
provide any information requested by the ombudsman within five
days. And the ombudsman would have access to FIA records
within the ombudsman's office.
But Rep. Doug Hart (R-Rockford), chair of the House
subcommittee that reviewed the bill, warned that the ombudsman
would gain "God-like powers." And he said the end of
confidentiality laws in cases where children die would harm
"The public good should never supercede the interest of the
child," he said. "Under bad leadership, the ombudsman ...
could terrorize children and families."
But Mr. Hager angrily rejected that charge, saying that ending
confidentiality in such cases would better serve the interest
of all children under FIA care. In response to Mr. Hart's
contention the post would take on "God-like powers," Mr. Hager
said the limits on the ombudsman's budget and staff is a
built-in inhibitor to such abuses.
HOUSE COMMITTEE PASSES BILL ENDING STATEWIDE
ELECTION OF UNIVERSITY BOARD MEMBERS
Members of the three elected public university governing
boards would run for office from districts instead of on a
statewide basis under a bill approved Tuesday by a House
Supporters of the bill say it would ensure representation from
all parts of the state on the boards of Michigan State
University, the University of Michigan and Wayne State
University. Political parties would nominate two candidates
for each board from districts (the same boundaries used by the
Court of Appeals) with a different district up for election
every two years.
But Democratic opponents say the bill is a blatant partisan
maneuver by the Republican-controlled Legislature to ensure
GOP power on the boards. Although few issues that come before
the governing boards take on a partisan tone, control of the
boards is a matter of pride for the parties. Recent notable
partisan issues on the board were domestic partner benefits at
MSU in the mid-1990s and U-M's legal defense of its
affirmative action policies.
The bill cleared the House Commerce Committee on a 10-5 vote.
It now goes to the full House for consideration.
If the current board members were broken up by district, they
would tend to be concentrated in the district where their
university resides. Six of MSU's trustees live in the 4th
District, which stretches from Ingham County northward through
the entire Upper Peninsula. Five of U-M's regents live in the
3rd District, which is based in West Michigan, but also
stretches eastward to include Washtenaw County. And five of
Wayne State's governors reside in the 1st District, which is
based in Wayne County.
The bill (HB 6483) would grandfather in current board members.
Based on the Court of Appeals districts, the 1st District
would elect Democrats, the 2nd District in the northern
Detroit suburbs would be fairly competitive, the 3rd and 4th
districts would elect Republicans. For Republicans, it would
likely mean no worse than a 4-4 split on the boards.
Presently, Democrats control the Wayne State Board,
Republicans control the MSU board while the U-M board is
The legislation would create geographic, philosophical, racial
and political diversity on the boards, MSU Trustee David
Porteous told the committee. Further, it would aid governing
board members' ability to work with residents by only having
one-quarter of the state as constituents, not the entire
"This legislation provides an opportunity for those
universities and significantly enhances the way we elect our
university board members," he said.
But Rep. Chris Kolb (D-Ann Arbor) questioned what the bill
"What is the problem we're trying to fix here?" he asked. "We
have as a state elected board members from all four regions.
These are great statewide research universities that should be
But Rep. Jim Koetje (R-Walker) denied accusations of
partisanship. "I looked at it as an opportunity for
accountability, accessibility," he said.
CHARTER SCHOOLS AGAIN FALL SHORT IN HOUSE
The Republican-controlled House again fell short Tuesday in
its efforts to increase the number of charter schools in
Michigan, but leaders indicate they have not given up on
passing the nettlesome bill before the Legislature adjourns
for the year.
In its latest attempt to muscle a charter school bill through
the House, Republicans came up five votes short of the 56
needed for a majority. And no Democrats supported the
legislation. With six Republicans strongly opposed to charter
school expansion, Democratic support is essential.
Republican leaders on the issue again thought they had the
necessary votes in place, but were stymied. House Minority
Leader Buzz Thomas (D-Detroit) has lifted the "caucus
position" of Democrats against the bill, but no Democratic
lawmakers seemed eager to support the legislation despite that
"We were assured the votes were in place," said Rep. Wayne
Kuipers (R-Holland), the chair of the Education Committee.
"Things are pretty fluid. I'm hopeful that we'll be back at
this yet one more time before we're done for the year."
The Charter School Commission was created by legislative
leaders to attempt a solution to the recurrent issue of
expanding the number of charter schools that can be chartered
by universities, a number now set at 150. Opponents of charter
schools have been able to block legislation expanding that
number in the House. Helping push opponents to discuss
possible compromises is that Bay Mills Community College,
which serves a statewide population as it is the only Indian
community college in the state, can charter schools anywhere
Under the commission's provisions 55 charter schools would be
allowed between 2002-2007. Another 175 charter schools
designated as "special purpose" schools would be allowed
between 2003-2017 at a rate of 10-15 per year. These special
purpose schools have to have at least 50 percent of their
students come from at risk backgrounds.
The Department of Education would get new oversight powers and
charter schools would be subject to the Freedom of Information
Act. New regulations would be in place to better ensure open
enrollment in charter schools and to better advertise
themselves to special education pupils. Bay Mills Community
College would be under the cap.
But the House did significantly deviate from the commission's
recommendation by increasing the number of new charter schools
that could be started in Detroit-the most popular locale for
the academies-from one per year to a total of 22 between now
House Speaker Rick Johnson (R-LeRoy), who declared in May it
would "have to snow pretty damn hard" before he took up the
bill again after it was defeated then, was noncommittal on
whether he would hold another vote. Mr. Johnson said he could
not understand why Democrats refuse to back the bill when
their traditional ally, the Michigan Education Association
teachers union, is supporting it.
"If the Democrats can't seem to come across and understand
what's going on, I'm more than willing to pick up five more
seats for the Republican caucus because we're the ones who
support education, we're the ones that's working these
issues," he said, referring to the GOP's five-seat gain in
this year's elections. "I just think it's great they want to
give us some more positions on election issues."
But Mr. Thomas said Democrats plainly dislike the bill from a
policy standpoint. He said he was not surprised at the absence
of Democratic support even though he had lifted the caucus
position. The expanded ability to put charter schools in
Detroit only heightened Democratic opposition, he said.
At this point, Mr. Thomas said he and Mr. Johnson have not
discussed any possible deals on the long-running issue.
"We have a policy difference," he said. "It's even stronger
today than it was six months ago."