STATE OF MICHIGAN
Journal of the Senate
100th Legislature
REGULAR SESSION OF 2020
Senate Chamber, Lansing, Thursday, May 21, 2020.
10:00 a.m.
Pursuant to
rule 1.101, in the absence of the Presiding Officers, the Senate was called to
order by the Secretary of the Senate.
Messages from the Governor
The following message from the Governor
was received on May 21, 2020, and read:
EXECUTIVE
ORDER
No.
2020-95
Enhanced protections for residents and
staff of long-term care facilities
during the COVID-19 pandemic
Rescission of Executive Order 2020-84
The novel coronavirus (COVID-19) is a
respiratory disease that can result in serious illness or death. It is caused
by a new strain of coronavirus not previously identified in humans and easily spread
from person to person. There is currently no approved vaccine or antiviral
treatment for this disease.
On March 10, 2020, the Department of
Health and Human Services identified the first two presumptive-positive cases
of COVID-19 in Michigan. On that same day, I issued Executive Order 2020-4.
This order declared a state of emergency across the state of Michigan under
section 1 of article 5 of the Michigan Constitution of 1963, the Emergency
Management Act, 1976 PA 390, as amended, MCL 30.401 et seq., and the Emergency Powers of the Governor Act of 1945, 1945
PA 302, as amended, MCL 10.31 et seq.
Since then, the virus spread across
Michigan, bringing deaths in the thousands, confirmed cases in the tens of
thousands, and deep disruption to this state’s economy, homes, and educational,
civic, social, and religious institutions. On April 1, 2020, in response to the
widespread and severe health, economic, and social harms posed by the COVID-19
pandemic, I issued Executive Order 2020-33. This order expanded on Executive
Order 2020-4 and declared both a state of emergency and a state of disaster
across the State of Michigan under section 1 of article 5 of the Michigan
Constitution of 1963, the Emergency Management Act, and the Emergency Powers of
the Governor Act of 1945. And on April 30, 2020, finding that COVID-19 had
created emergency and disaster conditions across the State of Michigan, I
issued Executive Order 2020-67 to continue the emergency declaration under the
Emergency Powers of the Governor Act, as well as Executive Order 2020-68 to
issue new emergency and disaster declarations under the Emergency Management
Act.
The Emergency Management Act vests the
governor with broad powers and duties to “cop[e] with dangers to this state or
the people of this state presented by a disaster or emergency,” which the
governor may implement through “executive orders, proclamations, and directives
having the force and effect of law.” MCL 30.403(1)–(2). Similarly, the
Emergency Powers of the Governor Act of 1945 provides that, after declaring a
state of emergency, “the governor may promulgate reasonable orders, rules, and
regulations as he or she considers necessary to protect life and property or to
bring the emergency situation within the affected area under control.” MCL
10.31(1).
The COVID-19 pandemic poses a
particularly dire threat to the health and safety of both residents and
employees of long-term care facilities. To mitigate the spread of COVID-19,
protect the public health, and provide essential protections to vulnerable
Michiganders, it is crucial to limit in-person contact as much as possible and,
for those in-person services and interactions that must occur, to engage in
social distancing and other mitigation practices. For the residents of
long-term care facilities to receive the care they need, however, the residents
and staff of the facilities must share close quarters and interact in person
regularly, and limitations on access to personal protective equipment only make
it more difficult for these in-person interactions to be carried out safely.
Due to the nature of the care provided in long-term care facilities and the
vulnerable status of their residents, the risk of harm posed by a single
positive case of COVID-19 to the entire facility—residents and staff—is
inordinately high. As a result, it is reasonable and necessary to afford
limited and temporary relief from certain rules and procedures so as to provide
enhanced protections for residents and employees of long-term care facilities
during this unprecedented crisis.
Executive Order 2020-50 provided this
limited and temporary relief. Executive Order 2020-84 extended the duration of
that relief. This order provides additional protections and further extends the
duration of that relief, because it remains necessary to suppress the spread of
COVID-19 and protect the public health and safety of this state and its
residents.
Acting under the Michigan Constitution
of 1963 and Michigan law, I order the following:
I. Protections
for residents of long-term care facilities
1. Notwithstanding
any statute, rule, regulation, or policy to the contrary, a long-term care
facility must not effectuate an eviction or involuntary discharge against a
resident for nonpayment, nor deny a resident access to the facility, except as
otherwise provided in this order.
2. A
long-term care facility must not prohibit admission or readmission of a
resident based on COVID‑19 testing requirements or results in a manner
that is inconsistent with this order or relevant guidance issued by the
Department of Health and Human Services (“DHHS”).
3. The
following apply to a resident that voluntarily obtained housing outside of a
long-term care facility such as by moving in with a family member (but not to a
resident who was hospitalized) during any state of emergency or state of
disaster arising out of the COVID-19 pandemic:
(a) The
resident does not forfeit any right to return that would have been available to
the resident under state or federal law had they been hospitalized or placed
therapeutic leave. Nothing in this section affects the rights of a resident who
was hospitalized or placed on therapeutic leave.
(b) Except
as provided in subsection (c), as soon as capacity allows, the long-term care
facility of origin must accept the return of the resident, provided it can meet
the medical needs of the resident, and there are no statutory grounds to refuse
the return.
(c) Prior
to accepting the return of such a resident, the long-term care facility must
undertake screening precautions that are consistent with relevant DHHS guidance
when receiving the returning resident. A facility must not accept the return of
a COVID-19-positive resident if the facility does not have a dedicated unit or
regional hub meeting the requirements of this order.
4. Nothing
in this order abrogates the obligation to pay or right to receive payment due
under an admission contract between a resident and a long-term care facility.
5. All
long-term care facilities must use best efforts to facilitate the use of
telemedicine in the care provided to their residents, including, but not
limited to, for regular doctors’ visits, telepsychology, counseling, social
work and other behavioral health visits, and physical and occupational therapy.
II. Protections
for employees and residents of long-term care facilities
1. It
is the public policy of this state that employees of long-term care facilities
or regional hubs who test positive for COVID-19 or who display one or more of
the principal symptoms of COVID-19 should remain in their homes or places of
residence, as provided in section 2 of Executive Order 2020-36 or any order
that may follow from it, and that their employers shall not discharge,
discipline, or otherwise retaliate against them for doing so, as provided in
section 1 of Executive Order 2020-36 or any order that may follow from it.
2. Long-term
care facilities must:
(a) Cancel
all communal dining and all internal and external group activities;
(b) Take
all necessary precautions to ensure the adequate disinfecting and cleaning of
facilities, in accordance with relevant guidance from the Centers for Disease
Control and Prevention (“CDC”);
(c) Use
best efforts to provide appropriate personal protective equipment (“appropriate
PPE”) and hand sanitizer to all employees that interact with residents;
(d) As
soon as reasonably possible, but no later than 12 hours after identification,
inform employees of the presence of a COVID-19-affected resident;
(e) Notify
employees of any changes in CDC recommendations related to COVID-19;
(f) Keep
accurate and current data regarding the quantity of each type of appropriate
PPE available onsite, and report such data to EMResource upon DHHS’s request or
in a manner consistent with DHHS guidance; and
(g) Report
to DHHS all presumed positive COVID-19 cases in the facility together with any
additional data required under DHHS guidance.
III. Procedures
related to transfers and discharges of COVID-19-affected residents
1. A
long-term care facility must report the presence of a COVID-19-affected
resident to their local health department within 24 hours of identification.
2. Except
as otherwise provided by an advance directive, a long-term care facility must
transfer a COVID‑19-affected resident who is medically unstable to a
hospital for evaluation.
3. A
nursing home must make all reasonable efforts to create a unit dedicated to the
care and isolation of COVID-19-affected residents (“dedicated unit”).
(a) A
nursing home with a dedicated unit must provide appropriate PPE to direct-care employees
who staff the dedicated unit.
(b) A
nursing home provider that operates multiple facilities may create a dedicated
unit by designating a facility for such a purpose.
(c) A
nursing home must not create or maintain a dedicated unit unless it can implement
effective and reliable infection control procedures.
4. A
long-term care facility must adhere to the following protocol with respect to a
COVID-19-affected resident who is medically stable:
(a) If
the long-term care facility has a dedicated unit, the facility must transfer
the COVID-19-affected resident to its dedicated unit.
(b) If
the long-term care facility does not have a dedicated unit, it must attempt to
transfer the COVID-19-affected resident to a regional hub, an alternate care
facility with physical and operational capacity to care for the resident, or an
available swing bed at a hospital.
(c) If a
transfer under subsection (b) of this section is not possible, the long-term
care facility must attempt to send the resident to a hospital within the state
that has available bed capacity.
5. Once
a long-term care facility resident who has been hospitalized due to onset of
one or more of the principal symptoms of COVID-19 becomes medically stable, the
hospital must conduct testing consistent with best practices identified by the
CDC prior to discharge. Discharge may be made to any of the following: a
regional hub, the facility where the resident resided prior to hospitalization,
an alternate care facility with physical and operational capacity to care for
the resident, or an available swing bed.
6. Discharge
destinations should be determined consistent with CDC and DHHS guidelines.
Decisionmakers should consider patient safety, the safety of the residents of
any destination facility, the wishes of the patient and patient’s family, and
any guidance or recommendations from the local health department. However, a
resident may only be discharged to a facility capable of safely isolating the
resident, consistent with any applicable CDC and DHHS guidelines.
7. Until
an acceptable discharge destination is identified, the individual must remain
in the care of the hospital where they reside.
8. For
any transfer or discharge of a resident, the transferring or discharging entity
must ensure that the resident’s advance directive accompanies the resident and
must disclose the existence of any advance directive to medical control at the
time medical control assistance is requested.
9. A
long-term care facility that transfers or discharges a resident in accordance
with this order must notify the resident and the resident’s representative (if
reachable) of the transfer or discharge within 24 hours.
10. The
department of licensing and regulatory affairs is authorized to take action to
assure proper level of care and services in connection with this order,
consistent with section 21799b of the Public Health Code, MCL 333.21799b, and
any other relevant provisions of law.
10. A
transfer or discharge of a long-term care facility resident that is made in
accordance with this order constitutes a transfer or discharge mandated by the
physical safety of other facility residents and employees as documented in the
clinical record, for purposes of section 21773(2)(b) of the Public Health Code,
1978 PA 368, as amended, MCL 333.21773(2)(b), and constitutes a transfer or
discharge that is necessary to prevent the health and safety of individuals in
the facility from being endangered, for purposes of 42 CFR 483.15(c)(1)(i)(C)-(D)
and (c)(4)(ii)(A)-(B).
11. To
the extent necessary to effectuate this terms of this order, strict compliance
with any statute, rule, regulation, or policy pertaining to bed hold
requirements or procedures, or to pre-transfer or pre-discharge requirements or
procedures, is temporarily suspended. This includes, but is not limited to,
strict compliance with the requirements and procedures under sections
20201(3)(e), 21776, 21777(1), and 21777(2) of the Public Health Code, MCL
333.20201(3)(e), MCL 333.21773(2), MCL 333.21776, MCL 333.21777(1), and MCL 333.21777(2),
as well as Rules 325.1922(13)-(16), 400.1407(12), 400.2403(9), and 400.15302 of
the Michigan Administrative Code.
IV. Definitions
and general provisions
1. For
purposes of this order:
(a) “Adult
foster care facility” has the same meaning as provided by section 3(4) of the
Adult Foster Care Facility Licensing Act, 1979 PA 218, as amended, MCL
400.703(4).
(b) “Alternate
care facility” means any facility activated by the state to provide relief for
hospitals that surge past their capacity,
(c) “Appropriate
PPE” means the PPE that DHHS recommends in relevant guidance.
(d) “Assisted
living facility” means an unlicensed establishment that offers community-based
residential care for at least three unrelated adults who are either over the
age of 65 or need assistance with activities of daily living (ADLs), including
personal, supportive, and intermittent health-related services available 24‑hours
a day.
(e) “COVID-19-affected
resident” means a resident of a long-term care facility who is COVID-19 positive,
who is a person under investigation, or who displays one or more of the
principal symptoms of COVID-19.
(f) “Home
for the aged” has the same meaning as provided by section 20106(3) of the
Public Health Code, MCL 333.20106(3).
(g) “Long-term
care facility” means a nursing home, home for the aged, adult foster care
facility, or assisted living facility.
(h) “Medically
unstable” means a change in mental status or a significant change or
abnormality in blood pressure, heart rate, oxygenation status, or laboratory
results that warrants emergent medical evaluation.
(i) “Nursing
home” has the same meaning as provided by section 20109(1) of the Public Health
Code, MCL 333.20109(1).
(j) “Person
under investigation” means a person who is currently under investigation for
having the virus that causes COVID-19.
(k) “Principal
symptoms of COVID-19” are fever, atypical cough, or atypical shortness of
breath.
(l) “Regional hub” means a nursing home that is
designated by DHHS as a dedicated facility to temporarily and exclusively care
for and isolate COVID-19-affected residents. A regional hub must accept
COVID-19-affected residents in accordance with relevant DHHS orders and
guidance.
(m) “Swing
bed” has the meaning provided by 42 CFR 413.114(b).
2. DHHS
may issue orders and directives, and take any other actions pursuant to law, to
implement this executive order.
3. This
order is effective immediately and continues through June 17, 2020.
4. Executive
Order 2020-84 is rescinded.
5. Consistent
with MCL 10.33 and MCL 30.405(3), a willful violation of this order is a
misdemeanor.
Given under my hand and the Great Seal
of the State of Michigan.
Date: May 20, 2020
Time: 9:29 p.m.
Gretchen
Whitmer
[SEAL] Governor
By
the Governor:
Jocelyn
Benson
Secretary
of State
The executive order was referred to the
Committee on Government Operations.
Pursuant
to rule 3.104 the Senate proceeded to the order of
Introduction and Referral of Bills
Senators Schmidt and Irwin introduced
A bill to amend 1998 PA 58, entitled “Michigan
liquor control code of 1998,” by amending sections 203 and 537 (MCL 436.1203
and 436.1537), section 203 as amended by 2016 PA 520 and section 537 as amended
by 2018 PA 560.
The bill was read a first and second time by
title and referred to the Committee on Regulatory Reform.
Senators Daley and VanderWall
introduced
A bill to amend 1937 PA 94, entitled “Use tax
act,” by amending section 6 (MCL 205.96), as amended by 2014 PA 426, and by
adding section 6d.
The bill was read a first and second time by
title and referred to the Committee on Finance.
Senators Runestad and VanderWall
introduced
A bill to amend 1933 PA 167, entitled “General
sales tax act,” by amending section 6 (MCL 205.56), as amended by 2014 PA 425,
and by adding section 6d.
The bill was read a first and second time by
title and referred to the Committee on Finance.
Senator VanderWall introduced
A bill to amend 1967 PA 281, entitled “Income
tax act of 1967,” by amending sections 703 and 705 (MCL 206.703 and 206.705),
section 703 as amended by 2016 PA 158 and section 705 as amended by 2011 PA 192.
The bill was read a first and second time by
title and referred to the Committee on Finance.
Senators McMorrow, Irwin,
Alexander, Polehanki, Bayer, Bullock, Moss, Wojno, Ananich, Geiss, Brinks,
Santana, Chang, Hollier and Schmidt introduced
A bill to amend 1998 PA 58, entitled “Michigan
liquor control code of 1998,” (MCL 436.1101 to 436.2303) by adding section
537a.
The bill was read a first and second time by
title and referred to the Committee on Regulatory Reform.
Senators Irwin, McMorrow, Wojno,
Geiss, Moss, Brinks, Hollier and Schmidt introduced
A bill to amend 1998 PA 58, entitled “Michigan
liquor control code of 1998,” (MCL 436.1101 to 436.2303) by adding section 551.
The bill was read a first and second time by
title and referred to the Committee on Regulatory Reform.
Senator Victory introduced
A bill to amend 1893 PA 206, entitled “The
general property tax act,” by amending section 7cc (MCL 211.7cc), as amended by
2018 PA 633.
The bill was read a first and second time by
title and referred to the Committee on Finance.
Senator Runestad introduced
A bill to amend 1970 PA 91, entitled “Child
custody act of 1970,” (MCL 722.21 to 722.31) by adding sections 5a and 7d.
The bill was read a first and second time by
title and referred to the Committee on Families, Seniors, and Veterans.
Announcements of Printing and
Enrollment
The
Secretary announced that the following bills and joint resolution were printed
and filed on Tuesday, May 19, and are available on the Michigan Legislature
website:
House
Bill Nos. 5770 5771 5772 5773 5774 5775 5776 5777 5778 5779 5780 5781 5782 5783 5784 5785 5786 5787 5788 5789 5790
House
Joint Resolution R
The
Secretary announced that the following bills and resolutions were printed and
filed on Wednesday, May 20, and are available on the Michigan Legislature
website:
Senate
Bill Nos. 926 927 928 929 930 931 932 933
Senate
Concurrent Resolution No. 26
Senate
Resolution Nos. 116 118 119 120
House
Bill Nos. 5791 5792 5793 5794 5795 5796 5797 5798 5799 5800 5801 5802 5803 5804 5805 5806 5807 5808 5809
COMMITTEE
ATTENDANCE REPORT
The
Committee on Oversight submitted the following:
Meeting
held on Wednesday, May 20, 2020, at 8:30 a.m., Room S-403, 4th Floor, Capitol
Building
Present:
Senators McBroom (C), Lucido, Theis and Irwin
Excused:
Senator MacDonald
COMMITTEE
ATTENDANCE REPORT
The Committee
on Health Policy and Human Services submitted the following:
Meeting held on Wednesday, May 20, 2020, at 12:30 p.m.,
Senate Hearing Room, Ground Floor, Boji Tower
Present:
Senators VanderWall (C), Bizon, Johnson, LaSata, Theis, Brinks, Hertel, Santana
and Wojno
Excused:
Senator MacDonald
COMMITTEE
ATTENDANCE REPORT
The
Committee on Education and Career Readiness submitted the following:
Meeting
held on Wednesday, May 20, 2020, at 2:00 p.m., Harry T. Gast Appropriations
Room, 3rd Floor, Capitol Building
Present:
Senators Theis (C), Horn, Bumstead, Runestad and Daley
Excused:
Senators Polehanki and Geiss
In pursuance
of the order previously made, the Secretary of the Senate declared the Senate
adjourned until Wednesday, May 27, 2020, at 10:00 a.m.
MARGARET O’BRIEN
Secretary of the Senate