Legislative Analysis
Phone: (517) 373-8080
HOME HELP CAREGIVER COUNCIL
http://www.house.mi.gov/hfa
Senate Bill 790 (proposed substitute H-2) Analysis available at
Sponsor: Sen. Kevin Hertel http://www.legislature.mi.gov
Senate Bill 791 (H-1) as reported from committee
Sponsor: Sen. Sylvia A. Santana
House Committee: Appropriations
Senate Committee: Appropriations [Discharged]
Complete to 9-25-24
SUMMARY:
Senate Bills 790 and 791 would provide that, for collective bargaining purposes, caregivers
under the Home Help Program are public employees of the director of the Department of
Health and Human Services (DHHS) or the director’s representative. (Generally speaking, the
Home Help Program provides assistance with everyday activities so individuals with functional
limitations can live at home.) The bills also would create the Home Help Caregiver Council in
DHHS to provide orientation, education, and other supports to caregivers. Caregivers would,
as public employees, be subject to provisions of the public employment relations act. They
could be represented by a labor organization, and the council would have to maintain and
provide a list with caregiver contact information to organizations seeking to represent them.
The council’s board of directors or its representative would have to collectively bargain with
the caregivers’ bargaining representative. The bills are described in detail below.
Senate Bill 791 would amend 1947 PA 336, the public employment relations act (PERA), to
provide that the term public employee, whenever used in the act, includes an individual
designated by the legislature as a public employee. The definition of public employee also
would allow the legislature to designate an individual as a public employee only for the purpose
of collective bargaining and provide that this designation does not make the individual an
employee of the state or a political subdivision of the state for any purpose other than the
limited purpose authorized by the legislature.
In addition, PERA now prohibits a public employer’s bargaining unit that consists of
individuals who are not public employees from having an election regarding representation or
from being recognized by either the public employer or the Michigan Employment Relations
Commission (MERC), and it provides that a bargaining unit formed or recognized in violation
of those prohibitions is invalid and void. The bill would eliminate these provisions.
PERA now provides that an individual employed by a private organization or entity who
receives a direct or indirect government subsidy in the individual’s private employment is not
an employee of the state or political subdivision providing the subsidy and is not a public
employee. The bill would eliminate this provision.
Finally, under PERA, an individual employed by a private organization or entity who provides
services under a time-limited contract with the state or a political subdivision of the state is not
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 an employee of the state or political subdivision and is not a public employee. PERA now adds
that this provision supersedes any interlocal agreement, memorandum of understanding or of
commitment, or other similar document. The bill would eliminate the language adding that the
PERA provision supersedes those other documents.
MCL 423.201 and 423.214
Senate Bill 790 would create a new act called the Home Help Caregiver Council Act. Under
the bill, solely for the purposes of collective bargaining and as expressly limited as described
below, individual home help caregivers would be considered public employees of the director
of DHHS or the director’s representative. 1 The bill states that it would not require or provide
for individual home help caregivers to be treated or classified as public employees for any other
purpose, and DHHS’s employer role for collective bargaining would not be a basis for
establishing an employer-employee relationship. Individual home help caregivers would not
be employees of the state or a political subdivision of the state for any other purpose and would
not be subject to section 5 of Article XI of the state constitution (which establishes the classified
state civil service). 2 PERA would apply only to the governance of the collective bargaining
relationship between DHHS and the bargaining representative of a bargaining unit composed
of individual home help caregivers as described below. 3
Individual home help caregiver would mean a caregiver who, under the Home Help
Program, is selected by a participant or the participant’s representative and provides
individual home help services to a participant. A caregiver who provides services
through an agency provider or integrated care organization, or another similar entity,
would not be considered an individual home help caregiver under the bill.
Participant would mean a person who receives individual home help services.
Participant’s representative would mean a participant’s legal guardian or an individual
who has the authority and responsibility to act on a participant’s behalf regarding the
provision of individual home help services.
Individual home help service would mean services the Home Help Program that
provides assistance with one or more activities of daily living or instrumental activities
of daily living through caregivers in a home or community-based setting. 4
1
As described above, Senate Bill 791 would amend PERA to provide that, whenever used in that act, the term public
employee includes “an individual designated by the legislature as a public employee.” Senate Bill 790 appears to
designate individual home help caregivers as public employees in a way that would, under Senate Bill 791, include
them as public employees wherever that term is used in PERA. The bills do not provide, in PERA, any limitations on
PERA’s application to individuals defined there as public employees.
2
https://www.legislature.mi.gov/Laws/MCL?objectName=mcl-Article-XI-5
3
The bills together appear to define individual home help caregivers as public employees within PERA itself, and they
do not provide, in PERA, any limitations on PERA’s application to individuals defined there as public employees.
4
The terms home or community-based setting and, used later, home or community-based services generally refer to
settings outside of institutions such as nursing homes and services provided in those noninstitutional settings. See
https://www.cms.gov/training-education/partner-outreach-resources/american-indian-alaska-native/ltss-ta-
center/information/ltss-models/home-and-community-based-services
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 Activities of daily living would include eating, toileting, bathing, grooming, dressing,
mobility, and transferring (e.g., moving to or from a bed, chair, or standing position).
Instrumental activities of daily living would include at least laundry, light housework,
shopping, meal preparation or cleanup, and medication administration.
Agency provider would mean any of the following:
• A home health agency that is currently Medicare-certified. 5
• An entity, except for the Department of Health and Human Services (DHHS),
that has a federal employer identification number and directly employs or
contracts with caregivers to provide home or community-based services.
• A community mental health services program (CMHSP) under the Mental
Health Code that works with clients who use arrangements that support self-
determination. 6
Integrated care organization would mean a managed care entity under federal rules7
that has contracted with DHHS and the Centers for Medicare and Medicaid Services
(CMS) to provide Medicare and Medicaid covered services to individuals who are
dually eligible for full Medicare and Medicaid.
Bargaining representative would mean (as defined in PERA) a labor organization
recognized by an employer or certified by MERC as the sole and exclusive bargaining
representative of certain employees of the employer.
The bill states that it would not modify the authority, and must not be construed as modifying
or limiting the authority, of DHHS to deny participation in the Medicaid program to individuals
who do not or will not comport with state and federal program requirements or to terminate the
participation of individual providers.
Immunity from liability
The bill would provide that individual home help caregivers are not government actors, their
limited status as public employees under the bill notwithstanding, and that the state (including
DHHS, the Home Help Caregiver Council, and the council’s board of directors) is not liable
for actions undertaken by caregivers in performing their duties.
Further, the state, DHHS, or a state or DHHS contractor could not be held liable, vicariously
or jointly, for the action or inaction of an individual home help caregiver, regardless of whether
they referred the caregiver to a consumer or included the caregiver on a referral registry. A
special relationship with a consumer would not be established or evidenced by the existence of
a collective bargaining agreement, the placement of an individual home help caregiver on a
referral registry, the development or approval of a consumer’s plan of care, or the fact that
DHHS provides case management services to the consumer.
5
With regard to the term home health agency, see https://www.michigan.gov/lara/bureau-list/bsc/accs-division/hha
6
The term arrangements that support self-determination is not defined in the bill or in the Mental Health Code. For
information on CMHSPs, see https://www.michigan.gov/mdhhs/keep-mi-healthy/mentalhealth/mentalhealth/cmhsp
7
Specifically, 42 CFR Part 438: https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-C/part-438
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 Finally, the state, DHHS, or a state or DHHS contractor could not indemnify an individual
home help caregiver for claims against them arising from actions taken in the course of their
employment.
Rights of participants
Under the bill, except for the limited purposes described above (i.e., collective bargaining),
participants or participant’s representatives would be the sole employer of individual home
help caregivers and retain the rights to select, hire, direct, schedule, supervise, or terminate the
services of any individual home help caregiver who provides individual home help services to
the participant in accordance with the laws and regulations that govern the program. The bill
says that it would not alter those rights, and that a provision of an agreement reached between
DHHS and a bargaining representative of individual home help caregivers would not interfere
with those rights.
Bargaining representatives
The bill would authorize individual home help caregivers to choose a bargaining representative
to bargain collectively and enter into collective bargaining agreements with DHHS under
specified sections of PERA. Once a bargaining representative is selected by a majority of
individual home help caregivers under PERA or another applicable law, that representative
would have to continue to be recognized by the director and any other state entity charged with
regulating individual home help caregivers’ conditions of employment, unless the
representative is decertified by a vote of the majority of individual home help caregivers. If a
bargaining representative is certified, the mutual rights and obligations of DHHS and the
bargaining representative to bargain collectively over wages, hours, and other terms and
conditions of employment would not include the subjects reserved to participants and
participant’s representatives as described above. If there is not an agreement between DHHS
and the bargaining representative, DHHS would have no obligation to engage in effects or
impact bargaining with respect to the subjects reserved to participants and participant’s
representatives as described above. 8
At the bargaining representative’s request, the board of directors of the Home Help Caregiver
Council (described below) or the board’s representative on behalf of DHHS would have to
engage in collective bargaining with the bargaining representative concerning the terms and
conditions of employment that are within the state’s control. This provision would not limit
any bargaining obligations arising out of PERA, except for those identified above as the rights
of participants or participant’s representatives. 9 Negotiations between the board or the board’s
representative on behalf of DHHS and the bargaining representative would have to begin by
July 1 of any year before the year an existing collective bargaining agreement expires in.
The bill would state that, notwithstanding section 13 of PERA (which charges MERC with
deciding the appropriate bargaining unit for a given group of public employees), 10 a statewide
unit of all individual home help caregivers is the only appropriate bargaining unit for those
8
Effects bargaining, also known as impact bargaining, involves decisions that an employer has the right to make but
that will have effects or an impact on relevant employees.
9
The bills together appear to define individual home help caregivers as public employees within PERA itself, and they
do not provide, in PERA, any limitations on PERA’s application to individuals defined there as public employees.
10
The bills together appear to define individual home help caregivers as public employees within PERA itself, and
they do not provide, in PERA, any limitations on PERA’s application to individuals defined there as public employees.
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 caregivers. Caregivers who are related to their participant or related to their participant's
representative could not be excluded for that reason from the bargaining unit.
Any aspects of a collective bargaining agreement that require federal or state appropriations or
revisions of law would have to be made subject to those appropriations or revisions, and either
the Home Help Caregiver Council or the bargaining representative could reopen negotiations
on all or part of the agreement if the appropriations or revisions are not made. 11
Arbitration proceedings
If a bargaining representative dispute (except for one about the interpretation or application of
an existing agreement) 12 has not been resolved to the agreement of both parties within 30 days
after its submission to mediation (or an additional period the parties agree to), DHHS or the
bargaining representative could initiate binding arbitration proceedings by prompt request, in
writing, to the other, with a copy to MERC. The arbitration would have to be conducted in the
same way as a binding arbitration under 1969 PA 312 (which provides for compulsory
arbitration of labor disputes in police and fire departments), except that, under the bill, an
arbitration panel’s decision would be binding only for economic issues identified by the panel
as described in section 8 of 1969 PA 312. 13 The panel would not have to adopt the last offer of
settlement from either party as to each economic issue, but could adopt an award that falls
between those last offers on each economic issue, as long as the award is based on applicable
factors described in section 9 of 1969 PA 312. 14 DHHS could implement its last best offer of
settlement on each economic issue 60 days after the panel’s decision, but would also (or still)
have to meet all of its obligations under section 10 of PERA. 15
Wage deductions
DHHS would have to make deductions from the wages of individual home help caregivers that
are authorized by law, including under 1978 PA 390 (which regulates the payment of wages
and benefits for Michigan workers), and including deduction of the dues of a bargaining
representative if authorized by the caregiver.
As described in section 7 of 1978 PA 390, 16 the bill would expressly allow deductions from
the wages of individual home help caregivers in writing or using a valid form of authorization
11
As described above, the responsibility for collective bargaining would be given to the council’s board of directors
or its representative on behalf of DHHS. In that context, it is unclear why the council, and not the board or its
representative, is given specific authority to reopen negotiations.
12
The bill does not define the term bargaining representative dispute.
13
Section 8 requires the arbitration panel to make a conclusive deter