Emergency Rules Called Overused

Since taking office, Gov. Arnold Schwarzenegger has declared dozens of public emergencies that allowed him to change state regulations, angering Democratic lawmakers and a California judge who say the governor has overstepped his authority on several important laws.

This month, the Schwarzenegger administration used its emergency authority to allow the state to immediately take the assets of Medi-Cal recipients after they die as repayment for services rendered. Advocates for the elderly were incensed by the move. Last November, Schwarzenegger issued an emergency order reducing the number of nurses required in hospitals. A Sacramento Superior Court judge overturned the order this month, saying the governor’s declaration of an “emergency is arbitrary and capricious and entirely lacking in evidentiary support.” Schwarzenegger has appealed the decision.

The administration also has reduced the number of nursing beds available for sick residents of veterans’ homes. It imposed a $10 fee on businesses that hire down-on-their-luck employees in urban areas. And it altered the limits on catching rockfish and lingcod -- all on an emergency basis.

The Legislature makes California laws, but a governor’s administration has great leeway to interpret many of them through regulations. That includes the power to declare emergencies and rush regulations with less scrutiny than through the regular route, which can take months and requires 45 days of public comment.

Lawmakers acknowledge that former Gov. Gray Davis frequently used emergency orders to change regulations without much complaint from them. In 2003, Davis banned the importation of oysters from the Gulf of Mexico, citing deaths from a naturally occurring bacteria. The governor of Louisiana chided him for banning its oysters without “documentation or consultation.”

But California lawmakers said Republican Schwarzenegger, unlike Democrat Davis, has made much more sweeping and significant changes to the law without public scrutiny.

“Coming from an administration that wanted the sun to shine on government, it’s really making policy in the dark,” said Assembly Speaker Fabian Nunez (D-Los Angeles). “The governor ought to use the rulemaking process strictly for emergencies.”

Schwarzenegger himself issued an executive order in 2003, soon after taking office, saying that regulations made without public notice and comment are “contrary to law and public policy because it subverts open government.” That order froze most pending state regulations for 180 days so they could be reviewed; none was found to be onerous.

The Legislature is preparing to hold hearings on Schwarzenegger’s emergency regulations on recovering assets from the estates of Medi-Cal patients. Assemblywoman Wilma Chan (D-Alameda), chairwoman of the Health Committee, said she will hold a hearing, probably next week, on why Schwarzenegger pushed the changes through so quickly.

“A lot of these things are basically power grabs,” Chan said. “I don’t see how this fits into the definition of emergency.”

The administration said its departments use emergency regulations judiciously and only if there is a real problem, if the law demands it or if a deadline is looming. Terry Tamminen, the governor’s Cabinet secretary, said every regulation is carefully reviewed before being issued. The Medi-Cal regulations, for example, have been in the works for two years.

“Not to be corny about it, but as the people’s governor, he wants to make sure the people are heard,” Tamminen said. “And we take very seriously comments we get.”

Since Schwarzenegger became governor, agencies and departments under his control have declared 79 regulatory emergencies. An additional 26 emergencies were extensions of emergency declarations issued by the Davis administration.

An emergency regulation becomes a fait accompli in as little as 10 days, bypassing the public comment period required for ordinary regulations. The emergency rules stay in force for four to six months, but many are renewed. Non-emergency regulations can take months to finalize, after a more detailed review.

“The fact is, in rulemaking, 200 heads are better than one,” said William Gausewitz, director of the Office of Administrative Law, which reviews the state’s emergency regulations. “Regardless of how good you are, you can’t foresee all of the possible implications of any rules you might propose.”

In some cases, emergency regulations are required by the Legislature, and the administration has no choice but to rush. The Health and Human Services Agency, for example, issued 25 emergency regulations in the last 16 months; 20 of them were required by law to be written as emergencies.

“However,” Gausewitz said, “there are instances where rulemaking agencies have used emergency regs where the nature of the emergency was in question.”

The regulations on Medi-Cal patients’ assets are supposed to clarify a law that has been in place for nearly a decade but inconsistently applied. This year, officials expect to collect about $64 million through the program.

Among the new changes: After a Medi-Cal patient dies, his or her heirs must repay any wages they have received from the state for taking care of their parents. The wages are paid through the In-Home Support Services program, which allows children to get an hourly wage if they live with their frail parents.

The changes also mean the estates of Medi-Cal patients must repay everything that is owed within a year, or face a 7% interest rate until the bill is paid. Children who have cared for their parents longer than two years can apply for a hardship waiver under the new regulations.

Advocates of nursing home residents -- who sued the state four years ago to get the regulations written -- requested that they be released on a regular schedule instead of as an emergency order. Now they say the administration is punishing them.

“They are sticking it to us,” said Pat McGinnis, director of California Advocates for Nursing Home Reform. “It was like: ‘OK, you wanted regulations, we’ll give you regulations.’ ”

But Stan Rosenstein, the deputy director overseeing Medi-Cal, said the regulations already were late -- past the court’s order to get things done by December -- and had been vetted by interested parties and state officials over months of writing and refining.

“We consider controlling the abuse of Medi-Cal to be an emergency,” Rosenstein said, referring to estates that don’t pay their bills.

In another case last year, the Department of Housing and Community Development wrote emergency regulations charging business owners a $10-per-employee fee to participate in a special tax-break program. The program gives businesses in “enterprise zones” a substantial break for every hard-to-hire person -- such as former welfare recipients -- that they employ.

Bill Pavao, a deputy director of the department, said the emergency request was needed because the state last year abolished the Trade and Commerce Agency and took responsibility for the new program without any money to pay for it. Now five or six people can be hired with the $550,000 in proceeds from the new fee, he said.

In October, the Department of Veterans Affairs declared an emergency concerning the availability of hospital beds in its nursing homes in Yountville and Chula Vista. It no longer required that 25% of the beds in skilled nursing rooms be kept open for assisted living residents who at some point may require a higher level of care.

The decision to change the regulation came because the new Veterans Affairs director, former hospital executive Thomas Johnson, found it irrational. Keeping a specific number of beds empty in case someone who lived in the facility needed one, Johnson surmised, meant that patients on the waiting list to get in could be denied a bed.

“Because of [Johnson’s] experience, this was a no-brainer. It was one of the first things he saw,” said Robert Glazier, deputy secretary of the department.

The state Fish and Game Commission recently requested an emergency ban on fishing for rockfish in May and from September to December, and reduced the number of lingcod that can be caught, to conform with new federal rules. Officials said confusion between state and federal law “constitutes an emergency for the preservation of public welfare.”

Amid complaints from unions, the Division of Labor Standards last December withdrew an emergency regulation loosening the requirement that many hourly workers take lunch breaks. The administration now is attempting to do the same thing through regular channels.

Beyond regulatory changes, the administration has issued state contracts on an emergency basis as well. On March 9, the Department of General Services issued an emergency 90-day contract worth $161,300 to a private company, ABM Janitorial Services, to clean the new Franchise Tax Board headquarters.

Matt Bender, spokesman for the Department of General Services, said there is a shortage of janitors in Sacramento and the department needed to get workers in the new building, while giving unionized custodians a chance to work in any other state building.

Jim Hard, president of the Service Employees International Union Local 1000, which would like to have the contract for its employees, disagreed: “They created a false emergency to make it OK to outsource our work.”