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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6632 December 20, 1989 CONSTITUTIONAL LAW: Const 1963, art 3, Sec. 2--legislative committee or subcommittee prior approval of executive expenditures MCL 400.109(2); MSA 16.490(19)(2), which requires prior approval of legislative appropriations committees for certain changes in reimbursement rates for medical services, and 1989 PA 200, Sec. 1230, which requires prior approval of legislative appropriations subcommittees to alter pharmaceutical coverage or reimbursement, involve the Legislature in the performance of executive functions in violation of Const 1963, art 3, Sec. 2, and are unconstitutional. 1989 PA 200, Secs. 1231 and 1232, which impose restrictions on expenditures of appropriated funds for reimbursement of pharmaceutical services, are constitutional under Const 1963, art 3, Sec. 2. C. Patrick Babcock Director Michigan Department of Social Services 300 South Capitol P.O. Box 30037 Lansing, MI 48909 You have requested my opinion as to whether the requirement of legislative appropriation committee approvals as found in MCL 400.109(2); MSA 16.490(19)(2), and in 1989 PA 200, Sec. 1230, are constitutional and binding on the Department of Social Services (DSS). You also ask whether certain restrictions on the Department's procedures set forth in 1989 PA 200, Secs. 1231 and 1232, are constitutional. The Legislature's power to control the activities of the executive branch of state government was addressed in OAG, 1989-1990, No 6603, p --- (October 9, 1989), which concluded that, while the Legislature may attach conditions to the disbursement of funds in an appropriations act, the Michigan Constitution prohibits the imposition of restrictions that would violate the automony of the other branches of the state government. Const 1963, art 3, Sec. 2. Specifically, the Legislature cannot become involved in the executive decision making process by requiring approval by a legislative committee of anticipated executive actions, including expenditure of appropriated funds. Initially, you question the validity of section 109(2) of the Social Welfare Act, MCL 400.109(2); MSA 16.490(19)(2), and 1989 PA 200, Sec. 1230, both of which purport to require the Department to obtain the approval of the House and Senate committees on appropriations before taking certain actions. The first of these provisions states: (2) The director shall provide notice to the public, in accordance with applicable federal regulations, and shall obtain the approval of the committees on appropriations of the house of representatives and senate of the legislature of this state, of any proposed change in the statewide method or level of reimbursement for a service, if the proposed change is expected to increase or decrease payments for that service by 1% or more during the 12 months after the effective date of the change. MCL 400.109(2); MSA 16.490(19)(2). [ Emphasis added.] 1989 PA 200 make appropriations for the Department of Social Services for the fiscal year ending September 30, 1989. 1989 PA 200, Sec. 1230, states: Except as mandated by federal law, the department of social services shall not alter pharmaceutical product coverage or medicaid reimbursement for pharmaceutical product cost from the methodology contained in program policy and the state plan in effect on July 1, 1989, or the pharmacist dispensing fee specified in section 1219, without the explicit approval of the Senate and House appropriations subcommittees on social services. [ Emphasis added.] The provisions, underscored above, require DSS to obtain the approval of legislative committees or subcommittees before it may take certain specified administrative actions. This requirement of legislative approval impermissibly involves the Legislature in the performance of executive functions. OAG, 1989-1990, No 6603, supra. Because the Legislature is attempting to exercise powers rightfully belonging to the executive branch, it is my opinion that the underscored language of MCL 400.109(2); MSA 16.490(19)(2), and of 1989 PA 200, Sec. 1230, is unconstitutional. However, notwithstanding the unconstitutionality of the underscored language, it is my opinion that the offending language may be severed from the remainder of each of these two provisions. There is nothing in either Act to suggest that the Legislature intended this language to be nonseverable. MCL 8.5; MSA 2.216; OAG, 1989-1990, No 6603, supra. The remaining provisions of MCL 400.109(2); MSA 16.490(19)(2), and of 1989 PA 200, Sec. 1230, are independent and, therefore, remain valid and enforceable. You have also questioned the validity of sections 1231 and 1232 of 1989 PA 200. Section 1231 provides that the DSS may not restrict full reimbursement of drugs prescribed "D.A.W," or dispense as written. Section 1232 prohibits the DSS from restricting FDA approved pharmaceuticals except those that have been determined to be less than effective by the Federal Food and Drug Administration. Unlike the two provisions considered above, sections 1231 and 1232 merely establish policies which are to be implemented by the executive branch. Nothing in these provisions would serve to involve the Legislature in the oversight of the day to day functioning of the Department of Social Services nor impinge upon its autonomy. See generally, Colombini v Dept of Social Services, 93 MichApp 157, 163; 286 NW2d 77 (1979). It is my opinion, therefore, that sections 1231 and 1232 of 1989 PA 200 do not violate the separation of powers doctrine set forth in Const 1963, art 3, Sec. 2. Frank J. Kelley Attorney General
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