Warren labor proposal would skim Medicaid dues from home healthcare workers

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Elizabeth Warren has issued a labor reform proposal that would likely result in home healthcare providers having chunks taken out of their checks without their consent by unions.

The Democratic presidential candidate has called for rolling back a Trump administration rule that prevented Medicaid funds from being diverted from their intended recipients and sent to unions instead, a change she argues would empower workers.

Warren called the Trump rule a “cynical” move when she announced her labor reform plan last week. She claimed that the administration wants to prevent “home care workers that work with Medicaid beneficiaries from using paycheck deductions for health insurance contributions and union dues.” Warren said her intention behind rolling back the Trump administration rule was to guarantee “that all home care workers can join a union or other worker organization.”

Many home-care workers see it differently.

“Our government took the necessary steps to protect these Medicaid dollars so they are spent as the taxpayers intended — to support and provide care for our most vulnerable citizens,” said Pamela Harris, an Illinois home-care provider who relies on Medicaid subsidies to take care of her developmentally disabled son.

Harris fought against similar efforts to divert Medicaid payments in her state, eventually taking her battle all the way to Supreme Court in 2014’s Harris v. Quinn. Harris won a limited victory when the court ruled that she and other Illinois home-care providers were not state employees and that the state couldn’t sign a collective bargaining contract on their behalf. That prevented Harris and others from being in a union but left similar situations unresolved in other states.

That didn’t end the union’s efforts to organize home-care providers in Illinois or elseshere. The same year, the Health and Human Services Department under President Barack Obama, a longtime ally of the SEIU, changed the rules regarding Medicaid-funded healthcare providers to allow the diversion of funds to pay for skills training or providing health insurance.

“The revision made an exception so states could divert these precious dollars directly to the union. Whose self-interest benefited from that exception?” asked Harris. “Not the elderly or disabled. Not the families who fill the roles of personal care providers. The union officials benefited.” She added that Warren was being cynical.

The Trump administration HHS in May rolled back the Obama administration change. The current rule doesn’t prevent the providers from making payments to these union programs if they want, but rather stops states from making the deductions automatically. The administration estimated that as much as $71 million in Medicaid funds had been diverted to unions through this method.

The Trump rule change, Warren’s call to undo it, and Harris’ experiences are related to a larger long-running effort by public-sector unions to get friendly state governments to help them organize Medicaid-subsidized home healthcare workers. The unions have generally sought to have the workers designated as state employees, which would then allow for designating a union as the workers’ exclusive representative. Doing so would allow the unions to demand representation fees, usually by diverting some of the workers’ Medicaid subsidies to them. Democratic lawmakers have been aggressive about pursuing this effort on behalf of unions, arguing that the providers want to organize.

Unions such as SEIU argue that collective bargaining can improve things for the providers. “In many states, however, these hardworking women and men earn poverty wages, have no sick time, do not have health insurance, and have no access to professional training,” the union argued in a blog post on the topic.

The assumption that these workers want a union is suspect, said Patrick Semmens, vice president of the National Right to Work Legal Defense Foundation, which represented Harris before the Supreme Court. Like Harris, often just family members of the care recipient.

“In many cases these are individuals providing care for a friend or relative, even a disabled son or daughter in their own home, but Warren’s plan would have states divert taxpayer funds directly into union coffers at the say so of union officials,” Semmens said.

Critics such as Harris point out that since most of the funding comes from Medicaid, there’s little advantage to collective bargaining with state governments. The states can’t force the federal government to provide more funding.

David Smith, a Phoenixville, Pennsylvania, resident who has muscular dystrophy and requires a a state-funded caretaker, is wary of Warren’s proposal. “What is it to Warren that the money be collected? In the long term it isn’t to the benefit of the caretakers. It’s to the benefit of the unions,” Smith told the Washington Examiner.

Smith and his caretaker of 30 years, Don Lambrechet, were co-plaintiffs in a 2015 lawsuit that fought an executive order by Pennsylvania Gov. Tom Wolf that effectively unionized 20,000 providers. Neither Don nor David saw a need for a union and both feared it would simply cut into Don’s pay while adding extra rules. Smith doesn’t receive his funding through Medicaid but noted that Warren’s proposal calls for “guaranteeing that all home-care workers can join a union,” so he fears it could further boost the state’s efforts to get Don and other providers into unions.

The Service Employees International Union’s Washington state chapter agreed on Tuesday to pay $3.3 million to refund dues to home-care providers who objected in 2014 to having their Medicaid funds diverted by the state to pay the union. A second possible class-action suit related to the case remains unresolved. The nonprofit group Freedom Foundation, which represents providers in the latter instance, estimates the union has wrongly taken $15 million in Medicaid funds since 2014.

Plaintiffs in the Washington case said they weren’t even aware the funds had been diverted. “When I received my first paycheck from [the Department of Social and Health Services], I was shocked to see that union dues were being withheld from my paycheck, because I knew I had not signed authorizing them to deduct any payment to SEIU at all,” said plaintiff Mary Jane Olson, according to a Freedom Foundation statement.

The Warren campaign did not respond to a request for comment.

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