Medicaid home care aides — hourly workers who help elderly and disabled people with daily tasks like eating, getting dressed and bathing — are emerging as the latest target in the ongoing power struggle between some conservative lawmakers and organized labor.
About half a million of these home workers belong to the Service Employees International Union, a public-sector union that represents almost 1.9 million workers in the United States and Canada. The union is an influential donor to some Democratic campaigns and boasted strong ties to the Obama administration.
A rule proposed recently by the federal Centers for Medicare & Medicaid Services, under the Trump administration, would prohibit home health aides who are paid directly by Medicaid from having their union dues automatically deducted from their paychecks, though it doesn't name these fees explicitly.
Some academics who study unions say blocking these direct Medicaid payments would mean the workers — especially those who don't work in a single, centralized office, or don't have a credit card or a bank account — would be far less likely to pay dues, thereby potentially diminishing the union's influence.
CMS' language affects only "individual providers" — that is, those who aren't employed by the private, for-profit agencies that dominate this industry. Individual providers, who are technically state employees, are far more likely to be members of a union than employees of the agencies are.
The directive would overturn an Obama administration policy that was put in place to ease the collection of union dues and pay for other fees, such as health benefits. The rule is subject to public comment through Aug. 13; once finalized, it could take effect by the end of this year. The month-long comment period, which began July 12, has attracted more than 1,800 responses.
"This is just another way to make life more difficult for public-sector unions," says Jake Rosenfeld, an associate professor of sociology at Washington University in St. Louis, who studies unions and their influence.
The proposed rule comes on the heels of June's landmark Supreme Court ruling, in which a 5-4 majority held that public-sector workers don't have to pay unions for the cost of collective bargaining, calling it a violation of the workers' free speech.
That decision expanded on the Supreme Court's 2014 ruling in Harris v. Quinn, in which the high court found that home care workers must explicitly state their desire to be in a union before the organization can collect dues. But because these workers are not attached to a single office or meeting point, organizing them into a collective unit poses a distinct challenge; collecting membership dues, even more so.
As union membership has waned in other sectors, organized labor has doubled down in its recruiting efforts in the home care industry, lobbying Democratic governors to declare thousands of workers state employees; that status makes the workers eligible to organize and engage in collective bargaining.
The median annual salary for home health aides in 2017 was $23,100, with about 67 percent turnover in 2017. The federal Bureau for Labor Statistics projects that demand for home care will increase by as much as 41 percent from 2016 to 2026, as the percentage of elderly Americans grows.
Both SEIU and the National Employment Law Project, a union-backed advocacy group, say that if the proposed rule takes effect they expect to file a lawsuit seeking to reverse the decision. And a spokesperson for California Attorney General Xavier Becerra, who has frequently clashed with the Trump administration, says the state will "take any action necessary" to blunt the rule's impact.
In states where home care workers are unionized, the workers can have the state withhold membership fees from paychecks and transfer that money directly to the union. Workers must actively choose to join the union.
In California, where most home care workers don't work for private agencies, about 250,000 belong to the state SEIU chapter.
If the rule holds, these workers "will effectively lose their voice on the job and their ability to advocate," says Laphonza Butler, president of SEIU Local 2015, the California branch of the union.
Home care aides have unionized in other states, too, including Connecticut, Massachusetts, Minnesota, Illinois, Oregon, Vermont and Washington.
Melody Benjamin, a 38-year-old home care worker in Chicago, says for her, the benefit of belonging to the union — and having her dues automatically withheld from her paycheck — seems clear.
She still makes less than $20,000 per year and lives paycheck to paycheck. But under the union her wages have gone up, she says — from $11.25 eight years ago to $13 now. The union also has negotiated additional benefits — such as health insurance and job-training classes — for home care workers, and Benjamin sees that as valuable.
"At the end of the day, this program is vital," she says. "The only platform home care workers have that speaks out for us is SEIU. Ain't nobody else giving us a platform where we can bargain for fair wages and benefits."
In contrast, the federal government is arguing that U.S. law does not allow states to divert Medicaid payments in this way.
"The law provides that Medicaid providers must be paid directly and cannot have part of their payments diverted to third parties, outside of a few very specific exceptions," says Tim Hill, acting director for CMS' Center for Medicaid and CHIP Services.
Supporters of the proposed rule, such as the National Federation of Independent Businesses, argue the proposed rule would stop powerful unions from using taxpayer dollars to pad their lobbying budget.
But that's a controversial interpretation. Critics of the rule say such a policy would leave vulnerable workers — arguably, the backbone of elderly care in the U.S. — less able to defend their rights or improve working conditions. Plus, these critics say, CMS' argument inappropriately casts workers' paychecks as government property.
"When a state pays a worker, and the worker pays the union, it's the worker's money going into the union," says Benjamin Sachs, a professor at Harvard Law School who studies labor law. "CMS doesn't have the authority to decide."
Melody Benjamin says paying union dues, which she wants to do, would become substantially more onerous for her without automatic deduction — and would make it harder for the organization to operate on a day-to-day basis.
"How about they suggest I pay my state taxes and federal taxes by mail?" she says. "You can't sustain it like that."
Some conservatives who back the proposed rule suggest that limiting union membership is less about trying to shape home care policy and more about curtailing a powerful liberal lobbying force.
"There have been steps taken in underlying law and practice to provide extra favors to public sector unions," argues Thomas Miller, a resident fellow studying health care policy at the American Enterprise Institute. "They are as much political bodies as they are representatives."
Labor advocates warn the consequences of the proposed rule could be steep, and not just for home care workers.
Surveys from the National Employment Law Project say unionized home care workers stay in their jobs longer when represented by unions — in part because they're able to negotiate better pay and benefits.
And that continuity of care helps patients, too, says Caitlin Connolly, who runs the National Employment Law Project's campaign to increase wages of home care workers.
"The shortages and turnover we are facing — it is not rocket science what is causing that," Connolly says. "If we made these quality jobs, we would be able to ensure that people had access to quality care."
The nonprofit newsroom Kaiser Health News is an editorially independent part of the Kaiser Family Foundation. Shefali Luthra covers health care for KHN. She's on Twitter @shefalil.
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