Right on the heels of the US Supreme Court’s Janus decision, anti-union forces have immediately moved on to their next strategic tactic to further undermine public workers’ unions. This time they are using the administrative rule-making capacity of the U.S. Department of Health and Human Services to eviscerate union dues check-off in the public sector. This is a bit technical but potentially devastating, so bear with me! It comes straight out of the right-wing State Policy Network and Freedom Foundation playbook.
The Centers for Medicare and Medicaid Services (CMS), a division of HHS, is targeting unionized, independent-provider home care workers by altering a technical Medicaid provision concerning “third-parties.” Several decades ago, Medicaid was amended to prohibit the practice of “factoring,” in which providers assigned their claims to third parties such as collection agencies that would collect on them and sometimes inflate the claims. In 2014, the Obama Administration issued a clarification that this anti-reassignment prohibition did not apply to deductions for workers’ training, health care, and “benefits customary to employment”—however those might be provided.
Now CMS wants to repeal that 2014 addendum or clarification [i.e. what it describes as “the regulatory text that allows a state to make payments to third parties on behalf of an individual provider [worker] for benefits such as health insurance, skills training, and other benefits customary for employees.”] Although never specified previously, here the Trump Administration clearly intends “third party” to mean unions. CMS goes on to single out union dues as the only example of a practice that would be affected—indeed eliminated-- by the newly proposed rule. CMS admits it has no data to support the assertion that Medicaid funds are being improperly used by states or “diverted” from the Medicaid system to pay home care worker unions.
It is important to note that care workers choose to join a union and make the choice to pay union dues. Union dues are deducted once wages have already been allocated to workers. This proposed rule change through CMS effectively strips workers of the right to join and support a union.
Moreover, the Trump Administration is trying to ram this through on a fast track. Standard practice for proposed federal rule changes is to allow for a 60-day open comment period before the proposal can be implemented. CMS, however, has announced that there will only be a 30-day open comment period. Thus we have a very short window in which to put a stop to this union-busting strategy.
Home care is one of the fastest growing occupations in the country and yet home care workers make an average of only $10.49 an hour. Prior to unionization, they had no health insurance, no workers’ compensation, no standard rules on the job, no paid sick leave. Unionization has reduced turnover and improved the care relation and the reliability of care services. That is why states have chosen to engage in collective bargaining with these workers.
CALL TO ACTION:
PLEASE GO TO https://www.regulations.gov/document?D=CMS-2018-0090-0001
When submitting a comment, it would be helpful to include the CMS number: CMS-2413-P
SUBMIT A COMMENT BY AUGUST 18 TO BLOCK THIS RULE CHANGE WHICH WILL UNDERMINE SECURITY FOR MILLIONS OF WORKERS, ELDERS, AND CHILDREN.
Professor of History, Yale University