Former Carl’s Jr. CEO: We can't let unions hold Medicaid funding for home health care hostage

On a recent visit to the Pacific Northwest, I had the pleasure of meeting Benjamin Olson, who is compensated by Medicaid for the home health care that he and his wife provide to their son, who has cerebral palsy.

The dedication of the Olsons to their son is both heartwarming and inspirational. They can afford to keep their son at home because of the Medicaid funds they receive.

The state-run program paid for by Medicaid to fund home health-care is a win-win for patients, their families and the taxpayer. The program keeps patients at home, where they are more comfortable and surrounded by loved ones, rather than putting them in nursing homes or other expensive institutions that would cost Medicaid far more.

But unfortunately, some states are diverting millions of these Medicaid dollars from home health-care to labor unions.

The most recent data from the federal Centers for Medicare and Medicaid Services, as reported by Truven Health Analytics, shows that Medicaid expenditures for the home health-care program totaled $45 billion in 2015 and covered over 1.6 million people  in 2014.

With union membership and the amount of dues collected at historic lows, this makes the home health-care program a tempting target for union organizers.

But unions are unable to represent people who care for members of their own families at home the way they represent state government employees, because the state is not the employer of the home caregivers.

While the state pays the home caregiver’s salary, the patient is the official employer – in the Olsons’ case, their son. So each employer-patient essentially has one caregiver-employee. This makes it impossible for unions to “collectively bargain” with the state over workplace disputes or grievances

In addition, the “employee” is likely a close family member and the workplace is his or her home. The very notion of a parent going on strike against a disabled child is absurd.

As a result, unions don’t really represent home health-care givers in the normal sense. Their “representation” is limited to participating in negotiations to determine how the state will divvy up half of its Medicaid disbursements (the other half is determined at the federal level). 

Given this limited role, only 11 states classify these home health-care givers as government employees for collective bargaining purposes. Prior to the Supreme Court’s 2014 decision in Harris v. Quinn, these states automatically deducted union dues (for members) or representation fees (for non-union members) from these caregivers’ Medicaid-funded paychecks.

The Supreme Court put an end to a portion of this scheme. It held that home health-care givers were, at most, partial government employees. As a result, it held that states compelling non-union members to pay union representation fees violated their First Amendment rights to free speech and association.

Consequently, states can no longer compel non-union member home health-care givers to pay representation fees. But states can still automatically deduct union dues from caregivers’ paychecks if they are union members.

Until quite recently, the Olsons were union members, and such enthusiastic union advocates that Ben volunteered to help persuade others to join. That changed when a Service Employees International Union (SEIU) local included Ben on a bus trip to lobby Washington state lawmakers on behalf of the SEIU’s far-left political agenda.

Ben Olson was struck by how little of that agenda had anything to do with the issues he and Tammy faced as caregivers.

With the help of the Freedom Foundation, a West Coast-based, nonpartisan think tank, the Olsons resigned from the union and began urging fellow caregivers to get the SEIU’s hand out of their pockets.

Following the Supreme Court’s Harris decision, this required that caregivers exercise their right to opt-out by instructing the state to stop deducting union dues from their paychecks. But caregivers who work in their homes for loved ones have little contact with co-workers and are often unaware of their rights or even the fact that the state is withholding union dues.

In the Olson’s home state of Washington, The Freedom Foundation found that the SEIU not only attempted to withhold dues without the caregiver’s consent – it failed to inform them of their rights under Supreme Court rulings and attempted to prevent others from informing them.

In Oregon, the SEIU limits the ability of union members to resign to a 15-day period each year that differs by employee. In March, two Minnesota caregivers alleged that the SEIU forged their signatures so it could automatically deduct dues from their Medicaid checks. For months, they didn’t even realize this deduction was occurring.

Caregivers have every right to knowingly join a union. However, automatically deducting dues from caregivers’ paychecks creates the potential for abuse and makes the state complicit in the unions’ scheme to increase their revenue from Medicaid dollars.

Medicaid’s intent is clear. Patients, not third parties, are to receive the benefit of the taxpayer dollars allocated for their care. The federal statute establishing Medicaid’s home caregiver program provides that, with limited exceptions, “no payment” is to be made “to anyone other than the individual” who provides “such care or service.”

To receive Medicaid funds, a state must file a plan describing how it will administer its Medicaid programs. The secretary of the Department of Health and Human Services is empowered to require that such plans reflect the “qualities” he deems “appropriate to ensure that the patient’s “dignity and respect, and freedom from coercion and restraint.”

Administrative guidance instructing states to pay caregivers directly and prohibiting third-party deductions would go a long way toward ensuring that millions of dollars – earmarked for the most vulnerable members of our society – are not improperly diverted to fund union activities.