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The Trump administration stands up for health-care workers and Medicaid recipients

The Hill logo The Hill 7/31/2018 Dr. Roger Klein, opinion contributor

Should Medicaid, a program created to provide health care to the poor and disabled, use its scarce dollars to fund union activities? Should state governments coerce mothers caring for their disabled children into joining unions? That is exactly what has been happening in a number Democrat-controlled states. To its credit, this month, the Department of Health and Human Services (HHS) proposed a regulatory change entitled, "Medicaid Program: Reassignment of Medicaid Provider Claims" - this will put a stop to this insidious, illegal practice

Independent in-home health-care providers help beneficiaries with personal care activities like bathing, dressing, grooming, and eating, among other activities, as part of Medicaid's "home and community-based services" (HCBS). Nearly 60 percent of the approximately $170 billion Medicaid expends on long-term services go to HCBS. Most of these dollars are intended to allow Medicaid recipients to continue to live at home or in the community, rather than in expensive, restrictive nursing homes or other long-term care facilities.

Many, perhaps the majority, of independent in-home caregivers are relatives or friends of the individuals they assist. Despite the lack of an obvious role for unions in these single worker, single employer, home-based relationships, government employee unions have aggressively attempted to unionize independent in-home health-care providers in a desperate attempt to bolster membership.

The standard modus operandi of unions and their Democrat allies in some blue states has been to designate independently contracting in-home caregivers as state employees solely for the purposes of collective bargaining.

Workers are denied all other benefits of employment such as access to state retirement plans, state health insurance plans, state employee workers' compensation insurance, and even indemnity in the event of lawsuits. In these schemes, unions become the exclusive representatives of the providers, often by dubious means. States serve as organized labor's dues collectors, automatically deducting the funds from workers' Medicaid payments on the unions' behalf.

In a lawsuit brought by Illinois-based independent in-home health providers, the United States Supreme Court in 2014 ruled that the caregivers are not obligated to pay union fees.

Nevertheless, some states have continued to deduct as much as $1000 a year from independent in-home health workers' limited pay, often without their knowledge or consent. The Supreme Court decided last month held that true state-employed workers cannot be required to support unions as a condition of employment.

Organized labor, with the complicity of their Democrat friends in state government, has resorted to extreme measures to continue the flow of cash. Unions have tried to prevent independent in-home health providers from learning their rights, required or pressured them to attend coercive, union-led meetings, and have impeded their ability to resign union membership.

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Labor has used state resources to promote membership, and signed up workers electronically, via hand-signed cards or by telephone, while instituting highly stringent conditions for resignation.

In this way, unions have colluded with Democrats to siphon an estimated $1.4 billion from Medicaid, including $150 million in 2017 alone. What, if any, benefits these providers and their patients receive from these dollars are unclear.

Rather Democrat state officials have chosen to line the pockets of political allies like the Service Employees International Union (SEIU) and the American Federation of State, County and Municipal Employees (AFSCME) at the expense of poor, sick, and disabled Medicaid recipients and their working-class caregivers.

To curb fraud and abuse, Medicaid payments can only be made to the provider who performed a service or the Medicaid recipient. Although the Medicaid statute provides a few specific exceptions to this dictate, payments to unions is not among them. Moreover, the law does not grant the HHS Secretary authority to create new exceptions.

Despite an acknowledged lack of statutory authority, the Obama Administration promulgated a regulation in 2014 that created an additional exception to the Medicaid's requirement funds be directly paid to providers. This regulation allows states to pay Medicaid funds owed to caregivers to third parties for the purposes of "health insurance, skills training, and other benefits customary for employees." States have since used the broad phrase "benefits customary for employees" to justify their unlawful diversion of independent in-home health-care workers' funds to unions.

HHS' proposed rule removes its 2014 regulation, thereby closing the aforementioned loophole, and returning HHS regulations to their permissible statutory scope. In so doing, the Trump administration will increase the take-home pay of in-home health-care providers, protect the rights of caregivers and Medicaid beneficiaries, and defend taxpayers and the integrity of the Medicaid program.

Roger Klein J.D., M.D. is a member of the Regulatory Transparency Project's FDA and Health Working Group. He is a former advisor to the FDA and HHS. Dr. Klein graduated from Yale Law School and completed his postgraduate medical training at Yale Medical School.

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