A Medicaid boost for unions?

by Ken Girardin |  | NY Torch

Amid Albany’s Medicaid over-spending crisis, the state Health Department is reconfiguring a little-known portion of the deficit-ridden program in what looks like a scheme to squeeze union dues from roughly 110,000 Medicaid-subsidized in-home caregivers.

About 74,000 New Yorkers are enrolled in Medicaid’s consumer-directed personal assistance program, or CDPAP, in which Medicaid pays personal assistants, or PAs, to provide household help to disabled or elderly patients who otherwise would need to be cared for in a nursing home or other more costly setting. 

PAs are selected by the patients themselves, who set their hours and instruct them on their duties. In many cases, assistants are prior acquaintances or relatives of the patient. Medicaid picks up the tab by paying a third party, known as a fiscal intermediary, which handles the paperwork.

The Health Department (DOH) last year moved to cut costs by changing how intermediaries are paid and laid out a new “Request for Offers” process aimed at thinning the ranks of roughly 600 fiscal intermediaries involved with CDPAP. But the new application came with an odd and unprecedented requirement: each applicant must agree to sign a “joint employment attestation” in which the intermediary “accepts and acknowledges their role” is “that of a joint employer, with the CDPAP consumer, of the personal assistant (PA).” 

That’s a strange move, because the Health Department can already hold intermediaries responsible for every facet of their relationship with a PA. The intermediaries, for instance, agree to pay workers’ compensation premiums, and their responsibilities are further detailed in 17 bullet points listed in DOH bid papers. 

DOH says the employer attestation “does not alter the Department’s view of the current relationship between the FIs and the PAs.”

If that’s the case, there’s another reason why the Cuomo administration would force PAs to sign these documents: to unionize them.

By grouping Medicaid PAs together as employed by each fiscal intermediary (instead of just each patient they help), DOH is creating a “community of interest” in which a union can collect enough signatures to have federal (or state) officials conduct an election. The union wouldn’t need to get a majority of the PAs to consent to unionizing–it would just need to win a majority of the mail-ballot votes that are completed and returned.

Labor unions are continually on the hunt to organize new groups of potential dues-paying members, and they don’t hesitate to ask elected officials to change the rules when necessary. Governor Eliot Spitzer in 2007 issued an executive order that let a pair of friendly unions represent child-care providers who received state subsidies, and the state Legislature last year voted to allow farm workers to unionize.

New York wouldn’t be the first state to impose a unionization scheme on consumer-directed providers paid by Medicaid. Fifteen other states have let unions tap into their own similar programs. New York, in fact, was something of an outlier: while Spitzer’s 2007 order helped two politically-aligned unions organize state-subsidized childcare providers, he didn’t do the same thing for personal care. Spitzer at the time was warring over proposed budget cuts with 1199SEIU, the healthcare worker union best positioned to capitalize on any unionization scheme.

Unionizing Medicaid personal assistants wouldn’t immediately cost the state anything, especially since the intermediaries can’t bargain over payment rates (which are fixed by Medicaid). While the individual PAs would have no say the matter, organized labor would see an immediate reward: a union that organizes PAs will be able to skim dues from every paycheck issued by that fiscal intermediary in the CDPAP program, without having to incur many of the typical costs of bargaining or representing workers in disciplinary proceedings.

If this is indeed the first step to helping 1199SEIU organize CDPAP caregivers, and pocket 2 percent of their pay, that windfall could add up to tens of millions of dollars per year for the union’s coffers–and a handsome reward at election time for the politicians who help put it there.

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- Ken Girardin is the Policy Analyst at the Empire Center for Public Policy.