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Compelling Personal Care Workers to Pay Union Dues Violates Our Freedom of Speech: But I Still Have to Pay My HOA Dues!

I live in a community that requires homeowner association monthly dues.  We have a homeowner association (HOA).  More than once I have complained at the high cost of these monthly dues and the absurd endeavors on which our HOA spends my money.  For example, we had a beautiful, clay tennis court.  If you have ever played tennis on a clay court, you know how wonderful it is to play on clay.  Clay tennis courts are also expensive to build.  A few years ago, my HOA decided to turn the clay tennis courts into a gardening center.  In place of the tennis nets, they built 10-12 raised beds to which the homeowners could purchase rights to use.  Somehow, my HOA determined the clay tennis court would be better used as a place to hold raised beds instead of playing tennis.

Despite my intense disapproval of this decision, I was forced to continue to pay my HOA dues, and a part of my HOA dues was spent on the conversion from tennis court to garden center.

Not completely dissimilar, in many states, public sector workers are required to contribute to union dues, even if they disagree with the union’s actions.  In-home care workers are considered public sector workers in Illinois because they care for the disabled and elderly and accept Medicaid money.  Including Illinois, 19 states allow bargaining agreements for home care workers.

Last week the Supreme Court sent shockwaves to the 19 states that allow bargaining agreements with home care workers.  The Supreme Court held that Illinois cannot compel personal care workers to pay union dues.

You may be asking yourself, why is Knicole blogging about an Illinois lawsuit and union dues.  How in the world does this affect North Carolina health care providers who accept Medicare and Medicaid?

The narrow answer would be that the case has no effect whatsoever on NC health care providers.  Unlike Illinois, North Carolina does not allow public sector bargaining.  In fact, in NC, union contracts, or bargaining contracts for public sector employees are considered “illegal, unlawful, void and of no effect.”  N.C. Gen. Stat. 95-98.

A broader view, on the other hand, is to understand that increases or decreases in personal care wages, better or worse benefits provided to personal care workers, and the overall profit or loss of personal care workers across the country, is relevant to NC personal care workers, and I prefer this broader view.

In the Supreme Court case, Harris, et al v. Quinn, Justice Alito wrote that compelling public sector workers to compensate a third party to “speak” for them, even if the worker disagrees with the third party’s speech violates the First Amendment.

In the Supreme Court opinion, Justice Alito writes:

“If we accepted Illinois’ argument, we would approve an unprecedented violation of the bedrock principle that, except perhaps in the rarest of circumstances, no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support.”

Individual states determine labor laws related to government employees.  As previously stated, NC bans bargaining agreements.  Virginia does as well.

In states that do allow bargaining agreements, if workers did not want to participate in the bargaining unit, the worker would opt out of full dues and pay only the cost of grievance administration and collective bargaining.  Supposedly, this prevents the nonmembers, who benefit from the reward of collectively-bargained higher wages or better benefits, from reaping the benefits without paying for them.  The whole “free-ride” idea…

In Illinois, Service Employees International Union (SEIU), a bargaining unit, argued that personal care workers should be compelled to contribute to it because personal care workers are public sector workers.

SEIU claims that it gets higher pay and better benefits for personal care workers.  Approximately 1 million of the 3 million personal care workers nationwide are members of SEIU or other similar organizations.

However, the Supreme Court disagrees.  According to the Harris decision, I shouldn’t have to pay for HOA dues if I disagree with the HOA’s actions (I’m kidding.  Sadly, I have no case to cease paying my HOA dues).

Proponents of unions are not happy with the results, but let’s play out a hypothetical…what if the Supreme Court held that public sector workers were required to pay union dues, even against their will….

Because, think about it…the government cannot prevent us from contributing to political candidates nor can the candidate force you to contribute to a political campaign.  Upholding the freedom of speech is not necessarily anti-union.  The Supreme Court did not rule “against” unions per se.  It ruled that a bargaining unit is “bargaining for” or “speaking for” its members.  And you cannot be forced to pay for speech with which you disagree.

Free speech allows all of us to individually decide which principles to support.  Allowing personal care workers to choose not to support certain ideologies is not an attack on collective bargaining.  Rather, it ensures that the free choices of personal care workers are represented by any union entity, rather than union leaders benefiting from coerced fees.

While the Harris decision does not apply to me and my HOA dues for many reasons, including the fact that I chose to live in the community knowing that the HOA existed, the Harris decision does have possible broad ramifications, especially as to in-home care workers and other public sector workers.  It may mean that the 1 million in-home care workers now compelled to contribute to unions may have standing to stop if they so choose.

What is the Difference Between the 1915 b/c Waiver and Technical Guide?

Do you know the difference between the 1915 b/c Waiver and the Technical Guide?

You should!  (If you provide Medicaid mental health or substance abuse services or services to developmentally disabled persons).

What is the 1915 b/c Waiver (the “Waiver”)?

It is a document (a very large document) that all health care providers, recipients and State agencies must adhere to in order for Medicaid recipients to receive the medically necessary services needed.  The consequence of anyone in NC not following the Waiver? The feds can come and recoup Medicaid money…or perform any other allowable remedy/punishment.  Basically, everyone in NC (germane to Medicaid) must follow the Waiver or answer to the federal government.

The Waiver applies to Medicaid recipients suffering mental health issues, developmental disabilities, and substance abuse.

The Centers for Medicare and Medicaid Services (CMS) granted the North Carolina Waiver, which operates under Section 1915 (c) of the Social Security Act. This Waiver operates concurrently with a 1915 (b) Waiver, the North Carolina Mental Health/Developmental Disabilities/ Substance Abuse Services Health Plan (NC MH/DD/SAS Health Plan).

In sum, the Waiver is a document approved by the federal government (CMS). The Waiver applies to Medicaid recipients suffering mental illness, developmental disabilities and substance abuse.  We must adhere to the Waiver…or else.

So what is the Technical Guide?

First, what is it not? If the Waiver is Medicaid “law,” the Technical Guide is not.

When you were in high school, did you ever read Cliffsnotes?  You know, your English teacher assigns “The Great Gatsby,” but you have so many other important things to do in high school other than to read “The Great Gatsby.” So you get the Cliffsnotes.  Easy enough, right?

Until your teacher tests on details in “The Great Gatsby” that were not in the Cliffsnotes…

I am NOT (capital N.O.T.) comparing the Technical Guide to Cliffsnotes.  The Technical Guide is approximately 350 pages.  If Cliffsnotes were 350 pages long, then the actual book would be over 1000 pages.  If the Division of Medical Assistance (DMA) were attempting to draft an abridged version of the Waiver with the Technical Guide, then someone grossly misunderstood the word “abridged.”

DMA prepares the Waiver, and (although I have never been present for the process of its creation) I believe that DMA works extraordinarily hard on the Technical Guide.

Despite, DMA’s hard work, the Technical Guide, generally, is  not identical to the Waiver.

If the Technical Guide were identical to the Waiver, then the Technical Guide and the Waiver would be identical, right?

The Technical Guide is supposed to be a “user-friendly” rendition of the Waiver.  Because, folks, I am here to tell you, the Waiver is NOT “reader-friendly.”

But….beware….if it comes down to a legal argument in a court of law, the Technical Guide is not law…the Waiver is law.  So if you are having your employees read the Technical Guide in lieu of the actual Waiver, you MAY be in violation of the Waiver, even though you meet the Technical Guide criteria.

For example, in the Technical Guide, for authorization of In-Home Intensive Supports, for prior authorization, a Medicaid recipient could use (for prior authorization):

“Until the participant has a Supports Intensity Scale assessment [SIS assessment], the NC SNAP is used and the participant must have a score of at least 4 or 5 in Medical and/or Behavioral.”

According to the Technical Guide, a SNAP score can be used in order to receive authorization for In-Home Intensive Services.

However, the Waiver says nothing about a SNAP score.  According to the Waiver, the ONLY document that can be used for prior authorization for In-Home Intensive Supports is the SIS assessment.

Period.

Not the SNAP!

Ambiguity? I think so…

But, when the English teacher tests on the details of “The Great Gatsby” that were not found in the Cliffsnotes, you fail.

Similarly, when you only follow the Technical Guide, you may find yourself (legally) holding the “Cliffsnotes of the Waiver.”

And liable.