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Organizations submit comments to CMS on proposed rule regarding union dues deductions
The comment period for a proposed settlement on whether states can deduct union dues from Medicaid payments to individual workers ended on September 28. The Centers for Medicare & Medicaid Services (CMS) received comments from 32 organizations and individuals during the eight-week comment period. . We highlight eight of these responses below.
The proposed rule follows a 2019 rule challenged by law preventing states from withholding voluntary payroll deductions from Medicaid payments from home care workers.
About the proposed rule
Chronology:
- July 21, 2021: CMS Administrator Chiquita Brooks-LaSure approved the proposed rule.
- August 3, 2021: Notice of regulatory proposal (NPRM) published in the Federal Register.
- September 28, 2021: Public comments expected.
CMS states that the rule “would explicitly allow states to make payments to third parties for the benefit of individual practitioners by ensuring health and welfare benefits, training and other customary benefits for employees, if the practitioner consents to such payments to third parties on behalf of the practitioner. ”
In 2019, CMS published a final rule that “[removed] the regulatory text which [allowed] a state to make Medicaid payments to third parties on behalf of an individual provider for benefits such as health insurance, job training, and other usual employee benefits. Six states challenged the rule and filed a lawsuit in U.S. District Court for the Northern District of California. In November 2020, the court overturned the rule and sent it back to CMS for further assessment. The defendant, then HHS secretary Alex Azar, appealed to the United States Court of Appeals for the Ninth Circuit. The case has been temporarily put on hold following a change in administration and is currently on hold until February 2022.
About the regulations
Rule making is the process used by federal agencies to amend, repeal or create bylaws. The most common rule-making process is informal rule-making, in which an agency asks the public for comments on proposed rules during a comment period. A draft rule, also known as a notice of regulatory proposal (NPRM), is a draft of a draft rule. The proposed rules are published in the Federal Register. After a comment period, the agency may revise, abandon or continue the proposed rule until the final stage of the process.
Comments in support of the proposed rule
Below are excerpts from comments supporting the proposed CMS rule:
“The proposal is very much in line with the clear intention of Congress behind the legislative provision. This intention is clearly illustrated by the legislative history and this intention was limited to prohibiting the practice of “factoring”, that is to say the sale of receivables to third parties who were then involved in requests for payment from states and thus pushing up the states â€costs. The authorized payment to third parties involved here – “for health and welfare benefits, contributions, training costs and other usual costs for employees” – does not in any way involve factoring, as no one other than the providers do not claim compensation. … In addition to being in conflict with the clear intention of Congress, a contrary interpretation of 42 USC Sec. 1396a (a) (32) interferes with the access of individual practitioners to affordable and effective forms of health care, retirement, training and other benefits. This will cause harm to home care workers and other individual providers of Medicaid beneficiaries, as well as to the beneficiaries themselves who rely on these providers for skilled care. “
American Federation of Labor and Congress of Industry Organizations (AFL-CIO)
“[W]When home care providers form unions, defend their interests and those of their clients, and engage in the process of collective bargaining with national and local authorities, positive results occur, including lower turnover rates, increased development and training of the workforce and better quality care. These benefits are made possible by and are dependent on voluntary funding by home care workers through their payment of union dues and contributions to the benefits facilitated by payroll deductions. We estimate that collecting these dues without member-authorized and state-administered deductions from provider payments would cost the AFSCME local home care union members in California approximately $ 600,000 per year. In other words, because unions are fully supported by their members, it would mean that home care workers would have to commit all the more in contributions simply to replicate a function more easily and effectively performed by the company. State.
American Federation of State, County, and Municipal Employees (AFSCME)
“We believe that improvements in the quality and conditions of employment of home care workers have been supported by the ability of states and workers to direct a portion of service payments to pay for the costs of benefits such as care. health and training, and that this was a step towards expanding and strengthening the HCBS programs. The ability of workers to come together to form unions and contribute to the HCBS system by getting involved in unions and organizations like NDWA is especially important in self-managed models of HCBS where workers are isolated and their voices are disaggregated. In this sector where the vast majority of workers are women, women of color and disproportionately immigrants, improving the conditions of workers is also a matter of racial and gender equity and a key step in combating discrimination. historical marginalization of care work.
National Alliance of Domestic Workers
“Deductions made from a home care worker’s Medicaid payment – which in all relevant respects is the same paycheck that other private and public workers receive – are not reallocations. They do not confer any right on the entity for which the deduction is intended, whether for health insurance, union dues or tax payments, to claim payment against the Medicaid program. By making authorized payroll deductions, states do not transfer the right to receive payment “for any care or service” to a third party. Regular payroll deductions and dues for things like voluntary health insurance or union dues are not “payments … a worker’s ability to use the dollars she has as she sees fit.”
International Union of Service Employees (SEIU)
Comments opposing the proposed rule
Below are excerpts from comments opposing the proposed CMS rule:
“Unions have and will continue to use dues and fees deducted from Medicaid payments on administrative costs and salaries, to make pleadings, fundraising and politics in favor of preferred candidates, the funding of politically motivated non-profit groups and many other activities unrelated to the provision and reimbursement of medical care. To avoid the complicity of federal and state governments in denying caregivers free speech by diverting health care funding to union political spending, they should be taken out of the equation altogether, as has been done. makes the final rule of 2019. Individual caregivers should, without government involvement, decide in private how and whether they wish to associate with unions or any other third party.
Americans Foundation for Prosperity
“[W]We must respectfully urge CMS to abandon the proposed regulation, which would conflict with the legal direct payment requirement in subsection (a) (32), undermine the legal framework governing Medicaid, deviate from the previous interpretation of law by CMS and subject HCAs to prosecution for fraud and coercion from third parties such as unions with a financial interest in accessing supplier payments through payroll deductions. Further, CMS has failed to prove that regulation is necessary to advance the goals of a more stable and better trained HCA workforce, or that it would even materially contribute to those goals. Finally, the NPRM is premature given that CMS did not consult with stakeholders before publishing the proposed rule and its decision to forgo an RIA despite the best available evidence indicating that the rule would have an economic impact of over $ 100 million. of dollars.
Freedom Foundation
“Such a change would harm caregivers, bring no significant benefit to their patients, and lead directly to federal funding for the inherently political activity of public sector unions. Funds paid to caregivers should be used to support their efforts to care for the sick and disabled, and not for privileged political causes. This is doubly true as the litigation against the ministry’s 2019 rule is ongoing. The ministry should not adopt the proposed rule and should continue to defend its previous rule, which recognized that it did not have the power to change social security law through rule making. But, to the extent Commerce intends to adopt the rule, it should also include specialized procedural protections to adequately protect suppliers’ First Amendment rights under the Janus and Harris. ”
Mackinac Center for Public Policy
“HCBS Medicaid payments are supposed to pay for the care of people with severe disabilities. The diversion of these payments to special interests of third parties to subsidize their political agendas, lobbying and recruitment campaigns is as unreasonable as it is illegal under subsection (a) (32). CMS should put an end to this indefensible practice by enforcing the unambiguous direct payment requirement in subsection (a) (32). CMS’s opposing intention in its 2021 NPRM to tolerate this corrupt practice by inventing a new regulatory exception to the law is inconsistent with paragraph (a) (32) and is arbitrary and capricious. ”
National Foundation for the Legal Defense of the Right to Work
To view all comments submitted in response to the proposed rule, click here.
What we read
The big picture
Number of relevant invoices per state
We are currently following 99 pieces of legislation dealing with trade union policy for public sector employees. On the map below, a darker shade of green indicates more relevant invoices. Click here for a full list of all the invoices we track.
Number of relevant bills by current legislative status
Number of relevant bills by partisan status of the sponsor (s)
Recent legislative actions
No public sector union bill has seen any activity this week.
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