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LIVING LIBERTY
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A P U B LICAT ION O F T HE FR EED OM FOUNDAT ION
THE CASE FOR FREEDOM
As HHS Secretary, Becerra would back unions rather than homecare providers
By MAXFORD NELSEN Reprinted from the NATIONAL REVIEW
D
March 3, 2021
uring Xavier Becerra’s confirmation hearing before the Senate Finance Committee this week, Senator Bob Casey remarked that our view of Medicaid “tells us whom we value, whether it’s kids or seniors or people with disabilities.” Becerra, President Joe Biden’s nominee to head the Department of Health and Human Services (HHS), assured Casey that he would “strengthen Medicaid” if confirmed. But as California attorney general, he worked to perpetuate the diversion of hundreds of millions of dollars in Medicaid payments from homecare aides to labor unions that backed his political campaigns. Beginning with California in the early 1990s, a handful of states allowed unions such as SEIU and AFSCME to unionize workers who provide in-home care to Medicaid-eligible adults with functional disabilities. These caregivers assist their clients — often relatives or close personal friends — with the basic activities of daily living, and laws such as California’s required them to pay union dues, which were automatically deducted from their Medicaid payments. Since 2014, when the Supreme Court struck down mandatory dues schemes as unconstitutional in Harris v. Quinn, unions and allied state officials, such as Becerra, have worked to make it easy to sign caregivers up for union membership and as difficult as possible for them to leave a union once they’ve joined. Both unions representing caregivers in California have even been sued in federal court for forging caregivers’ signatures on membership forms and thus triggering nearly irrevocable, state-administered dues deductions from their Medicaid payments. Becerra, who represents the state in both cases, is surely aware of these allegations of criminal conduct by the unions but has taken no action to address them. As a result, about 350,000 caregivers in eight states had nearly $150 million in union dues siphoned from their Medicaid payments in 2017 alone. Stunningly, this happened in spite of longstanding federal
BOARDMAN Continued from page 1 dom Foundation created an outreach program to contact caregivers by email, direct mail and in face-to-face meetings with paid canvassers. But in order to inform workers, the Freedom Foundation needed their contact information. I-1501 prevented them from getting it by creating an exception to normal public
law requiring that “no payment” for Medicaid services be made to “anyone other than . . . the person or institution providing such care or service.” During the Obama administration, HHS chastised Washington State for withholding dues from caregivers’ Medicaid payments but declined to enforce the law against the state. Instead, it created a loophole. Despite admitting that federal law does not provide for “exceptions to the direct payment principle,” HHS adopted a regulation in 2014 allowing states to make deductions from Medicaid payments for
disclosure laws for unionized caregivers. “Under the law, it’s possible to exempt certain government employees — like prison guards — from disclosure laws because making their contact information public could put them at risk,” said Aaron Withe, the Freedom Foundation’s national director. “But you can’t base that exemption on political ideology or financial gain, and that’s clearly what’s happened here.” Union-sympathetic judg-
“benefits customary for employees,” arguably including union dues. During the Trump administration, HHS rescinded the regulation, acknowledging that it was “neither explicitly nor implicitly authorized by the statute” and that diverting “a portion of [practitioners’] Medicaid payment to a union” was illegal. As Trump’s HHS worked to rescind the Obama-era regulation, Becerra coordinated with several other attorneys general, as well as lawyers for SEIU and AFSCME, on a lawsuit to save it. The coalition executed a “common-interest agreement” to shield much of its coordination from disclosure under government-transparency laws, though highly redacted emails confirmed its existence. Shortly after the Obama rule was repealed in May 2019, Becerra led California, Washington, Oregon, and Massachusetts in a federal lawsuit to reinstate it. When SEIU and AFSCME sought to join the lawsuit as co-plaintiffs against HHS, Becerra informed the court that he had no objection. But when ten caregivers who couldn’t get their states to stop the unwanted union-dues deductions sought to join the lawsuit on HHS’ side, he filed a 22-page brief seeking to keep them out. Becerra’s collusion with SEIU became even more apparent in late 2019, when HHS proposed new regulations to reinforce the statutory requirement that providers “receive and retain the full amount” of their Medicaid payments. During the comment period on the proposed rules, Becerra submitted an opposition letter to HHS, a lengthy passage of which was copied verbatim from the comment submitted by SEIU the same day. If confirmed, Becerra will presumably abandon HHS’ fight against the litigation he initiated as California attorney general and simply turn a blind eye to the illegal diversions as the Obama administration did. Perhaps Becerra’s hand-in-glove coordination with powerful labor unions to preserve a lucrative, exploitative practice shouldn’t come as a surprise, given that he received nearly $200,000 in direct campaign contributions from SEIU and AFSCME affiliates during his relatively short tenure as attorney general. Still, if Sen. Casey is correct that one’s attitude toward Medicaid reveals whom he values, Becerra’s actions make it quite clear that, as HHS secretary, he’d place the interests of labor unions, above the interests of homecare workers. And that alone makes him unfit to run the country’s largest bureaucracy. Maxford Nelsen is labor policy director for the Freedom Foundation.
es at the lower and Appeals Court level have consistently rejected the Freedom Foundation’s argument, concluding there is no reason to believe voters approved I-1501 for any reason other than its stated goal of crack down on ID theft. But that’s just the point. “The voters were duped,” Withe said. “They thought they were helping protect elderly and vulnerable Washingtonians from fraud. Instead, they ended up perpetuating a
fraud under which unions have spent decades using people who just want to care for their low-income loved ones as their unwitting cash cow.” Boardman is the second Freedom Foundation case appealed to the Supreme Court in the past month. The petitioners are represented by former U.S. Solicitor General Paul Clement of Kirkland & Ellis LLP, Susan Stahlfeld of Miller Nash Graham & Dunn LLP and Freedom Foundation attorney Caleb Jon Vandenbos.
