Memorandum 1119, September 2012

A proposal for an initiated constitutional amendment that will appear on the November 6, 2012 ballot would establish a “Michigan Quality Home Care Council” in the state constitution and would affirm limited collective bargaining rights for about 42,000 home health care workers. These workers are hired and fired by the elderly or disabled participants of the Medicaid-funded Home Help Services Program, and are paid by the Michigan Department of Community Health.

The proposal would add a new Section 31 to Article V (Executive Branch) of the 1963 Michigan Constitution to establish the Michigan Quality Home Care Council, which would be the “public employer” of home health care aides, even though the participants of the Home Health Care Program would continue to have the right to select, hire, train and direct, or terminate the employment of their home health care aides. The proposal provides that participant-employed home health care providers “shall have the same rights relating to collective bargaining with the Council as are otherwise provided by law to public employees not within the classified civil service relating to their public employers” and would amend Section 5 of Article XI (Classified State Civil Service) to add “in-home personal care providers subject to the authority of the Michigan Quality Home Care Council” to the list of those exempt from classified state civil service. Home health care providers would not be public or state employees for any other purpose and would not have the right to strike.

The Medicaid-funded Home Help Services Program will remain in effect regardless of the outcome of the proposal that has been placed on the November 2012 ballot: this proposal focuses on the unionization of home health care workers and the establishment of the align=”justify”>Michigan Quality Community Care Council, not on the services available to the disabled and elderly.

Background

The Michigan departments of Human Services and Community Health administer the Home Help Services Program, which supports people who need assistance with personal care and household chores and who are eligible for Medicaid (Medicaid is a means tested medical services program funded by the federal and state governments and managed by states). The eligible individuals select home health care aides, who are frequently relatives, and these aides are paid by the state, with state and federal funds. The purpose of the program is to assist disabled and elderly people to stay in their own homes and out of nursing homes, thus saving money for the state.

In 2004, the Michigan Quality Community Care Council (MQCCC) was formed by an interlocal agreement between the Department of Community Health and the Tri-County Aging Consortium (the Area Agency on Aging serving Clinton, Eaton, and Ingham counties). MQCCC was identified as a public employer in the interlocal agreement, but MQCCC neither hires nor pays home health care workers. Under the agreement with DCH, MQCCC was tasked with maintaining a registry of providers and with coordinating personal assistance services. The interlocal agreement declared that home health care workers who receive only Medicare or Medicaid payments for their work are public employees, thus giving them the right to organize.

In 2005, the MQCCC recognized the Service Employees International Union (SEIU) Healthcare Michigan as the bargaining unit for home heath care aides. In an election held under the Public Employment Relations Act (PERA), approximately 43,000 ballots were sent to home health care aides: 6,949 ballots were returned with “yes” votes, 1,007 ballots were returned with “no” votes, and 589 ballots were spoiled. The Michigan Employment Relations Commission (MERC) certified SEIU Healthcare Michigan as the home health care workers’ bargaining unit. Union dues were withheld from home health care aides’ Medicaid-funded paychecks by payroll deduction starting in November 2006: workers pay 2.75 percent of their wages in dues to the union, reportedly about $6 million in total annually. Workers have the right to opt out of the union, but if they do must still pay an agency fee of at least 65 percent of the dues, ostensibly for costs related to collective bargaining, contract administration, and grievance adjustment. The average home health care worker now earns about $8.00 per hour.

Opponents decried the forced unionization of home health care workers, arguing that they were not public employees and that the Michigan Employment Relations Commission should not have certified the election.

State funding for MQCCC was eliminated in FY2012, but private funding continued and MQCCC continued to serve as the public employer of home health aides for the purposes of PERA. The Department of Community Health continued to withhold union dues from the Medicaid-funded payments to the workers.