Proposal Would Allow States to Pay Home Health Worker Benefits


July 30, 2021 9:30 pm

States would be able to use Medicaid money to pay for home health workers’ health and training benefits or union dues under a proposed rule issued Friday by the Centers for Medicare & Medicaid Services.

The proposed rule, if finalized, would re-establish states’ flexibility to allow home care workers and personal care assistants to enroll in—and use Medicaid to pay for—”typical employee benefits” like health insurance or employee training. It would apply to individual health practitioners who rely on Medicaid for their livelihood, generally by taking care of some of the “most vulnerable” beneficiaries in their own homes, the CMS said in a statement. These workers are paid directly by the people for whom they care using Medicaid.

The proposal also is intended to resolve problems that the U.S. District Court for the Northern District of California found with a 2019 rule that barred payments to third parties on behalf of states to home health workers. Several states, led by California, sued the Department of Health and Human Services over that rule, saying it was “in service of anti-union objectives that bear no relationship to the purpose” of the law governing Medicaid. Previously, states could opt to allow Medicaid to pay for union dues for home health workers.

The plaintiffs claimed the 2019 rule harmed individual Medicaid beneficiaries—many of them with disabilities—by upending careful arrangements “relating to the financial logistics of paying care providers.”

The district court vacated that rule and remanded it to the HHS for a rewrite. Alex Azar, then the HHS secretary, appealed to the U.S. Court of Appeals for the Ninth Circuit on Jan 15, five days before President Joe Biden took office. The court docket for that case is temporarily closed until February 2022, but any party to the suit can request that it be reopened before then.

In a footnote, the proposed rule address the question of union dues, saying “to the extent state agencies utilize this option to deduct union dues, union dues may only be deducted from Medicaid payments with the affirmative consent of the practitioner.”