Hawaii’s Long Term Health Care Bill Could Serve as a National Model

Originally published in The American Prospect on January 12, 2016.
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Hawaii may soon become the first state in the union to offer universal long-term care for seniors, as state legislators prepare to roll out a bill that would tackle the nation’s elder care crisis head-on.

Slated for introduction in the 2016 legislative session, Hawaii’s innovative bill could become a national model for states looking for ways to help families afford the high costs of elder care. Across the country, as millions of baby boomers hit retirement age, they are beginning to feel the strain of paying for health care. A full 10,000 Americans have turned 65 every single day since 2011, and will continue to do so until 2030—a trend that is dramatically altering the demographic landscape of the United States.

“There’s an important role for government to play,” says Kevin Simowitz, the political director for Caring Across Generations, a national organization that aims to help people age with dignity and independence. “Most people simply don’t have the individual means to pay for the care they need.”

These population trends have been particularly marked in Hawaii. While the number of seniors aged 75 and older increased by 47 percent nationally between 1990 and 2012, Hawaii saw a 116 percent increase in that age cohort during this same period.

A coalition of retiree groups, labor unions, and religious organizations in Hawaii has been leading the public campaign for Hawaii’s new health care program.

“I think if we have enough push from the public we can make it happen because the will of the people, I would hope, will supersede all potential barriers,” says Clementina Ceria-Ulep, the chair of the Nursing Department at University of Hawaii at Manoa, and a leader with Faith Action for Community Equity, a faith-based community organization.

Aloha State residents boast a distinct cultural tradition of caring for and cherishing their “kapuna”—a Hawaiian word that refers to the elderly. Indeed, Hawaiian leaders have been reckoning with the challenges of elderly care for far longer than most states on the U.S. mainland.

Now, after decades of debates, state audits, and legislative campaigns, Hawaii residents and lawmakers say the time is right for action on the proposed universal care benefit. Supporters of the bill argue that it would not only help ease the financial burden on families caring for seniors, but also create more high-quality home care jobs for the mostly women and immigrant workers who tend to shoulder these responsibilities.

“Hawaii has a tradition of being at the forefront of health care policy,” says Simowitz, of Caring Across Generations. “Long before the Affordable Care Act, Hawaiians had a plan to make sure that workers had quality affordable health care. This would not be the first time they’ve done something a little bit provocative and groundbreaking.”

Simowitz says that the idea of a universal long-term care program could spread to other states, in the same way that grassroots movements to promote paid sick leave and increase the minimum wage have taken off.

“It is a breakthrough to have legislators move this conversation from kitchen tables in peoples’ houses to conference tables at the legislature,” he says. “We need this to be a public policy conversation.”

Hawaii’s program would work like this: Every person who files a Hawaii state income tax for ten years would be eligible to receive $70 a day, for a total of 365 days. The benefit would be underwritten by a slight increase in the state’s General Excise Tax, a tax on all businesses’ gross income. Hawaii’s thriving tourist industry would help boost the fund. That’s because tourists, who also pay the General Excise Tax, would fund roughly 35 percent of the long-term care program but would never claim the benefit themselves.

“Our target was to look at what it would cost to help someone get four hours of home or community care,” explains Dr. Lawrence Nitz, a political science professor at the University of Hawaii at Mānoa, who conducted research on long-term care financing for the state. “Seventy dollars means you could plan to go to work, you could take time to meet your child’s teacher. It’s enough to help people avoid losing their jobs, while still balancing care responsibilities.”

Most people need some form of long-term care as they get older. Long-term care refers to assistance with activities of daily living, such as bathing, eating, using the toilet, and getting dressed. It also includes help with tasks like shopping, cooking, and cleaning.Despite a common misconception, Medicare does not cover the cost of long-term care services, meaning that the majority of Americans must pay out of pocket.

Hawaii’s proposed social insurance program would not cover the cost of nursing homes or assisted living facilities, which can easily reach $100,000 per year. However, it would offer more money and flexibility to families that are already providing long-term care.

In 2011, the AARP’s Public Policy Institute found that the average caregiver is a 49-year-old woman who works outside the home and spends nearly 20 hours per week providing unpaid care to a parent over nearly five years. The report found that two-thirds of family caregivers are women, and that the total economic value for all this unpaid work was an estimated $450 billion annually.

Hawaii State Senator Roslyn Baker plans to introduce the long-term care bill in the upcoming legislative session. It’s not the first time that Baker, who has been active in elderly care issues since the 1990s, has introduced long term care legislation. But now, due to growing political support and a string of research studies supporting the program’s the feasibility, Baker predicts that the bill has a good chance of passing.

“We think the timing is right, even though it’s an election year,” Baker told The American Prospect. “We’re going to work to help people understand exactly what the funding mechanism is, how small a tax burden it is, and just how it will help lots and lots of people afford the care they need.”

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With New Protections Tied Up in the Courts, Home Health Care Workers Aren’t Waiting Around

Originally published in The American Prospect on April 3rd, 2015.
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Almost two years after the Obama administration extended historic labor protections to the nation’s 1.79 million home healthcare workers, those new rights remain in limbo. In September 2013, the Department of Labor (DOL) announced plans to amend a longstanding regulation that has excluded them from earning the federal minimum wage, overtime pay, and compensation for travel on the job. For home healthcare workers in the United States—a group that is nearly 90 percent female—this move marked a significant step towards setting a floor of decent labor standards.

But the rule-change, which was set to go into effect on January 1st, now faces a challenge in federal court, and critics say state legislators are using the ongoing litigation as an excuse to avoid implementing the new protections. At the same time, given that most home healthcare workers are paid through Medicaid and Medicare—two underfunded public programs—many also worry that states will respond to the rule-change by curtailing consumers’ access to quality care. Activists across the country are working to pressure their lawmakers to reckon with these new standards and avoid potential calamity.

Four decades ago, Congress decided that home healthcare workers should be classified more like babysitters who provide “companionship,” rather than as workers entitled to basic protections. Nursing home employees, by contrast, are fully covered under the Fair Labor Standards Act (FLSA), despite performing many of the same tasks. As home healthcare has ballooned in recent years, these occupational distinctions have become harder to justify.

According to the Bureau of Labor Statistics, the U.S. will need one million new home healthcare workers by 2022. But the work is draining, the pay is paltry, and turnover is high. When adjusted for inflation, home healthcare workers’ average hourly wages have declined by nearly 6 percent since 2004. In 2013, the average earnings of home healthcare workers totaled just $18,598. 2013 was also the year that the Obama administration decided it was well past time to update FLSA’s policy. Because the DOL has the authority to amend federal regulations, it was able to enact this change without seeking Congress’s approval.

Though the new DOL rule-change would most directly benefit home healthcare workers, it carries implications for all domestic workers, including nannies and housekeepers. “By improving the conditions and protections in one area, you’re broadly boosting the sense that this is dignified work,” says Elly Kugler, an attorney with the National Domestic Workers Alliance, (NDWA) a group representing domestic workers in the United States.

Whether that change will actually be implemented is another question. Last year three industry groups filed a lawsuit against the DOL rule-change, insisting that it would have a “destabilizing impact” on home healthcare and hurt millions of elderly individuals. On December 22, 2014, a D.C. district judge vacated the rule for third-party employers, arguing that the executive branch cannot make such a regulatory change. A few weeks later, the same judge also vacated FLSA’s revised definition of “companionship services.” The DOL filed a challenge in appeals court, and arguments will be heard later this spring. Some suspect this may ultimately make its way to the Supreme Court.

Then, on March 20th, Labor Secretary Tom Perez sent a letter out to all 50 governors, urging them to focus on budgeting the minimum wage and overtime protections now, “to ensure that [they] will prepared if the Department prevails” in appeals court. Across the country, activists are also pressuring their representatives to focus on these issues. Yet many lawmakers are using the litigation as an excuse to avoid reckoning with the thorny budgetary questions. This means workers may not see minimum wage, overtime, and travel pay increases anytime soon.

“In Georgia, we’re seeing that our lawmakers are not talking about these issues,” says Tamieka Atkins, who leads Atlanta’s chapter of NDWA. “They have the attitude that we’re not going to move on this until the lawsuit comes down.” In response, Atkins’ group launched a campaign to lobby lawmakers and health agency commissioners in advance of their next legislative session. They also started a petition—“Governor Deal: All Eyes Are On Georgia”—asking for gubernatorial support towards minimum wage and overtime.

Activists in Texas are also applying pressure to their leaders. In January, domestic workers launched a home healthcare campaign, bringing together consumer groups, disability rights organizations, and labor unions. The following month—for the first time ever—domestic workers traveled to Austin to share their personal stories and lobby state legislators. “It was a really great opportunity because we agitated on different levels,” says Mitzi Ordonez, a domestic worker organizer at the Fe Y Justicia Worker Center in Houston.What we found is that many of the lawmakers just didn’t know about these [DOL] changes.”

Compared to Texas and Georgia, some states have made greater progress towards implementing the new labor protections. California, which already pays its home healthcare workers minimum wage, allocated new funds for overtime pay in its 2014-2015 budget, and was prepared to pay workers more at the start of 2015. But after learning about the federal lawsuit, California Governor Jerry Brown decided to postpone the overtime pay, even though there is nothing legally obligating him to do so. Frustrated activists have launched a campaign in protest; they organized meetings with state legislators, held rallies and candle light vigils, and even set up a“Justice for Homecare Tribunal”—a mock trial against the state. “The best thing for us to do is to not rest on our laurels,” says Doug Moore, the executive director of the United Domestic Workers of America. “The governor wants this to go through the courts, but we will use pressure to change his position.” Moore says that if the DOL rule-change is upheld in appeals court, they will then move to demand retroactive overtime pay back to January 1st.

Yet for some states that have reckoned with the rule-change, the results haven’t always been encouraging. “What we have been seeing, unfortunately, is that you can equally comply with FLSA by paying overtime and travel time, or by setting caps on the number of working hours,” says Alison Barkoff, the Director of Advocacy at the Bazelon Center for Mental Health Law. This scenario is playing out in states like Arkansas, which is looking to cap homecare workers to just 40 hours per week, and to limit each worker to just one customer per day. In effect, this would enable states to avoid paying workers overtime and travel costs. But such measures will hurt employees who make their living by piecing together multiple part-time jobs. It may also impact consumers who need more than 40 hours of care, or who may have a harder time finding someone willing to work for just a few hours per day.

Some hope that the Americans With Disabilities Act (ADA) and the Olmstead v. L.C. Supreme Court case, both of which protect disabled individuals from discrimination and unjustified segregation, will help consumers fight back against cuts to healthcare services. “The ADA and Olmstead provide important protections to consumers, but they won’t completely prevent a state from implementing restrictive policies,” Barkoff explains. “The laws do not prohibit a state from capping worker hours, so long as the state has a process for exempting individual consumers who will be seriously harmed. Most consumers will have to shift the way their care is provided.”

Meanwhile, labor activists maintain that their interests are not at odds with those of healthcare consumers, because quality care depends on creating sustainable working conditions. Many in the disability community have also signed amicus briefs in support of extending minimum wage, travel time, and overtime protections to home healthcare workers. “I think it’s important to know that there isn’t just one disability rights community,” says Sarah Leberstein, an attorney with the National Employment Law Project. “Many groups are very supportive, but they’re also really concerned about states taking it seriously and implementing the rules in a thoughtful way that doesn’t result in cuts to services.”

Even if upheld, the DOL rule-change may be hard to enforce. In New York City—a place that has instituted a progressive domestic workers’ bill of rights and a paid sick leave policy—activists have learned first-hand how enforcing these types of laws can be quite challenging.

“It’s really hard to be reliant on a complaint-driven process where workers have to come forth, but still fear retaliation,” says Irene Jor, a New York organizer with NDWA. Many domestic workers are also isolated in private homes, without much regular interaction with other workers who might provide them with moral support to raise grievances. Even once complaints are filed, not all are likely to be dealt with. “The Department of Labor, both on the federal and state level, is incredibly underfunded and does not have enough investigators,” says Leberstein. “So often they can’t simply respond quick enough, and they can’t do targeted enforcement.”

Nevertheless, if the DOL rule-change were upheld, it would be an important achievement. Some businesses would certainly have to adjust their operations to accommodate the new labor protections, but supporters of the rule-change insist that the industry’s opposition is overblown. According to national surveys, less than 10 percent of home healthcare workers even report working more than 40 hours a week. “We’ve also got many examples of big home care agencies that have figured out ways to pay workers properly, and still provide good care,” says Leberstein, who points out that many organizations already operate in states that require minimum wage and overtime protections. “So they’ve either figured out a way to do it and still earn profits, or they’re admitting to violating the laws in their state.”

Asking the public to pick between providing quality care and treating workers fairly is ultimately a false choice wrought through a political culture of austerity. States could avoid this by increasing funds towards Medicare and Medicaid, which would help ensure that the disabled and elderly can access the high-quality and flexible care without compromising national labor standards and worker dignity.

Though the future of the law is still unknown, one thing is clear. This is an issue that cannot be put on hold—thousands of health homecare workers live in poverty and 10,000 more baby boomers turn 65 every single day.