1 This hypothetical situation has been partially influenced by the story of Mardell Bell, as told in her own words before the Senate Government Affairs Subcommittee. Who Cares for the Caregivers?: The Role of Health Insurance in Promoting Quality Care for Seniors, Children and Individuals with Disabilities: Hearing Before the Subcomm. on Oversight of Gov't Mgmt., Restructuring, & D.C., 107th Cong. (2001) (statement of Mardell Bell, Service Employees International Union) [hereinafter Who Cares for the Caregivers?].

2 For further information on the Service Employees International Union, see http://www.seiu.org (last visited Jan. 30, 2003).

3 Joel Leon et al., Impact of a Further Payment Reduction in the Medicare Home Health Benefit 1 (Mar. 18, 2002), available at http://www.aahomecare.org/publicdocs/full-report.pdf.

4 NAT’L ASSOC. FOR HOME CARE, WHAT IS HOME CARE?, at http://www.nahc.org/Consumer/wihc.html (last visited Jan. 30, 2003) [hereinafter WHAT IS HOME CARE?].

5 ADMIN. ON AGING, HHS, BECAUSE WE CARE: A GUIDE FOR PEOPLE WHO CARE, available at http://www.aoa.dhhs.gov/wecare/we_care.pdf (last visited Feb. 17, 2002) [hereinafter BECAUSE WE CARE].

6 WHAT IS HOME CARE?, supra note 4.

7 BECAUSE WE CARE, supra note 5.

8 See BARRY L. FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 129-31 (4th ed. 2001). Medicare home healthcare use grew rapidly throughout the 1990s. Expenditures rose from 3.2 percent in 1990 to nine percent of Medicare spending in 1997. See Gen. Accounting Office, GAO/HEHS-99-120, Medicare Home Health Agencies: Closures Continue, with Little Evidence Beneficiary Access Is Impaired 4 (1999) [hereinafter GAO: Closures Continue]. A number of factors contributed to this increase: relaxation of coverage guidelines; reliance on home healthcare services to provide custodial care not covered under Medicare; the increase in availability of medical treatments at home; and the likelihood of fraud and waste in billing. See HHS, A PROFILE OF MEDICARE HOME HEALTH CHART BOOK Preface (1999) [hereinafter HHS: PROFILE]; GAO: Closures Continue, supra note 8, at 5; Duggan v. Bowen, 691 F. Supp. 1487 (D.D.C. 1998) (citing a class action lawsuit that reaffirmed Congress's intent to maintain broad access to extend home healthcare services). However, increased efforts to reduce fraud and waste (such as the Operation Rescue Trust launched in 1995), as well as reimbursement reductions through the Balanced Budget Act of 1997, have marked a decline in the utilization of home healthcare services. HHS: PROFILE, supra note 8, at 6; GAO: Closures Continue, supra note 8, at 6-7; FURROW ET AL., supra note 8, at 130.

9 Reese, Gina M. & Hafkenschiel, Joseph H., Hot Topics in Home Health Care, 20 WHITTIER L. REV. 365, 365 (1998)Google Scholar.

10 FURROW ET AL., supra note 8, at 131.

11 See Sabatino, Charles P. & Litvak, Simi, Liability Issues Affecting Consumer-Directed Personal Assistance Services—Report and Recommendations, 4 ELDER L.J. 247, 252-53 (1996)Google Scholar (stating that consumers advocate higher pay and benefits for personal assistants so beneficiaries can have more control over personal assistant hiring, training and supervision).

12 Although there are no national data on home healthcare worker turnover rates, estimates of the turnover rate reach fifty percent in San Diego where workers were paid, until recently, $6.75 per hour. Caitlin Rother, Caregivers Gain 26% Raise, Benefits, SAN DIEGO UNION-TRIBUNE, Apr. 26, 2001, at B4. To address this problem, San Diego officials increased the hourly pay of home healthcare workers to $8.50 per hour. Id. In San Francisco, workers earn $9.70 per hour, plus medical and dental benefits. Delp, Linda & Quan, Katie, Homecare Worker Organizing in California: An Analysis of a Successful Strategy, 27 LAB. STUD. J. 1, 10 (2002)Google Scholar.

13 CTRS. FOR MEDICARE & MEDICAID SERVS., U.S. DEP't OF HEALTH & HUM. SERVS., MEDICARE AND HOME HEALTH CARE 7, available at http://www.medicare.gov/publications/pubs/pdf/hh.pdf (last updated Apr. 2002).

14 Kapp, Marshall B., Health Care in the Market Place: Implications for Decisionally Impaired Consumers and Their Surrogates and Advocates, 24 S. ILL. U. L.J. 1, 24–25 (1999)Google Scholar (citing Stone, Robyn N. & Yamada, Yoshiko, Ethics and the Frontline Long-Term Care Worker: A Challenge for the 21st Century, 22 GENERATIONS 45, 48 (1988)Google Scholar).

15 See discussion infra at Part II.B for further information on accreditation programs.

16 See Robyn I. Stone & Joshua M. Wiener, Who Will Care for Us? Addressing the Long-Term Care Workforce Crisis (Oct. 26, 2001), at http://www.urban.org/UploadedPDF/Who_will_Care_for_Us.pdf.

17 METRO CHICAGO INFORMATION CTR., A MEMBER SURVEY CONDUCTED FOR: SERV. EMPLOYEES INT’L UNION LOCAL 880, Healthcare Workers Without Healthcare: Illinois Homecare Workers in Crisis (Mar. 2001), at http://www.seiu880.org/HWC_full_text.htm.

18 Godinez, Victor, Dallas-Area Home Health Care Firms Struggle to Stay Staffed, DALLAS MORNING NEWS, Apr. 15, 2001Google Scholar. Additionally, weekly hours worked by home healthcare aides doubled from 1990 through March 1999. HHS: PROFILE, supra note 8, at 82.

19 This number stands out starkly when compared to the overall rate of 16.4 percent of all workers who lack health insurance. Who Cares for the Caregivers?, supra note 1 (statement by chairman, Sen. Richard J. Durbin).

20 Kapp, supra note 14, at 19.

21 Id.

22 Id. at 20-21.

23 U.S. DEP't OF LABOR, PERSONAL AND HOME CARE AIDES, OCCUPATIONAL OUTLOOK HANDBOOK: 2002-03 EDITION 335-36, available at http://www.bls.gov/oco/pdf/ocos173.pdf (last visited Jan. 30, 2003).

24 The contingent workforce includes part-time workers, temporary employees and independent contractors. Silverstein, Eileen & Goselin, Peter, Intentionally Impermanent Employment and the Paradox of Productivity, 26 STETSON L. REV. 1, 2 (1996)Google Scholar.

25 Id.

26 Id. at 18 (“There is simply no incentive for most contingent employees as currently used to participate in improving productivity or for employers to invest in the training of their contingent workforce.”)

27 Each state has its own requirements for doing business as a home healthcare agency. Some states require a special license, or require licensure for certain categories of agencies, or require only that a Certificate of Need (CON) be obtained prior to applying for licensure. For more information about federal and state resources, see HOMECARE ONLINE, RESOURCES FOR STARTING A HOME CARE AGENCY, at http://www.nahc.org/Tango/Start/gov.html (last visited Jan. 30, 2003).

28 Medicare data show that the number of agencies dropped from 10,556 in 1997 to 7,175 in 2000. Office of Inspector General, OEI-02-01-00180, Access to Home Health Care After Hospital Discharge ii (July 2001) [hereinafter OIG: Access]. In 1999, the GAO reported that fourteen percent of home health agencies had closed since 1997. Office of Inspector General, Dep't of Health & Human Services, OEI-02-01-00070, Medicare Home Health Care Community Beneficiaries 1, 4 (Oct. 2001) [hereinafter OIG: Community Beneficiaries]. The GAO has been monitoring the impact of closures on home healthcare beneficiaries, and found that access has not been significantly impaired by the decline in agencies. See GAO: Closures Continue, supra note 8, at 3. Ninety-five percent of beneficiaries reported no difficulty in finding a Medicare home healthcare agency to accept them, but seventy percent reported that there was only one choice. OIG: Community Beneficiaries, supra note 28, at 15.

29 General Accounting Office, GAO/HRD-93-33, HCFA Properly Evaluated JCAHO's Ability to Survey Home Health Agencies 1 (Oct. 1992).

30 See id. at 1, n.1. JCAHO recently published its 2003 Comprehensive Accreditation Manual for Home Health Care, which includes information on accreditation standards. JOINT COMM’N ON ACCREDITATION OF HEALTHCARE ORGS., PRESS RELEASE, JCAHO, JOINT COMMISSION PUBLISHES 2003 HOME CARE STANDARDS MANUALS (Nov. 4, 2002).

31 General Accounting Office, GAO/T-HEHS-97-180, Medicare Home Health Agencies: Certification Process Ineffective in Excluding Problem Agencies 1-2 (1997).

32 See, e.g., Regulation No. 61-77: Standards for Licensing Home Health Agencies, S.C. Reg. vol. 23, Issue 5 (May 5, 1999), available at http://www.scdhec.net/hr/pdfs/licen/licregs/r61-77.pdf; WASH. REV. CODE ANN. ch. 70.127 (West 2002), available at http://www.doh.wa.gov/hsqa/fsl/HHHACS_HomeHealth.htm (last visited Oct. 25, 2002).

33 In 1997, free standing agencies represented seventy-three percent of all Medicare-certified home health providers. HHS: PROFILE, supra note 8, at 32. Medicare accounted for forty percent of total health revenues for freestanding agencies in the same year. Id.

34 See NAT’L ASSOC. FOR HOME CARE, WHO PROVIDES HOME CARE, at http://www.nahc.org/Consumer/wphc.html (last visited Jan. 30, 2003).

35 Id.

36 Id.

37 Id.

38 See infra notes 127-128 and accompanying text.

39 OIG: Community Beneficiaries, supra note 28, at 11.

40 Id.

41 Id. at 12.

42 HHS: PROFILE, supra note 8, at 6.

43 Fifty-four percent of patients find their home health agency through their doctor. The rest rely on family, friends and hospital discharge planners. Office of Inspector General, OEI-02-00-00560, Medicare Beneficiaries Experiences with Home Health Care 7 (July 2001) [hereinafter OIG: Experiences with Home Health Care].

44 Id.

45 Id.

46 Id. at i. Twenty percent of beneficiaries, however, believe they are not receiving all of the services they need. The OIG notes that Medicare does not cover some of the requested services. Id. at ii.

47 OIG: Community Beneficiaries, supra note 28, at ii & 3. Eighty-nine percent of discharge planners report that under the prospective payment system, they can place all of their Medicare patients who need care in home healthcare agencies. Id. However, the report does note that the number of beneficiaries served has decreased by twenty-two percent, and the average home healthcare length of stay has declined from ninety-eight days in 1997 to fifty-eight days in 1999. Id. at 2.

48 News Release, Report Confirms Medicare Cuts Hurting Frailest Home Care Patients (Jan. 18, 2000), available at http://www.nahc.org/NAHC/NewsInfo/00nr/medcutrpt.html (last visited Feb. 20, 2003) [hereinafter GWU Report News Release].

49 See id. For more information on the Balanced Budget Act, see infra Part II.D.

50 See GWU Report News Release, supra note 48.

51 See FURROW ET AL., supra note 8, at 686.

52 See infra text accompanying note 143.

53 42 U.S.C. § 1396a(a)(10)(D) (1992 & Supp. 2002).

54 CTRS. FOR MEDICAID & MEDICARE SERVICES, MEDICAID ELIGIBILITY, at http://cms.hhs.gov/medicaid/eligibility/criteria.asp (last visited Jan. 30, 2003) [hereinafter CMS: MEDICAID ELIGIBILITY].

55 NAT’L ASSOC. FOR HOME CARE, WHO PAYS FOR HOME CARE SERVICES?, available at http://www.nahc.org/Consumer/wpfhcs.html (last visited Jan. 30, 2003).

56 CMS: MEDICAID ELIGIBILITY, supra note 54.

57 Id.

58 OIG: Access, supra note 28, at 3. Between FY 1991 and 1997, Medicare home healthcare expenditures rose from $4.7 billion to $17.6 billion. In FY 1999, however, spending dropped to $8.7 billion. Id.

59 President George W. Bush's FY 2003 budget indicates a $780 million decrease in spending on home healthcare services. OFFICE OF MANAGEMENT & BUDGET, ANALYTICAL PERSPECTIVES: BUDGET OF THE UNITED STATES GOVERNMENT (2002), available at http://www.whitehouse.gov/omb/budget/fy2003/pdf/spec.pdf (last visited Jan. 30, 2003). Senator Collins (D-Me.) introduced legislation to eliminate the fifteen percent reduction in payment rates under the prospective payment system for home healthcare services and to permanently increase payments for such services that are furnished in rural areas. S. 326, 107th Cong. (2001).

60 Jennifer Steinhauer, Worker Shortage in Health Fields Worst in Decades, N.Y. TIMES, Dec. 25, 2000, at A1. Under the Interim Payment System, reimbursement reductions resulted in a forty-nine percent cut in home healthcare outlays with the expectation of continued further declines through 2002. Leon et al., supra note 3, at i.

61 Steinhauer, supra note 60.

62 Id.

63 The BBA required that a Prospective Payment System (PPS) be in place by October 1, 2000. From October 1, 1997 until the PPS was adopted, the BBA mandated an interim payment system (IPS) to limit payments. IPS subjected Medicare HHAs to a new payment limit that was based on an aggregate per-beneficiary amount. This limit was based on a blend of historical per-user costs for the agency and agencies in the region. It was applied to an agency's total Medicare payments and not to specific beneficiaries. Also, IPS decreased the per-visit limits from 112 percent the national mean cost per visit to 105 percent of the national median. Before the IPS was implemented, reimbursement was based on the cost of services to Medicare beneficiaries, “creating an incentive to provide more services than might be necessary.” OIG: Community Beneficiaries, supra note 28, at 2. “IPS provides incentives for agencies to limit the services provided within a given episode of care.” Id. at 3.

64 The prospective payment system, which became effective on October 1, 2001, mandates that home healthcare agencies will be paid a fixed amount for each patient for each sixty-day episode of care, adjusting for the severity of the patient's condition and geographic differences in wages. HHS: PROFILE, supra note 8, at 83.

65 GAO: Closures Continue, supra note 8, at 7. A recent study demonstrates, however, that reimbursements were actually reduced to 1993 levels. Leon et al., supra note 3, at i.

66 OIG: Community Beneficiaries, supra note 28, at 3.

67 Kapp, supra note 14, at 16.

68 Id. at 18.

69 15 U.S.C. § 1 (2000) (“Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared illegal.”).

70 See AREEDA, PHILIP & KAPLOW, LOUIS, ANTITRUST ANALYSIS 42 (5th ed. 1997)Google Scholar.

71 See McGowan, David, Innovation, Uncertainty, and Stability in Antitrust Law, 16 BERKELEY TECH. L.J., 729, 742–743 (2001)Google Scholar.

72 See id. at 743.

73 Marks, Randall, Labor and Antitrust: Striking a Balance without Balancing, 35 AM. U. L. REV. 699, 704 (1986)Google Scholar (“Ironically, the Sherman Act fared better against the relatively weak unions of the day than it did in challenges against large corporations.”).

74 208 U.S. 274 (1908). The Supreme Court held that the Sherman Act has “a broader application than the prohibition of restraints of trade unlawful at common law.” Id. at 297. It “prohibits any combination which essentially obstructs the free flow of commerce between the States, or restricts, in that regard, the liberty of a trader to engage in business” and this includes “restraints of trade aimed at compelling third parties and strangers involuntarily not to engage in the course of interstate trade except on conditions that the combination imposes.” Id. at 293-95.

75 Handler, Milton & Zifchak, William, Collective Bargaining and the Antitrust Laws: The Emasculation of the Labor Exemption, 81 COLUM. L. REV. 459, 469 (1981)Google Scholar.

76 15 U.S.C. § 17 (2000). The Act continues with:

Id.

77 Handler & Zifchak, supra note 75, at 469.

78 Id. at 471.

79 Id.

80 29 U.S.C. § 157 (2000).

81 NLRA sponsors argued that the labor unrest (strikes) of the 1930s were “burdens on interstate commerce caused by employers’ failure to bargain collectively.” Hansen, Drew D., Note, The Sit Down Strikes and the Switch in Time, 46 WAYNE L. REV. 49, 61 (2000)Google Scholar. Moreover, “by raising wages, collective bargaining would distribute purchasing power more evenly throughout the economy, stabilizing commerce and preventing depressions.” Id. at 62.

82 See NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 30-35 (1937) (holding that Congress could properly act to safeguard the employees’ right to self-organization and that the NLRA was a proper regulation of interstate commerce).

83 Since 1947, the definition of “employee” within section 2(3) has expressly excluded “any individual having the status of an independent contractor.” 29 U.S.C. § 152(3) (2000).

84 This theory has been advocated in favor of physician unionization. See Luepke, Ellen L., White Coat, Blue Collar: Physician Unionization and Managed Care, 8 ANNALS HEALTH L. 275, 291 (1999)Google Scholar (noting that “[a]ggressive physicians and union representatives disagree and challenge the notion that a physician whose practice is dominated and dictated by various managed care contracts is not an independent contractor … [but] a de facto employee of the MCO”). For our discussion, de facto employers would be state governments as the payors, or the home health agencies who contract out the home health workers.

85 317 U.S. 341 (1943).

86 Id. at 344-45.

87 Id. at 350 (“We may assume for present purposes that the California prorate program would violate the Sherman Act if it were organized and made effective solely by virtue of a contract, combination or conspiracy of private persons, individual or corporate.”).

88 Id. at 351 (“There is no suggestion of a purpose to restrain state action in the Act's legislative history.”).

89 Slater, Paul E., Antitrust and Government Action: A Formula for Narrowing Parker v. Brown, 69 NW. U. L. REV. 71, 71 n.4 (1974-75)Google Scholar (arguing that no doctrine of exemption was necessary for the Parker v. Brown ruling).

90 Wiley, John Shepard, A Capture Theory of Antitrust Federalism, 99 HARV. L. REV. 713, 746 n.153 (1986)Google Scholar. This state action was sanction by the Ninth Circuit in Bodine Produce, Inc. v. United Farm Workers Organizing Committee, 494 F.2d 541 (1974).

91 Parker, 317 U.S. at 350-351 (noting that Congress never intended that the Sherman Act “restrain a state or its officers or agents from activities directed by its legislature”) (emphasis added).

92 445 U.S. 97 (1980).

93 Id. at 105 (quoting City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 410 (1978)).

94 Id.

95 Perry, Mark A., Comment, Municipal Supervision and State Action Antitrust Immunity, 57 U. CHI. L. REV. 1413, 1418 (1990)Google Scholar.

96 Remis, Robin E., Health Care and the Federal Antitrust Laws: The Likelihood of a Harmonious Coexistence, 13 J. CONTEMP H. L. & POL’Y 113 (1996)Google Scholar.

97 In California, Oregon and Washington, the right to organize was secured through voterpassed ballot initiatives. See infra notes 98-113 and accompanying text.

98 The full text of the ballot initiative can be found at Washington State Legislature Web site, Initiative 775 (2001), available at http://www.leg.wa.gov/pub/billinfo/2001-02/initiatives/775-799/initiative_775.pdf (last visited Jan. 30, 2003) [hereinafter Initiative 775]. Among the benefits listed in the initiative, Washington voters instructed the newly created authority to “ensure that the quality of long-term in-home care services provided by individual providers is improved through better regulation, higher standards, increased accountability, and the enhanced ability to obtain services.” Id. § 1(6).

99 Roesler, Richard, Supporters Say I-775 Improves In-Home Care; Agency Would Oversee Workers, Who Would Be Allowed to Unionize, SPOKESMAN-REV., Oct. 31, 2001Google Scholar, at A1 (“The new agency would improve training, speed up background checks, recruit workers and maintain a registry so people could quickly find and hire an aide.”). The Authority is considered the “public employer” but “solely for the purposes of collective bargaining.” Initiative 775, supra note 98, at § 6(1).

100 Galloway, Angela, Home-Care Reform Plan, I-775, Is Union-Made, SEATTLE POSTINTELLIGENCER, Oct. 10, 2001Google Scholar, at B1.

101 Id.

102 Id.

103 Home Healthcare: Workers Unionize in Hopes of Winning Better Wages to Help Their Families, Clients Live at Home, MANAGEDHEALTHCARE.INFO, Sept. 30, 2002, at 11 [hereinafter MANAGEDHEALTHCARE.INFO].

104 Barnett, Erin Hoover, State Strives to Improve Home Care, THE OREGONIAN, Aug. 2, 2001, at D11Google Scholar.

105 Id. In December 2001, thousands of workers voted to join the Oregon Public Employees Union, and union officials said that Local 99 will begin negotiating a contract in early 2003. Out of more than 13,000 eligible workers covered by the decision, 4,668 voted for having the OPEU represent them, while 418 opposed the move. Dave Hogan, In-Home Care Workers Vote for Union Backing, THE OREGONIAN, Dec. 16, 2002, at C10.

106 Id.

107 The full text of the legislation to implement Measure 99 does not currently provide for any set funding; it merely creates the Home Care Commission. 2001 Or. Laws 901 (amending OR. REV. STAT. § 411.590). Only $300,000 was allocated to staff the Commission, build a registry, and implement training program for home healthcare providers. Barnett, supra note 104, at D11.

108 Cleeland, Nancy, California; Home-Care Workers Press Pay Demands; Labor: Hundreds Employed by Government March in L.A. for Raises and Health Insurance, L.A. TIMES, May 10, 2000Google Scholar, at C2.

109 Smith, Peggie R., Organizing the Unorganizable: Private Paid Household Workers and Approaches to Employee Representation, 79 N.C.L. REV. 45, 74–75 (2000)Google Scholar. Recently, the National Right to Work Foundation instituted a lawsuit against SEIU Local 434B (Los Angeles), alleging that up to 80,000 private home healthcare providers have been “arbitrarily” designated public employees and required to pay union dues. In 1999, the Personal Assistance Services Council, the county registry, was established to screen and unionize workers. The lawsuit alleges that no one took responsibility for training, screening or referring home healthcare aids before the registry was created. The Foundation maintains that even though they are paid by the state, the home healthcare workers are “independently hired, fired, supervised and trained by individual recipients of home care.” Alex Coolman, Labor Lawsuit, CITY NEWS SVC., Dec. 17, 2001.

110 Beneficiaries can also discharge workers without notice to the county. Service Employees Int’l Union v. County of L.A., Local 434, 275 Cal. Rptr. 508 (Cal. Ct. App. 1990).

111 CAL. WELF. & INST. CODE § 12302.25(a) (West 2001 & Supp. 2003). The law regards the public authorities as employers of record for home healthcare workers and subjects these agencies to federal and state labor laws. Id.

112 The legislation requires counties to create a public authority by 2003 with full powers to carry out the delivery of in-home services, including power to contract for in-home services. Employees of a public authority are not considered employees of the county for any purpose. 2002 Cal. Sess. Laws 1135 (West).

113 Smith, supra note 109, at 77.

114 The lack of evidence could be traced to the small amount of time unions have had to make headway on wages and training. In addition, the payment system of home healthcare services has been in flux since 1997 and has stabilized only recently under the prospective payment system that went into effect on October 1, 2001. In California, however, SEIU maintains that their efforts have resulted in a wage increase for in-home caregivers to $9 to $10 an hour, up from $5 to $6 an hour. Roesler, supra note 99, at A1. As discussed infra at Part IV.C, although there is little evidence to support the proposition that unionizing home healthcare will improve patient care, a number of tangible benefits to both workers and beneficiaries are associated with unions.

115 Messina, Judith, Home Aides’ Hopes Falter; Union Lags in Delivering Gains, CRAIN's N.Y. BUS., Apr. 16, 2001Google Scholar, at 3. Steven Dawson, President of Paraprofessional Healthcare Institute, maintains that SEIU Local 1199 has increased wages for unionized home healthcare attendants from $7 to $8 an hour, and workers now have family health insurance, a pension plan and annual wage increases. Dawson, Steven, Home-Attendant Sector Benefits from Union, THE TIMES UNION, May 14, 2002Google Scholar, at A10. In New York City, non-unionized home healthcare aides are paid $7 an hour, they have no health benefits and the sector suffers from high turnover rates. Id.

116 Messina, supra note 115.

117 Smith, supra note 109, at 46.

118 For a discussion on the function of independent contractors in today's labor law, see Linder, Marc, Employed or Self-Employed? The Role and Content of the Legal Distinction: Dependent and Independent Contractors in Recent U.S. Labor Law: An Ambiguous Dichotomy Rooted in Simulated Statutory Purposelessness, 21 COMP. LAB. L. & POL’Y J. 187 (1999)Google Scholar.

119 The SEIU began organizing California home healthcare workers in 1987. Rachael V. Cobb, NAT’L EMP. L. PROJ., Unionizing the Homecare Workers of Los Angeles County (1999), available at http://nelp.org/appendices/swi/a/cobb.pdf (last visited Jan. 30, 2003). In 1991, union organizers proposed a budget trailer allowing counties to establish public authorities as employers of record for home healthcare workers. Delp & Quan, supra note 12, at 9. At the time, Governor Pete Wilson opposed the measure and proposed budget cuts for home care. Id. As previously noted, all California counties are now required to establish a public authority as an employer of record. See supra note 112 and accompanying text.

120 The SEIU instituted grassroots organizing and political mobilization around day-to-day worker issues. Delp & Quan, supra note 12, at 5. With a forty percent turnover rate in California, this meant organizing and reorganizing just to maintain support. Id. at 6. SEIU local chapters utilized senior citizens’ centers, doctor's offices, markets and churches to recruit. Id.

121 Id.

122 Smith, supra note 109, at 77.

123 Id. at 78.

124 Id. at 81.

125 The Domestic Workers’ Industrial Union utilized a union-operated hiring hall. Id. at 82.

126 Id. (noting that most hiring halls operated under “closed-shop” agreements are now outlawed by the NLRA).

127 Silverstein & Goselin, supra note 24, at 36-37.

128 Id. at 37.

129 Id. at 38.

130 See id. at 51-52.

131 EMPLOYMENT POLICY FOUNDATION, FACT & FALLACY: UPDATING THE REASONS FOR UNION DECLINE, at http://www.epf.org/research/newsletters/1998/ff4-5.asp (May 1998).

132 Greenhouse, Steven, Unions Hit Lowest Point in 6 Decades, N.Y. TIMES, Jan. 21, 2001Google Scholar, at A20. The percentage decline would be even more dramatic if public sector unions, such as the American Federation of Government Employees or local teacher unions, were excluded from the calculation.

133 See Cobble, Dorothy Sue, Union Strategies for Organizing & Representing the New Service Workforce, IRRA 43RD ANNUAL PROCEEDINGS 76–83 (John Burton ed., 1990)Google Scholar.

134 Id.

135 Id.

136 Gottesman, Michael H., In Despair, Starting Over: Imagining a Labor Law for Unorganized Workers, 69 CHI.-KENT. L. REV. 59, 61 (1993)Google Scholar.

137 Id. at 62 (noting that employees do not opt in greater numbers for unionization today because they fear that route will jeopardize their job security).

138 Id. at 79.

139 Id.

140 Id. at 80. This would translate into home healthcare workers bargaining collectively for collective goods such as healthcare benefits, while retaining their independence in setting hours, etc.

141 Michael McMendamin, Labor Lost, Why the AFL-CIO's Cynical Survival Strategy Is Doomed, REASON, Nov. 2000, at 47, available at http://reason.com/0011/fe.mm.labor.shtml (last visited Jan. 30, 2003).

142 Id.

143 Id.

144 “In 1999, Connecticut's governor allocated $200 million for nursing home wages under the threat of a statewide strike.” Williams, Fred O., Strike Threat Looms for Many Nursing Homes Next April, THE BUFFALO NEWS, Apr. 8, 2002Google Scholar, at B7.

145 The SEIU staged a one-day strike on March 15, 2001 to urge a five to ten percent wage increase. Id. In March and May 2001, 4,000 nursing home workers went on strike. Budoff, Carrie & Julien, Andrew, State Violated Union's Rights; Judge Faults Payments to Nursing Homes, HARTFORD COURANT, Sept. 24, 2002Google Scholar, at A1.

146 Wilson, Michael, Judge Rules Against Rowland in 2001 Nursing Home Strike, N.Y. TIMES, Sept. 14, 2002, at B5Google Scholar.

147 Id.

148 See Budoff & Julien, supra note 145, at A1 (noting the governor's belief that it is good policy “to commit the state's resources to assure the welfare of the frail and elderly”).

149 Kapp, supra note 14, at 25. Kapp notes that these agencies have a vested interest in perpetuating traditional methods of financing and delivering long-term healthcare services. Id.

150 Silverstein & Goselin, supra note 24, at 42-43 (arguing that labor unions have more incentives than employers to make expenditures to improve the productivity of support staff).

151 Clark, Paul F. et al., Healthcare Reform and the Workplace Experience of Nurses: Implications for Patient Care and Union Organizing, 55 INDUS. & LAB. REL. REV. 133, 145 (2001)Google Scholar. However, this improvement in patient care is based only on nurses’ perceptions of care.

152 Id. at 144-145.

153 See supra note 16 and accompanying text.

154 DIRECT CARE ALLIANCE, INADEQUATE WAGES AND BENEFITS, at http://www.directcarealliance.org/sections/pubs/IssueBrief1.htm (last visited Jan. 30, 2003).

155 Id.

156 THE ASPEN INSTITUTE, DOMESTIC STRATEGY GROUP, DIRECT CARE HEALTH WORKERS: THE UNNECESSARY CRISIS IN LONG-TERM CARE 1, 9 at http://www.directcareclearinghouse.org/download/Aspen.pdf (last visited Jan. 30, 2003).

157 Id. at 10.

158 Interview with Catherine Sullivan, Policy Analyst, SEIU (April 2, 2002) (on file with author).

159 Id.

160 Id.

161 Id.

162 Marks, supra note 73, at 715.

Id.

163 McCarthy, Kelly, Health Care Workers Ready to Strike, NEWSDAY, Sept. 13, 2002, at A60Google Scholar.

164 Id. The strike was averted when the SEIU signed a new contract with Premier on behalf of home healthcare workers. Marshall, Randy, Home Health Aides Approve Contract, NEWSDAY, Sept. 19, 2002, at A48Google Scholar. Workers received a twenty percent increase in wages and benefits over the fifteenmonth contract. Id.

165 See supra note 122-124 and accompanying text.

166 Delp & Quan, supra note 12, at 11.

167 Id.

168 Janet Heinritz-Canterbury, Collaborating to Improve In-Home Supportive Services: Stakeholder Perspectives on Implementing California's Public Authorities, PARAPROFESSIONAL HEALTHCARE INST. (2001), at 11, available at http://www.paraprofessional.org/publications/CA%20PA%20Report.pdf (last visited Jan. 30, 2003).

169 Id. at 7. The traditional “contract” or “agency” mode is where a for-profit or non-profit agency receives IHSS funds and then hires and supervises workers. Delp & Quan, supra note 12, at 3. In the California model, consumers directly hire and supervise the workers, county social service workers determine eligibility for services, and IHSS issues the paychecks. Id. California law mandates consumer-majority advisory committees for public authorities. Heinritz-Canterbury, supra note 168, at 17.

170 Heinritz-Canterbury, supra note 168, at 16.

171 See id. at 20 (“Now the union is doing training [of workers] and this helps improve quality of care.”).

172 Delp & Quan, supra note 12, at 12.

173 Id. As previously noted, Washington home healthcare workers are not permitted to strike, alleviating a major consumer concern.

174 Questions also arise as to the process of integrating home healthcare workers and their issues into the union. Id. at 16. In some counties, home healthcare workers are the vast majority of local unions; in other counties they represent a minority. Id. Workers are expected to spend thirty percent of their budget on organizing, limiting the resources available for lobbying increases in wage levels and Medicare reimbursements. See id. at 1.

175 In addition, American workers are reluctant to turn over a portion of their salary to a third party representative. USLAW.COM, EMPLOYEE LAWSUITS: DECLINE OF UNIONS, at http://www.uslaw.com/library/article/carelxUnionDecline.html?area_id=43 (last visited Jan. 30, 2003).

176 MANAGEDHEALTHCARE.INFO, supra note 103, at 11.

177 Id.

178 Who Cares for the Caregivers?, supra note 1.

179 Id.

180 Cleeland, Nancy & Riccardi, Nicholas, Labor: State & Local Officials Blame Each Other for Failing to Help Improve Workers’ Wages, Benefits, L.A. TIMES, Mar. 14, 2000, at A1Google Scholar.

181 Id.

182 For instance, in 2000, San Francisco workers were paid $9 per hour and provided medical and dental insurance. Id.

183 Currently, state law in California requires counties to pay the entire cost of any wage increase or benefits for home healthcare providers. QUALITY HOMECARE 2000, CALIFORNIA's INHOME SUPPORT SERVICES HISTORY, at http://www.calhomecare.org/background.html (last visited Jan. 30, 2003).

184 Cleeland & Riccardi, supra note 180.

185 Remarkably, when the SEIU began union organization efforts in California in 1987, home healthcare workers were paid a mere $3.72 per hour. Delp & Quan, supra note 12, at 6.

186 Cleeland & Riccardi, supra note 180.

187 See id.; see also supra text accompanying note 83.

188 Silverstein & Goselin, supra note 24, at 23-24.

189 In New York, unions organize within non-profit agencies that have contracts with the state to provide personal healthcare under Medicaid. Messina, supra note 115, at 3. The SEIU has been able to increase wages for home attendants (less skilled than home healthcare workers) to $7.44, up from $4.15 in 1988, and secure insurance, pension, sick time and vacation. Id. The non-profit agencies have resisted instituting higher wages for home healthcare workers until the union secures higher Medicaid reimbursements from the state. Id.

190 See supra notes 16, 153 and accompanying text.