Harris vs. Quinn, and its Impact on Individuals with Disabilities

 February 20, 2014
Posted by M&LAdmin4

Thursday, February 20th, 2014

Here at M&L Special Needs Planning, LLC, we are staunch advocates of the individual with disabilities’ right to independence. In fact, our latest housing development endeavors are intended to help individuals with disabilities obtain the highest level of independent living possible, while providing the supports necessary to help those individuals build healthy, fulfilling adult lives.

In the United States, one of the supports necessary to the independence of individuals with disabilities is the Consumer Directed Personal Assistance Services Program (CDPAP).  This program, which was thirty years in the making, is intended to fill the gap between the decision making capabilities of individuals with disabilities and their physical ability to carry out these decisions. As a Medicaid program, the CDPAP provides individuals with the financial ability to recruit, hire, train, and (if necessary) fire, personal assistants to perform the tasks that they themselves are unable to perform. According to a proponent of the program, Samuel. R. Bagenstos, “This arrangement promotes independence, enables people with disabilities to live as a part of–not apart from–the community, and helps preserve scarce state Medicaid budgets.[i]

Lately, a Supreme Court Case that threatens this program has come to light in the media – Harris vs. Quinn. The case itself relates to the employer/employee relationship between the individuals with disabilities and their hired assistants, and the collective bargaining rights of these assistants. Essentially, according to a Supreme Court Precedent, the State can force public workers to submit to an exclusive representative for collective bargaining, i.e. unionize. These individuals would only be considered a part of a union in regards to collective bargaining, however they would still be required to pay the union dues. This precedent is challenged under the grounds that these individuals are not hired, trained, supervised or fired by the state; in fact, the consumer (or the individual with a disability) is responsible for those tasks – as well, the assistants or the homecare workers would be paying for speech with which they do not necessarily agree, i.e. a violation of the first amendment. (For a more detailed analysis of this case, please visit Harris vs. Quinn: An End to the Forced Unionization of Home Care Workers? )

According to Bagenstos, who published a blog on the Huffington Post website about the case, Harris vs. Quinn has the potential to devastate a program which is extremely beneficial to Americans with disabilities. He argues that if the court rejects the precedent, states would be put to a choice; “They could continue providing personal assistants with effective collective bargaining rights, but they would then have to abandon the principle of consumer control over hiring, firing, and day-to-day supervision. Alternatively, they could abandon collective bargaining and simply treat personal-assistance workers for all purposes as employees of the individual consumers they serve, but they would then have to abandon collective bargaining over wages and benefits–bargaining that has proven to reduce turnover in the personal-assistance workforce.[ii]

Harris vs. Quinn was first brought before the courts in 2011, and oral arguments in the case were heard January 21st of this year. A ruling is expected by late spring of 2014.

Despite which side of the case you personally come down on, there is no doubt that individuals with disabilities benefit from the ability to hire, train, and fire their personal assistants. It is this aspect of the program that allow these individuals to ensure that their personal assistants can be relied on, and to exercise autonomy over their own lives and future.  We feel that to threaten this autonomy is to take a step back from the fight for independence and rights of individuals with disabilities, certainly a step in the wrong direction. What do you think?

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Thanks so much for dropping by our blog today! We hope that you have found this blog as interesting as we did – here at M&L we feel it is incredibly important to stay on top of all legal issues that could potentially affect individuals with disabilities in the United States, and Harris vs. Quinn is an excellent example of how a relatively unknown legal proceeding could have vast, far reaching effects on our clients, family and friends.

If you would like more information on how to help your loved one with a disability live with increased independence, independent housing for individuals with disabilities, or any other issue related to special needs financial and life planning please do not hesitate to contact us, check our services page, or read more of our informative weekly blogs.

From all of us here at M&L, have a great Thursday!


[i] http://www.huffingtonpost.com/samuel-r-bagenstos/a-supreme-court-case-thre_b_4636642.html

[ii] http://www.huffingtonpost.com/samuel-r-bagenstos/a-supreme-court-case-thre_b_4636642.html

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2 comments

  1. |

    Many of us in the disability-rights community strongly disagree with Bagenstos. Forced unionization threatens the right of employers with disabilities to control the relationship with their personal care attendants by introducing a rival third party into the intimate relationship. The disability community has fought against PCA unionization in Connecticut ( http://www.pcaunioninfo.com/connecticut.html ), Pennsylvania, and Montana.

    Regarding Harris v. Quinn: http://www.pcaunioninfo.com/harris-v-quinn.html

    Facts and Refutation of SEIU Claims

    Through these forced unionization schemes, SEIU and AFSCME have looted over $100 million dollars per year—roughly $60 million per year in California alone—in union dues and fees from Medicaid waiver programs intended to enable people with disabilities to live independently and stay out of institutions.

    Unionization can endanger the ability of people with disabilities to live independently and stay out of nursing homes and other institutions. SEIU, along with a number of “disability-rights” organizations which receive large amounts of money from the union, is claiming that if Pam Harris and the other petitioners are successful, that attendant care for people with disabilities will be harmed and people who now live independently will wind up institutionalized. Exactly the opposite is true. E-mails between the Connecticut Department of Social Services and Governor Dannel Malloy’s office uncovered through a Freedom of Information Act request demonstrate that by adding to the cost structure of attendant care, unionization often leads to employers with disabilities exceeding caps placed on cost of services which can result in either not enough hours of care or people being forced off the Medicaid waivers and into nursing homes.

    Unionization is vigorously opposed by people with disabilities who employ PCAs, not just parents who care for their children on these Medicaid waivers. In their amicus supporting their SEIU benefactors, the previously referenced “disability rights” organizations claim that Harris v. Quinn is about people with disabilities who support unionization against parents “who are understandably paternalistic toward their (disabled or nondisabled) adult children.” This insulting claim runs totally counter to the strenuous efforts by people with disabilities and their PCAs against forced unionization in several states, including Connecticut, Pennsylvania, and Montana. Recently, ADAPT publicly burnt its “Guiding Principles” agreement it had previously made with SEIU outside of the union’s headquarters after both SEIU and AFSCME lobbied for labor rules that would threaten to “require seniors and people with disabilities to bring strangers into their homes, force others into institutions, and reduce the take home pay of attendants.”

    Union “representation” interferes with the independent living model by putting an intrusive third party in the middle of the intimate relationship between an employer with a disability and his or her caregivers. It frequently winds up making the lives of both PCAs and their employers with disabilities harder. This is particularly true with regard to union-promoted training requirements. For example, in Washington, SEIU has sponsored two ballot measures requiring PCAs to get 75-hours of one-size-fits-all training. A major problem with centralized training is that attendant care is highly individualized and each person with a disability has unique needs and idiosyncrasies. One person may require deep suctioning, while another may need assisted cough, and the difference can be a matter of life and death. The employer with the disability needs to have exclusive control over training and should not be burdened with the task of un-training and re-training a mis-trained attendant. SEIU has proposed a similar 75-hour forced training ballot measure in California, and the disability community is organizing in opposition.

    Indeed, a solid case can be made that the forced unionization of PCAs violates the Americans with Disabilities Act. While this argument is not being made in Harris v. Quinn, it has been included in at least one other case against forced unionization. By taking away full employer status from employers with disabilities who hire PCAs and turning these PCAs into state employees for the ostensible purpose of collective bargaining, these unionization laws and executive orders discriminate against employers with disabilities. No other similarly situated employers have their right to control their employment relationships so compromised by our laws. And to the extent that that unionization endangers the right of people with disabilities to live independently and not be forced into institutions, it violates the Supreme Court’s decision in Olmsted v. L.C., which interpreted the ADA as requiring that people with disabilities be offered to live in the least restrictive setting.

  2. Pam Harris
    |

    With all due respect, this is not accurate. There are additional facts your readers should know. I am Pam Harris, Lead Plaintiff in Harris v Quinn. I am our son Josh’s paid personal support worker. Josh is 25 and has Rubinstein-Taybi syndrome, Eosinophilic Esophagitis and psychiatric disorders. His needs are complex and changing.

    Josh participates in the IL Home -Based waiver for adults with significant disabilities. The waiver is capped in the Social Security Act and in IL legislation. There is no additional funding. Any money deducted with be directly taken from the waiver participants.

    75% of the 5,000 waiver participants choose a parent as their paid care provider.

    Our Governor decided to name us state employees for the SOLE purpose of unionization. This is a capped waiver. There is nothing the union can negotiate. Parents, like me, do not want our homes to become a union workplace. We do not want a union contract between us and our adult son or daughter.

    Mr, BagenStos is WRONG. Harris v Quinn WILL NOT AND DOES NOT HAVE “the potential to devastate” Consumer directed personal support services. This is purely a scare tactic to block people from seeing what is really at the heart of Harris v Quinn.

    Please, the Plaintiffs of Harris v Quinn are moms who are fighting to protect the supports and services our disabled adult sons and daughters need.

    We are devastated that Mr. Bagenstos is trying to convince our disability community to take a stand against us. The amicus brief he wrote was humiliating to every parent who provides care for their adult son or daughter.

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