When Maine voters head to the polls Nov. 6, they will be asked if they want to support a citizen’s initiative that sets up a new social service and taxation program to support those who work with elderly and disabled Mainers who want to remain in their homes.

Question 1 seeks to set up a program to pay a living wage to these workers, and to ensure the adults for whom they care receive adequate in-home services. Proponents of the measure say home care aides are chronically underpaid, making an average hourly wage according to state labor statistics of $12.61 an hour. This program would also include in-home nutritionists, therapists, those who make home repairs, and those providing transportation, among others.

At the same time, say proponents, the state's elderly population of is increasing dramatically, to 28 percent of the total population by 2030 – higher than any other state. A Muskie School of Public Service analysis estimates 27,000 Mainers who do not currently get services would be eligible for them under the proposal. Question 1 has no income qualifiers, so people up and down the economic spectrum would be able to receive services.

But the funding mechanism as well as other stipulations in the proposal's language have created a lot of questions and mounting opposition to the measure. Funds would come, according to the language in question itself, from “a new 3.8 percent tax on individuals and families with Maine wages and adjusted gross income above the amount subject to Social Security taxes.” In 2018, that amount is $128,400.

Opponents of Question 1 call the proposal a “scam” and say it is going to set up a taxation and regulatory mess that may even be unconstitutional. “Once Maine people realize what’s behind all the platitudes, I’m confident they are going to reject this,” said Newell Augur, chairman of the NO on Question 1 campaign and a lobbyist for the nonprofit Home Care & Hospice Alliance of Maine.

Opponent organizations, in addition to Augur’s group, include the Maine State Chamber of Commerce and Maine Hospital Association, and contributors include the Maine Bankers Association and Maine Association of Realtors.

The four candidates running for governor also oppose Question 1. Locally, six candidates for Maine House and Senate in the Herald readership area, both Democrat and Republican, also oppose it, with one supporting, one undecided and one not stating a position.

But Mike Tipping of Mainers for Homecare, the ballot question committee formed to support the measure, said Question 1 opponents are muddying waters purposely. This measure is meant to level the playing field between the haves and have nots, he said. It levies a tax on those wealthiest Mainers, which in turn helps low-wage earners, as well as the elderly and disabled, by providing in-home care.

“I’ve never worked on an issue that has so much emotional resonance,” said Tipping. “This is helping people stay in their homes, so they don’t have to be forced to go into nursing homes. And children won’t be forced to give up their jobs to care for their parents.” Moreover, home care workers particularly in more rural parts of Maine will be “able to earn a decent wage so they can feed their families and live with dignity.”

More than 40 organizations support Question 1, including the Maine Council of Churches, Maine Education Association, Service Employees International Union, and the Open Society Policy Center, a lobbying organization established by billionaire philanthropist George Soros.

Major concerns with the question center on primarily three issues: the taxation mechanism, the functions of the board and possible privacy implications.

Taxation

The initiative's intent, said Tipping, is to tax only individuals who earn $128,400 or greater through wages and other income, and that intent, according to an analysis by the Maine attorney general’s office, “is expressed in some of the language and structure of the bill.”

For wage income, the tax would be split evenly between employer and employee. All other income such as capital gains, income from rentals, etc. are taxed at the full 3.8 percent. A board made up of industry representatives and home care recipients would expend the funds collected.

However, the bill also refers to Maine Adjusted Gross Income in several places – thus opening up the interpretation that the $128,400 threshold is met not just by individuals but by married couples filing jointly “even if each individual’s wage and non-wage income fell below the threshold,” the attorney general’s office stated.

In its analyses, the Maine Revenue Service concluded the measure would include married couples filing jointly – considered an individual for the purpose of filing taxes. The Mainers for Homecare website reckoned the tax would raise $180 million, but the MRS states the amount raised would actually be $310 million – due to the fact married couples would be added to the mix.

After this analysis came out, Secretary of State Matthew Dunlap added the words “and families” to Question 1.

Amanda Rector, Maine state economist, in her report concurs with the MRS, and said that projected population in the state would decrease slightly as a result of passage of the law, as a percentage of high-income Mainers could leave the state due to the tax being levied.

Tipping said he is not surprised the MRS and state economist would come up with such an analysis, as they work under the administration of Gov. Paul LePage, a vocal opponent of this measure. The bill's intent, he said, is intended to zero in on individuals, not married couples, “and we’re happy to stipulate to that” if there is any ambiguity issues raised.

“It is not the intent of the law to include married couples, and we would be sure that it would not be implemented that way," he said. "The intent is very clear. I can’t describe how insane it is that people are arguing in bad faith about this.”

Tipping points to a Maine Center for Economic Policy analysis of the measure that states “when the language of a law is ambiguous, courts are often brought in to clarify how the law should be implemented. In the presence of conflicting language, courts typically defer to legislative intent to reach a conclusion about implementation.”

Augur does not buy it. “Unfortunately, their intentions are meaningless,” he said. “What matters is the language of the bill and the language says taxpayer, and spouses filing jointly are considered a taxpayer. They can talk about intentions all day long. The fact is that a cop with 15 or 20 years on the force and with overtime, and a teacher who has been teaching for 15 to 20 years who file jointly are going meet this threshold.”

Administering the fund

The money raised from the measure would be placed in a Universal Home Care Trust Fund, and a nine-member board would be responsible for designing the program of services and overseeing its administration. An initial board would be appointed by state officials, but only serve for one year. Subsequent boards would be elected by and comprised of people from personal care agencies, individual providers and service recipients.

Retired Chief Justice Daniel Wathen, in a statement written at the request of the Maine State Chamber of Commerce, quoted a 1984 attorney general opinion that states private entities “engaged in a governmental function” is unconstitutional. “In effect, (the provisions in Question 1) would result in nine privately elected persons from within the home health care industry controlling a $310 million public project with no one being held accountable to the citizens.”

But Tipping said there are a number of independent boards who receive taxpayer funding, including the Maine Potato Board, made up of industry representatives. About half of its funding comes from a self-imposed marketing tax that each grower pays. “If they can raise taxes on potatoes, I would argue that we can raise taxes on the wealthy to give to the elderly,” he said. He added the measure has a provision requiring the board submit a report to the Legislature annually, as well.

Privacy issues

Both Wathen and health care attorney Kathleen Healy with Verrill Dana are concerned about privacy issues related to the election of board members. Question 1 states the board is to receive a list of “all persons eligible to vote within the constituent categories, including names, addresses and email addresses. The board shall ensure that these lists are used solely for the purpose of providing information relating to the board election and for mailing or emailing ballots.”

Healy said in her opinion this type of disclosure would violate federal medical privacy law because “campaigning for elections” is not an exception to disclosure of patient information under HIPAA. She was concerned information about elderly and disabled Mainers would be used without their knowledge or permission.

Tipping called this another smokescreen, saying there are numerous privacy protections built into the referendum that “go well beyond the HIPAA protections.”

He refers to a statement by Judith Lichtman of the National Partnership for Women and Families. “As a lawyer who helped develop the privacy protections” in HIPAA, “I believe this important initiative protects the privacy and dignity of seniors and Mainers with disabilities.”

Tipping said the opposition is making a concerted effort to nitpick Question 1 and raise alarms that don’t exist because it is among the wealthy elite of the state.

“The banking industry, the Chamber of Commerce, they’ve given hundreds of thousands of dollars to defeat this. And it’s because they don’t want to pay more in taxes," he said. “Opponents are going to throw out distractions, but it’s a simple issue – making sure we care for seniors and making sure the wealthy pay just a little bit more."

Augur says his concerns come directly from the wording in the referendum language itself, and based on that he thinks Question 1 is “bad for our economy, bad for seniors, bad for individual homecare workers and just plain bad government.”