HF 844

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 03/13/2013 07:08pm

A bill for an act
relating to home and community-based long-term care services; creating the
Quality Self-Directed Services Workforce Council; regulating individual
providers of direct support services; proposing coding for new law in Minnesota
Statutes, chapters 179A; 256B.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

new text begin [179A.54] INDIVIDUAL PROVIDERS OF DIRECT SUPPORT
SERVICES.
new text end

new text begin Subdivision 1. new text end

new text begin Definitions. new text end

new text begin (a) For the purposes of this section:
new text end

new text begin (b) "Direct support services" has the meaning given to it under section 256B.0711,
subdivision 2, paragraph (d).
new text end

new text begin (c) "Individual provider" has the meaning given to it under section 256B.0711,
subdivision 2, paragraph (e).
new text end

new text begin (d) "Participant" has the meaning given to it under section 256B.0711, subdivision 2,
paragraph (f).
new text end

new text begin (e) "Participant's representative" has the meaning given to it under section
256B.0711, subdivision 2, paragraph (g).
new text end

new text begin Subd. 2. new text end

new text begin Rights of individual providers and participants. new text end

new text begin (a) Only for the
purposes of meeting and negotiating on topics specified in paragraph (c) individual
providers shall be considered, by virtue of this section, executive branch state employees
employed by the commissioner of management and budget or the commissioner's
representative. This section does not require the treatment of individual providers
as public employees for any other purpose. Chapter 179A shall apply to individual
providers except as otherwise provided in this section. Notwithstanding section 179A.03,
subdivision 14, paragraph (a), clause (5), chapter 179A shall apply to individual providers
regardless of part-time or full-time employment status.
new text end

new text begin (b) With regard to the application of chapter 179A to individual providers:
new text end

new text begin (1) if an exclusive representative is certified pursuant to this subdivision, the mutual
rights and obligations of the state and an exclusive representative of individual providers
to meet and negotiate regarding terms and conditions shall extend only to the subjects
covered under paragraph (c);
new text end

new text begin (2) no provision of any agreement reached between the state and any exclusive
representative of individual providers, nor any arbitration award, shall interfere with the
rights of participants or participants' representatives to select, hire, direct, supervise, and
terminate the employment of their individual providers; to manage an individual service
budget regarding the amounts and types of authorized goods or services received; or to
receive direct support services from individual providers not referred to them through a
state registry;
new text end

new text begin (3) any interest arbitration award or agreement reached between the state and the
exclusive representative of individual providers under chapter 179A shall be submitted to
the legislature to be accepted or rejected in accordance with sections 3.855 and 179A.22,
and is subject to section 179A.20, subdivisions 2 and 5;
new text end

new text begin (4) individual providers shall be subject to the prohibition on strikes applied to
essential employees under section 179A.18, and to the interest arbitration procedures
applied to essential employees under section 179A.16;
new text end

new text begin (5) the only appropriate unit for individual providers shall be a statewide unit of all
individual providers. Individual providers who are related to their participant or their
participant's representative shall not for such reason be excluded from the appropriate unit;
new text end

new text begin (6) beginning July 1, 2013, upon a showing made to the commissioner of the
Bureau of Mediation Services by any employee organization wishing to represent the
appropriate unit of individual providers that at least 500 individual providers support such
representation, the commissioner of human services shall provide to such organization
within seven days the most recent list of individual providers compiled under section
256B.0711, subdivision 6, paragraph (g), and subsequent monthly lists upon request
for an additional three months;
new text end

new text begin (7) beginning August 1, 2013, any employee organization wishing to represent
the appropriate unit of individual providers may seek exclusive representative status
pursuant to section 179A.12. Representation elections for individual providers shall
be conducted by mail ballot, and such election shall be conducted upon an appropriate
petition stating that at least ten percent of the unit wishes to be represented by the
petitioner. The individual providers eligible to vote in any such election shall be those
individual providers on the monthly list of individual providers compiled under section
256B.0711, subdivision 6, paragraph (g), most recently preceding the filing of the election
petition. Except as otherwise provided, elections under this clause shall be conducted
in accordance with section 179A.12; and
new text end

new text begin (8) any fees otherwise required under section 179A.06, subdivision 3, shall not
commence prior to ratification of an agreement under section 179A.22. This clause does
not limit the availability of voluntary dues checkoff under section 179A.06, subdivision 6.
new text end

new text begin (c) The state shall meet and negotiate with the exclusive representative on the
following issues:
new text end

new text begin (1) compensation rates and payment terms and practices;
new text end

new text begin (2) fringe benefits, including severance payments, but not retirement contributions
or benefits and not other benefits to be paid by the state when a person no longer intends to
be an individual provider;
new text end

new text begin (3) grievance procedures regarding matters in clauses (1) and (2);
new text end

new text begin (4) establishing a system for funding training; and
new text end

new text begin (5) required orientation programs for all newly hired individual providers regarding
their employment within the covered programs through which they provide services.
new text end

Sec. 2.

new text begin [256B.0711] QUALITY SELF-DIRECTED SERVICES WORKFORCE.
new text end

new text begin Subdivision 1. new text end

new text begin Findings and purpose. new text end

new text begin (a) The state of Minnesota has long been a
leader in providing cost-effective and participant-preferred home and community-based
services as an alternative to skilled nursing facility care for seniors and people with
disabilities, and has a history of making improvements to strengthen this system. The
state faces increasing demand for such services and a workforce able to provide them,
due to changing demographics.
new text end

new text begin (b) The state of Minnesota faces numerous obstacles to meeting this demand,
namely the staffing shortages and high turnover rates that characterize the workforce
available to provide such services, a growing issue throughout the country. For these
reasons, expanding access to such services, including opportunities for participants to
select and direct individual providers of such services, will require the state to develop
the infrastructure for recruiting and retaining a workforce of qualified individual service
providers sufficient to meet the growing demand for such participant-directed services.
new text end

new text begin (c) The legislature enacts this section to address these issues by ensuring the
development and maintenance of a stable, reliable, and experienced workforce of
sufficient size to provide high-quality services to all seniors and people with disabilities
who are authorized to receive such in-home services within state-financed programs, and
by ensuring that such persons have the opportunity to select and direct members of that
workforce as individual providers of such services.
new text end

new text begin Subd. 2. new text end

new text begin Definitions. new text end

new text begin (a) For purposes of this section:
new text end

new text begin (b) "Commissioner" means the commissioner of human services unless the context
indicates otherwise.
new text end

new text begin (c) "Covered program" means a program to provide direct support services funded in
whole or in part by the state of Minnesota, including the Community First Services and
Supports program; Consumer Directed Community Supports services and extended state
plan personal care assistance services available under programs established pursuant to
home and community-based service waivers authorized under section 1915(c) of the
Social Security Act, and under the alternative care program, as offered pursuant to section
256B.0913, as modified by subdivision 5; the personal care assistance choice program, as
established pursuant to section 256B.0659, subdivisions 18 to 20, and as modified by this
section; and any similar program that may provide such services.
new text end

new text begin (d) "Direct support services" means personal care assistance services covered by
medical assistance under section 256B.0625, subdivisions 19a and 19c; assistance with
activities of daily living as defined in section 256B.0659, subdivision 1, paragraph (b),
and instrumental activities of daily living as defined in section 256B.0659, subdivision 1,
paragraph (i); and other similar, in-home, nonprofessional long-term services and supports
provided to an elderly person or person with a disability to meet such person's daily
living needs and ensure that such person may adequately function in the person's home
and have safe access to the community.
new text end

new text begin (e) "Individual provider" means an individual selected by and working under the
direction of a participant in a covered program, or a participant's representative, to provide
direct support services to the participant, and does not include an individual from an
employee workforce assembled, directed, and controlled by a provider agency.
new text end

new text begin (f) "Participant" means a person who receives direct support services through
a covered program.
new text end

new text begin (g) "Participant's representative" means a participant's legal guardian or an individual
having the authority and responsibility to act on behalf of a participant with respect to the
provision of direct support services through a covered program.
new text end

new text begin Subd. 3. new text end

new text begin Quality Self-Directed Services Workforce Council established. new text end

new text begin (a)
There is established the Quality Self-Directed Services Workforce Council to ensure the
quality and availability of individual providers to be selected by and work under the
direction of participants to provide direct support services.
new text end

new text begin (b) The council shall be composed of the commissioner of human services or
designee, who shall serve as chair, and the following members, who shall be appointed by
the governor:
new text end

new text begin (1) six current or former recipients of direct support services;
new text end

new text begin (2) one legal guardian or legal representative of a current or former recipient of
direct support services; and
new text end

new text begin (3) one member of the State Council on Disability, under section 256.482, one
member of the Governor's Council on Developmental Disabilities, and one member of the
Minnesota Board on Aging, under section 256.975.
new text end

new text begin (c) All appointments to the council shall be made as provided in section 15.0597.
Membership terms, compensation and removal of members, and filling of vacancies are
as provided in section 15.0575. A majority of the members appointed and serving shall
constitute a quorum for the transaction of any business.
new text end

new text begin Subd. 4. new text end

new text begin Duties of council. new text end

new text begin The council, in consultation with the commissioner, has
the following ongoing advisory duties and responsibilities relating to ensuring the quality,
stability, and availability of the individual provider workforce:
new text end

new text begin (1) assess the size, quality, and stability of the individual provider workforce in
Minnesota and the ability of the existing workforce to meet the growing and changing
needs of both elderly participants and participants with disabilities;
new text end

new text begin (2) assess and propose strategies to identify, recruit, and retain prospective individual
providers to be available for employment by participants or participants' representatives;
new text end

new text begin (3) advise the commissioner regarding the development of orientation programs,
training and educational opportunities, and the maintenance of one or more public
registries as described in subdivision 6;
new text end

new text begin (4) advise the commissioner and other relevant state agencies in assessing existing
mechanisms for preventing abuse and neglect of participants and recommending
improvements to those protections;
new text end

new text begin (5) advise the commissioner in determining standards for compensation, including
benefits, and other conditions of employment for individual providers sufficient to attract
and maintain a qualified workforce; and
new text end

new text begin (6) otherwise advise and advocate regarding appropriate means of expanding access
to quality, self-directed direct support services.
new text end

new text begin Subd. 5. new text end

new text begin Operation of covered programs. new text end

new text begin (a) All covered programs shall operate
consistent with this section, including by providing such services through individual
providers as defined in subdivision 2, paragraph (e), notwithstanding any inconsistent
provisions of section 256B.0659 or section 256B.04, subdivision 16.
new text end

new text begin (b) This requirement shall not restrict the state's ability to offer to those participants
who choose not to self-direct a direct support worker or are unable to do so the alternative
of receiving similar services from the employee workforce assembled, directed, and
controlled by a provider agency.
new text end

new text begin Subd. 6. new text end

new text begin Duties of the Department of Human Services. new text end

new text begin (a) The commissioner
shall afford to all participants within a covered program the option of employing an
individual provider to provide direct support services.
new text end

new text begin (b) The commissioner shall ensure that all employment of individual providers is
in conformity with this section.
new text end

new text begin (c) The commissioner shall, in consultation with the council:
new text end

new text begin (1) establish compensation rates, payment terms and practices, and any benefit
terms, for all individual providers;
new text end

new text begin (2) provide for required orientation programs for all newly hired individual providers
regarding their employment within the covered programs through which they provide
services;
new text end

new text begin (3) provide for relevant training and educational opportunities for individual
providers, as well as for participants and participants' representatives who receive services
from individual providers, including opportunities for individual providers to obtain
certification documenting additional training and experience in areas of specialization;
new text end

new text begin (4) provide for the maintenance of one or more public registries to:
new text end

new text begin (i) provide routine, emergency, and respite referrals of qualified individual providers
to participants and participants' representatives;
new text end

new text begin (ii) enable participants and participants' representatives to gain improved access
to, and choice among, prospective individual providers, including by having access
to information about individual providers' training, educational background, work
experience, and availability for hire; and
new text end

new text begin (iii) provide for appropriate employment opportunities for individual providers and a
means by which they may more easily remain available to provide services to participants
within covered programs; and
new text end

new text begin (5) establish other appropriate terms and conditions of employment governing the
workforce of individual providers.
new text end

new text begin (d) The commissioner shall ensure that appropriate background checks are performed
on all individual providers included on any registry as described in paragraph (c), clause (4).
new text end

new text begin (e) The commissioner's authority regarding topics specified in section 179A.54,
subdivision 2, paragraph (c), is subject to the duty to meet and negotiate with an exclusive
representative over those topics, and is subject to any contracts entered into covering
topics specified in section 179A.54, subdivision 2, paragraph (c).
new text end

new text begin (f) The commissioner shall cooperate in the implementation of this act with the
commissioner of management and budget in the same manner as would be required of
an appointing authority under section 179A.22 with respect to any negotiations between
the executive branch of the state and the exclusive representative of individual providers,
as authorized under sections 179A.22 and 179A.54, regarding topics specified in section
179A.54, subdivision 2, paragraph (c). Any entity, including financial management
entities, contracting with the state to provide support to participants or participants'
representatives with regard to the employment of individual providers, shall assist and
cooperate with the council and commissioner of human services in the operations of this
section, including with respect to the commissioner's compiling and maintaining the list of
individual providers required under paragraph (g).
new text end

new text begin (g) The commissioner shall, not later than July 1, 2013, and then monthly thereafter,
compile and maintain a list of the names and addresses of all individual providers who
have been paid for providing direct support services to participants within the previous
six months. The list shall not include the name of any participant, or indicate that an
individual provider is a relative of a participant or has the same address as a participant.
The commissioner shall share the lists with the Quality Self-Directed Services Workforce
Council and with others as needed for the state to meet its obligations under chapter 179A
as modified and made applicable to individual providers under section 179A.54, and to
facilitate the representational processes under section 179A.54, subdivision 2, paragraph
(b), clauses (6) and (7).
new text end

new text begin (h) The commissioner shall immediately commence all necessary steps to ensure
that services offered under all covered programs are offered in conformity with this
section to complete any required modifications to currently operating covered programs
by September 1, 2013.
new text end

Sec. 3. new text begin EFFECTIVE DATE.
new text end

new text begin This act is effective the day following final enactment.
new text end