HF 844

as introduced - 88th Legislature (2013 - 2014) Posted on 02/22/2013 01:57pm

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

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

Section 1.

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 For purposes of this section:
new text end

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

new text begin (b) "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; the Consumer Directed Community Supports service 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 of this section; 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
be established in the future to provide such services.
new text end

new text begin (c) "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 his or her home
and have safe access to the community.
new text end

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

new text begin (f) "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, 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; and
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new text begin (2) one member of the State Council on Disability, as created by section 256.482,
and one member of the Minnesota Board on Aging, as created by 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;
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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;
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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 (d), 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;
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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;
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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;
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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 has authority over terms and conditions of individual
providers' employment, including compensation, payment, and benefit terms, employment
opportunities within covered programs, individual provider orientation, training, and
education opportunities, and the operation of public registries, which shall be subject to
the state's bargaining obligations under chapter 179A, as made applicable to individual
providers by this section, and to agreements with any exclusive representative of
individual providers, as authorized by chapter 179A, as made applicable to individual
providers by this section.
new text end

new text begin (f) The commissioner shall cooperate in the implementation of this section, including
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 by this section and under section 179A.22. 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 of human services 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 care 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 list shall be shared with the Quality Self-Directed Services Workforce Council and
made available pursuant to subdivision 7, paragraphs (f) and (g).
new text end

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

new text begin Subd. 7. new text end

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

new text begin (a) For the purposes of
the Public Employment Labor Relations Act, chapter 179A, individual providers shall
be considered, by virtue of this section, state executive branch 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 to the extent
inconsistent with this section, in which case this section shall control.
new text end

new text begin (b) No provision of any agreement or arbitration award reached pursuant to collective
bargaining between the state and any organization representing individual providers under
chapter 179A 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 registry established by the commissioner.
new text end

new text begin (c) Any agreement or arbitration award reached pursuant to collective bargaining
between the state and any organization representing individual providers under chapter
179A shall be submitted to the legislature to be accepted or rejected in accordance with
sections 179A.22 and 3.855.
new text end

new text begin (d) 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 (e) The only appropriate bargaining unit under section 179A.09 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 bargaining unit.
new text end

new text begin (f) 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 direct support workers 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 subdivision 6, paragraph (g), and
subsequent monthly lists upon request for an additional three months.
new text end

new text begin (g) Any representation election for individual providers pursuant to section 179A.12
shall be conducted by mail ballot, and such election shall be conducted upon an appropriate
petition stating that at least ten percent of the bargaining 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
subdivision 6, paragraph (g), most recently preceding the filing of the election petition.
new text end