SF 778

1st Engrossment - 88th Legislature (2013 - 2014) Posted on 03/13/2013 12:49pm

A bill for an act
relating to collective bargaining; authorizing collective bargaining for
family child care providers; authorizing collective bargaining for home and
community-based long-term care services; establishing the Self-Directed Service
Workforce Council; proposing coding for new law in Minnesota Statutes,
chapters 179A; 256B.

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

ARTICLE 1

FAMILY CHILD CARE PROVIDERS REPRESENTATION ACT

Section 1.

new text begin [179A.50] REPRESENTATION OF FAMILY CHILD CARE
PROVIDERS.
new text end

new text begin Sections 179A.50 to 179A.52 shall be known as the Family Child Care Providers
Representation Act.
new text end

Sec. 2.

new text begin [179A.51] DEFINITIONS.
new text end

new text begin Subdivision 1. new text end

new text begin Scope. new text end

new text begin For the purposes of sections 179A.50 to 179A.52, the terms
in this section have the meanings given them.
new text end

new text begin Subd. 2. new text end

new text begin Commissioner. new text end

new text begin "Commissioner" means the commissioner of mediation
services.
new text end

new text begin Subd. 3. new text end

new text begin Exclusive representative. new text end

new text begin "Exclusive representative" means an employee
organization that has been elected and certified under section 179A.52, thereby maintaining
the right to represent family child care providers in their relations with the state.
new text end

new text begin Subd. 4. new text end

new text begin Family child care provider. new text end

new text begin "Family child care provider" means an
individual, either licensed or unlicensed, who provides legal child care services as defined
under section 245A.03, except for providers licensed under Minnesota Rules, chapter
9503, or excluded from licensure under section 245A.03, subdivision 2, paragraph (a),
clause (5), and who provides child care assistance services under chapter 119B.
new text end

Sec. 3.

new text begin [179A.52] RIGHT TO ORGANIZE.
new text end

new text begin Subdivision 1. new text end

new text begin Right to organize; limitations. new text end

new text begin Family child care providers shall
have the right to form, join, and participate in the activities of employee organizations of
their own choosing for the purpose of representation and meeting and negotiating with the
state. Section 179A.22 applies to family child care providers except as otherwise provided
in this section. This section does not require the treatment of family child care providers as
public employees for any other purpose. Family child care providers shall have the same
rights to interest arbitration provided under section 179A.16, subdivision 2, to essential
employees. Family child care providers shall not have the right to strike.
new text end

new text begin Subd. 2. new text end

new text begin Appropriate unit. new text end

new text begin The only appropriate unit under this section shall be a
statewide unit of all family child care providers. The unit shall be treated as an appropriate
unit under section 179A.10, subdivision 2.
new text end

new text begin Subd. 3. new text end

new text begin Certification; process. new text end

new text begin For the purposes of determining certification
under section 179A.12, the commissioner shall utilize a list of family child care providers
compiled by the commissioner of human services over the most recent 12-month period.
The commissioner shall conduct a certification election by mail ballot pursuant to the
procedures in chapter 179A.
new text end

new text begin Subd. 4. new text end

new text begin Compilation of list. new text end

new text begin The commissioner shall, by July 1, 2013, and then
monthly thereafter, compile and maintain a list of the names and addresses of all family
child care providers who have been paid for providing child care assistance 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 others as needed
for the state to meet its obligations under chapter 179A as modified and made applicable
to family child care providers under this section, and to facilitate the representational
processes under this section.
new text end

new text begin Subd. 5. new text end

new text begin List access. new text end

new text begin 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 family child care providers that at least 500 family
child care providers support such representation, the commissioner of human services
shall provide to such organization within seven days the most recent list of family child
care providers compiled under this subdivision, and subsequent monthly lists upon request
for an additional three months.
new text end

new text begin Subd. 6. new text end

new text begin Elections for exclusive representative. new text end

new text begin After July 31, 2013, any employee
organization wishing to represent the appropriate unit of family child care providers
may seek exclusive representative status pursuant to section 179A.12. Representation
elections for family child care providers shall be conducted by mail ballot, and such
election shall be conducted upon an appropriate petition stating that at least 30 percent of
the unit wishes to be represented by the petitioner. The family child care providers eligible
to vote in any such election shall be those family child care providers on the monthly list
of family child care providers compiled under this section, 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.
new text end

new text begin Subd. 7. new text end

new text begin Meet and negotiate. new text end

new text begin If the commissioner certifies an employee
organization as the majority exclusive representative, the state, through the governor
or the governor's designee, shall meet and negotiate in good faith with the exclusive
representative of the family child care provider unit regarding grievance issues, child care
assistance reimbursement rates under chapter 119B, and terms and conditions of service,
but this obligation does not compel the state or its representatives to agree to a proposal or
require the making of a concession. The governor or the governor's designee is authorized
to enter into agreements with the exclusive representative. Negotiated agreements and
arbitration decisions must be submitted to the legislature to be accepted or rejected in
accordance with sections 3.855 and 179A.22.
new text end

new text begin Subd. 8. new text end

new text begin Meet and confer. new text end

new text begin The state has an obligation to meet and confer under
chapter 179A with family child care providers to discuss policies and other matters
relating to their service that are not terms and conditions of service.
new text end

new text begin Subd. 9. new text end

new text begin Terms and conditions of service. new text end

new text begin For purposes of this section, "terms and
conditions of service" has the same meaning as given in section 179A.03, subdivision 19.
new text end

new text begin Subd. 10. new text end

new text begin Exemption; federal law. new text end

new text begin In affording family child care providers
the right to engage in collective action, select a representative, and jointly engage in
discussions with the state under the terms of this section, the state intends that the "state
action" exemption from federal antitrust laws be fully available to the state, based on
the state's active supervision of family child care providers to improve the quality,
accessibility, and affordability of early childhood education services in the state.
new text end

new text begin Subd. 11. new text end

new text begin Rights. new text end

new text begin Nothing in this section shall be construed to interfere with:
new text end

new text begin (1) parental rights to select and deselect family child care providers or the ability of
family child care providers to establish the rates they charge to parents;
new text end

new text begin (2) the right or obligation of any state agency to communicate or meet with any
citizen or organization concerning family child care legislation, regulation, or policy; or
new text end

new text begin (3) the rights and responsibilities of family child care providers under federal law.
new text end

new text begin Subd. 12. new text end

new text begin Membership status and eligibility for subsidies. new text end

new text begin Membership status in
an employee organization shall not affect the eligibility of a family child care provider to
receive payments under, or serve a child who receives payments under, chapter 119B.
new text end

Sec. 4.

new text begin [179A.53] NO USE OF SCHOLARSHIPS FOR DUES OR FEES.
new text end

new text begin Early learning scholarships shall not be applied, through state withholding or
otherwise, toward payment of dues or fees that are paid to exclusive representatives of
family child care providers.
new text end

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective the day following final enactment of
a law styled as Senate File No. 481 of the 88th legislature.
new text end

Sec. 5. new text begin SEVERABILITY.
new text end

new text begin Should any part of this act be declared invalid or unenforceable, or the enforcement
or compliance with it is suspended, restrained, or barred, either by the state or by the final
judgment of a court of competent jurisdiction, the remainder of this act shall remain
in full force and effect.
new text end

Sec. 6. new text begin EFFECTIVE DATE.
new text end

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

ARTICLE 2

INDIVIDUAL PROVIDERS OF DIRECT SUPPORT SERVICES
REPRESENTATION

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 For the purposes of this section:
new text end

new text begin (a) "Direct support services" has the meaning given to it under section 256B.0711,
subdivision 1, paragraph (c).
new text end

new text begin (b) "Individual provider" has the meaning given to it under section 256B.0711,
subdivision 1, paragraph (d).
new text end

new text begin (c) "Participant" has the meaning given to it under section 256B.0711, subdivision 1,
paragraph (e).
new text end

new text begin (d) "Participant's representative" has the meaning given to it under section
256B.0711, subdivision 1, paragraph (f).
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 For the purposes of
the Public Employment Labor Relations Act, under chapter 179A, 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 Subd. 3. new text end

new text begin Scope of meet and negotiate obligation. new text end

new text begin If an exclusive representative
is certified pursuant to this section, 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 to the subjects covered under section 256B.0711, subdivision 11,
paragraph (c), but shall not include those subjects reserved to participants or participants'
representatives by subdivision 4.
new text end

new text begin Subd. 4. new text end

new text begin Rights of covered program participants. new text end

new text begin 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 Subd. 5. new text end

new text begin Legislative action on agreements. new text end

new text begin Any 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
179A.22 and 3.855.
new text end

new text begin Subd. 6. new text end

new text begin Strikes prohibited. new text end

new text begin Individual providers shall be subject to the prohibition
on strikes applied to essential employees under section 179A.18.
new text end

new text begin Subd. 7. new text end

new text begin Interest arbitration. new text end

new text begin Individual providers shall be subject to the interest
arbitration procedures applied to essential employees under section 179A.16.
new text end

new text begin Subd. 8. new text end

new text begin Appropriate unit. new text end

new text begin The only appropriate unit for individual providers shall
be a statewide unit of all individual providers. The unit shall be treated as an appropriate
unit under section 179A.10, subdivision 2. 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 Subd. 9. new text end

new text begin List access. new text end

new text begin 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 11, paragraph (g), and subsequent
monthly lists upon request for an additional three months.
new text end

new text begin Subd. 10. new text end

new text begin Representation and election. new text end

new text begin 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 30 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 11, paragraph (g), most recently preceding
the filing of the election petition. Except as otherwise provided, elections under this
section shall be conducted in accordance with section 179A.12.
new text end

new text begin Subd. 11. new text end

new text begin Exemption; federal law. new text end

new text begin In affording individual providers the right to
engage in collective action, select a representative, and jointly engage in discussions with
the state under the terms of this section, the state intends that the "state action" exemption
from federal antitrust laws be fully available to the state, based on the state's active
supervision of individual providers to improve the quality, accessibility, and affordability
of direct support services in the state.
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 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 otherwise
indicated.
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; 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, including, but not limited to, sections 256B.0915 and 256B.49,
and under the alternative care program, as offered pursuant to section 256B.0913, as
modified by subdivision 9 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 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. 2. new text end

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

new text begin 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 Subd. 3. new text end

new text begin Membership. new text end

new text begin The council shall have 11 members and 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;
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 Subd. 4. new text end

new text begin Appointments; membership terms; compensation; removal; vacancies.
new text end

new text begin All appointments to the council and filling of vacancies shall be made as provided in
section 15.0597. Membership terms, compensation, and removal of members are as
provided in section 15.059.
new text end

new text begin Subd. 5. new text end

new text begin Quorum. new text end

new text begin 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. 6. new text end

new text begin Initial appointments. new text end

new text begin The governor shall make all initial appointments
to the council by July 1, 2013. The governor shall designate five members whose terms
will expire on the first Monday in January 2017, and five members whose terms will
expire on the first Monday in January 2019.
new text end

new text begin Subd. 7. new text end

new text begin First meeting. new text end

new text begin The commissioner shall convene the first meeting by
September 1, 2013.
new text end

new text begin Subd. 8. 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 11;
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. 9. new text end

new text begin Operation of covered programs. new text end

new text begin All covered programs shall operate
consistent with this section, including by providing such services through individual
providers as defined in subdivision 1, paragraph (d), notwithstanding any inconsistent
provisions of section 256B.0659 or section 256B.04, subdivision 16.
new text end

new text begin Subd. 10. new text end

new text begin Use of employee workforce. new text end

new text begin 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. 11. 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 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 shall be subject to the state's
obligations to meet and negotiate under chapter 179A, as modified and made applicable
to individual providers under section 179A.54, and to agreements with any exclusive
representative of individual providers, as authorized by chapter 179A, as modified and
made applicable to individual providers under section 179A.54.
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. 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, subdivisions 9 and 10.
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 SEVERABILITY.
new text end

new text begin Should any part of this act be declared invalid or unenforceable, or the enforcement
or compliance with it is suspended, restrained, or barred, either by the state or by the final
judgment of a court of competent jurisdiction, the remainder of this act shall remain
in full force and effect.
new text end

Sec. 4. new text begin EFFECTIVE DATE.
new text end

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