SF 778

5th Engrossment - 88th Legislature (2013 - 2014) Posted on 06/10/2013 11:09am

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; appropriating money; 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 receives child care assistance to subsidize child care services for a
child or children currently in their care, under sections 119B.03; 119B.05; and 119B.011,
subdivisions 20 and 20a.
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 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, family child care
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 family child care providers
as public employees for any other purpose. Family child care providers are not state
employees for purposes of section 3.736. Chapter 179A shall apply to family child care
providers except as otherwise provided in this section. Notwithstanding section 179A.03,
subdivision 14, paragraph (a), clause (5), chapter 179A shall apply to family child care
providers regardless of part-time or full-time employment status. 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 who meet the definition in section 179A.51,
and who have had an active registration under chapter 119B within the previous 12 months.
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 Compilation of list. new text end

new text begin The commissioner of human services shall, by July 1,
2013, and monthly thereafter, compile and maintain a list of the names and addresses of all
family child care providers who meet the definition in section 179A.51, and who have had
an active registration under chapter 119B within the previous 12 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 of human services
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. 4. 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 actively registered
family child care providers compiled under subdivision 3, and subsequent monthly
lists upon request for an additional three months. When the list is made available to an
employee organization under this subdivision, the list must be made publicly available.
new text end

new text begin Subd. 5. 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. Certification 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 appropriate
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 subdivision
shall be conducted in accordance with section 179A.12.
new text end

new text begin Subd. 6. 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. 7. 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. 8. 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. 9. 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. 10. 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 EXPIRATION.
new text end

new text begin Sections 1 to 4 expire June 30, 2017, if an exclusive representative has not been
certified under Minnesota Statutes, section 179A.52, subdivision 6, by that date, provided
that the commissioner of the Bureau of Mediation Services shall process any petition
under Minnesota Statutes, section 179A.52, subdivision 5, pending as of June 30, 2017,
and any certification of an exclusive representative resulting from a petition pending as of
June 30, 2017, shall, for the purposes of this section, be treated as having occurred on the
date the petition was initially filed. The revisor of statutes shall publish this expiration
date with the codification of sections 1 to 4.
new text end

Sec. 7. new text begin EFFECTIVE DATE.
new text end

new text begin Except for Minnesota Statutes, section 179A.53, this article 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. Individual providers are not state employees for purposes of section
3.736. 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 4,
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
3.855 and 179A.22.
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 September 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 the Bureau of Mediation
Services shall provide to such organization within seven days the most recent list of
individual providers compiled under section 256B.0711, subdivision 4, paragraph (f),
and three subsequent monthly lists upon request. The commissioner of the Bureau of
Mediation Services shall provide lists compiled under section 256B.0711, subdivision 4,
paragraph (f), upon request, to any exclusive representative of individual providers. To
facilitate operation of this section, the commissioner of human services shall provide
all lists to the commissioner of the Bureau of Mediation Services, upon the request of
the commissioner of the Bureau of Mediation Services. When the list is available to an
employee organization under this subdivision, the list must be made publicly available.
new text end

new text begin Subd. 10. new text end

new text begin Representation and election. new text end

new text begin Beginning October 1, 2013, any employee
organization wishing to represent the appropriate unit of individual providers may seek
exclusive representative status pursuant to section 179A.12. Certification elections
for individual providers shall be conducted by mail ballot, and such election shall be
conducted upon an appropriate petition stating that among individual providers who have
been paid for providing direct support services to participants within the previous 12
months, a number of individual providers equal to at least 30 percent of those eligible to
vote wish 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 4, paragraph (f), 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

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, and Minnesota Statutes, including, but not limited to, sections
256B.0915, 256B.092, and 256B.49, and under the alternative care program, as offered
pursuant to section 256B.0913; the personal care assistance choice program, as established
pursuant to section 256B.0659, subdivisions 18 to 20; and any similar program that may
provide similar services in the future.
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 by their employee or the employee
of their representative 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 (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, but does not include an employee of a provider
agency, subject to the agency's direction and control commensurate with agency employee
status.
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 Operation of covered programs. new text end

new text begin All covered programs shall operate
consistent with this section, including by affording participants and participants'
representatives within the programs of the option of receiving services through individual
providers as defined in subdivision 1, paragraph (d), notwithstanding any inconsistent
provisions of section 256B.0659 or 256B.04, subdivision 16.
new text end

new text begin Subd. 3. new text end

new text begin Use of employee workforce. new text end

new text begin The requirement under subdivision 2 shall
not restrict the state's ability to afford participants and participants' representatives within
the covered programs who choose not to employ an individual provider, or are unable to
do so, the option of receiving similar services through the employees of provider agencies,
rather than through an individual provider.
new text end

new text begin Subd. 4. 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 and section 179A.54, including by modifying program
operations as necessary to ensure proper classification of individual providers, to require
that all relevant vendors within covered programs assist and cooperate as needed,
including providers of fiscal support, fiscal intermediary, financial management, or similar
services to provide support to participants and participants' representatives with regard to
employing individual providers, and to otherwise fulfill the requirements of this section,
including the provisions of paragraph (f).
new text end

new text begin (c) The commissioner shall:
new text end

new text begin (1) establish for all individual providers compensation rates, payment terms and
practices, and any benefit terms, provided that these rates and terms may permit individual
provider variations based on traditional and relevant factors otherwise permitted by law;
new text end

new text begin (2) provide for required orientation programs within three months of hire for
individual providers newly hired on or after January 1, 2015, regarding their employment
within the covered programs through which they provide services;
new text end

new text begin (3) have the authority to 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) have the authority to provide for the maintenance of a public registry of
individuals who have consented to be included to:
new text end

new text begin (i) provide routine, emergency, and respite referrals of qualified individual providers
who have consented to be included in the registry 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'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. Except to the extent
otherwise provided by law, the commissioner shall not undertake activities in paragraph
(c), clauses (3) and (4), prior to July 1, 2015, unless included in a negotiated agreement
and an appropriation has been provided by the legislature to the commissioner.
new text end

new text begin (e) The commissioner shall cooperate in the implementation of section 179A.54
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 providing
relevant services within covered programs, including providers of fiscal support, fiscal
intermediary, financial management, or similar services to provide support to participants
and participants' representatives with regard to employing individual providers shall assist
and cooperate with the commissioner of human services in the operations of this section,
including with respect to the commissioner's obligations under paragraphs (b) and (f).
new text end

new text begin (f) The commissioner shall, no later than September 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 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. In order to effectuate this section and section
179A.54, questions of employee organization access to other relevant data on individual
providers relating to their employment or prospective employment within covered
programs shall be governed by chapter 179A and section 13.43, and shall be treated the
same as labor organization access to personnel data under section 13.43, subdivision 6.
This shall not include access to private data on participants or participants' representatives.
Nothing in this section or section 179A.54 shall alter the access rights of other private
parties to data on individual providers.
new text end

new text begin (g) 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 gather all information that may be needed for promptly compiling lists required
under this section, including information from current vendors within covered programs,
and to complete any required modifications to currently operating covered programs by
September 1, 2013.
new text end

new text begin (h) Beginning January 1, 2014, the commissioner of human services shall
specifically require that any fiscal support, fiscal intermediary, financial management, or
similar entities providing payroll assistance services with respect to individual providers
shall make all needed deductions on behalf of the state of dues check off amounts
or fair-share fees for the exclusive representative, as provided in section 179A.06,
subdivisions 3 and 6. All contracts with entities for the provision of payroll-related
services shall include this requirement.
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 EXPIRATION.
new text end

new text begin Provided the commissioner of human services fulfills the department's obligations
under Minnesota Statutes, section 256B.0711, subdivision 4, paragraphs (f) and (g), by
September 1, 2013, sections 1 and 2 expire June 30, 2017, if an exclusive representative
has not been certified under Minnesota Statutes, section 179A.54, subdivision 10, by that
date; provided further that the commissioner of the Bureau of Mediation Services shall
process any petition under Minnesota Statutes, section 179A.54, subdivision 10, pending
as of June 30, 2017, and any certification of an exclusive representative resulting from a
petition pending as of June 30, 2017, shall, for the purposes of this section, be treated as
having occurred on the date the petition was initially filed. The revisor of statutes shall
publish this expiration date with the codification of sections 1 and 2.
new text end

Sec. 5. new text begin EFFECTIVE DATE.
new text end

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

ARTICLE 3

APPROPRIATIONS

Section 1. new text begin APPROPRIATIONS.
new text end

new text begin (a) $1,010,000 in fiscal year 2014 and $890,000 in fiscal year 2015 are appropriated
from the general fund to the commissioner of human services for the purposes of this act.
The funding base for this appropriation is $2,504,000 for fiscal year 2016 and $1,426,000
for fiscal year 2017 and later.
new text end

new text begin (b) $59,000 in fiscal year 2014 is appropriated from the general fund to the
commissioner of the Bureau of Mediation Services for the purposes of this act.
new text end

new text begin (c) $235,000 in fiscal year 2014 and $235,000 in fiscal year 2015 are appropriated
from the general fund to the commissioner of management and budget for the purposes of
this act. The funding base for this appropriation for fiscal year 2016 and later is $118,000.
new text end