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S.F. No. 778 - Family Child Care Providers Representation Act (The Third Engrossment)
 
Author: Senator Sandra L. Pappas
 
Prepared By: Stephanie J. James, Senate Counsel (651/296-0103)
 
Date: May 1, 2013



 

Article 1 [Family Child Care Providers Representation Act]

Section 1 [Representation of Family Child Care Providers] specifies that this act shall be known as the Family Child Care Providers Representation Act.

Section 2 [Definitions] defines the following terms for purposes of this act:  commissioner, exclusive representative, family child care provider, labor organization, and state.  Family child care provider means an individual, either licensed or unlicensed who provides legal child care services as defined elsewhere in statute, except for providers licensed under certain rules or excluded from licensure elsewhere in statute, and who receives child care assistance to subsidize child care services for a child or children currently in their care, under CCAP.

Section 3 [Right to Organize]

Subdivision 1 [Right to organize; limitations]  establishes a right for family child care providers to form, join, and participate in the activities of labor organizations of their own choosing for the purpose of representation and meeting and negotiating with the state.  This section makes applicable to family child care providers an existing section of statute (section 179A.22) that authorizes the Commissioner of Management and Budget to enter into agreements with exclusive representatives and requires the negotiated agreements and arbitration decisions to be submitted to the Legislature to be accepted or rejected.  This section does not require the treatment of family child care providers as public employees for any other purpose.

Family child care providers must have the same rights to interest arbitration as provided in existing law for essential employees.  (Under current law, an exclusive representative or employer of a unit of essential employees may petition for binding interest arbitration by filing a written request with the other party and the commissioner.  The written request must specify the items that that party wishes to submit to binding arbitration.  Within 15 days of the request, the commissioner must determine whether further mediation of the dispute would be appropriate and must only certify matters for arbitration in cases where the commissioner believes that both parties have made substantial, good faith bargaining efforts and that an impasse has occurred.)

Family child care providers shall not have the right to strike.

Subdivision 2 [Appropriate unit] makes a statewide unit of all family child care providers the only bargaining unit under this section.

Subdivision 3 [Certification; process] requires the commissioner to use a list of family child care providers compiled by the Commissioner of Human Services over the most recent 12-month period for purposes of determining certification.   The list must include all family child care providers who have an active registration. This section requires the commissioner to conduct a certification election by mail ballot using procedures in current law.

Subdivision 4 [Compilation of list] requires the Commissioner of Human Services, by July 1, 2013, and monthly thereafter, to 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 and had an active registration within the previous 12 months.  This section precludes certain information from being included on the list.  The commissioner is required to share the lists with others as needed for the state to meet its obligations under the Public Employees Labor Relations Act (PELRA) and to facilitate the representational processes under this section.

Subdivision 5 [List access] requires the Commissioner of Human Services to provide the list within seven days to an employee organization that makes a showing to the commissioner that at least 500 family child care providers support representation by the requesting organization. The commissioner must notify those on the list that their names have been provided to the employee organization.

Subdivision 6 [Elections for exclusive representative] permits any employee organization  after July 1, 2013, to seek status as an exclusive representative, following the procedure under current law for certification (section 179A.12).  Elections must be conducted by mail ballot.   An election must be conducted upon an appropriate petition stating that at least 30 percent of the unit wishes to be represented by the petitioner.  To be eligible to vote, a family child care provider must be on the most recent monthly list compiled under this section.  Except as otherwise provided, elections under this clause must be conducted according to procedure in current law (section 179A.12)

Subdivision 7 [Meet and negotiate] requires the state, through the Governor or designee, to meet and negotiate in good faith with the certified exclusive representative of the family child care providers. The parties shall meet and negotiate regarding:

  • grievance issues;
  • child care assistance reimbursement rates; and
  • terms and conditions of service.
  • The obligation of the state to meet and negotiate about terms and conditions of service does not compel the state to agree to a proposal or require the making of a concession.  The governor 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 accord with current law.

Subdivision 8 [Meet and confer] states that the state has an obligation to meet and confer under PELRA with family child care providers to discuss policies and other matters relating to their service that are not terms and conditions of service. 

Subdivision 9 [Terms and conditions of service] defines “terms and conditions of service” as having the same meaning as “terms and conditions of employment” defined elsewhere in statute (section 179A.03, subd. 19) as:  hours of employment, the compensation therefor including fringe benefits except retirement contributions or benefits other than employer payment of, or contributions to, premiums for group insurance coverage of retired employees or severance pay, and the employer’s personnel policies affecting the working conditions of the employees.

Subdivision 10 [Rights] states that nothing in this section can be construed to interfere with: (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; (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 (3) the rights and responsibilities of family child care providers under federal law.

Subdivision 11 [Membership status and eligibility for subsidies] requires that membership status in an employee organization shall not affect the eligibility of a family care provider to receive payments under, or serve a child who receives payment under, CCAP.

Section 4 [No Use of Scholarships for Dues or Fees] prevents early learning scholarships from being applied to dues or fees paid to an exclusive representative of family child care providers.

Section 5 [Severability] states that if any part of this act is declared invalid or unenforceable or its enforcement is suspended, restrained, or barred by the state or a court, the remainder of the act shall remain in effect.

Section 6 [Effective date] makes this act effective the day following enactment.

                         Article 2 [Individual Providers of Direct Support Services Representation]

Section 1 [Individual Providers of Direct Support Services]

 Subdivision 1 [Definitions] defines certain terms by referencing new law later in the bill:

Direct support services means personal care assistance services covered by Medical Assistance under current law; assistance with activities of daily living as defined in current law; and instrumental activities of daily living as defined in current law; 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 her or her home and have safe access to the community.

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.  The definition of individual provider does not include an individual from an employee workforce assembled, directed, and controlled by a provider agency.

Participant means a person who receives direct support services through a covered program.

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.  

Subdivision 2 [Rights of individual providers and participants] requires individual providers to be considered executive branch employees employed by the Commissioner of Management and Budget for purposes of PELRA. This subdivision states that this section does not require that individual providers be treated as public employees for any other purpose and that PELRA must apply to individual providers except as otherwise provided.  This subdivision makes PELRA applicable to part-time individual providers by “notwithstanding” current law that makes PELRA inapplicable to part-time employees.

Subdivision 3 [Scope of meet and negotiate obligation] makes the rights and obligations of the state and a certified exclusive representative extend to subjects listed later in the bill.

Subdivision 4 [Rights of covered program participants] states that 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 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;

Subdivision 5 [Legislative action on agreements] requires that any agreement reached between the state and the exclusive representative of individual providers shall be submitted to the Legislature to be accepted or rejected using a process in existing law;

Subdivision 6 [Strikes prohibited] applies the prohibition on strikes for essential employees in current law to individual providers.

Subdivision 7 [Interest arbitrations] makes available to individual providers the interest arbitration procedures available for essential employees in current law.  (Under current law, an exclusive representative or employer of a unit of essential employees may petition for binding interest arbitration by filing a written request with the other party and the commissioner.  The written request must specify the items that that party wishes to submit to binding arbitration.  Within 15 days of the request, the commissioner must determine whether further mediation of the dispute would be appropriate and must only certify matters for arbitration in cases where the commissioner believes that both parties have made substantial, good faith bargaining efforts and that an impasse has occurred.)

Subdivision 8 [Appropriate unit] specifies that 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 a reason be excluded from the appropriate unit.

Subdivision 9 [List access] requires the Commissioner of Human Services to provide the most recent list of individual providers to an employee organization wishing to represent the appropriate unit, if the organization makes a showing to the Bureau of Mediation Services that at least 500 individual providers support the representation.  The list must be provided within seven days after the showing is made.  This requirement begins July 1, 2013. In addition to the most current list, the Commissioner of Human Services must provide subsequent monthly lists upon request for an additional three months.  The list provided to an employee organization is public data.  The commissioner must notify those on the list that their names have been provided to the employee organization.

Subdivision 10 [Representation and election] permits any employee to seek status of exclusive representative for an appropriate unit of individual providers following procedures in current law.  This permission begins August 1, 2013.  This clause requires that representation elections  be conducted by mail ballot.  An election must be conducted upon petition when at least 30 percent of the unit wishes to be represented by the petitioner.  The individual providers who are eligible to vote are those who are on the most recent monthly list of individual providers compiled under current law.  Elections under this clause shall be conducted as provided under current law except as otherwise provided.
 

Section 2 [Quality Self-Directed Services Workforce]

Subdivision 1 [Definitions] defines the following terms:
 

Commissioner means the Commissioner of Human Services unless context indicate otherwise;

Covered program means a program to provide direct support services funded in whole or part by the state.

Direct support services, individual provider, participant, and participant’s representative are defined as shown above with respect to Article 1, section 2.

Subdivision 2 [Quality Self-Directed Services Workforce Council established] establishes a Quality Self-Directed Services Workforce Council to ensure the quality and availability of individual providers.

Subdivision 3 [Membership] specifies the membership of the council.  The council shall be composed of the Commissioner of Human Services and members appointed by the Governor as follows:

(1) six current or former recipients of direct support services;

  • a program to provide direct support services funded in whole or in part by the state of Minnesota, including the Community First Services Supports Program;
  • Consumer Directed Community Supports services and extended state plan personal care assistance services available under programs established under Social Security and under the alternative care program, as offered under current law;
  • the personal care assistance choice program established under current law; and
  • any similar program that may provide such services

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

(3) one member of the State Council on Disability, one member of the Governor’s Council on Developmental Disabilities, and one member of the Minnesota Board on Aging.

The Commissioner of Human Services shall chair the council.

Subdivision 4 [Appointments; membership terms; compensation; removal; vacancies] Appointments to the council must be made under a process established in current law. Membership terms, compensation and removal of members,  and filling of vacancies are as provided in current law.

Subdivision 5 [Quorum] specifies that a majority of members appointed and serving shall constitute a quorum for the transaction of any business.

Subdivision 6 [Initial appointments] requires the Governor to make initial appointments to the council by July 1, 2013, and to designate five members whose term will end in January 2017 and five others whose term will end in January 2019.

Subdivision 7 [First meeting] requires the commissioner to convene the first meeting by September 1, 2013.

Subdivision 8 [Duties of council] establishes duties for the council:

(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 elderly participants and participants with disabilities;

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

(3) advise the commissioner regarding the development of orientation programs training and educational opportunities, and the maintenance of one or more public registries of individual providers;

(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;

(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

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

Subdivision 9 [Operation of covered programs] requires that all covered programs operate consistently with this section, including by providing such services through individual providers, notwithstanding any inconsistent provisions in specified sections of chapter 256B.

Subdivision 10 [Use of employee workforce] states that 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.

Subdivision 11 [Duties of the Department of Human Services], paragraph (a) requires the commissioner to afford all participants within a covered program the option of employing an individual provider to provide direct support services.

Paragraph (b) requires the commissioner to ensure that all employment of individual providers is in conformity with this section.

Paragraph (c) requires the commissioner, in consultation with the council to:

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

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

(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 certifications documenting additional training and experience in areas of specialization;

(4) provide for the maintenance of a public registry to:

(i) provide routine, emergency, and respite referrals or qualified individual providers who have consented to be included in the registry to participants and participants’ representatives;

(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

(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

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

Paragraph (d) requires that 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 PELRA as modified and made applicable to individual providers under section 1 of this article and to agreements with any exclusive representative of individual providers, as authorized by PELRA and as modified and made applicable to individual providers under section 1 of this article.

Paragraph (e) requires the commissioner to 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 current law with respect to negotiation between the executive branch of the state and the exclusive representative of individual providers, as authorized under specified sections of current law.  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 as required.

Paragraph (f) requires the commissioner by July 1, 2013, and monthly thereafter, to 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 is private data on individuals, provided that the commissioner shall share the lists in specified ways.

Paragraph (g) requires the commissioner to immediately commence all necessary steps to ensure that service offered under all covered programs are offered in conformity with this section to complete any modifications to currently operating covered programs by September 1, 2013.
 

Section 3 [Severability] requires that if any part of this act is declared invalid or unenforceable or its enforcement is suspended, restrained, or barred by the state or a court, the remainder of the act shall remain in effect.
 

Section 4 [Effective Date] makes this act effective the day following final enactment.
 

SJJ/rdr


 

 
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