Bill Text: MN HF950 | 2013-2014 | 88th Legislature | Engrossed
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Family child care providers and home and community-based long-term care services collective bargaining authorized, funding provided, and money appropriated.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Introduced - Dead) 2013-05-16 - HF indefinitely postponed [HF950 Detail]
Download: Minnesota-2013-HF950-Engrossed.html
Bill Title: Family child care providers and home and community-based long-term care services collective bargaining authorized, funding provided, and money appropriated.
Spectrum: Partisan Bill (Democrat 12-0)
Status: (Introduced - Dead) 2013-05-16 - HF indefinitely postponed [HF950 Detail]
Download: Minnesota-2013-HF950-Engrossed.html
1.2relating to collective bargaining; authorizing collective bargaining for family
1.3child care providers and individual providers of direct support services; creating
1.4a Quality Self-Directed Services Workforce;proposing coding for new law in
1.5Minnesota Statutes, chapters 179A; 256B.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.9 Section 1. [179A.50] REPRESENTATION OF FAMILY CHILD CARE
1.10PROVIDERS.
1.11Sections 179A.50 to 179A.52 shall be known as the Family Child Care Providers
1.12Representation Act.
1.13 Sec. 2. [179A.51] DEFINITIONS.
1.14 Subdivision 1. Scope. For the purposes of sections 179A.50 to 179A.52, the terms
1.15in this section have the meanings given them.
1.16 Subd. 2. Commissioner. "Commissioner" means the commissioner of mediation
1.17services.
1.18 Subd. 3. Exclusive representative. "Exclusive representative" means an employee
1.19organization that has been elected and certified under section 179A.52, thereby maintaining
1.20the right to represent family child care providers in their relations with the state.
1.21 Subd. 4. Family child care provider. "Family child care provider" means an
1.22individual, either licensed or unlicensed, who provides legal child care services as defined
1.23under section 245A.03, except for providers licensed under Minnesota Rules, chapter
2.19503, or excluded from licensure under section 245A.03, subdivision 2, paragraph (a),
2.2clause (5), and who provides subsidized child care services for a child or children currently
2.3in their care under sections 119B.011, subdivisions 20 and 20a; 119B.03; and 119B.05.
2.4 Sec. 3. [179A.52] RIGHT TO ORGANIZE.
2.5 Subdivision 1. Right to organize; limitations. Family child care providers shall
2.6have the right to form, join, and participate in the activities of employee organizations of
2.7their own choosing for the purpose of representation and meeting and negotiating with
2.8the state. Sections 179A.06, subdivisions 3 and 6, and 179A.22 apply to family child
2.9care providers except as otherwise provided in this section. Family child care providers
2.10have the rights and obligations of public employees only for the purposes of meeting and
2.11negotiating on issues specified in subdivision 7, paragraph (a), and purposes related to
2.12meeting and conferring as provided in this section. This section does not grant family child
2.13care providers status as public employees for any other purpose than the use of procedures
2.14in this chapter for the right to organize, mediate, and negotiate related to the issues specified
2.15in subdivision 7, paragraph (a), and to meet and confer as set forth in this section. This
2.16chapter applies to the relations between the state, the exclusive representative, and family
2.17child care providers only for purposes of this section. Family child care providers shall
2.18have the same rights to interest arbitration provided under section 179A.16, subdivision 2,
2.19to essential employees. Family child care providers shall not have the right to strike.
2.20 Subd. 2. Appropriate unit. The only appropriate unit under this section shall be a
2.21statewide unit of all family child care providers. The unit shall be treated as an appropriate
2.22unit under section 179A.10, subdivision 2.
2.23 Subd. 3. Certification; process. For the purposes of determining certification
2.24under section 179A.12, the commissioner shall utilize a list of family child care providers
2.25compiled by the commissioner of human services over the most recent 12-month period.
2.26The commissioner shall conduct a certification election by mail ballot pursuant to the
2.27procedures in this chapter.
2.28 Subd. 4. Compilation of list. The commissioner of human services shall, by July
2.291, 2013, and monthly thereafter, compile and maintain a list of the names and addresses
2.30of all family child care providers who have been paid for providing child care assistance
2.31services to participants within the previous 12 months. The list shall not include the name
2.32of any participant, or indicate that an individual provider is a relative of a participant
2.33or has the same address as a participant. The commissioner shall share the lists with
2.34others as needed for the state to meet its obligations under this chapter as modified and
3.1made applicable to family child care providers under this section, and to facilitate the
3.2representational processes under this section.
3.3 Subd. 5. List access. Beginning July 1, 2013, upon a showing made to the
3.4commissioner of the Bureau of Mediation Services by any employee organization wishing
3.5to represent the appropriate unit of family child care providers that at least 500 family
3.6child care providers support such representation, the commissioner of human services
3.7shall provide to such organization within seven days the most recent list of family child
3.8care providers compiled under subdivision 4, and subsequent monthly lists upon request
3.9for an additional three months.
3.10 Subd. 6. Elections for exclusive representative. After July 31, 2013, any employee
3.11organization wishing to represent the appropriate unit of family child care providers may
3.12seek exclusive representative status pursuant to section 179A.12. Representation elections
3.13for family child care providers shall be conducted by mail ballot, and such election shall
3.14be conducted upon an appropriate petition stating that at least ten percent of the unit
3.15wishes to be represented by the petitioner. The family child care providers eligible to
3.16vote in any such election shall be those family child care providers on the monthly list
3.17of family child care providers compiled under this section, most recently preceding the
3.18filing of the election petition. Except as otherwise provided, elections under this clause
3.19shall be conducted in accordance with section 179A.12.
3.20 Subd. 7. Meet and negotiate. (a) If the commissioner certifies an employee
3.21organization as the majority exclusive representative, the state, through the commissioner
3.22of management and budget, shall meet and negotiate in good faith with the exclusive
3.23representative of the family child care provider unit on the following issues:
3.24(1) child care assistance reimbursement rates under chapter 119B;
3.25(2) fringe benefits, including those paid upon termination, but not retirement
3.26contributions or benefits, and not other benefits to be paid when a person is no longer a
3.27family child care provider; and
3.28(3) grievance procedures regarding matters in clauses (1) and (2).
3.29(b) This obligation does not compel the state or its representatives to agree to a
3.30proposal or require the making of a concession. The commissioner of management and
3.31budget is authorized to enter into agreements with the exclusive representative on issues
3.32specified in paragraph (a).
3.33 Subd. 8. Legislative action on agreements. Any interest arbitration award or
3.34negotiated agreement reached between the state and the exclusive representative of the
3.35family child care provider unit under this chapter shall be submitted to the legislature to be
4.1accepted or rejected in accordance with sections 3.855 and 179A.22, subject to section
4.2179A.20, subdivisions 2 and 5.
4.3 Subd. 9. Meet and confer. The state has an obligation to meet and confer under this
4.4chapter with the exclusive representative of the family child care provider unit to discuss
4.5policies and other matters relating to their working conditions.
4.6 Subd. 10. Exemption; federal law. In affording family child care providers
4.7the right to engage in collective action, select a representative, and jointly engage in
4.8discussions with the state under the terms of this section, the state intends that the "state
4.9action" exemption from federal antitrust laws be fully available to the state, based on
4.10the state's active supervision of family child care providers to improve the quality,
4.11accessibility, and affordability of early childhood education services in the state.
4.12 Subd. 11. Rights. Nothing in this section shall be construed to interfere with:
4.13(1) parental rights to select and deselect family child care providers or the ability of
4.14family child care providers to establish the rates they charge to parents;
4.15(2) the right or obligation of any state agency to communicate or meet with any
4.16citizen, including other family child care providers, or organization concerning family
4.17child care legislation, regulation, or policy on any topic that is not specified in subdivision
4.187, paragraph (a); or
4.19(3) the rights and responsibilities of family child care providers under federal law.
4.20 Subd. 12. Membership status and eligibility for subsidies. Membership status in
4.21an employee organization shall not affect the eligibility of a family child care provider to
4.22receive payments under, or serve a child who receives payments under, chapter 119B.
4.23 Sec. 4. [179A.53] NO USE OF SCHOLARSHIPS FOR DUES OR FEES.
4.24Early learning scholarships shall not be applied, through state withholding or
4.25otherwise, toward payment of dues or fees that are paid to exclusive representatives of
4.26family child care providers.
4.27 Sec. 5. SEVERABILITY.
4.28 Should any part of this act be declared invalid or unenforceable, or the enforcement
4.29or compliance with it is suspended, restrained, or barred, either by the state or by the final
4.30judgment of a court of competent jurisdiction, the remainder of this act shall remain
4.31in full force and effect.
5.4 Section 1. [179A.54] INDIVIDUAL PROVIDERS OF DIRECT SUPPORT
5.5SERVICES.
5.6 Subdivision 1. Definitions. (a) For the purposes of this section:
5.7(b) "Direct support services" has the meaning given to it under section 256B.0711,
5.8subdivision 1, paragraph (d).
5.9(c) "Individual provider" has the meaning given to it under section 256B.0711,
5.10subdivision 1, paragraph (e).
5.11(d) "Participant" has the meaning given to it under section 256B.0711, subdivision 1,
5.12paragraph (f).
5.13(e) "Participant's representative" has the meaning given to it under section
5.14256B.0711, subdivision 1, paragraph (g).
5.15 Subd. 2. Rights of individual providers and participants. Only for the purposes
5.16of meeting and negotiating on issues specified in subdivision 3, individual providers shall
5.17be considered, by virtue of this section, executive branch state employees employed by
5.18the commissioner of management and budget or the commissioner's representative. This
5.19section does not require the treatment of individual providers as public employees for
5.20any other purpose. This chapter shall apply to individual providers except as otherwise
5.21provided in this section. Notwithstanding section 179A.03, subdivision 14, paragraph
5.22(a), clause (5), this chapter shall apply to individual providers regardless of part-time
5.23or full-time employment status.
5.24 Subd. 3. Scope of meet and negotiate obligation. If an exclusive representative
5.25is certified pursuant to this section, the mutual rights and obligations of the state and an
5.26exclusive representative of individual providers to meet and negotiate regarding terms
5.27and conditions shall extend only to the following issues:
5.28(1) compensation rates and payment terms and practices;
5.29(2) fringe benefits, including those that are paid for or funded per hour of service of
5.30an individual provider, but not for state retirement payments or other benefits to be paid by
5.31the state when a person no longer intends to be an individual provider;
5.32(3) grievance procedures regarding matters in clauses (1) and (2);
5.33(4) access to training and educational opportunities, including training funds, for
5.34individual providers; and
5.35(5) required orientation programs including for all newly hired individual providers.
6.1 Subd. 4. Rights of covered program participants. No provision of any agreement
6.2reached between the state and any exclusive representative of individual providers,
6.3nor any arbitration award, shall interfere with the rights of participants or participants'
6.4representatives to select, hire, direct, supervise, and terminate the employment of their
6.5individual providers; to manage an individual service budget regarding the amounts and
6.6types of authorized goods or services received; or to receive direct support services from
6.7individual providers not referred to them through a state registry.
6.8 Subd. 5. Legislative action on agreements. Any negotiated agreement or
6.9arbitration decision reached between the state and the exclusive representative of
6.10individual providers under this chapter shall be submitted to the legislature to be accepted
6.11or rejected in accordance with sections 3.855 and 179A.22, subject to section 179A.20,
6.12subdivisions 2 and 5.
6.13 Subd. 6. Strikes prohibited. Individual providers shall be subject to the prohibition
6.14on strikes applied to essential employees under section 179A.18.
6.15 Subd. 7. Interest arbitration. Individual providers shall be subject to the interest
6.16arbitration procedures applied to essential employees under section 179A.16.
6.17 Subd. 8. Appropriate unit. The only appropriate unit for individual providers shall
6.18be a statewide unit of all individual providers. Individual providers who are related to
6.19their participant or their participant's representative shall not for such reason be excluded
6.20from the appropriate unit.
6.21 Subd. 9. List access. Beginning July 1, 2013, upon a showing made to the
6.22commissioner of the Bureau of Mediation Services by any employee organization wishing
6.23to represent the appropriate unit of individual providers that at least 500 individual
6.24providers support such representation, the commissioner of human services shall provide
6.25to such organization within seven days the most recent list of individual providers
6.26compiled under section 256B.0711, subdivision 11, paragraph (g), and subsequent
6.27monthly lists upon request for an additional three months.
6.28 Subd. 10. Representation and election. Beginning August 1, 2013, any employee
6.29organization wishing to represent the appropriate unit of individual providers may seek
6.30exclusive representative status pursuant to section 179A.12. Representation elections
6.31for individual providers shall be conducted by mail ballot, and such election shall be
6.32conducted upon an appropriate petition stating that at least ten percent of the unit wishes
6.33to be represented by the petitioner. The individual providers eligible to vote in any such
6.34election shall be those individual providers on the monthly list of individual providers
6.35compiled under section 256B.0711, subdivision 11, paragraph (g), most recently preceding
7.1the filing of the election petition. Except as otherwise provided, elections under this
7.2section shall be conducted in accordance with section 179A.12.
7.3 Subd. 11. Fee collection prior to agreement ratification. Any fees otherwise
7.4required under section 179A.06, subdivision 3, shall not commence prior to the ratification
7.5of an agreement under section 179A.22. This subdivision does not limit the availability of
7.6voluntary dues check off under section 179A.06, subdivision 6.
7.7 Subd. 12. Exemption; federal law. In affording individual providers the right to
7.8engage in collective action, select a representative, and jointly engage in discussions with
7.9the state under the terms of this section, the state intends that the "state action" exemption
7.10from federal antitrust laws be fully available to the state, based on the state's active
7.11supervision of individual providers to improve the quality, accessibility, and affordability
7.12of direct support services in the state.
7.13 Sec. 2. [256B.0711] QUALITY SELF-DIRECTED SERVICES WORKFORCE.
7.14 Subdivision 1. Definitions. (a) For purposes of this section:
7.15(b) "Commissioner" means the commissioner of human services unless otherwise
7.16indicated.
7.17(c) "Covered program" means a program to provide direct support services funded in
7.18whole or in part by the state of Minnesota, including the Community First Services and
7.19Supports program; Consumer Directed Community Supports services and extended state
7.20plan personal care assistance services available under programs established pursuant
7.21to home and community-based service waivers authorized under section 1915(c) of
7.22the Social Security Act and Minnesota Statutes including, but not limited to, sections
7.23256B.0915 and 256B.49, and under the alternative care program, as offered pursuant
7.24to section 256B.0913, all as modified by subdivision 9; the personal care assistance
7.25choice program, as established pursuant to section 256B.0659, subdivisions 18 to 20, and
7.26modified by this section; and any similar program that may provide such services.
7.27(d) "Direct support services" means personal care assistance services covered by
7.28medical assistance under section 256B.0625, subdivisions 19a and 19c; assistance with
7.29activities of daily living as defined in section 256B.0659, subdivision 1, paragraph (b),
7.30and instrumental activities of daily living as defined in section 256B.0659, subdivision
7.311, paragraph (i); and other similar, in-home, nonprofessional long-term services and
7.32supports provided to an elderly person or person with a disability to meet such person's
7.33daily living needs and ensure that such person may adequately function in his or her home
7.34and have safe access to the community.
8.1(e) "Individual provider" means an individual selected by and working under the
8.2direction of a participant in a covered program, or a participant's representative, to provide
8.3direct support services to the participant, and does not include an individual from an
8.4employee workforce assembled, directed, and controlled by a provider agency.
8.5(f) "Participant" means a person who receives direct support services through
8.6a covered program.
8.7(g) "Participant's representative" means a participant's legal guardian or an individual
8.8having the authority and responsibility to act on behalf of a participant with respect to the
8.9provision of direct support services through a covered program.
8.10 Subd. 2. Quality Self-Directed Services Workforce Council established. There is
8.11established the Quality Self-Directed Services Workforce Council to ensure the quality
8.12and availability of individual providers to be selected by and work under the direction of
8.13participants to provide direct support services.
8.14 Subd. 3. Membership. The council shall have 11 members and shall be composed
8.15of the commissioner of human services or the commissioner's designee, who shall serve as
8.16chair, and the following members, who shall be appointed by the governor:
8.17(1) six current or former recipients of direct support services;
8.18(2) one legal guardian or legal representative of a current or former recipient of
8.19direct support services; and
8.20(3) one member of the State Council on Disability under section 256.482, one
8.21member of the Governor's Council on Developmental Disabilities, and one member of the
8.22Minnesota Board on Aging under section 256.975.
8.23 Subd. 4. Appointments; membership terms; compensation; removal; vacancies.
8.24All appointments to the council and filling of vacancies shall be made as provided in
8.25section 15.0597. Membership terms, compensation, and removal of members are as
8.26provided in section 15.059.
8.27 Subd. 5. Quorum. A majority of the members appointed and serving shall
8.28constitute a quorum for the transaction of any business.
8.29 Subd. 6. Initial appointments. The governor shall make all initial appointments
8.30to the council by July 1, 2013. The governor shall designate five members whose terms
8.31will expire on the first Monday in January 2017, and five members whose terms will
8.32expire on the first Monday in January 2019.
8.33 Subd. 7. First meeting. The commissioner shall convene the first meeting by
8.34September 1, 2013.
9.1 Subd. 8. Duties of council. The council, in consultation with the commissioner, has
9.2the following ongoing advisory duties and responsibilities relating to ensuring the quality,
9.3stability, and availability of the individual provider workforce:
9.4(1) assess the size, quality, and stability of the individual provider workforce in
9.5Minnesota and the ability of the existing workforce to meet the growing and changing
9.6needs of both elderly participants and participants with disabilities;
9.7(2) assess and propose strategies to identify, recruit, and retain prospective individual
9.8providers to be available for employment by participants or participants' representatives;
9.9(3) advise the commissioner regarding the development of orientation programs,
9.10training and educational opportunities, and the maintenance of one or more public
9.11registries as described in subdivision 11;
9.12(4) advise the commissioner and other relevant state agencies in assessing existing
9.13mechanisms for preventing abuse and neglect of participants and recommending
9.14improvements to those protections;
9.15(5) advise the commissioner in determining standards for compensation, including
9.16benefits, and other conditions of employment for individual providers sufficient to attract
9.17and maintain a qualified workforce; and
9.18(6) otherwise advise and advocate regarding appropriate means of expanding access
9.19to quality, self-directed direct support services.
9.20 Subd. 9. Operation of covered programs. All covered programs shall operate
9.21consistent with this section, including by providing such services through individual
9.22providers as defined in subdivision 1, paragraph (e), notwithstanding any inconsistent
9.23provisions of section 256B.04, subdivision 16, or 256B.0659.
9.24 Subd. 10. Use of agency workforce. This requirement shall not restrict the state's
9.25ability to offer to those participants who choose not to self-direct a direct support worker
9.26or are unable to do so the alternative of receiving similar services from the employee
9.27workforce assembled, directed, and controlled by a provider agency.
9.28 Subd. 11. Duties of the Department of Human Services. (a) The commissioner
9.29shall afford to all participants within a covered program the option of employing an
9.30individual provider to provide direct support services.
9.31(b) The commissioner shall ensure that all employment of individual providers is
9.32in conformity with this section.
9.33(c) The commissioner shall, in consultation with the council:
9.34(1) establish compensation rates, payment terms and practices, and any benefit
9.35terms for all individual providers;
10.1(2) provide for required orientation programs for all newly hired individual providers
10.2regarding their employment within the covered programs through which they provide
10.3services;
10.4(3) provide for relevant training and educational opportunities for individual
10.5providers, as well as for participants and participants' representatives who receive services
10.6from individual providers, including opportunities for individual providers to obtain
10.7certification documenting additional training and experience in areas of specialization;
10.8(4) provide for the maintenance of one or more public registries to:
10.9(i) provide routine, emergency, and respite referrals of qualified individual providers
10.10to participants and participants' representatives;
10.11(ii) enable participants and participants' representatives to gain improved access
10.12to, and choice among, prospective individual providers, including by having access
10.13to information about individual providers' training, educational background, work
10.14experience, and availability for hire; and
10.15(iii) provide for appropriate employment opportunities for individual providers and a
10.16means by which they may more easily remain available to provide services to participants
10.17within covered programs; and
10.18(5) establish other appropriate terms and conditions of employment governing the
10.19workforce of individual providers.
10.20(d) The commissioner shall ensure that appropriate background studies under
10.21chapter 245C are performed on all individual providers included on any registry as
10.22described in paragraph (c), clause (4).
10.23(e) The commissioner's authority regarding issues specified in section 179A.54,
10.24subdivision 3, is subject to the state's obligations to meet and negotiate with an exclusive
10.25representative over those issues, and is subject to any agreements entered into covering
10.26issues specified in section 179A.54, subdivision 3.
10.27(f) The commissioner shall cooperate in the implementation of this act with the
10.28commissioner of management and budget in the same manner as would be required of
10.29an appointing authority under section 179A.22 with respect to any negotiations between
10.30the executive branch of the state and the exclusive representative of individual providers,
10.31as authorized under sections 179A.22 and 179A.54, regarding issues specified in section
10.32179A.54, subdivision 3. Any entity, including financial management entities, contracting
10.33with the state to provide support to participants or participants' representatives with regard
10.34to the employment of individual providers, shall assist and cooperate with the council and
10.35commissioner of human services in the operations of this section, including with respect
11.1to the commissioner's compiling and maintaining the list of individual providers required
11.2under paragraph (g).
11.3(g) The commissioner shall, no later than July 1, 2013, and then monthly thereafter,
11.4compile and maintain a list of the names and addresses of all individual providers who
11.5have been paid for providing direct support services to participants within the previous
11.6six months. The list shall not include the name of any participant or indicate that an
11.7individual provider is a relative of a participant or has the same address as a participant.
11.8The commissioner shall share the lists with the Quality Self-Directed Services Workforce
11.9Council and with others as needed for the state to meet its obligations under chapter 179A
11.10as modified and made applicable to individual providers under section 179A.54, and to
11.11facilitate the representational processes under section 179A.54, subdivisions 9 and 10.
11.12(h) The commissioner shall immediately commence all necessary steps to ensure
11.13that services offered under all covered programs are offered in conformity with this
11.14section to complete any required modifications to currently operating covered programs
11.15by September 1, 2013.
11.16 Sec. 3. SEVERABILITY.
11.17Should any part of this act be declared invalid or unenforceable, or the enforcement
11.18or compliance with it is suspended, restrained, or barred, either by the state or by the final
11.19judgment of a court of competent jurisdiction, the remainder of this act shall remain
11.20in full force and effect.
11.21 Sec. 4. EFFECTIVE DATE.
11.22This act is effective the day following final enactment.
1.3child care providers and individual providers of direct support services; creating
1.4a Quality Self-Directed Services Workforce;proposing coding for new law in
1.5Minnesota Statutes, chapters 179A; 256B.
1.6BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:
1.9 Section 1. [179A.50] REPRESENTATION OF FAMILY CHILD CARE
1.10PROVIDERS.
1.11Sections 179A.50 to 179A.52 shall be known as the Family Child Care Providers
1.12Representation Act.
1.13 Sec. 2. [179A.51] DEFINITIONS.
1.14 Subdivision 1. Scope. For the purposes of sections 179A.50 to 179A.52, the terms
1.15in this section have the meanings given them.
1.16 Subd. 2. Commissioner. "Commissioner" means the commissioner of mediation
1.17services.
1.18 Subd. 3. Exclusive representative. "Exclusive representative" means an employee
1.19organization that has been elected and certified under section 179A.52, thereby maintaining
1.20the right to represent family child care providers in their relations with the state.
1.21 Subd. 4. Family child care provider. "Family child care provider" means an
1.22individual, either licensed or unlicensed, who provides legal child care services as defined
1.23under section 245A.03, except for providers licensed under Minnesota Rules, chapter
2.19503, or excluded from licensure under section 245A.03, subdivision 2, paragraph (a),
2.2clause (5), and who provides subsidized child care services for a child or children currently
2.3in their care under sections 119B.011, subdivisions 20 and 20a; 119B.03; and 119B.05.
2.4 Sec. 3. [179A.52] RIGHT TO ORGANIZE.
2.5 Subdivision 1. Right to organize; limitations. Family child care providers shall
2.6have the right to form, join, and participate in the activities of employee organizations of
2.7their own choosing for the purpose of representation and meeting and negotiating with
2.8the state. Sections 179A.06, subdivisions 3 and 6, and 179A.22 apply to family child
2.9care providers except as otherwise provided in this section. Family child care providers
2.10have the rights and obligations of public employees only for the purposes of meeting and
2.11negotiating on issues specified in subdivision 7, paragraph (a), and purposes related to
2.12meeting and conferring as provided in this section. This section does not grant family child
2.13care providers status as public employees for any other purpose than the use of procedures
2.14in this chapter for the right to organize, mediate, and negotiate related to the issues specified
2.15in subdivision 7, paragraph (a), and to meet and confer as set forth in this section. This
2.16chapter applies to the relations between the state, the exclusive representative, and family
2.17child care providers only for purposes of this section. Family child care providers shall
2.18have the same rights to interest arbitration provided under section 179A.16, subdivision 2,
2.19to essential employees. Family child care providers shall not have the right to strike.
2.20 Subd. 2. Appropriate unit. The only appropriate unit under this section shall be a
2.21statewide unit of all family child care providers. The unit shall be treated as an appropriate
2.22unit under section 179A.10, subdivision 2.
2.23 Subd. 3. Certification; process. For the purposes of determining certification
2.24under section 179A.12, the commissioner shall utilize a list of family child care providers
2.25compiled by the commissioner of human services over the most recent 12-month period.
2.26The commissioner shall conduct a certification election by mail ballot pursuant to the
2.27procedures in this chapter.
2.28 Subd. 4. Compilation of list. The commissioner of human services shall, by July
2.291, 2013, and monthly thereafter, compile and maintain a list of the names and addresses
2.30of all family child care providers who have been paid for providing child care assistance
2.31services to participants within the previous 12 months. The list shall not include the name
2.32of any participant, or indicate that an individual provider is a relative of a participant
2.33or has the same address as a participant. The commissioner shall share the lists with
2.34others as needed for the state to meet its obligations under this chapter as modified and
3.1made applicable to family child care providers under this section, and to facilitate the
3.2representational processes under this section.
3.3 Subd. 5. List access. Beginning July 1, 2013, upon a showing made to the
3.4commissioner of the Bureau of Mediation Services by any employee organization wishing
3.5to represent the appropriate unit of family child care providers that at least 500 family
3.6child care providers support such representation, the commissioner of human services
3.7shall provide to such organization within seven days the most recent list of family child
3.8care providers compiled under subdivision 4, and subsequent monthly lists upon request
3.9for an additional three months.
3.10 Subd. 6. Elections for exclusive representative. After July 31, 2013, any employee
3.11organization wishing to represent the appropriate unit of family child care providers may
3.12seek exclusive representative status pursuant to section 179A.12. Representation elections
3.13for family child care providers shall be conducted by mail ballot, and such election shall
3.14be conducted upon an appropriate petition stating that at least ten percent of the unit
3.15wishes to be represented by the petitioner. The family child care providers eligible to
3.16vote in any such election shall be those family child care providers on the monthly list
3.17of family child care providers compiled under this section, most recently preceding the
3.18filing of the election petition. Except as otherwise provided, elections under this clause
3.19shall be conducted in accordance with section 179A.12.
3.20 Subd. 7. Meet and negotiate. (a) If the commissioner certifies an employee
3.21organization as the majority exclusive representative, the state, through the commissioner
3.22of management and budget, shall meet and negotiate in good faith with the exclusive
3.23representative of the family child care provider unit on the following issues:
3.24(1) child care assistance reimbursement rates under chapter 119B;
3.25(2) fringe benefits, including those paid upon termination, but not retirement
3.26contributions or benefits, and not other benefits to be paid when a person is no longer a
3.27family child care provider; and
3.28(3) grievance procedures regarding matters in clauses (1) and (2).
3.29(b) This obligation does not compel the state or its representatives to agree to a
3.30proposal or require the making of a concession. The commissioner of management and
3.31budget is authorized to enter into agreements with the exclusive representative on issues
3.32specified in paragraph (a).
3.33 Subd. 8. Legislative action on agreements. Any interest arbitration award or
3.34negotiated agreement reached between the state and the exclusive representative of the
3.35family child care provider unit under this chapter shall be submitted to the legislature to be
4.1accepted or rejected in accordance with sections 3.855 and 179A.22, subject to section
4.2179A.20, subdivisions 2 and 5.
4.3 Subd. 9. Meet and confer. The state has an obligation to meet and confer under this
4.4chapter with the exclusive representative of the family child care provider unit to discuss
4.5policies and other matters relating to their working conditions.
4.6 Subd. 10. Exemption; federal law. In affording family child care providers
4.7the right to engage in collective action, select a representative, and jointly engage in
4.8discussions with the state under the terms of this section, the state intends that the "state
4.9action" exemption from federal antitrust laws be fully available to the state, based on
4.10the state's active supervision of family child care providers to improve the quality,
4.11accessibility, and affordability of early childhood education services in the state.
4.12 Subd. 11. Rights. Nothing in this section shall be construed to interfere with:
4.13(1) parental rights to select and deselect family child care providers or the ability of
4.14family child care providers to establish the rates they charge to parents;
4.15(2) the right or obligation of any state agency to communicate or meet with any
4.16citizen, including other family child care providers, or organization concerning family
4.17child care legislation, regulation, or policy on any topic that is not specified in subdivision
4.187, paragraph (a); or
4.19(3) the rights and responsibilities of family child care providers under federal law.
4.20 Subd. 12. Membership status and eligibility for subsidies. Membership status in
4.21an employee organization shall not affect the eligibility of a family child care provider to
4.22receive payments under, or serve a child who receives payments under, chapter 119B.
4.23 Sec. 4. [179A.53] NO USE OF SCHOLARSHIPS FOR DUES OR FEES.
4.24Early learning scholarships shall not be applied, through state withholding or
4.25otherwise, toward payment of dues or fees that are paid to exclusive representatives of
4.26family child care providers.
4.27 Sec. 5. SEVERABILITY.
4.28 Should any part of this act be declared invalid or unenforceable, or the enforcement
4.29or compliance with it is suspended, restrained, or barred, either by the state or by the final
4.30judgment of a court of competent jurisdiction, the remainder of this act shall remain
4.31in full force and effect.
5.4 Section 1. [179A.54] INDIVIDUAL PROVIDERS OF DIRECT SUPPORT
5.5SERVICES.
5.6 Subdivision 1. Definitions. (a) For the purposes of this section:
5.7(b) "Direct support services" has the meaning given to it under section 256B.0711,
5.8subdivision 1, paragraph (d).
5.9(c) "Individual provider" has the meaning given to it under section 256B.0711,
5.10subdivision 1, paragraph (e).
5.11(d) "Participant" has the meaning given to it under section 256B.0711, subdivision 1,
5.12paragraph (f).
5.13(e) "Participant's representative" has the meaning given to it under section
5.14256B.0711, subdivision 1, paragraph (g).
5.15 Subd. 2. Rights of individual providers and participants. Only for the purposes
5.16of meeting and negotiating on issues specified in subdivision 3, individual providers shall
5.17be considered, by virtue of this section, executive branch state employees employed by
5.18the commissioner of management and budget or the commissioner's representative. This
5.19section does not require the treatment of individual providers as public employees for
5.20any other purpose. This chapter shall apply to individual providers except as otherwise
5.21provided in this section. Notwithstanding section 179A.03, subdivision 14, paragraph
5.22(a), clause (5), this chapter shall apply to individual providers regardless of part-time
5.23or full-time employment status.
5.24 Subd. 3. Scope of meet and negotiate obligation. If an exclusive representative
5.25is certified pursuant to this section, the mutual rights and obligations of the state and an
5.26exclusive representative of individual providers to meet and negotiate regarding terms
5.27and conditions shall extend only to the following issues:
5.28(1) compensation rates and payment terms and practices;
5.29(2) fringe benefits, including those that are paid for or funded per hour of service of
5.30an individual provider, but not for state retirement payments or other benefits to be paid by
5.31the state when a person no longer intends to be an individual provider;
5.32(3) grievance procedures regarding matters in clauses (1) and (2);
5.33(4) access to training and educational opportunities, including training funds, for
5.34individual providers; and
5.35(5) required orientation programs including for all newly hired individual providers.
6.1 Subd. 4. Rights of covered program participants. No provision of any agreement
6.2reached between the state and any exclusive representative of individual providers,
6.3nor any arbitration award, shall interfere with the rights of participants or participants'
6.4representatives to select, hire, direct, supervise, and terminate the employment of their
6.5individual providers; to manage an individual service budget regarding the amounts and
6.6types of authorized goods or services received; or to receive direct support services from
6.7individual providers not referred to them through a state registry.
6.8 Subd. 5. Legislative action on agreements. Any negotiated agreement or
6.9arbitration decision reached between the state and the exclusive representative of
6.10individual providers under this chapter shall be submitted to the legislature to be accepted
6.11or rejected in accordance with sections 3.855 and 179A.22, subject to section 179A.20,
6.12subdivisions 2 and 5.
6.13 Subd. 6. Strikes prohibited. Individual providers shall be subject to the prohibition
6.14on strikes applied to essential employees under section 179A.18.
6.15 Subd. 7. Interest arbitration. Individual providers shall be subject to the interest
6.16arbitration procedures applied to essential employees under section 179A.16.
6.17 Subd. 8. Appropriate unit. The only appropriate unit for individual providers shall
6.18be a statewide unit of all individual providers. Individual providers who are related to
6.19their participant or their participant's representative shall not for such reason be excluded
6.20from the appropriate unit.
6.21 Subd. 9. List access. Beginning July 1, 2013, upon a showing made to the
6.22commissioner of the Bureau of Mediation Services by any employee organization wishing
6.23to represent the appropriate unit of individual providers that at least 500 individual
6.24providers support such representation, the commissioner of human services shall provide
6.25to such organization within seven days the most recent list of individual providers
6.26compiled under section 256B.0711, subdivision 11, paragraph (g), and subsequent
6.27monthly lists upon request for an additional three months.
6.28 Subd. 10. Representation and election. Beginning August 1, 2013, any employee
6.29organization wishing to represent the appropriate unit of individual providers may seek
6.30exclusive representative status pursuant to section 179A.12. Representation elections
6.31for individual providers shall be conducted by mail ballot, and such election shall be
6.32conducted upon an appropriate petition stating that at least ten percent of the unit wishes
6.33to be represented by the petitioner. The individual providers eligible to vote in any such
6.34election shall be those individual providers on the monthly list of individual providers
6.35compiled under section 256B.0711, subdivision 11, paragraph (g), most recently preceding
7.1the filing of the election petition. Except as otherwise provided, elections under this
7.2section shall be conducted in accordance with section 179A.12.
7.3 Subd. 11. Fee collection prior to agreement ratification. Any fees otherwise
7.4required under section 179A.06, subdivision 3, shall not commence prior to the ratification
7.5of an agreement under section 179A.22. This subdivision does not limit the availability of
7.6voluntary dues check off under section 179A.06, subdivision 6.
7.7 Subd. 12. Exemption; federal law. In affording individual providers the right to
7.8engage in collective action, select a representative, and jointly engage in discussions with
7.9the state under the terms of this section, the state intends that the "state action" exemption
7.10from federal antitrust laws be fully available to the state, based on the state's active
7.11supervision of individual providers to improve the quality, accessibility, and affordability
7.12of direct support services in the state.
7.13 Sec. 2. [256B.0711] QUALITY SELF-DIRECTED SERVICES WORKFORCE.
7.14 Subdivision 1. Definitions. (a) For purposes of this section:
7.15(b) "Commissioner" means the commissioner of human services unless otherwise
7.16indicated.
7.17(c) "Covered program" means a program to provide direct support services funded in
7.18whole or in part by the state of Minnesota, including the Community First Services and
7.19Supports program; Consumer Directed Community Supports services and extended state
7.20plan personal care assistance services available under programs established pursuant
7.21to home and community-based service waivers authorized under section 1915(c) of
7.22the Social Security Act and Minnesota Statutes including, but not limited to, sections
7.23256B.0915 and 256B.49, and under the alternative care program, as offered pursuant
7.24to section 256B.0913, all as modified by subdivision 9; the personal care assistance
7.25choice program, as established pursuant to section 256B.0659, subdivisions 18 to 20, and
7.26modified by this section; and any similar program that may provide such services.
7.27(d) "Direct support services" means personal care assistance services covered by
7.28medical assistance under section 256B.0625, subdivisions 19a and 19c; assistance with
7.29activities of daily living as defined in section 256B.0659, subdivision 1, paragraph (b),
7.30and instrumental activities of daily living as defined in section 256B.0659, subdivision
7.311, paragraph (i); and other similar, in-home, nonprofessional long-term services and
7.32supports provided to an elderly person or person with a disability to meet such person's
7.33daily living needs and ensure that such person may adequately function in his or her home
7.34and have safe access to the community.
8.1(e) "Individual provider" means an individual selected by and working under the
8.2direction of a participant in a covered program, or a participant's representative, to provide
8.3direct support services to the participant, and does not include an individual from an
8.4employee workforce assembled, directed, and controlled by a provider agency.
8.5(f) "Participant" means a person who receives direct support services through
8.6a covered program.
8.7(g) "Participant's representative" means a participant's legal guardian or an individual
8.8having the authority and responsibility to act on behalf of a participant with respect to the
8.9provision of direct support services through a covered program.
8.10 Subd. 2. Quality Self-Directed Services Workforce Council established. There is
8.11established the Quality Self-Directed Services Workforce Council to ensure the quality
8.12and availability of individual providers to be selected by and work under the direction of
8.13participants to provide direct support services.
8.14 Subd. 3. Membership. The council shall have 11 members and shall be composed
8.15of the commissioner of human services or the commissioner's designee, who shall serve as
8.16chair, and the following members, who shall be appointed by the governor:
8.17(1) six current or former recipients of direct support services;
8.18(2) one legal guardian or legal representative of a current or former recipient of
8.19direct support services; and
8.20(3) one member of the State Council on Disability under section 256.482, one
8.21member of the Governor's Council on Developmental Disabilities, and one member of the
8.22Minnesota Board on Aging under section 256.975.
8.23 Subd. 4. Appointments; membership terms; compensation; removal; vacancies.
8.24All appointments to the council and filling of vacancies shall be made as provided in
8.25section 15.0597. Membership terms, compensation, and removal of members are as
8.26provided in section 15.059.
8.27 Subd. 5. Quorum. A majority of the members appointed and serving shall
8.28constitute a quorum for the transaction of any business.
8.29 Subd. 6. Initial appointments. The governor shall make all initial appointments
8.30to the council by July 1, 2013. The governor shall designate five members whose terms
8.31will expire on the first Monday in January 2017, and five members whose terms will
8.32expire on the first Monday in January 2019.
8.33 Subd. 7. First meeting. The commissioner shall convene the first meeting by
8.34September 1, 2013.
9.1 Subd. 8. Duties of council. The council, in consultation with the commissioner, has
9.2the following ongoing advisory duties and responsibilities relating to ensuring the quality,
9.3stability, and availability of the individual provider workforce:
9.4(1) assess the size, quality, and stability of the individual provider workforce in
9.5Minnesota and the ability of the existing workforce to meet the growing and changing
9.6needs of both elderly participants and participants with disabilities;
9.7(2) assess and propose strategies to identify, recruit, and retain prospective individual
9.8providers to be available for employment by participants or participants' representatives;
9.9(3) advise the commissioner regarding the development of orientation programs,
9.10training and educational opportunities, and the maintenance of one or more public
9.11registries as described in subdivision 11;
9.12(4) advise the commissioner and other relevant state agencies in assessing existing
9.13mechanisms for preventing abuse and neglect of participants and recommending
9.14improvements to those protections;
9.15(5) advise the commissioner in determining standards for compensation, including
9.16benefits, and other conditions of employment for individual providers sufficient to attract
9.17and maintain a qualified workforce; and
9.18(6) otherwise advise and advocate regarding appropriate means of expanding access
9.19to quality, self-directed direct support services.
9.20 Subd. 9. Operation of covered programs. All covered programs shall operate
9.21consistent with this section, including by providing such services through individual
9.22providers as defined in subdivision 1, paragraph (e), notwithstanding any inconsistent
9.23provisions of section 256B.04, subdivision 16, or 256B.0659.
9.24 Subd. 10. Use of agency workforce. This requirement shall not restrict the state's
9.25ability to offer to those participants who choose not to self-direct a direct support worker
9.26or are unable to do so the alternative of receiving similar services from the employee
9.27workforce assembled, directed, and controlled by a provider agency.
9.28 Subd. 11. Duties of the Department of Human Services. (a) The commissioner
9.29shall afford to all participants within a covered program the option of employing an
9.30individual provider to provide direct support services.
9.31(b) The commissioner shall ensure that all employment of individual providers is
9.32in conformity with this section.
9.33(c) The commissioner shall, in consultation with the council:
9.34(1) establish compensation rates, payment terms and practices, and any benefit
9.35terms for all individual providers;
10.1(2) provide for required orientation programs for all newly hired individual providers
10.2regarding their employment within the covered programs through which they provide
10.3services;
10.4(3) provide for relevant training and educational opportunities for individual
10.5providers, as well as for participants and participants' representatives who receive services
10.6from individual providers, including opportunities for individual providers to obtain
10.7certification documenting additional training and experience in areas of specialization;
10.8(4) provide for the maintenance of one or more public registries to:
10.9(i) provide routine, emergency, and respite referrals of qualified individual providers
10.10to participants and participants' representatives;
10.11(ii) enable participants and participants' representatives to gain improved access
10.12to, and choice among, prospective individual providers, including by having access
10.13to information about individual providers' training, educational background, work
10.14experience, and availability for hire; and
10.15(iii) provide for appropriate employment opportunities for individual providers and a
10.16means by which they may more easily remain available to provide services to participants
10.17within covered programs; and
10.18(5) establish other appropriate terms and conditions of employment governing the
10.19workforce of individual providers.
10.20(d) The commissioner shall ensure that appropriate background studies under
10.21chapter 245C are performed on all individual providers included on any registry as
10.22described in paragraph (c), clause (4).
10.23(e) The commissioner's authority regarding issues specified in section 179A.54,
10.24subdivision 3, is subject to the state's obligations to meet and negotiate with an exclusive
10.25representative over those issues, and is subject to any agreements entered into covering
10.26issues specified in section 179A.54, subdivision 3.
10.27(f) The commissioner shall cooperate in the implementation of this act with the
10.28commissioner of management and budget in the same manner as would be required of
10.29an appointing authority under section 179A.22 with respect to any negotiations between
10.30the executive branch of the state and the exclusive representative of individual providers,
10.31as authorized under sections 179A.22 and 179A.54, regarding issues specified in section
10.32179A.54, subdivision 3. Any entity, including financial management entities, contracting
10.33with the state to provide support to participants or participants' representatives with regard
10.34to the employment of individual providers, shall assist and cooperate with the council and
10.35commissioner of human services in the operations of this section, including with respect
11.1to the commissioner's compiling and maintaining the list of individual providers required
11.2under paragraph (g).
11.3(g) The commissioner shall, no later than July 1, 2013, and then monthly thereafter,
11.4compile and maintain a list of the names and addresses of all individual providers who
11.5have been paid for providing direct support services to participants within the previous
11.6six months. The list shall not include the name of any participant or indicate that an
11.7individual provider is a relative of a participant or has the same address as a participant.
11.8The commissioner shall share the lists with the Quality Self-Directed Services Workforce
11.9Council and with others as needed for the state to meet its obligations under chapter 179A
11.10as modified and made applicable to individual providers under section 179A.54, and to
11.11facilitate the representational processes under section 179A.54, subdivisions 9 and 10.
11.12(h) The commissioner shall immediately commence all necessary steps to ensure
11.13that services offered under all covered programs are offered in conformity with this
11.14section to complete any required modifications to currently operating covered programs
11.15by September 1, 2013.
11.16 Sec. 3. SEVERABILITY.
11.17Should any part of this act be declared invalid or unenforceable, or the enforcement
11.18or compliance with it is suspended, restrained, or barred, either by the state or by the final
11.19judgment of a court of competent jurisdiction, the remainder of this act shall remain
11.20in full force and effect.
11.21 Sec. 4. EFFECTIVE DATE.
11.22This act is effective the day following final enactment.
