Bill Text: MN SF778 | 2013-2014 | 88th Legislature | Engrossed
Bill Title: Family Child Care Providers Representation Act; family child care providers and home and community-based long-term care services collective bargaining authority and appropriation
Sponsorship: Strong Partisan Bill (Democrat 15-1)
Status: (Passed) 2013-05-24 - Secretary of State Chapter 128 [SF778 Detail]
Download: Minnesota-2013-SF778-Engrossed.html
1.2relating to collective bargaining; authorizing collective bargaining for
1.3family child care providers; authorizing collective bargaining for home and
1.4community-based long-term care services; appropriating money;proposing
1.5coding for new law in Minnesota 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 receives child care assistance to subsidize child care services for a
2.3child or children currently in their care, under sections 119B.03; 119B.05; and 119B.011,
2.4subdivisions 20 and 20a.
2.5 Sec. 3. [179A.52] RIGHT TO ORGANIZE.
2.6 Subdivision 1. Rights of individual providers and participants. For the purposes
2.7of the Public Employment Labor Relations Act, under chapter 179A, family child care
2.8providers shall be considered, by virtue of this section, executive branch state employees
2.9employed by the commissioner of management and budget or the commissioner's
2.10representative. This section does not require the treatment of family child care providers
2.11as public employees for any other purpose. Family child care providers are not state
2.12employees for purposes of section 3.736. Chapter 179A shall apply to family child care
2.13providers except as otherwise provided in this section. Notwithstanding section 179A.03,
2.14subdivision 14, paragraph (a), clause (5), chapter 179A shall apply to family child care
2.15providers regardless of part-time or full-time employment status. Family child care
2.16providers shall not have the right to strike.
2.17 Subd. 2. Appropriate unit. The only appropriate unit under this section shall be a
2.18statewide unit of all family child care providers who meet the definition in section 179A.51,
2.19and who have had an active registration under chapter 119B within the previous 12 months.
2.20The unit shall be treated as an appropriate unit under section 179A.10, subdivision 2.
2.21 Subd. 3. Compilation of list. The commissioner of human services shall, by July 1,
2.222013, and monthly thereafter, compile and maintain a list of the names and addresses of all
2.23family child care providers who meet the definition in section 179A.51, and who have had
2.24an active registration under chapter 119B within the previous 12 months. The list shall not
2.25include the name of any participant, or indicate that an individual provider is a relative of a
2.26participant or has the same address as a participant. The commissioner of human services
2.27shall share the lists with others as needed for the state to meet its obligations under chapter
2.28179A as modified and made applicable to family child care providers under this section,
2.29and to facilitate the representational processes under this section.
2.30 Subd. 4. List access. Beginning July 1, 2013, upon a showing made to the
2.31commissioner of the Bureau of Mediation Services by any employee organization wishing
2.32to represent the appropriate unit of family child care providers that at least 500 family
2.33child care providers support such representation, the commissioner of human services shall
2.34provide to such organization within seven days the most recent list of actively registered
2.35family child care providers compiled under subdivision 3, and subsequent monthly
3.1lists upon request for an additional three months. When the list is made available to an
3.2employee organization under this subdivision, the list must be made publicly available.
3.3 Subd. 5. Elections for exclusive representative. After July 31, 2013, any employee
3.4organization wishing to represent the appropriate unit of family child care providers may
3.5seek exclusive representative status pursuant to section 179A.12. Certification elections
3.6for family child care providers shall be conducted by mail ballot, and such election shall
3.7be conducted upon an appropriate petition stating that at least 30 percent of the appropriate
3.8unit wishes to be represented by the petitioner. The family child care providers eligible to
3.9vote in any such election shall be those family child care providers on the monthly list of
3.10family child care providers compiled under this section, most recently preceding the filing
3.11of the election petition. Except as otherwise provided, elections under this subdivision
3.12shall be conducted in accordance with section 179A.12.
3.13 Subd. 6. Meet and negotiate. If the commissioner certifies an employee
3.14organization as the majority exclusive representative, the state, through the governor
3.15or the governor's designee, shall meet and negotiate in good faith with the exclusive
3.16representative of the family child care provider unit regarding grievance issues, child care
3.17assistance reimbursement rates under chapter 119B, and terms and conditions of service,
3.18but this obligation does not compel the state or its representatives to agree to a proposal or
3.19require the making of a concession. The governor or the governor's designee is authorized
3.20to enter into agreements with the exclusive representative. Negotiated agreements and
3.21arbitration decisions must be submitted to the legislature to be accepted or rejected in
3.22accordance with sections 3.855 and 179A.22.
3.23 Subd. 7. Meet and confer. The state has an obligation to meet and confer under
3.24chapter 179A with family child care providers to discuss policies and other matters
3.25relating to their service that are not terms and conditions of service.
3.26 Subd. 8. Terms and conditions of service. For purposes of this section, "terms and
3.27conditions of service" has the same meaning as given in section 179A.03, subdivision 19.
3.28 Subd. 9. Rights. Nothing in this section shall be construed to interfere with:
3.29(1) parental rights to select and deselect family child care providers or the ability of
3.30family child care providers to establish the rates they charge to parents;
3.31(2) the right or obligation of any state agency to communicate or meet with any
3.32citizen or organization concerning family child care legislation, regulation, or policy; or
3.33(3) the rights and responsibilities of family child care providers under federal law.
3.34 Subd. 10. Membership status and eligibility for subsidies. Membership status in
3.35an employee organization shall not affect the eligibility of a family child care provider to
3.36receive payments under, or serve a child who receives payments under, chapter 119B.
4.1 Sec. 4. [179A.53] NO USE OF SCHOLARSHIPS FOR DUES OR FEES.
4.2Early learning scholarships shall not be applied, through state withholding or
4.3otherwise, toward payment of dues or fees that are paid to exclusive representatives of
4.4family child care providers.
4.5EFFECTIVE DATE.This section is effective the day following final enactment of
4.6a law styled as Senate File No. 481 of the 88th legislature.
4.7 Sec. 5. SEVERABILITY.
4.8Should any part of this act be declared invalid or unenforceable, or the enforcement
4.9or compliance with it is suspended, restrained, or barred, either by the state or by the final
4.10judgment of a court of competent jurisdiction, the remainder of this act shall remain
4.11in full force and effect.
4.12 Sec. 6. EXPIRATION.
4.13Sections 1 to 4 expire June 30, 2017, if an exclusive representative has not been
4.14certified under Minnesota Statutes, section 179A.52, subdivision 6, by that date, provided
4.15that the commissioner of the Bureau of Mediation Services shall process any petition
4.16under Minnesota Statutes, section 179A.52, subdivision 5, pending as of June 30, 2017,
4.17and any certification of an exclusive representative resulting from a petition pending as of
4.18June 30, 2017, shall, for the purposes of this section, be treated as having occurred on the
4.19date the petition was initially filed. The revisor of statutes shall publish this expiration
4.20date with the codification of sections 1 to 4.
4.21 Sec. 7. EFFECTIVE DATE.
4.22Except for Minnesota Statutes, section 179A.53, this article is effective the day
4.23following final enactment.
4.27 Section 1. [179A.54] INDIVIDUAL PROVIDERS OF DIRECT SUPPORT
4.28SERVICES.
4.29 Subdivision 1. Definitions. For the purposes of this section:
4.30(a) "Direct support services" has the meaning given to it under section 256B.0711,
4.31subdivision 1, paragraph (c).
5.1(b) "Individual provider" has the meaning given to it under section 256B.0711,
5.2subdivision 1, paragraph (d).
5.3(c) "Participant" has the meaning given to it under section 256B.0711, subdivision 1,
5.4paragraph (e).
5.5(d) "Participant's representative" has the meaning given to it under section
5.6256B.0711, subdivision 1, paragraph (f).
5.7 Subd. 2. Rights of individual providers and participants. For the purposes of
5.8the Public Employment Labor Relations Act, under chapter 179A, individual providers
5.9shall be considered, by virtue of this section, executive branch state employees employed
5.10by the commissioner of management and budget or the commissioner's representative.
5.11This section does not require the treatment of individual providers as public employees for
5.12any other purpose. Individual providers are not state employees for purposes of section
5.133.736. Chapter 179A shall apply to individual providers except as otherwise provided
5.14in this section. Notwithstanding section 179A.03, subdivision 14, paragraph (a), clause
5.15(5), chapter 179A shall apply to individual providers regardless of part-time or full-time
5.16employment status.
5.17 Subd. 3. Scope of meet and negotiate obligation. If an exclusive representative
5.18is certified pursuant to this section, the mutual rights and obligations of the state and an
5.19exclusive representative of individual providers to meet and negotiate regarding terms and
5.20conditions shall extend to the subjects covered under section 256B.0711, subdivision 4,
5.21paragraph (c), but shall not include those subjects reserved to participants or participants'
5.22representatives by subdivision 4.
5.23 Subd. 4. Rights of covered program participants. No provision of any agreement
5.24reached between the state and any exclusive representative of individual providers,
5.25nor any arbitration award, shall interfere with the rights of participants or participants'
5.26representatives to select, hire, direct, supervise, and terminate the employment of their
5.27individual providers; to manage an individual service budget regarding the amounts and
5.28types of authorized goods or services received; or to receive direct support services from
5.29individual providers not referred to them through a state registry.
5.30 Subd. 5. Legislative action on agreements. Any agreement reached between the
5.31state and the exclusive representative of individual providers under chapter 179A shall
5.32be submitted to the legislature to be accepted or rejected in accordance with sections
5.333.855 and 179A.22.
5.34 Subd. 6. Strikes prohibited. Individual providers shall be subject to the prohibition
5.35on strikes applied to essential employees under section 179A.18.
6.1 Subd. 7. Interest arbitration. Individual providers shall be subject to the interest
6.2arbitration procedures applied to essential employees under section 179A.16.
6.3 Subd. 8. Appropriate unit. The only appropriate unit for individual providers shall
6.4be a statewide unit of all individual providers. The unit shall be treated as an appropriate
6.5unit under section 179A.10, subdivision 2. Individual providers who are related to their
6.6participant or their participant's representative shall not for such reason be excluded from
6.7the appropriate unit.
6.8 Subd. 9. List access. Beginning September 1, 2013, upon a showing made to the
6.9commissioner of the Bureau of Mediation Services by any employee organization wishing
6.10to represent the appropriate unit of individual providers that at least 500 individual
6.11providers support such representation, the commissioner of the Bureau of Mediation
6.12Services shall provide to such organization within seven days the most recent list of
6.13individual providers compiled under section 256B.0711, subdivision 11, paragraph (f),
6.14and three subsequent monthly lists upon request. The commissioner of the Bureau of
6.15Mediation Services shall provide lists compiled under section 256B.0711, subdivision 11,
6.16paragraph (f), upon request, to any exclusive representative of individual providers. To
6.17facilitate operation of this section, the commissioner of human services shall provide
6.18all lists to the commissioner of the Bureau of Mediation Services, upon the request of
6.19the commissioner of the Bureau of Mediation Services. When the list is available to an
6.20employee organization under this subdivision, the list must be made publicly available.
6.21 Subd. 10. Representation and election. Beginning October 1, 2013, any employee
6.22organization wishing to represent the appropriate unit of individual providers may seek
6.23exclusive representative status pursuant to section 179A.12. Certification elections
6.24for individual providers shall be conducted by mail ballot, and such election shall be
6.25conducted upon an appropriate petition stating that among individual providers who have
6.26been paid for providing direct support services to participants within the previous 12
6.27months, a number of individual providers equal to at least 30 percent of those eligible to
6.28vote wish to be represented by the petitioner. The individual providers eligible to vote
6.29in any such election shall be those individual providers on the monthly list of individual
6.30providers compiled under section 256B.0711, subdivision 11, paragraph (f), most recently
6.31preceding the filing of the election petition. Except as otherwise provided, elections under
6.32this section shall be conducted in accordance with section 179A.12.
6.33 Sec. 2. [256B.0711] QUALITY SELF-DIRECTED SERVICES WORKFORCE.
6.34 Subdivision 1. Definitions. For purposes of this section:
7.1(a) "Commissioner" means the commissioner of human services unless otherwise
7.2indicated.
7.3(b) "Covered program" means a program to provide direct support services funded
7.4in whole or in part by the state of Minnesota, including the Community First Services and
7.5Supports program; Consumer Directed Community Supports services and extended state
7.6plan personal care assistance services available under programs established pursuant
7.7to home and community-based service waivers authorized under section 1915(c) of
7.8the Social Security Act, and Minnesota Statutes, including, but not limited to, sections
7.9256B.0915, 256B.092, and 256B.49, and under the alternative care program, as offered
7.10pursuant to section 256B.0913; the personal care assistance choice program, as established
7.11pursuant to section 256B.0659, subdivisions 18 to 20; and any similar program that may
7.12provide similar services in the future.
7.13(c) "Direct support services" means personal care assistance services covered by
7.14medical assistance under section 256B.0625, subdivisions 19a and 19c; assistance with
7.15activities of daily living as defined in section 256B.0659, subdivision 1, paragraph (b),
7.16and instrumental activities of daily living as defined in section 256B.0659, subdivision 1,
7.17paragraph (i); and other similar, in-home, nonprofessional long-term services and supports
7.18provided to an elderly person or person with a disability by their employee or the employee
7.19of their representative to meet such person's daily living needs and ensure that such person
7.20may adequately function in the person's home and have safe access to the community.
7.21(d) "Individual provider" means an individual selected by and working under the
7.22direction of a participant in a covered program, or a participant's representative, to provide
7.23direct support services to the participant, but does not include an employee of a provider
7.24agency, subject to the agency's direction and control commensurate with agency employee
7.25status.
7.26(e) "Participant" means a person who receives direct support services through
7.27a covered program.
7.28(f) "Participant's representative" means a participant's legal guardian or an individual
7.29having the authority and responsibility to act on behalf of a participant with respect to the
7.30provision of direct support services through a covered program.
7.31 Subd. 2. Operation of covered programs. All covered programs shall operate
7.32consistent with this section, including by affording participants and participants'
7.33representatives within the programs of the option of receiving services through individual
7.34providers as defined in subdivision 1, paragraph (d), notwithstanding any inconsistent
7.35provisions of section 256B.0659 or 256B.04, subdivision 16.
8.1 Subd. 3. Use of employee workforce. The requirement under subdivision 2 shall
8.2not restrict the state's ability to afford participants and participants' representatives within
8.3the covered programs who choose not to employ an individual provider, or are unable to
8.4do so, the option of receiving similar services through the employees of provider agencies,
8.5rather than through an individual provider.
8.6 Subd. 4. Duties of the Department of Human Services. (a) The commissioner
8.7shall afford to all participants within a covered program the option of employing an
8.8individual provider to provide direct support services.
8.9(b) The commissioner shall ensure that all employment of individual providers is
8.10in conformity with this section and section 179A.54, including by modifying program
8.11operations as necessary to ensure proper classification of individual providers, to require
8.12that all relevant vendors within covered programs assist and cooperate as needed,
8.13including providers of fiscal support, fiscal intermediary, financial management, or similar
8.14services to provide support to participants and participants' representatives with regard to
8.15employing individual providers, and to otherwise fulfill the requirements of this section,
8.16including the provisions of paragraph (f).
8.17(c) The commissioner shall:
8.18 (1) establish for all individual providers compensation rates, payment terms and
8.19practices, and any benefit terms, provided that these rates and terms may permit individual
8.20provider variations based on traditional and relevant factors otherwise permitted by law;
8.21(2) provide for required orientation programs within three months of hire for
8.22individual providers newly hired on or after January 1, 2015, regarding their employment
8.23within the covered programs through which they provide services;
8.24(3) have the authority to provide for relevant training and educational opportunities
8.25for individual providers, as well as for participants and participants' representatives
8.26who receive services from individual providers, including opportunities for individual
8.27providers to obtain certification documenting additional training and experience in areas
8.28of specialization;
8.29(4) have the authority to provide for the maintenance of a public registry of
8.30individuals who have consented to be included to:
8.31(i) provide routine, emergency, and respite referrals of qualified individual providers
8.32who have consented to be included in the registry to participants and participants'
8.33representatives;
8.34(ii) enable participants and participants' representatives to gain improved access
8.35to, and choice among, prospective individual providers, including by having access
9.1to information about individual providers' training, educational background, work
9.2experience, and availability for hire; and
9.3(iii) provide for appropriate employment opportunities for individual providers and a
9.4means by which they may more easily remain available to provide services to participants
9.5within covered programs; and
9.6(5) establish other appropriate terms and conditions of employment governing the
9.7workforce of individual providers.
9.8(d) The commissioner's authority over terms and conditions of individual providers'
9.9employment, including compensation, payment, and benefit terms, employment
9.10opportunities within covered programs, individual provider orientation, training, and
9.11education opportunities, and the operation of public registries shall be subject to the state's
9.12obligations to meet and negotiate under chapter 179A, as modified and made applicable
9.13to individual providers under section 179A.54, and to agreements with any exclusive
9.14representative of individual providers, as authorized by chapter 179A, as modified and
9.15made applicable to individual providers under section 179A.54. Except to the extent
9.16otherwise provided by law, the commissioner shall not undertake activities in paragraph
9.17(c), clauses (3) and (4), prior to July 1, 2015, unless included in a negotiated agreement
9.18and an appropriation has been provided by the legislature to the commissioner.
9.19(e) The commissioner shall cooperate in the implementation of section 179A.54
9.20with the commissioner of management and budget in the same manner as would be
9.21required of an appointing authority under section 179A.22 with respect to any negotiations
9.22between the executive branch of the state and the exclusive representative of individual
9.23providers, as authorized under sections 179A.22 and 179A.54. Any entity providing
9.24relevant services within covered programs, including providers of fiscal support, fiscal
9.25intermediary, financial management, or similar services to provide support to participants
9.26and participants' representatives with regard to employing individual providers shall assist
9.27and cooperate with the commissioner of human services in the operations of this section,
9.28including with respect to the commissioner's obligations under paragraphs (b) and (f).
9.29(f) The commissioner shall, no later than September 1, 2013, and then monthly
9.30thereafter, compile and maintain a list of the names and addresses of all individual
9.31providers who have been paid for providing direct support services to participants within
9.32the previous six months. The list shall not include the name of any participant, or indicate
9.33that an individual provider is a relative of a participant or has the same address as a
9.34participant. The commissioner shall share the lists with others as needed for the state to
9.35meet its obligations under chapter 179A as modified and made applicable to individual
9.36providers under section 179A.54, and to facilitate the representational processes under
10.1section 179A.54, subdivisions 9 and 10. In order to effectuate this section and section
10.2179A.54, questions of employee organization access to other relevant data on individual
10.3providers relating to their employment or prospective employment within covered
10.4programs shall be governed by chapter 179A and section 13.43, and shall be treated the
10.5same as labor organization access to personnel data under section 13.43, subdivision 6.
10.6This shall not include access to private data on participants or participants' representatives.
10.7Nothing in this section or section 179A.54 shall alter the access rights of other private
10.8parties to data on individual providers.
10.9(g) The commissioner shall immediately commence all necessary steps to ensure
10.10that services offered under all covered programs are offered in conformity with this
10.11section, to gather all information that may be needed for promptly compiling lists required
10.12under this section, including information from current vendors within covered programs,
10.13and to complete any required modifications to currently operating covered programs by
10.14September 1, 2013.
10.15 (h) Beginning January 1, 2014, the commissioner of human services shall
10.16specifically require that any fiscal support, fiscal intermediary, financial management, or
10.17similar entities providing payroll assistance services with respect to individual providers
10.18shall make all needed deductions on behalf of the state of dues check off amounts
10.19or fair-share fees for the exclusive representative, as provided in section 179A.06,
10.20subdivisions 3 and 6. All contracts with entities for the provision of payroll-related
10.21services shall include this requirement.
10.22 Sec. 3. SEVERABILITY.
10.23Should any part of this act be declared invalid or unenforceable, or the enforcement
10.24or compliance with it is suspended, restrained, or barred, either by the state or by the final
10.25judgment of a court of competent jurisdiction, the remainder of this act shall remain
10.26in full force and effect.
10.27 Sec. 4. EXPIRATION.
10.28Provided the commissioner of human services fulfills the department's obligations
10.29under Minnesota Statutes, section 256B.0711, subdivision 4, paragraphs (f) and (g), by
10.30September 1, 2013, sections 1 and 2 expire June 30, 2017, if an exclusive representative
10.31has not been certified under Minnesota Statutes, section 179A.54, subdivision 10, by that
10.32date; provided further that the commissioner of the Bureau of Mediation Services shall
10.33process any petition under Minnesota Statutes, section 179A.54, subdivision 10, pending
10.34as of June 30, 2017, and any certification of an exclusive representative resulting from a
11.1petition pending as of June 30, 2017, shall, for the purposes of this section, be treated as
11.2having occurred on the date the petition was initially filed. The revisor of statutes shall
11.3publish this expiration date with the codification of sections 1 and 2.
11.4 Sec. 5. EFFECTIVE DATE.
11.5This article is effective the day following final enactment.
11.8 Section 1. APPROPRIATIONS.
11.9(a) $1,010,000 in fiscal year 2014 and $890,000 in fiscal year 2015 are appropriated
11.10from the general fund to the commissioner of human services for the purposes of this act.
11.11The funding base for this appropriation is $2,504,000 for fiscal year 2016 and $1,426,000
11.12for fiscal year 2017 and later.
11.13(b) $59,000 in fiscal year 2014 is appropriated from the general fund to the
11.14commissioner of the Bureau of Mediation Services for the purposes of this act.
11.15(c) $235,000 in fiscal year 2014 and $235,000 in fiscal year 2015 are appropriated
11.16from the general fund to the commissioner of management and budget for the purposes of
11.17this act. The funding base for this appropriation for fiscal year 2016 and later is $118,000.
1.3family child care providers; authorizing collective bargaining for home and
1.4community-based long-term care services; appropriating money;proposing
1.5coding for new law in Minnesota 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 receives child care assistance to subsidize child care services for a
2.3child or children currently in their care, under sections 119B.03; 119B.05; and 119B.011,
2.4subdivisions 20 and 20a.
2.5 Sec. 3. [179A.52] RIGHT TO ORGANIZE.
2.6 Subdivision 1. Rights of individual providers and participants. For the purposes
2.7of the Public Employment Labor Relations Act, under chapter 179A, family child care
2.8providers shall be considered, by virtue of this section, executive branch state employees
2.9employed by the commissioner of management and budget or the commissioner's
2.10representative. This section does not require the treatment of family child care providers
2.11as public employees for any other purpose. Family child care providers are not state
2.12employees for purposes of section 3.736. Chapter 179A shall apply to family child care
2.13providers except as otherwise provided in this section. Notwithstanding section 179A.03,
2.14subdivision 14, paragraph (a), clause (5), chapter 179A shall apply to family child care
2.15providers regardless of part-time or full-time employment status. Family child care
2.16providers shall not have the right to strike.
2.17 Subd. 2. Appropriate unit. The only appropriate unit under this section shall be a
2.18statewide unit of all family child care providers who meet the definition in section 179A.51,
2.19and who have had an active registration under chapter 119B within the previous 12 months.
2.20The unit shall be treated as an appropriate unit under section 179A.10, subdivision 2.
2.21 Subd. 3. Compilation of list. The commissioner of human services shall, by July 1,
2.222013, and monthly thereafter, compile and maintain a list of the names and addresses of all
2.23family child care providers who meet the definition in section 179A.51, and who have had
2.24an active registration under chapter 119B within the previous 12 months. The list shall not
2.25include the name of any participant, or indicate that an individual provider is a relative of a
2.26participant or has the same address as a participant. The commissioner of human services
2.27shall share the lists with others as needed for the state to meet its obligations under chapter
2.28179A as modified and made applicable to family child care providers under this section,
2.29and to facilitate the representational processes under this section.
2.30 Subd. 4. List access. Beginning July 1, 2013, upon a showing made to the
2.31commissioner of the Bureau of Mediation Services by any employee organization wishing
2.32to represent the appropriate unit of family child care providers that at least 500 family
2.33child care providers support such representation, the commissioner of human services shall
2.34provide to such organization within seven days the most recent list of actively registered
2.35family child care providers compiled under subdivision 3, and subsequent monthly
3.1lists upon request for an additional three months. When the list is made available to an
3.2employee organization under this subdivision, the list must be made publicly available.
3.3 Subd. 5. Elections for exclusive representative. After July 31, 2013, any employee
3.4organization wishing to represent the appropriate unit of family child care providers may
3.5seek exclusive representative status pursuant to section 179A.12. Certification elections
3.6for family child care providers shall be conducted by mail ballot, and such election shall
3.7be conducted upon an appropriate petition stating that at least 30 percent of the appropriate
3.8unit wishes to be represented by the petitioner. The family child care providers eligible to
3.9vote in any such election shall be those family child care providers on the monthly list of
3.10family child care providers compiled under this section, most recently preceding the filing
3.11of the election petition. Except as otherwise provided, elections under this subdivision
3.12shall be conducted in accordance with section 179A.12.
3.13 Subd. 6. Meet and negotiate. If the commissioner certifies an employee
3.14organization as the majority exclusive representative, the state, through the governor
3.15or the governor's designee, shall meet and negotiate in good faith with the exclusive
3.16representative of the family child care provider unit regarding grievance issues, child care
3.17assistance reimbursement rates under chapter 119B, and terms and conditions of service,
3.18but this obligation does not compel the state or its representatives to agree to a proposal or
3.19require the making of a concession. The governor or the governor's designee is authorized
3.20to enter into agreements with the exclusive representative. Negotiated agreements and
3.21arbitration decisions must be submitted to the legislature to be accepted or rejected in
3.22accordance with sections 3.855 and 179A.22.
3.23 Subd. 7. Meet and confer. The state has an obligation to meet and confer under
3.24chapter 179A with family child care providers to discuss policies and other matters
3.25relating to their service that are not terms and conditions of service.
3.26 Subd. 8. Terms and conditions of service. For purposes of this section, "terms and
3.27conditions of service" has the same meaning as given in section 179A.03, subdivision 19.
3.28 Subd. 9. Rights. Nothing in this section shall be construed to interfere with:
3.29(1) parental rights to select and deselect family child care providers or the ability of
3.30family child care providers to establish the rates they charge to parents;
3.31(2) the right or obligation of any state agency to communicate or meet with any
3.32citizen or organization concerning family child care legislation, regulation, or policy; or
3.33(3) the rights and responsibilities of family child care providers under federal law.
3.34 Subd. 10. Membership status and eligibility for subsidies. Membership status in
3.35an employee organization shall not affect the eligibility of a family child care provider to
3.36receive payments under, or serve a child who receives payments under, chapter 119B.
4.1 Sec. 4. [179A.53] NO USE OF SCHOLARSHIPS FOR DUES OR FEES.
4.2Early learning scholarships shall not be applied, through state withholding or
4.3otherwise, toward payment of dues or fees that are paid to exclusive representatives of
4.4family child care providers.
4.5EFFECTIVE DATE.This section is effective the day following final enactment of
4.6a law styled as Senate File No. 481 of the 88th legislature.
4.7 Sec. 5. SEVERABILITY.
4.8Should any part of this act be declared invalid or unenforceable, or the enforcement
4.9or compliance with it is suspended, restrained, or barred, either by the state or by the final
4.10judgment of a court of competent jurisdiction, the remainder of this act shall remain
4.11in full force and effect.
4.12 Sec. 6. EXPIRATION.
4.13Sections 1 to 4 expire June 30, 2017, if an exclusive representative has not been
4.14certified under Minnesota Statutes, section 179A.52, subdivision 6, by that date, provided
4.15that the commissioner of the Bureau of Mediation Services shall process any petition
4.16under Minnesota Statutes, section 179A.52, subdivision 5, pending as of June 30, 2017,
4.17and any certification of an exclusive representative resulting from a petition pending as of
4.18June 30, 2017, shall, for the purposes of this section, be treated as having occurred on the
4.19date the petition was initially filed. The revisor of statutes shall publish this expiration
4.20date with the codification of sections 1 to 4.
4.21 Sec. 7. EFFECTIVE DATE.
4.22Except for Minnesota Statutes, section 179A.53, this article is effective the day
4.23following final enactment.
4.27 Section 1. [179A.54] INDIVIDUAL PROVIDERS OF DIRECT SUPPORT
4.28SERVICES.
4.29 Subdivision 1. Definitions. For the purposes of this section:
4.30(a) "Direct support services" has the meaning given to it under section 256B.0711,
4.31subdivision 1, paragraph (c).
5.1(b) "Individual provider" has the meaning given to it under section 256B.0711,
5.2subdivision 1, paragraph (d).
5.3(c) "Participant" has the meaning given to it under section 256B.0711, subdivision 1,
5.4paragraph (e).
5.5(d) "Participant's representative" has the meaning given to it under section
5.6256B.0711, subdivision 1, paragraph (f).
5.7 Subd. 2. Rights of individual providers and participants. For the purposes of
5.8the Public Employment Labor Relations Act, under chapter 179A, individual providers
5.9shall be considered, by virtue of this section, executive branch state employees employed
5.10by the commissioner of management and budget or the commissioner's representative.
5.11This section does not require the treatment of individual providers as public employees for
5.12any other purpose. Individual providers are not state employees for purposes of section
5.133.736. Chapter 179A shall apply to individual providers except as otherwise provided
5.14in this section. Notwithstanding section 179A.03, subdivision 14, paragraph (a), clause
5.15(5), chapter 179A shall apply to individual providers regardless of part-time or full-time
5.16employment status.
5.17 Subd. 3. Scope of meet and negotiate obligation. If an exclusive representative
5.18is certified pursuant to this section, the mutual rights and obligations of the state and an
5.19exclusive representative of individual providers to meet and negotiate regarding terms and
5.20conditions shall extend to the subjects covered under section 256B.0711, subdivision 4,
5.21paragraph (c), but shall not include those subjects reserved to participants or participants'
5.22representatives by subdivision 4.
5.23 Subd. 4. Rights of covered program participants. No provision of any agreement
5.24reached between the state and any exclusive representative of individual providers,
5.25nor any arbitration award, shall interfere with the rights of participants or participants'
5.26representatives to select, hire, direct, supervise, and terminate the employment of their
5.27individual providers; to manage an individual service budget regarding the amounts and
5.28types of authorized goods or services received; or to receive direct support services from
5.29individual providers not referred to them through a state registry.
5.30 Subd. 5. Legislative action on agreements. Any agreement reached between the
5.31state and the exclusive representative of individual providers under chapter 179A shall
5.32be submitted to the legislature to be accepted or rejected in accordance with sections
5.333.855 and 179A.22.
5.34 Subd. 6. Strikes prohibited. Individual providers shall be subject to the prohibition
5.35on strikes applied to essential employees under section 179A.18.
6.1 Subd. 7. Interest arbitration. Individual providers shall be subject to the interest
6.2arbitration procedures applied to essential employees under section 179A.16.
6.3 Subd. 8. Appropriate unit. The only appropriate unit for individual providers shall
6.4be a statewide unit of all individual providers. The unit shall be treated as an appropriate
6.5unit under section 179A.10, subdivision 2. Individual providers who are related to their
6.6participant or their participant's representative shall not for such reason be excluded from
6.7the appropriate unit.
6.8 Subd. 9. List access. Beginning September 1, 2013, upon a showing made to the
6.9commissioner of the Bureau of Mediation Services by any employee organization wishing
6.10to represent the appropriate unit of individual providers that at least 500 individual
6.11providers support such representation, the commissioner of the Bureau of Mediation
6.12Services shall provide to such organization within seven days the most recent list of
6.13individual providers compiled under section 256B.0711, subdivision 11, paragraph (f),
6.14and three subsequent monthly lists upon request. The commissioner of the Bureau of
6.15Mediation Services shall provide lists compiled under section 256B.0711, subdivision 11,
6.16paragraph (f), upon request, to any exclusive representative of individual providers. To
6.17facilitate operation of this section, the commissioner of human services shall provide
6.18all lists to the commissioner of the Bureau of Mediation Services, upon the request of
6.19the commissioner of the Bureau of Mediation Services. When the list is available to an
6.20employee organization under this subdivision, the list must be made publicly available.
6.21 Subd. 10. Representation and election. Beginning October 1, 2013, any employee
6.22organization wishing to represent the appropriate unit of individual providers may seek
6.23exclusive representative status pursuant to section 179A.12. Certification elections
6.24for individual providers shall be conducted by mail ballot, and such election shall be
6.25conducted upon an appropriate petition stating that among individual providers who have
6.26been paid for providing direct support services to participants within the previous 12
6.27months, a number of individual providers equal to at least 30 percent of those eligible to
6.28vote wish to be represented by the petitioner. The individual providers eligible to vote
6.29in any such election shall be those individual providers on the monthly list of individual
6.30providers compiled under section 256B.0711, subdivision 11, paragraph (f), most recently
6.31preceding the filing of the election petition. Except as otherwise provided, elections under
6.32this section shall be conducted in accordance with section 179A.12.
6.33 Sec. 2. [256B.0711] QUALITY SELF-DIRECTED SERVICES WORKFORCE.
6.34 Subdivision 1. Definitions. For purposes of this section:
7.1(a) "Commissioner" means the commissioner of human services unless otherwise
7.2indicated.
7.3(b) "Covered program" means a program to provide direct support services funded
7.4in whole or in part by the state of Minnesota, including the Community First Services and
7.5Supports program; Consumer Directed Community Supports services and extended state
7.6plan personal care assistance services available under programs established pursuant
7.7to home and community-based service waivers authorized under section 1915(c) of
7.8the Social Security Act, and Minnesota Statutes, including, but not limited to, sections
7.9256B.0915, 256B.092, and 256B.49, and under the alternative care program, as offered
7.10pursuant to section 256B.0913; the personal care assistance choice program, as established
7.11pursuant to section 256B.0659, subdivisions 18 to 20; and any similar program that may
7.12provide similar services in the future.
7.13(c) "Direct support services" means personal care assistance services covered by
7.14medical assistance under section 256B.0625, subdivisions 19a and 19c; assistance with
7.15activities of daily living as defined in section 256B.0659, subdivision 1, paragraph (b),
7.16and instrumental activities of daily living as defined in section 256B.0659, subdivision 1,
7.17paragraph (i); and other similar, in-home, nonprofessional long-term services and supports
7.18provided to an elderly person or person with a disability by their employee or the employee
7.19of their representative to meet such person's daily living needs and ensure that such person
7.20may adequately function in the person's home and have safe access to the community.
7.21(d) "Individual provider" means an individual selected by and working under the
7.22direction of a participant in a covered program, or a participant's representative, to provide
7.23direct support services to the participant, but does not include an employee of a provider
7.24agency, subject to the agency's direction and control commensurate with agency employee
7.25status.
7.26(e) "Participant" means a person who receives direct support services through
7.27a covered program.
7.28(f) "Participant's representative" means a participant's legal guardian or an individual
7.29having the authority and responsibility to act on behalf of a participant with respect to the
7.30provision of direct support services through a covered program.
7.31 Subd. 2. Operation of covered programs. All covered programs shall operate
7.32consistent with this section, including by affording participants and participants'
7.33representatives within the programs of the option of receiving services through individual
7.34providers as defined in subdivision 1, paragraph (d), notwithstanding any inconsistent
7.35provisions of section 256B.0659 or 256B.04, subdivision 16.
8.1 Subd. 3. Use of employee workforce. The requirement under subdivision 2 shall
8.2not restrict the state's ability to afford participants and participants' representatives within
8.3the covered programs who choose not to employ an individual provider, or are unable to
8.4do so, the option of receiving similar services through the employees of provider agencies,
8.5rather than through an individual provider.
8.6 Subd. 4. Duties of the Department of Human Services. (a) The commissioner
8.7shall afford to all participants within a covered program the option of employing an
8.8individual provider to provide direct support services.
8.9(b) The commissioner shall ensure that all employment of individual providers is
8.10in conformity with this section and section 179A.54, including by modifying program
8.11operations as necessary to ensure proper classification of individual providers, to require
8.12that all relevant vendors within covered programs assist and cooperate as needed,
8.13including providers of fiscal support, fiscal intermediary, financial management, or similar
8.14services to provide support to participants and participants' representatives with regard to
8.15employing individual providers, and to otherwise fulfill the requirements of this section,
8.16including the provisions of paragraph (f).
8.17(c) The commissioner shall:
8.18 (1) establish for all individual providers compensation rates, payment terms and
8.19practices, and any benefit terms, provided that these rates and terms may permit individual
8.20provider variations based on traditional and relevant factors otherwise permitted by law;
8.21(2) provide for required orientation programs within three months of hire for
8.22individual providers newly hired on or after January 1, 2015, regarding their employment
8.23within the covered programs through which they provide services;
8.24(3) have the authority to provide for relevant training and educational opportunities
8.25for individual providers, as well as for participants and participants' representatives
8.26who receive services from individual providers, including opportunities for individual
8.27providers to obtain certification documenting additional training and experience in areas
8.28of specialization;
8.29(4) have the authority to provide for the maintenance of a public registry of
8.30individuals who have consented to be included to:
8.31(i) provide routine, emergency, and respite referrals of qualified individual providers
8.32who have consented to be included in the registry to participants and participants'
8.33representatives;
8.34(ii) enable participants and participants' representatives to gain improved access
8.35to, and choice among, prospective individual providers, including by having access
9.1to information about individual providers' training, educational background, work
9.2experience, and availability for hire; and
9.3(iii) provide for appropriate employment opportunities for individual providers and a
9.4means by which they may more easily remain available to provide services to participants
9.5within covered programs; and
9.6(5) establish other appropriate terms and conditions of employment governing the
9.7workforce of individual providers.
9.8(d) The commissioner's authority over terms and conditions of individual providers'
9.9employment, including compensation, payment, and benefit terms, employment
9.10opportunities within covered programs, individual provider orientation, training, and
9.11education opportunities, and the operation of public registries shall be subject to the state's
9.12obligations to meet and negotiate under chapter 179A, as modified and made applicable
9.13to individual providers under section 179A.54, and to agreements with any exclusive
9.14representative of individual providers, as authorized by chapter 179A, as modified and
9.15made applicable to individual providers under section 179A.54. Except to the extent
9.16otherwise provided by law, the commissioner shall not undertake activities in paragraph
9.17(c), clauses (3) and (4), prior to July 1, 2015, unless included in a negotiated agreement
9.18and an appropriation has been provided by the legislature to the commissioner.
9.19(e) The commissioner shall cooperate in the implementation of section 179A.54
9.20with the commissioner of management and budget in the same manner as would be
9.21required of an appointing authority under section 179A.22 with respect to any negotiations
9.22between the executive branch of the state and the exclusive representative of individual
9.23providers, as authorized under sections 179A.22 and 179A.54. Any entity providing
9.24relevant services within covered programs, including providers of fiscal support, fiscal
9.25intermediary, financial management, or similar services to provide support to participants
9.26and participants' representatives with regard to employing individual providers shall assist
9.27and cooperate with the commissioner of human services in the operations of this section,
9.28including with respect to the commissioner's obligations under paragraphs (b) and (f).
9.29(f) The commissioner shall, no later than September 1, 2013, and then monthly
9.30thereafter, compile and maintain a list of the names and addresses of all individual
9.31providers who have been paid for providing direct support services to participants within
9.32the previous six months. The list shall not include the name of any participant, or indicate
9.33that an individual provider is a relative of a participant or has the same address as a
9.34participant. The commissioner shall share the lists with others as needed for the state to
9.35meet its obligations under chapter 179A as modified and made applicable to individual
9.36providers under section 179A.54, and to facilitate the representational processes under
10.1section 179A.54, subdivisions 9 and 10. In order to effectuate this section and section
10.2179A.54, questions of employee organization access to other relevant data on individual
10.3providers relating to their employment or prospective employment within covered
10.4programs shall be governed by chapter 179A and section 13.43, and shall be treated the
10.5same as labor organization access to personnel data under section 13.43, subdivision 6.
10.6This shall not include access to private data on participants or participants' representatives.
10.7Nothing in this section or section 179A.54 shall alter the access rights of other private
10.8parties to data on individual providers.
10.9(g) The commissioner shall immediately commence all necessary steps to ensure
10.10that services offered under all covered programs are offered in conformity with this
10.11section, to gather all information that may be needed for promptly compiling lists required
10.12under this section, including information from current vendors within covered programs,
10.13and to complete any required modifications to currently operating covered programs by
10.14September 1, 2013.
10.15 (h) Beginning January 1, 2014, the commissioner of human services shall
10.16specifically require that any fiscal support, fiscal intermediary, financial management, or
10.17similar entities providing payroll assistance services with respect to individual providers
10.18shall make all needed deductions on behalf of the state of dues check off amounts
10.19or fair-share fees for the exclusive representative, as provided in section 179A.06,
10.20subdivisions 3 and 6. All contracts with entities for the provision of payroll-related
10.21services shall include this requirement.
10.22 Sec. 3. SEVERABILITY.
10.23Should any part of this act be declared invalid or unenforceable, or the enforcement
10.24or compliance with it is suspended, restrained, or barred, either by the state or by the final
10.25judgment of a court of competent jurisdiction, the remainder of this act shall remain
10.26in full force and effect.
10.27 Sec. 4. EXPIRATION.
10.28Provided the commissioner of human services fulfills the department's obligations
10.29under Minnesota Statutes, section 256B.0711, subdivision 4, paragraphs (f) and (g), by
10.30September 1, 2013, sections 1 and 2 expire June 30, 2017, if an exclusive representative
10.31has not been certified under Minnesota Statutes, section 179A.54, subdivision 10, by that
10.32date; provided further that the commissioner of the Bureau of Mediation Services shall
10.33process any petition under Minnesota Statutes, section 179A.54, subdivision 10, pending
10.34as of June 30, 2017, and any certification of an exclusive representative resulting from a
11.1petition pending as of June 30, 2017, shall, for the purposes of this section, be treated as
11.2having occurred on the date the petition was initially filed. The revisor of statutes shall
11.3publish this expiration date with the codification of sections 1 and 2.
11.4 Sec. 5. EFFECTIVE DATE.
11.5This article is effective the day following final enactment.
11.8 Section 1. APPROPRIATIONS.
11.9(a) $1,010,000 in fiscal year 2014 and $890,000 in fiscal year 2015 are appropriated
11.10from the general fund to the commissioner of human services for the purposes of this act.
11.11The funding base for this appropriation is $2,504,000 for fiscal year 2016 and $1,426,000
11.12for fiscal year 2017 and later.
11.13(b) $59,000 in fiscal year 2014 is appropriated from the general fund to the
11.14commissioner of the Bureau of Mediation Services for the purposes of this act.
11.15(c) $235,000 in fiscal year 2014 and $235,000 in fiscal year 2015 are appropriated
11.16from the general fund to the commissioner of management and budget for the purposes of
11.17this act. The funding base for this appropriation for fiscal year 2016 and later is $118,000.
