2933-S AMH CONW CORD 019

SHB 2933 - H AMD

By Representative Conway

On page 1, beginning on line 6, strike all of section 1 and insert the following:

"Sec. 1. RCW 74.39A.270 and 2002 c 3 s 6 are each amended to read as follows:

(1) Solely for the purposes of collective bargaining and as expressly limited under subsections (2) and (3) of this section, the authority is the public employer, as defined in chapter 41.56 RCW, of individual providers, who, solely for the purposes of collective bargaining, are public employees, as defined in chapter 41.56 RCW, of the authority. To accommodate the role of the state as payor for the community-based services provided under this chapter and to ensure the coordination necessary to implement RCW 74.39A.300(1) and (2), bargaining under this section shall be conducted by the governor's designee appointed under chapter 41.80 RCW. The governor's designee shall consult with the authority before any agreement is reached under this section.

(2) Chapter 41.56 RCW governs the ((employment)) collective bargaining relationship between the authority and individual providers, except as otherwise expressly provided in chapter 3, Laws of 2002 and except as follows:

(a) The only unit appropriate for the purpose of collective bargaining under RCW 41.56.060 is a statewide unit of all individual providers;

(b) The showing of interest required to request an election under RCW 41.56.060 is ten percent of the unit, and any intervener seeking to appear on the ballot must make the same showing of interest;

(c) The mediation and interest arbitration provisions of RCW 41.56.430 through 41.56.470 and 41.56.480 apply, except that:

(i) Negotiations shall be commenced by May 1 of any year prior to the year in which an existing collective bargaining agreement expires;

(ii) With respect to factors to be taken into consideration by an interest arbitration panel, the panel shall consider the financial ability of the state to pay for the compensation and fringe benefit provisions of a collective bargaining agreement; and

(iii) The decision of the arbitration panel is not binding on the legislature and, if the legislature does not approve the request for funds necessary to implement the compensation and fringe benefit provisions of the arbitrated collective bargaining agreement, is not binding on the authority or the state;

(d) Individual providers do not have the right to strike; and

(e) Individual providers who are related to, or family members of, consumers or prospective consumers are not, for that reason, exempt from chapter 3, Laws of 2002 or chapter 41.56 RCW.

(3) Individual providers who are public employees ((of the authority)) solely for the purposes of collective bargaining under subsection (1) of this section are not, for that reason, employees of the state, its political subdivisions, or an area agency on aging for any purpose. Chapter 41.56 RCW applies only to the governance of the collective bargaining relationship between the authority and individual providers as provided in subsections (1) and (2) of this section.

(4) Consumers and prospective consumers retain the right to select, hire, supervise the work of, and terminate any individual provider providing services to them. Consumers may elect to receive long-term in-home care services from individual providers who are not referred to them by the authority.

(5) In implementing and administering chapter 3, Laws of 2002, neither the authority nor any of its contractors may reduce or increase the hours of service for any consumer below or above the amount determined to be necessary under any assessment prepared by the department or an area agency on aging.

(6) Except as expressly limited in this section and RCW 74.39A.300, the wages, hours, and working conditions of individual providers are determined solely through collective bargaining as provided in this section. No agency or department of the state, other than the authority, may establish policies or rules governing the wages or hours of individual providers. However, to recognize the obligation of the department to comply with Title XIX of the federal social security act and with the terms and conditions of any community-based waiver granted by the federal department of health and human services, including those related to client safety and quality of care, and to ensure federal financial participation in the provision of these services, the department retains authority to:

(a) Establish a plan of care for each consumer and to determine the hours of care that each consumer is eligible to receive;

(b) Terminate its contracts with individual providers who are not adequately meeting the needs of a particular consumer; and

(7)(a) The authority, the area agencies on aging, or their contractors under chapter 3, Laws of 2002 may not be held vicariously liable for the action or inaction of any individual provider or prospective individual provider, whether or not that individual provider or prospective individual provider was included on the authority's referral registry or referred to a consumer or prospective consumer.

(b) The members of the board are immune from any liability resulting from implementation of chapter 3, Laws of 2002.

(((7))) (8) Nothing in this section affects the state's responsibility with respect to ((the state payroll system or)) unemployment insurance for individual providers. However, individual providers are not to be considered, as a result of the state assuming this responsibility, employees of the state."

EFFECT: The amendment:

(1) deletes the requirement for the Home Care Quality Authority (HCQA) to contract for collective bargaining with the Office of Labor Relations and, instead, requires the bargaining to be conducted by that office, with consultation with the HCQA before an agreement is reached;

(2) adds a statement that to comply with the community-based program waivers under federal medicaid law, the Department of Social and Health Services retains authority over consumers' plans of care, and termination and denial of provider contracts and deletes a reference to the consumer's right to assign hours and determine conditions of employment (but retaining the consumer's right to select, hire, supervise the work of, and terminate individual providers);

(3) adds that the state also is not bound by an arbitration award that is not funded by the Legislature; and

(4) removes a reference to negotiations between the HCQA and the bargaining representative.