BILL REQ. #:  S-4223.1 

Read first time 01/28/2004.   Referred to Committee on Health & Long-Term Care.

     AN ACT Relating to clarifying collective bargaining processes for individual providers; amending RCW 74.39A.270 and 74.39A.300; adding a new section to chapter 41.04 RCW; and adding a new section to chapter 43.01 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

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.
     (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) With respect to commencement of negotiations between the authority and the bargaining representative of individual providers, negotiations shall be commenced by May 1 of any year prior to the year in which an existing collective bargaining agreement expires; and
     (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;
     (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)(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) 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.

Sec. 2   RCW 74.39A.300 and 2002 c 3 s 9 are each amended to read as follows:
     (1) Upon meeting the requirements of subsection (2) of this section, the governor must submit, as a part of the proposed biennial or supplemental operating budget submitted to the legislature under RCW 43.88.030, a request for funds necessary to administer chapter 3, Laws of 2002 and to implement ((any)) the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 or for legislation necessary to implement ((any)) such agreement ((within ten days of the date on which the agreement is ratified or, if the legislature is not in session, within ten days after the next legislative session convenes)).
     (2) A request for funds necessary to implement the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 shall not be submitted by the governor to the legislature unless such request:
     (a) Has been submitted to the director of the office of financial management by October 1st prior to the legislative session at which the request is to be considered; and
     (b) Has been certified by the director of the office of financial management as being feasible financially for the state or reflects the binding decision of an arbitration panel reached under RCW 74.39A.270(2)(c).
     (3) The legislature must approve or reject the submission of the request for funds as a whole. If the legislature rejects or fails to act on the submission, any such agreement will be reopened solely for the purpose of renegotiating the funds necessary to implement the agreement.
     (((2))) (4) When any increase in individual provider wages or benefits is negotiated or agreed to by the authority, no increase in wages or benefits negotiated or agreed to under chapter 3, Laws of 2002 will take effect unless and until, before its implementation, the department has determined that the increase is consistent with federal law and federal financial participation in the provision of services under Title XIX of the federal social security act.
     (((3))) (5) There is hereby created a joint committee on home care worker relations, which consists of two members with leadership positions in the house of representatives, representing each of the two largest caucuses; the chair and ranking minority member of the house of representatives appropriations committee, or its successor, representing each of the two largest caucuses; two members with leadership positions in the senate, representing each of the two largest caucuses; and the chair and ranking minority member of the senate ways and means committee, or its successor, representing each of the two largest caucuses. The authority shall periodically consult with the committee regarding appropriations necessary to implement the compensation and fringe benefits provisions of any collective bargaining agreement and, upon completion of negotiations, advise the committee on the elements of the agreement and on any legislation necessary to implement such agreement.
     (6) After the expiration date of any collective bargaining agreement entered into under RCW 74.39A.270, all of the terms and conditions specified in any such agreement remain in effect until the effective date of a subsequent agreement, not to exceed one year from the expiration date stated in the agreement.
     (7) Except as expressly limited in this section, 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 this state, other than the authority, may establish policies or rules governing the wages or hours of individual providers. However, this subsection does not modify:
     (a) The department's authority to establish a plan of care for each consumer and to determine the hours of care that each consumer is eligible to receive;
     (b) The department's authority to terminate its contracts with individual providers who are not adequately meeting the needs of a particular consumer;
     (c) The consumer's right to assign hours to one or more individual providers selected by the consumer within the maximum hours determined by his or her plan of care; and
     (d) The consumer's right to determine conditions of employment for each individual provider in the consumer's employ.

NEW SECTION.  Sec. 3   A new section is added to chapter 41.04 RCW to read as follows:
     Individual providers, as defined in RCW 74.39A.240, are not employees of the state or any of its political subdivisions and are specifically and entirely excluded from all provisions of this title, except as provided in RCW 74.39A.270.

NEW SECTION.  Sec. 4   A new section is added to chapter 43.01 RCW to read as follows:
     The provisions of RCW 43.01.040 through 43.01.044 shall not be applicable to individual providers under RCW 74.39A.220 through 74.39A.300.