READ FIRST TIME 03/05/07.   

     AN ACT Relating to the training of and collective bargaining over the training of care providers; amending RCW 74.39A.009, 74.39A.270, 74.39A.310, and 18.88A.085; amending 2005 c 276 s 1 (uncodified); adding new sections to chapter 74.39A RCW; creating new sections; repealing RCW 74.39A.190; providing an effective date; and declaring an emergency.

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

Sec. 1   2005 c 276 s 1 (uncodified) is amended to read as follows:
     (1) The governor shall establish a joint legislative and executive task force on long-term care financing and chronic care management. The joint task force consists of eight members, as follows: The secretary of the department of social and health services; the secretary of the department of health; the administrator of the health care authority; a representative from the governor's office; two members of the senate appointed by the president of the senate, one of whom shall be a member of the majority caucus and one of whom shall be a member of the minority caucus; and two members of the house of representatives appointed by the speaker of the house of representatives, one of whom shall be a member of the majority caucus and one of whom shall be a member of the minority caucus.
     (2) The joint task force shall elect a member of the joint task force to serve as chair of the joint task force.
     (3) Consistent with funds appropriated specifically for this purpose, the joint task force shall contract for professional services. State agencies, the senate, and the house of representatives may provide staff support upon request of the joint task force.
     (4) The joint task force shall create advisory committees to assist the joint task force in its work. The task force shall actively consult with and solicit recommendations from the advisory committee or committees regarding issues under consideration by the task force.
     (5) Joint task force members may be reimbursed for travel expenses as authorized under RCW 43.03.050 and 43.03.060, and chapter 44.04 RCW as appropriate. Advisory committee members, if appointed, may not receive compensation or reimbursement for travel or expenses.
     (6) The joint task force shall review public and private mechanisms for financing long-term care and make recommendations related to:
     (a) The composition of a long-term care system that is adequate to meet the needs of persons of all ages with functional limitations, including appropriate services to be offered in the continuum of care ranging from services to support persons residing at home through residential care. This shall be accomplished by first determining capacity in each level of care in the long-term care continuum and assessing the impact, by geographic region, of increasing or decreasing capacity in each level of care;
     (b) Efficient payment models that will effectively sustain public funding of long-term care and maximize the use of financial resources to directly meet the needs of persons of all ages with functional limitations;
     (c) State laws and regulations that should be revised and/or eliminated in order to reduce or contain long-term care costs to individuals and the state;
     (d) The feasibility of private options for realistically enabling individuals to pay for long-term care and the most effective tools for implementing these options. The assessment of options should include but not be limited to: (i) Adequacy of personal savings and pensions; (ii) availability of family care, including incentives and supports for families to provide care or pay for care; (iii) creative community-based strategies or partnerships for funding quality long-term care; (iv) enhanced health insurance options; (v) long-term care insurance options, including incentives to purchase long-term care insurance through individual or group-based products; (vi) life insurance annuities; and (vii) reverse mortgage and other products that draw on home equity; and
     (e) Options that will support long-term care needs of rural communities.
     (7) The joint task force shall recommend chronic care management and disability prevention interventions that will reduce health care and long-term care costs to individuals and the state, improve the health of individuals over their life span, and encourage patient self-management of chronic care needs.
     (8)(a) The joint task force shall establish a home and community long-term care workforce development workgroup.
     (b) The workgroup shall consist of:
     (i) The chair of the joint task force;
     (ii) The executive director of the home care quality authority;
     (iii) The assistant secretary of the department of social and health services for aging and disability services;
     (iv) A representative of the department of labor and industries with personal knowledge of and expertise in apprenticeship programs, to be designated by the director of the department;
     (v) A representative of the office of financial management with personal knowledge of and expertise in the fields of long-term care or workforce development, to be designated by the director of the office;
     (vi) A representative of a labor or employee organization representing at least twenty thousand home and community-based long-term care workers, to be designated by the principal officer of the labor or employee organization, the governor, and the cochairs of the workgroup;
     (vii) A representative of a not-for-profit provider of home and community-based long-term care services providing at least one million hours of long-term care services annually, to be designated by the governor and the cochairs of the workgroup;
     (viii) A representative of a for-profit provider of home and community-based long-term care services providing at least five hundred thousand hours of long-term care services annually, to be designated by the governor and the cochairs of the workgroup;
     (ix) A representative of adult family home providers, to be designated by the governor and the cochairs of the workgroup;
     (x) A representative of boarding homes, to be designated by the governor and the cochairs of the workgroup;
     (xi) A representative of an organization representing the interests of home and community-based long-term care consumers, to be designated by the governor and the cochairs of the workgroup;
     (xii) A person with expertise in long-term care or workforce development issues to be named jointly by the speaker of the house of representatives and the majority leader of the senate;
     (xiii) A person representing a public policy organization specializing in long-term care workforce issues, to be designated by the governor and the cochairs of the workgroup;
     (xiv) A representative from the Washington long-term care ombudsman office; and
     (xv) A representative from the Washington developmental disabilities council.
     (c) The workgroup shall be cochaired by the chair of the joint task force and the executive director of the home care quality authority.
     (d) The workgroup shall evaluate current training requirements for long-term care workers with respect to the quality of care provided to vulnerable people across all home and community-based long-term care settings. The workgroup shall make recommendations relating to the appropriate number of basic training hours, the content of basic training curricula, and the development of criteria associated with certification of new long-term care workers. In doing so, the workgroup shall examine cited deficiencies of care in various long-term care settings, and shall evaluate training needs based on medical versus social models. Any basic training standards recommended by the workgroup shall: (i) Be applied uniformly to all long-term care workers; (ii) take into consideration the training standards for workers providing similar care in nursing homes; (iii) be evidence-based and informed by existing research; (iv) be based on the care needs of clients; (v) be developed with input from worker representatives; (vi) be structured in a manner to articulate with certification and apprenticeship programs; and (vii) be informed by broader workforce development and long-term care delivery needs.
     (9) The joint task force shall incorporate a process designed to facilitate an open dialog with the public on findings and recommendations.
     (((9))) (10) With respect to subsections (6) and (7) of this section, the joint task force shall: (a) Report its initial findings to the governor and appropriate committees of the legislature by January 1, 2006; (b) report its recommendations to the governor and appropriate committees of the legislature by January 1, 2007; and (c) submit a final report to the governor and appropriate committees of the legislature by ((June)) December 30, 2007.
     (11) With respect to subsection (8) of this section, the workgroup shall report its findings and recommendations to the joint task force, the governor, and appropriate legislative committees by December 1, 2007. The joint task force shall include the workgroup's findings and recommendations in the joint task force's final report required under subsection (10) of this section.

Sec. 2   RCW 74.39A.009 and 2004 c 142 s 14 are each amended to read as follows:
     Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.
     (1) "Adult family home" means a home licensed under chapter 70.128 RCW.
     (2) "Adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.020 to provide personal care services.
     (3) "Assisted living services" means services provided by a boarding home that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services, and the resident is housed in a private apartment-like unit.
     (4) "Boarding home" means a facility licensed under chapter 18.20 RCW.
     (5) "Cost-effective care" means care provided in a setting of an individual's choice that is necessary to promote the most appropriate level of physical, mental, and psychosocial well-being consistent with client choice, in an environment that is appropriate to the care and safety needs of the individual, and such care cannot be provided at a lower cost in any other setting. But this in no way precludes an individual from choosing a different residential setting to achieve his or her desired quality of life.
     (6) "Department" means the department of social and health services.
     (7) "Enhanced adult residential care" means services provided by a boarding home that is licensed under chapter 18.20 RCW and that has a contract with the department under RCW 74.39A.010 to provide personal care services, intermittent nursing services, and medication administration services.
     (8) "Functionally disabled person" or "person who is functionally disabled" is synonymous with chronic functionally disabled and means a person who because of a recognized chronic physical or mental condition or disease, including chemical dependency, is impaired to the extent of being dependent upon others for direct care, support, supervision, or monitoring to perform activities of daily living. "Activities of daily living", in this context, means self-care abilities related to personal care such as bathing, eating, using the toilet, dressing, and transfer. Instrumental activities of daily living may also be used to assess a person's functional abilities as they are related to the mental capacity to perform activities in the home and the community such as cooking, shopping, house cleaning, doing laundry, working, and managing personal finances.
     (9) "Home and community services" means adult family homes, in-home services, and other services administered or provided by contract by the department directly or through contract with area agencies on aging or similar services provided by facilities and agencies licensed by the department.
     (10) "Long-term care" is synonymous with chronic care and means care and supports delivered indefinitely, intermittently, or over a sustained time to persons of any age disabled by chronic mental or physical illness, disease, chemical dependency, or a medical condition that is permanent, not reversible or curable, or is long-lasting and severely limits their mental or physical capacity for self-care. The use of this definition is not intended to expand the scope of services, care, or assistance by any individuals, groups, residential care settings, or professions unless otherwise expressed by law.
     (11)(a) "Long-term care workers" includes all persons who are long-term care workers for the elderly or persons with disabilities, including but not limited to individual providers of home care services, direct care employees of home care agencies, providers of home care services to persons with developmental disabilities under Title 71 RCW, all direct care workers in state-licensed boarding homes, assisted living facilities, and adult family homes, respite care providers, community residential service providers, and any other direct care worker providing home or community-based services to the elderly or persons with functional disabilities or developmental disabilities.
     (b) "Long-term care workers" do not include persons employed in nursing homes subject to chapter 18.51 RCW, hospitals or other acute care settings, hospice agencies subject to chapter 70.127 RCW, adult day care centers, and adult day health care centers.
     (12) "Nursing home" means a facility licensed under chapter 18.51 RCW.
     (((12))) (13) "Secretary" means the secretary of social and health services.
     (((13))) (14) "Training partnership" means a joint partnership or trust established and maintained jointly by the office of the governor and the exclusive bargaining representative of individual providers under RCW 74.39A.270 to provide training, peer mentoring, and examinations required under this chapter, and educational, career development, or other services to individual providers.
     (15) "Tribally licensed boarding home" means a boarding home licensed by a federally recognized Indian tribe which home provides services similar to boarding homes licensed under chapter 18.20 RCW.

NEW SECTION.  Sec. 3   A new section is added to chapter 74.39A RCW to read as follows:
     PEER MENTORING. Long-term care workers shall be offered on-the-job training or peer mentorship for at least one hour per week in the first ninety days of work from a long-term care worker who has completed at least twelve hours of mentor training and is mentoring no more than ten other workers at any given time. This requirement applies to long-term care workers who begin work on or after January 1, 2010.

NEW SECTION.  Sec. 4   A new section is added to chapter 74.39A RCW to read as follows:
     CONTINUING EDUCATION. Long-term care workers shall complete twelve hours of continuing education training in advanced training topics each year. This requirement applies beginning on January 1, 2010.

NEW SECTION.  Sec. 5   A new section is added to chapter 74.39A RCW to read as follows:
     ADVANCED TRAINING. The department shall offer, directly or through contract, training opportunities sufficient for a long-term care worker to accumulate sixty-five hours of training within a reasonable time period. For individual providers represented by an exclusive bargaining representative under RCW 74.39A.270, the training opportunities shall be offered through a contract with the training partnership established under section 6 of this act. Training topics shall include, but are not limited to: Client rights; personal care; mental illness; dementia; developmental disabilities; depression; medication assistance; advanced communication skills; positive client behavior support; developing or improving client-centered activities; dealing with wandering or aggressive client behaviors; medical conditions; nurse delegation core training; peer mentor training; and advocacy for quality care training. The department may not require long-term care workers to obtain the training described in this section. This requirement to offer advanced training applies beginning January 1, 2010.

NEW SECTION.  Sec. 6   A new section is added to chapter 74.39A RCW to read as follows:
     TRAINING PARTNERSHIP. Beginning January 1, 2010, for individual providers represented by an exclusive bargaining representative under RCW 74.39A.270, all training and peer mentoring required under this chapter shall be provided by a training partnership. Contributions to the partnership pursuant to a collective bargaining agreement negotiated under this chapter shall be made beginning July 1, 2009. The training partnership shall provide reports as required by the department verifying that all individual providers have complied with all training requirements. The exclusive bargaining representative shall designate the training partnership.

Sec. 7   RCW 74.39A.270 and 2006 c 106 s 1 are each amended to read as follows:
     COLLECTIVE BARGAINING--CIRCUMSTANCES IN WHICH INDIVIDUAL PROVIDERS ARE CONSIDERED PUBLIC EMPLOYEES--EXCEPTIONS. (1) Solely for the purposes of collective bargaining and as expressly limited under subsections (2) and (3) of this section, the governor 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. To accommodate the role of the state as payor for the community-based services provided under this chapter and to ensure coordination with state employee collective bargaining under chapter 41.80 RCW and the coordination necessary to implement RCW 74.39A.300, the public employer shall be represented for bargaining purposes by the governor or the governor's designee appointed under chapter 41.80 RCW. The governor or governor's designee shall periodically consult with the authority during the collective bargaining process to allow the authority to communicate issues relating to the long-term in-home care services received by consumers. The governor or the governor's designee shall consult the authority on all issues for which the exclusive bargaining representative requests to engage in collective bargaining under subsections (6) and (7) of this section. The authority shall work with the developmental disabilities council, the governor's committee on disability issues and employment, the state council on aging, and other consumer advocacy organizations to obtain informed input from consumers on their interests, including impacts on consumer choice, for all issues proposed for collective bargaining under subsections (6) and (7) of this section.
     (2) Chapter 41.56 RCW governs the collective bargaining relationship between the governor and individual providers, except as otherwise expressly provided in this chapter 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 governor and the bargaining representative of individual providers, negotiations shall be commenced by May 1st 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 this chapter or chapter 41.56 RCW.
     (3) Individual providers who are public employees 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 employer 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 this chapter, 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 chapter. No agency or department of the state 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 or its core responsibility to manage long-term in-home care services under this chapter, including determination of the level of care that each consumer is eligible to receive. However, at the request of the exclusive bargaining representative, the governor or the governor's designee appointed under chapter 41.80 RCW shall engage in collective bargaining, as defined in RCW 41.56.030(4), with the exclusive bargaining representative over how the department's core responsibility affects hours of work for individual providers. This subsection shall not be interpreted to require collective bargaining over an individual consumer's plan of care;
     (b) The department's authority to terminate its contracts with individual providers who are not adequately meeting the needs of a particular consumer, or to deny a contract under RCW 74.39A.095(8);
     (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;
     (d) The consumer's right to select, hire, terminate, supervise the work of, and determine the conditions of employment for each individual provider providing services to the consumer under this chapter;
     (e) The department's obligation to comply with the federal medicaid statute and regulations and the terms of any community-based waiver granted by the federal department of health and human services and to ensure federal financial participation in the provision of the services; and
     (f) The legislature's right to make programmatic modifications to the delivery of state services under this title, including standards of eligibility of consumers and individual providers participating in the programs under this title, and the nature of services provided. The governor shall not enter into, extend, or renew any agreement under this chapter that does not expressly reserve the legislative rights described in this subsection (6)(f).
     (7) At the request of the exclusive bargaining representative, the governor or the governor's designee appointed under chapter 41.80 RCW shall engage in collective bargaining, as defined in RCW 41.56.030(4), with the exclusive bargaining representative over employer contributions to the training partnership for the costs of: (a) Meeting all training and peer mentoring required under this chapter; and (b) other training intended to promote the career development of individual providers.
     (8)(a) The state, the department, the authority, the area agencies on aging, or their contractors under this chapter may not be held vicariously or jointly 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. The existence of a collective bargaining agreement, the placement of an individual provider on the referral registry, or the development or approval of a plan of care for a consumer who chooses to use the services of an individual provider and the provision of case management services to that consumer, by the department or an area agency on aging, does not constitute a special relationship with the consumer.
     (b) The members of the board are immune from any liability resulting from implementation of this chapter.
     (((8))) (9) Nothing in this section affects the state's responsibility with respect to 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. 8   RCW 74.39A.310 and 2006 c 9 s 1 are each amended to read as follows:
     CONTRACT FOR INDIVIDUAL HOME CARE SERVICE PROVIDERS--COST OF INCREASE IN WAGES AND BENEFITS FUNDED--FORMULA. (1) The department shall create a formula that converts the cost of the increase in wages and benefits negotiated and funded in the contract for individual providers of home care services pursuant to RCW 74.39A.270 and 74.39A.300, into a per-hour amount, excluding those benefits defined in subsection (2) of this section. That per-hour amount shall be added to the statewide home care agency vendor rate and shall be used exclusively for improving the wages and benefits of home care agency workers who provide direct care. The formula shall account for:
     (a) All types of wages, benefits, and compensation negotiated and funded each biennium, including but not limited to:
     (i) Regular wages;
     (ii) Benefit pay, such as vacation, sick, and holiday pay;
     (iii) Taxes on wages/benefit pay; ((and))
     (iv) Mileage; and
     (v) Contributions to a training partnership; and
     (b) The increase in the average cost of worker's compensation for home care agencies and application of the increases identified in (a) of this subsection to all hours required to be paid, including travel time, of direct service workers under the wage and hour laws and associated employer taxes.
     (2) The contribution rate for health care benefits, including but not limited to medical, dental, and vision benefits, for eligible agency home care workers shall be paid by the department to home care agencies at the same rate as negotiated and funded in the collective bargaining agreement for individual providers of home care services.

Sec. 9   RCW 18.88A.085 and 1994 sp.s. c 9 s 712 are each amended to read as follows:
     NURSING ASSISTANTS--CERTIFICATION REQUIREMENTS. (1) After January 1, 1990, the secretary shall issue a certificate to any applicant who demonstrates to the secretary's satisfaction that the following requirements have been met:
     (a) Completion of an approved training program or successful completion of alternate training meeting established criteria approved by the commission; and
     (b) Successful completion of a competency evaluation.
     (2) The secretary may permit all or a portion of the training hours earned under chapter 74.39A RCW to be applied toward certification under this section.
     (3) In addition, applicants shall be subject to the grounds for denial of certification under chapter 18.130 RCW.

NEW SECTION.  Sec. 10   REPEALER. RCW 74.39A.190 (Community long-term care training and education steering committee) and 2002 c 233 s 4 & 2000 c 121 s 8 are each repealed.

NEW SECTION.  Sec. 11   LIBERAL CONSTRUCTION. The provisions of this act are to be liberally construed to effectuate the intent, policies, and purposes of this act.

NEW SECTION.  Sec. 12   SEVERABILITY. If any provision of this act or its application to any person or circumstance is held invalid, the remainder of the act or the application of the provision to other persons or circumstances is not affected.

NEW SECTION.  Sec. 13   EMERGENCY CLAUSE. Section 1 of this act is necessary for the immediate preservation of the public peace, health, or safety, or support of the state government and its existing public institutions, and takes effect immediately.

NEW SECTION.  Sec. 14   EFFECTIVE DATE. Sections 7 and 8 of this act take effect March 1, 2008.

NEW SECTION.  Sec. 15   CAPTIONS. Captions used in this act are not any part of the law.

NEW SECTION.  Sec. 16   SHORT TITLE. This act may be known and cited as the establishing quality in long-term care services act.