BILL REQ. #:  H-2064.1 

Read first time 02/16/2007.   Referred to Committee on Commerce & Labor.

     AN ACT Relating to the training of and collective bargaining over the training of care providers; amending RCW 74.39A.050, 74.39A.270, 74.39A.300, 74.39A.310, 41.56.465, and 18.88A.085; adding a new section to chapter 74.39A RCW; creating new sections; and repealing RCW 74.39A.190.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 74.39A RCW to read as follows:
     (1) Effective January 1, 2009, the department shall require that all persons who are part of an independent provider bargaining unit, private agency home care provider, adult family home care workers, or other providers of long-term care services to the elderly and persons with disabilities, including adult family home providers, adult residential care providers, long-term care providers, boarding home administrators, boarding home caregivers, and other home and community service care providers identified in this chapter meet the following minimum training requirements described in this section.
     (2) All entry-level persons employed as providers of long-term care services to the elderly and persons with disabilities shall be required to obtain one hundred fifty hours of entry-level training including eighty-five hours of precertification training as follows:
     (a) Two hours of orientation training in the role of the caregiver and the terms of employment to be completed within two weeks of employment or within fifty hours of work, whichever is later;
     (b) Three hours of safety training including basic safety precautions and emergency procedures and infection control to be completed within two weeks of employment or within fifty hours of work, whichever is later; and
     (c) Eighty hours of long-term care core competencies training including but not limited to: Consumer rights and confidentiality; communication and problem solving skills; personal care skills; health-related tasks training; in-home and nutritional support; body systems, disease, and disability training; and self-care training to be completed within six months of employment or within six hundred hours of work, whichever is later.
     (3) The department shall offer sixty-five hours of advanced and specialty training including but not limited to topics such as: 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.
     (4) The department may develop a review process waiving some or all mandatory training requirements for a person who already possesses a health care degree, is certified under chapter 18.88A RCW, is a registered nurse, or has other significant experience and training.
     (5) Effective January 1, 2009, the department shall require that all providers of long-term care services to the elderly and persons with disabilities shall obtain twelve hours of continuing education training in advanced and specialty training topics each year beginning on the anniversary date of completion of the one hundred fifty hours of training, or beginning on January 1, 2010, for existing workers.
     (6) Effective January 1, 2010, the department shall require that all providers of long-term care services to the elderly and persons with disabilities shall be offered or made available on-the-job training or peer mentorship of at least one hour a week for the first one hundred twenty 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.
     (7) The department shall adopt rules by January 1, 2009, that establish a certified home care aide designation and testing process. After completing at least eight-five hours of required entry-level training, workers subject to this section will be eligible to take the test established by the department to receive a home care aide certification. The department shall administer the home care aide certification examination and shall certify home care aides who pass the test. To maintain their certification, personal care aides must complete all training and continuing education requirements within the time limits specified in this section.
     (8) Only training curriculum approved by the department may be used to fulfill the training requirements under this section. The department shall approve any training curriculum that has been developed with input from consumer and worker representatives, that allows for comprehensive instruction by qualified instructors on the competencies and training topics in this section, and that encourages direct participation by consumers and workers as associate instructors for some modules.
     (9) The department shall deny payment to any provider of long-term care services to the elderly and persons with disabilities who does not or whose employees do not complete the training requirements and obtain certification as a personal care aide within six months or six hundred hours of work, whichever is later.
     (10) For all providers of long-term care services to the elderly and persons with disabilities represented by an exclusive bargaining representative under RCW 74.39A.270 and 74.39A.300, all training under this section shall be provided by joint labor-management partnership or trust. The partnership or trust shall provide reports as required by the department verifying that all providers have complied with all training requirements. Employer contributions to the entity is a mandatory subject of the collective bargaining agreement and shall be fixed at a level sufficient to meet the cost of the training requirements and to contribute towards the cost of other services such as adult education, caregiver support, and career development services necessary to recruit and retain a high quality direct care workforce. The partnership or trust shall be designated by the certified exclusive bargaining representative representing at least twenty thousand employees.
     (11) The requirements of this section do not apply to nursing homes licensed under chapter 18.51 RCW.
     (12) The department shall adopt rules to implement this section.

Sec. 2   RCW 74.39A.050 and 2004 c 140 s 6 are each amended to read as follows:
     The department's system of quality improvement for long-term care services shall use the following principles, consistent with applicable federal laws and regulations:
     (1) The system shall be client-centered and promote privacy, independence, dignity, choice, and a home or home-like environment for consumers consistent with chapter 392, Laws of 1997.
     (2) The goal of the system is continuous quality improvement with the focus on consumer satisfaction and outcomes for consumers. This includes that when conducting licensing or contract inspections, the department shall interview an appropriate percentage of residents, family members, resident case managers, and advocates in addition to interviewing providers and staff.
     (3) Providers should be supported in their efforts to improve quality and address identified problems initially through training, consultation, technical assistance, and case management.
     (4) The emphasis should be on problem prevention both in monitoring and in screening potential providers of service.
     (5) Monitoring should be outcome based and responsive to consumer complaints and based on a clear set of health, quality of care, and safety standards that are easily understandable and have been made available to providers, residents, and other interested parties.
     (6) Prompt and specific enforcement remedies shall also be implemented without delay, pursuant to RCW 74.39A.080, RCW 70.128.160, chapter 18.51 RCW, or chapter 74.42 RCW, for providers found to have delivered care or failed to deliver care resulting in problems that are serious, recurring, or uncorrected, or that create a hazard that is causing or likely to cause death or serious harm to one or more residents. These enforcement remedies may also include, when appropriate, reasonable conditions on a contract or license. In the selection of remedies, the safety, health, and well-being of residents shall be of paramount importance.
     (7) To the extent funding is available, all long-term care staff directly responsible for the care, supervision, or treatment of vulnerable persons should be screened through background checks in a uniform and timely manner to ensure that they do not have a criminal history that would disqualify them from working with vulnerable persons. Whenever a state conviction record check is required by state law, persons may be employed or engaged as volunteers or independent contractors on a conditional basis according to law and rules adopted by the department.
     (8) No provider or staff, or prospective provider or staff, with a stipulated finding of fact, conclusion of law, an agreed order, or finding of fact, conclusion of law, or final order issued by a disciplining authority, a court of law, or entered into a state registry finding him or her guilty of abuse, neglect, exploitation, or abandonment of a minor or a vulnerable adult as defined in chapter 74.34 RCW shall be employed in the care of and have unsupervised access to vulnerable adults.
     (9) The department shall establish, by rule, a state registry which contains identifying information about personal care aides identified under this chapter who have substantiated findings of abuse, neglect, financial exploitation, or abandonment of a vulnerable adult as defined in RCW 74.34.020. The rule must include disclosure, disposition of findings, notification, findings of fact, appeal rights, and fair hearing requirements. The department shall disclose, upon request, substantiated findings of abuse, neglect, financial exploitation, or abandonment to any person so requesting this information.
     (10) ((The department shall by rule develop training requirements for individual providers and home care agency providers. Effective March 1, 2002, individual providers and home care agency providers must satisfactorily complete department-approved orientation, basic training, and continuing education within the time period specified by the department in rule. The department shall adopt rules by March 1, 2002, for the implementation of this section based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190. The department shall deny payment to an individual provider or a home care provider who does not complete the training requirements within the time limit specified by the department by rule.
     (11) In an effort to improve access to training and education and reduce costs, especially for rural communities, the coordinated system of long-term care training and education must include the use of innovative types of learning strategies such as internet resources, videotapes, and distance learning using satellite technology coordinated through community colleges or other entities, as defined by the department.
     (12) The department shall create an approval system by March 1, 2002, for those seeking to conduct department-approved training. In the rule-making process, the department shall adopt rules based on the recommendations of the community long-term care training and education steering committee established in RCW 74.39A.190.
     (13))) The department shall establish, by rule, ((training,)) background checks, and other quality assurance requirements for personal aides who provide in-home services funded by medicaid personal care as described in RCW 74.09.520, community options program entry system waiver services as described in RCW 74.39A.030, or chore services as described in RCW 74.39A.110 that are equivalent to requirements for individual providers.
     (((14))) (11) Under existing funds the department shall establish internally a quality improvement standards committee to monitor the development of standards and to suggest modifications.
     (((15) Within existing funds)) (12) Consistent with section 1 of this act, the department shall design, develop, and implement a long-term care training program that is flexible, relevant, and qualifies towards the requirements for a nursing assistant certificate as established under chapter 18.88A RCW. This subsection does not require completion of the nursing assistant certificate training program by providers or their staff. The long-term care teaching curriculum must consist of a fundamental module, or modules, and a range of other available relevant training modules that provide the caregiver with appropriate options that assist in meeting the resident's care needs. Some of the training modules may include, but are not limited to, specific training on the special care needs of persons with developmental disabilities, dementia, mental illness, and the care needs of the elderly. No less than one training module must be dedicated to workplace violence prevention. The nursing care quality assurance commission shall work together with the department to develop the curriculum modules. The nursing care quality assurance commission shall direct the nursing assistant training programs to accept some or all of the skills and competencies from the curriculum modules towards meeting the requirements for a nursing assistant certificate as defined in chapter 18.88A RCW. A process may be developed to test persons completing modules from a caregiver's class to verify that they have the transferable skills and competencies for entry into a nursing assistant training program. The department may review whether facilities can develop their own related long-term care training programs. The department may develop a review process for determining what previous experience and training may be used to waive some or all of the mandatory training. ((The department of social and health services and the nursing care quality assurance commission shall work together to develop an implementation plan by December 12, 1998.))

Sec. 3   RCW 74.39A.270 and 2006 c 106 s 1 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 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 for the cost of meeting the training requirements in section 1 of this act and providing other such programs and services necessary to establish and promote the education, training, career development, career ladders, certification, and licensing of a stable, professionally trained long-term care workforce.
     (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. 4   RCW 74.39A.300 and 2004 c 3 s 2 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 the compensation and fringe benefits provisions of a collective bargaining agreement entered into under RCW 74.39A.270 or for legislation necessary to implement such agreement.
     (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 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 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) Notwithstanding subsection (2) of this section, the governor must submit to the first available legislative session a request for funds necessary to implement the training contributions provisions of a collective bargaining agreement entered into under RCW 74.39A.270 as a part of the proposed biennial or supplemental operating budget submitted to the legislature under RCW 43.88.030.
     (4) 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.
     (((4))) (5) When any increase in individual provider wages or benefits is negotiated or agreed to, no increase in wages or benefits negotiated or agreed to under this chapter 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.
     (((5))) (6) The governor shall periodically consult with the joint committee on employment relations established by RCW 41.80.010 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))) (7) 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, except as provided in RCW 74.39A.270(6)(f).
     (((7))) (8) If, after the compensation and benefit provisions of an agreement are approved by the legislature, a significant revenue shortfall occurs resulting in reduced appropriations, as declared by proclamation of the governor or by resolution of the legislature, both parties shall immediately enter into collective bargaining for a mutually agreed upon modification of the agreement.

Sec. 5   RCW 74.39A.310 and 2006 c 9 s 1 are each amended to read as follows:
     (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 joint labor-management partnership or trust pursuant to section 1 of this act; 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. 6   RCW 41.56.465 and 1995 c 273 s 2 are each amended to read as follows:
     (1) In making its determination, the panel shall be mindful of the legislative purpose enumerated in RCW 41.56.430 and, as additional standards or guidelines to aid it in reaching a decision, it shall take into consideration the following factors:
     (a) The constitutional and statutory authority of the employer;
     (b) Stipulations of the parties;
     (c)(i) For employees listed in RCW 41.56.030(7)(a) through (d), comparison of the wages, hours, and conditions of employment of personnel involved in the proceedings with the wages, hours, and conditions of employment of like personnel of like employers of similar size on the west coast of the United States;
     (ii) For employees listed in RCW 41.56.030(7)(e) through (h), comparison of the wages, hours, and conditions of employment of personnel involved in the proceedings with the wages, hours, and conditions of employment of like personnel of public fire departments of similar size on the west coast of the United States. However, when an adequate number of comparable employers exists within the state of Washington, other west coast employers may not be considered;
     (iii) For employees listed in RCW 41.56.026 and 41.56.028, the cost of meeting the training requirements in section 1 of this act and providing other programs and services necessary to protect the quality of health care services;
     (d) The average consumer prices for goods and services, commonly known as the cost of living;
     (e) Changes in any of the circumstances under (a) through (d) of this subsection during the pendency of the proceedings; and
     (f) Such other factors, not confined to the factors under (a) through (e) of this subsection, that are normally or traditionally taken into consideration in the determination of wages, hours, and conditions of employment. For those employees listed in RCW 41.56.030(7)(a) who are employed by the governing body of a city or town with a population of less than fifteen thousand, or a county with a population of less than seventy thousand, consideration must also be given to regional differences in the cost of living.
     (2) Subsection (1)(c) of this section may not be construed to authorize the panel to require the employer to pay, directly or indirectly, the increased employee contributions resulting from chapter 502, Laws of 1993 or chapter 517, Laws of 1993 as required under chapter 41.26 RCW.

Sec. 7   RCW 18.88A.085 and 1994 sp.s. c 9 s 712 are each amended to read as follows:
     (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 some 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. 8   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. 9   The provisions of this act are to be liberally construed to effectuate the intent, policies, and purposes of this act.

NEW SECTION.  Sec. 10   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. 11   This act may be known and cited as the establishing quality in long-term care services to the elderly and persons with disabilities act.