READ FIRST TIME 02/14/08.   

     AN ACT Relating to implementing a program of tiered classification for foster parent licensing; amending RCW 41.04.810, 41.56.113, and 43.01.047; adding new sections to chapter 74.13 RCW; adding a new section to chapter 41.56 RCW; creating new sections; and providing an effective date.

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

NEW SECTION.  Sec. 1   A new section is added to chapter 74.13 RCW to read as follows:
     The legislature finds that foster parents are an essential partner in the child welfare system, with responsibility for the care of vulnerable children whose families are unable to meet their needs. Because children who enter the foster care system have experienced varying degrees of stress and trauma before placement, foster parents sometimes are called upon to provide care for children with significant behavioral challenges and intensive developmental needs. Other children who enter foster care may require extraordinary care due to health care needs or medical fragility. The legislature also finds that foster parents with specialized skills and experience, or professional training and expertise, can contribute significantly to a child's well-being by promoting placement stability and supporting the child's developmental growth while in foster care. The legislature intends to implement a specialized foster home program to enhance the continuum of care options and to promote permanency and positive outcomes for children served in the child welfare system by authorizing the department to contract for specialized foster home services.

NEW SECTION.  Sec. 2   A new section is added to chapter 74.13 RCW to read as follows:
     (1) The department shall select two or more geographic areas with high concentrations of children with significant needs in foster care for the implementation of phase one of a specialized foster home program. In determining the scope of the first phase of the program, the department shall: (a) Examine areas where there are concentrations of children with significant behavioral challenges and intensive developmental or medical needs who are being served in family foster homes; (b) consider areas of appropriate size that will allow for careful analysis of the impact of the specialized foster home program on the array of out-of-home care providers, including providers of behavioral rehabilitation services; and (c) determine the number of children to be served in these selected areas. During phase one of the implementation of the program, only licensed foster parents under the supervision of the department shall be eligible to participate in the program. Implementation of the program at the phase one sites also shall be structured to support the long-term goal of eventual expansion of the program statewide.
     (2) Based on the information gathered by the work group convened under chapter 413, Laws of 2007, and the additional information gathered pursuant to this section, the department shall actively:
     (a) Seek recommendations from foster parents and other out-of-home service providers in the program sites regarding the qualifications and requirements of specialized foster home providers, the needs of the children to be served, and the desired outcomes to be measured or monitored at the respective program sites; and
     (b) Consult with experts in child welfare, children's mental health, and children's health care to identify the evidence-based or promising practice models to be employed in the program and the appropriate supports to ensure program fidelity, including, but not limited to, the necessary training and clinical consultation and oversight to be provided to specialized foster homes.
     (3) Using the recommendations from foster parents, the consultations with professionals from appropriate disciplines, and the information provided in the report to the legislature under chapter 413, Laws of 2007, including the information presented to the work group convened to prepare and present the report, the department shall implement the program through contracts with foster parents who are determined by the department to meet the eligibility criteria for the specialized foster home program. The department shall:
     (a) Define the criteria for specialized foster home providers, which shall include a requirement that the foster parent be licensed by the department as a foster parent, as well as meet additional requirements relating to relevant experience, education, training, and professional expertise necessary to meet the high needs of children identified as eligible for this program;
     (b) Define criteria for identifying children with high needs who may be eligible for placement in a specialized foster home provider. Such criteria shall be based on the best interests of the child and include an assessment of the child's past and current level of functioning as well as a determination that the child's treatment plan and developmental needs are consistent with the placement plan;
     (c) Establish a policy for placement of children with high needs in specialized foster homes, including a process for matching the child's needs with the foster parent's skills and expertise;
     (d) Establish a limit on the number and ages of children with high needs that may be placed in a specialized foster home pursuant to the specialized foster home program contract. Such limitation shall recognize that children with externalizing behaviors are most likely to experience long-term improvements in their behavior when care is provided in settings that minimize exposure to peers with challenging behaviors;
     (e) Identify one or more approved models of skill building for use by specialized foster home providers;
     (f) Specify the training and consultation requirements that support the models of service;
     (g) Establish a system of supports, including clinical consultation and oversight for specialized foster homes;
     (h) Establish a level of stipend payments to specialized foster home providers that is not tied to deficits in the child's level of functioning;
     (i) Establish clearly defined responsibilities of specialized foster home providers, who have a specialized foster home contract including responsibilities to promote permanency and connections with birth parents; and
     (j) Develop a process for annual performance reviews of specialized foster home providers.
     (4) Contracts between the department and a specialized foster home provider shall include a statement of work focusing on achieving stability in placement and measuring improved permanency outcomes shall specify at least the following elements:
     (a) The model of treatment and care to be provided;
     (b) The training and ongoing professional consultation to be provided;
     (c) The method for determining any additional supports to be provided to an eligible child or the specialized foster home provider;
     (d) The desired outcomes to be measured;
     (e) A reasonable and efficient process for seeking a modification of the contract;
     (f) The rate and terms of payment under the contract; and
     (g) The term of the contract and the processes for an annual performance review of the specialized foster home provider and an annual assessment of the child.
     (5) Beginning on or before October 1, 2008, the department shall begin the selection of, and negotiation of contracts with, specialized foster home providers in the phase one areas selected for implementation.
     (6) Nothing in this act gives an eligible foster parent the right to a contract under the specialized foster home program, and nothing in this act gives a specialized foster home provider that has a contract under the program a right to have a child or children placed in the home pursuant to the contract.
     (7) "Specialized foster home providers" means foster parents who are determined by the department to be eligible foster parents, who have a specialized foster home program contract with the department.
     (8) The department shall provide an implementation status update to the governor and the legislature by January 30, 2009. Based on the experiences and lessons learned from implementation of the program during phase one, the department shall recommend a process and timeline for expanding the program and implementing it statewide. The department shall report to the governor and the appropriate members of the legislature by September 1, 2009, and shall identify the essential elements of the specialized foster home program that should be addressed or replicated as the program is expanded to the next phase.

NEW SECTION.  Sec. 3   A new section is added to chapter 41.56 RCW to read as follows:
     (1) In addition to the entities listed in RCW 41.56.020, this chapter applies to the governor with respect to specialized foster home providers. Solely for the purposes of collective bargaining and as expressly limited under subsections (2) and (3) of this section, the governor is the employer of specialized foster home providers who, solely for the purposes of collective bargaining, are public employees. The public employer shall be represented for bargaining purposes by the governor or the governor's designee.
     (2) There shall be collective bargaining between the governor and specialized foster home providers, except as follows:
     (a) A statewide unit of all specialized foster home providers is the only unit appropriate for purposes of collective bargaining. The commission shall adopt reasonable rules providing for the inclusion of unrepresented specialized foster home providers when, after implementation of phase one of the specialized foster home program described in section 2 of this act: (i) The labor organization certified as the exclusive bargaining representative of the specialized foster home providers petitions to represent one or more new groups of specialized foster home providers and demonstrates that it has majority support among those groups; or (ii) when any labor organization petitions to represent the entire bargaining unit of specialized foster home providers and demonstrates that it has at least a thirty percent showing of interest to warrant an election.
     (b) The exclusive bargaining representative of specialized foster home providers in the unit specified in (a) of this subsection shall be the representative chosen in an election conducted pursuant to RCW 41.56.070. Bargaining authorization cards furnished as the showing of interest in support of any representation petition or motion for intervention filed under this section shall be exempt from disclosure under chapter 42.56 RCW.
     (c) Notwithstanding the definition of "collective bargaining" in RCW 41.56.030(4), the scope of collective bargaining for specialized foster home providers under this section shall be limited solely to: (i) Economic compensation for enhanced services provided by specialized foster home providers in the form of a stipend; (ii) health and welfare benefits; (iii) labor management committees; and (iv) grievance procedures. Retirement benefits shall not be subject to collective bargaining. By such obligation, neither party shall be compelled to agree to a proposal or be required to make a concession unless otherwise provided in this chapter.
     (d) In addition to the entities listed in the mediation and interest arbitration provisions of RCW 41.56.430 through 41.56.470 and 41.56.480, the provisions apply to the governor or the governor's designee and the exclusive bargaining representative of specialized foster home providers, except that:
     (i) In addition to the factors to be taken into consideration by an interest arbitration panel under RCW 41.56.465, the panel shall consider the financial ability of the state to pay for the compensation and benefit provisions of a collective bargaining agreement.
     (ii) 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 benefit provisions of the arbitrated collective bargaining agreement, the decision is not binding on the state.
     (e) Specialized foster home providers do not have the right to strike.
     (3) Specialized foster home 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 for any other purpose. This section applies only to the governance of the collective bargaining relationship between the employer and specialized foster home providers as provided in subsections (1) and (2) of this section.
     (4) This section does not create or modify:
     (a) The department's authority to establish a plan of care for each foster child or its core responsibility to manage foster care services, including determination of the level of care that each foster child is eligible to receive. This subsection shall not be interpreted to require collective bargaining over an individual foster child's plan of care;
     (b) The department's obligation to comply with the federal funding statutes and regulations, including but not limited to the social security act and the terms of any state plan or waiver granted by the federal government to ensure federal financial participation in the provision of the services;
     (c) The legislature's right to make programmatic modifications to the delivery of state services including standards of eligibility of children in foster care and specialized foster home providers participating in the programs 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 (4)(c);
     (d) The right of the court, the department, or any other agency or individual acting with proper legal authority, to remove a child from the care of a specialized foster home provider. The right or action of the court, the department, or any other agency or individual acting with proper legal authority to remove a child from the care of a specialized foster home provider shall not constitute an unfair labor practice;
     (e) The department's authority to set minimum licensing standards for foster parents, to establish a method for determining foster care maintenance payment rates that will be paid for the benefit of foster children, and to determine the foster care maintenance rate for each child in care;
     (f) The department's authority to establish, pursuant to statute, the nature and means of taking or resolving licensing action against any foster parent, or investigations and actions involving allegations of abuse or neglect made against a foster parent;
     (g) The department's ability to meet and consult with foster parents, including meetings with specialized foster home providers, as required under RCW 74.13.031;
     (h) The department's authority to define the criteria for specialized foster homes, including training, education, relevant experience, and professional expertise, and the department's authority to define the criteria for identifying high needs children who may be eligible for placement in a specialized foster home; or
     (i) RCW 43.43.832, 43.20A.205, or 74.15.130.
     (5) Nothing in this section is intended to imply that the state, the department, or its contractors agree to any additional vicarious, joint, or several liability for the action or inaction of a specialized foster home provider or prospective specialized foster home provider.
     (6) Upon meeting the requirements of subsection (7) 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 implement the stipend and benefit provisions of a collective bargaining agreement entered into under this section or for legislation necessary to implement such agreement.
     (7) A request for funds necessary to implement the stipend and benefit provisions of a collective bargaining agreement entered into under this section shall not be submitted by the governor to the legislature unless such request has been:
     (a) Submitted to the director of financial management by October 1st before the legislative session at which the request is to be considered, except that, for initial negotiations under this section, the request must be submitted after July 1, 2009; and
     (b) 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 this section.
     (8) 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.
     (9) The governor shall periodically consult with the joint committee on employment relations established by RCW 41.80.010 regarding appropriations necessary to implement the stipend and benefit 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.
     (10) After the expiration date of any collective bargaining agreement entered into under this section, 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 subsection (4)(c) of this section.
     (11) If, after the stipend 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.
     (12) In enacting this section, the legislature intends to provide state action immunity under federal and state antitrust laws for the joint activities of specialized foster home providers and their exclusive bargaining representative to the extent such activities are authorized by this chapter.
     (13) For purposes of chapter 41.56 RCW, "specialized foster home providers" means specialized foster home providers as defined in section 2 of this act, but not providers who are related to, or family members of, the children with extraordinary behavioral, developmental, or medical needs for whom they provide care.

Sec. 4   RCW 41.04.810 and 2007 c 184 s 4 are each amended to read as follows:
     Individual providers, as defined in RCW 74.39A.240, family child care providers, as defined in RCW 41.56.030, ((and)) adult family home providers, as defined in RCW 41.56.030, and specialized foster home providers, as defined in section 3 of this act, 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, 41.56.028, ((and)) 41.56.029, and section 3 of this act.

Sec. 5   RCW 41.56.113 and 2007 c 184 s 3 are each amended to read as follows:
     (1) Upon the written authorization of an individual provider, a family child care provider, ((or)) an adult family home provider, or a specialized foster home provider within the bargaining unit and after the certification or recognition of the bargaining unit's exclusive bargaining representative, the state as payor, but not as the employer, shall, subject to subsection (3) of this section, deduct from the payments to an individual provider, a family child care provider, ((or)) an adult family home provider, or from the stipends paid to a specialized foster home provider the monthly amount of dues as certified by the secretary of the exclusive bargaining representative and shall transmit the same to the treasurer of the exclusive bargaining representative.
     (2) If the governor and the exclusive bargaining representative of a bargaining unit of individual providers, family child care providers, ((or)) adult family home providers, or specialized foster home providers enter into a collective bargaining agreement that:
     (a) Includes a union security provision authorized in RCW 41.56.122, the state as payor, but not as the employer, shall, subject to subsection (3) of this section, enforce the agreement by deducting from the payments or stipends, as applicable, to bargaining unit members the dues required for membership in the exclusive bargaining representative, or, for nonmembers thereof, a fee equivalent to the dues; or
     (b) Includes requirements for deductions of payments other than the deduction under (a) of this subsection, the state, as payor, but not as the employer, shall, subject to subsection (3) of this section, make such deductions upon written authorization of the individual provider, family child care provider, ((or)) adult family home provider, or the specialized foster home provider.
     (3)(a) The initial additional costs to the state in making deductions ((from the payments to individual providers, family child care providers, and adult family home providers)) under this section shall be negotiated, agreed upon in advance, and reimbursed to the state by the exclusive bargaining representative.
     (b) The allocation of ongoing additional costs to the state in making deductions ((from the payments to individual providers, family child care providers, or adult family home providers)) under this section shall be an appropriate subject of collective bargaining between the exclusive bargaining representative and the governor unless prohibited by another statute. If no collective bargaining agreement containing a provision allocating the ongoing additional cost is entered into between the exclusive bargaining representative and the governor, or if the legislature does not approve funding for the collective bargaining agreement as provided in RCW 74.39A.300, 41.56.028, ((or)) 41.56.029, or section 3 of this act, as applicable, the ongoing additional costs to the state in making deductions ((from the payments to individual providers, family child care providers, or adult family home providers)) under this section shall be negotiated, agreed upon in advance, and reimbursed to the state by the exclusive bargaining representative.
     (4) The governor and the exclusive bargaining representative of a bargaining unit of family child care providers may not enter into a collective bargaining agreement that contains a union security provision unless the agreement contains a process, to be administered by the exclusive bargaining representative of a bargaining unit of family child care providers, for hardship dispensation for license-exempt family child care providers who are also temporary assistance for needy families recipients or WorkFirst participants.

Sec. 6   RCW 43.01.047 and 2007 c 184 s 5 are each amended to read as follows:
     RCW 43.01.040 through 43.01.044 do not apply to individual providers under RCW 74.39A.220 through 74.39A.300, family child care providers under RCW 41.56.028, ((or)) adult family home providers under RCW 41.56.029, or specialized foster home providers under section 3 of this act.

NEW SECTION.  Sec. 7   If any part of this act is found to be in conflict with federal requirements that are a prescribed condition of federal funds which support the operations and services provided by the department of social and health services, the conflicting part of this act is inoperative solely to the extent of the conflict and with respect to the agencies directly affected, and this finding does not affect the operation of the remainder of this act in its application to the agencies concerned. Rules adopted under this act must meet federal requirements that are a necessary condition to the receipt of federal funds by the state.

NEW SECTION.  Sec. 8   If specific funding for the purposes of this act, referencing this act by bill or chapter number, is not provided by June 30, 2008, in the omnibus appropriations act, this act is null and void.

NEW SECTION.  Sec. 9   Sections 3 through 6 of this act take effect January 1, 2009.