BILL REQ. #:  Z-1020.1 

Read first time 04/04/12.   Referred to Committee on Ways & Means.

     AN ACT Relating to language access providers; amending RCW 41.56.030, 41.56.510, and 74.04.025; creating new sections; and declaring an emergency.

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

NEW SECTION.  Sec. 1   It is the intent of the legislature to provide state collective bargaining rights beginning in 2014 to language access providers who provide spoken interpreter services for department of labor and industries medical appointments.
     It is also the intent of the legislature to clarify that state collective bargaining rights of language access providers are limited to providers paid, in whole or in part, with an expenditure of state funds and to clarify that providers in legal proceedings are not intended to be covered by chapter 41.56 RCW. As a clarification of current law, the changes in this act relative to interpreters in legal proceedings and the medicaid administrative match program are intended to apply both prospectively and retroactively.

Sec. 2   RCW 41.56.030 and 2011 1st sp.s. c 21 s 11 are each amended to read as follows:
     As used in this chapter:
     (1) "Adult family home provider" means a provider as defined in RCW 70.128.010 who receives payments from the medicaid and state-funded long-term care programs.
     (2) "Bargaining representative" means any lawful organization which has as one of its primary purposes the representation of employees in their employment relations with employers.
     (3) "Child care subsidy" means a payment from the state through a child care subsidy program established pursuant to RCW 74.12.340 or 74.08A.340, 45 C.F.R. Sec. 98.1 through 98.17, or any successor program.
     (4) "Collective bargaining" means the performance of the mutual obligations of the public employer and the exclusive bargaining representative to meet at reasonable times, to confer and negotiate in good faith, and to execute a written agreement with respect to grievance procedures and collective negotiations on personnel matters, including wages, hours and working conditions, which may be peculiar to an appropriate bargaining unit of such public employer, except that 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.
     (5) "Commission" means the public employment relations commission.
     (6) "Executive director" means the executive director of the commission.
     (7) "Family child care provider" means a person who: (a) Provides regularly scheduled care for a child or children in the home of the provider or in the home of the child or children for periods of less than twenty-four hours or, if necessary due to the nature of the parent's work, for periods equal to or greater than twenty-four hours; (b) receives child care subsidies; and (c) is either licensed by the state under RCW 74.15.030 or is exempt from licensing under chapter 74.15 RCW.
     (8) "Individual provider" means an individual provider as defined in RCW 74.39A.240(4) who, solely for the purposes of collective bargaining, is a public employee as provided in RCW 74.39A.270.
     (9) "Institution of higher education" means the University of Washington, Washington State University, Central Washington University, Eastern Washington University, Western Washington University, The Evergreen State College, and the various state community colleges.
     (10)(a) "Language access provider" means any independent contractor who provides spoken language interpreter services, whether paid directly by the respective department or by the respective department through a broker or language access agency: (i) For department of social and health services appointments or medicaid enrollee appointments((, or provided these services on or after January 1, 2009, and before June 10, 2010, whether paid by a broker, language access agency, or the department)); or (ii) for department of labor and industries medical appointments.
     (b) "Language access provider" does not mean: An owner, manager, or employee of a broker or a language access agency; an interpreter appointed or required in legal proceedings pursuant to RCW 2.43.030; or an interpreter under the medicaid administrative match program.
     (c) "Department of social and health services appointment" does not include legal proceedings of any nature, including criminal, civil, or administrative proceedings at any level.
     (d) "Medicaid enrollee appointment" does not include medicaid administrative match program appointments or any other service provided pursuant to that program.
     (e) "Department of labor and industries medical appointment" does not include legal proceedings of any nature, including criminal, civil, or administrative proceedings at any level including proceedings conducted by the board of industrial insurance appeals.
     (11) "Public employee" means any employee of a public employer except any person (a) elected by popular vote, or (b) appointed to office pursuant to statute, ordinance or resolution for a specified term of office as a member of a multimember board, commission, or committee, whether appointed by the executive head or body of the public employer, or (c) whose duties as deputy, administrative assistant or secretary necessarily imply a confidential relationship to (i) the executive head or body of the applicable bargaining unit, or (ii) any person elected by popular vote, or (iii) any person appointed to office pursuant to statute, ordinance or resolution for a specified term of office as a member of a multimember board, commission, or committee, whether appointed by the executive head or body of the public employer, or (d) who is a court commissioner or a court magistrate of superior court, district court, or a department of a district court organized under chapter 3.46 RCW, or (e) who is a personal assistant to a district court judge, superior court judge, or court commissioner. For the purpose of (e) of this subsection, no more than one assistant for each judge or commissioner may be excluded from a bargaining unit.
     (12) "Public employer" means any officer, board, commission, council, or other person or body acting on behalf of any public body governed by this chapter, or any subdivision of such public body. For the purposes of this section, the public employer of district court or superior court employees for wage-related matters is the respective county legislative authority, or person or body acting on behalf of the legislative authority, and the public employer for nonwage-related matters is the judge or judge's designee of the respective district court or superior court.
     (13) "Uniformed personnel" means: (a) Law enforcement officers as defined in RCW 41.26.030 employed by the governing body of any city or town with a population of two thousand five hundred or more and law enforcement officers employed by the governing body of any county with a population of ten thousand or more; (b) correctional employees who are uniformed and nonuniformed, commissioned and noncommissioned security personnel employed in a jail as defined in RCW 70.48.020(9), by a county with a population of seventy thousand or more, and who are trained for and charged with the responsibility of controlling and maintaining custody of inmates in the jail and safeguarding inmates from other inmates; (c) general authority Washington peace officers as defined in RCW 10.93.020 employed by a port district in a county with a population of one million or more; (d) security forces established under RCW 43.52.520; (e) firefighters as that term is defined in RCW 41.26.030; (f) employees of a port district in a county with a population of one million or more whose duties include crash fire rescue or other firefighting duties; (g) employees of fire departments of public employers who dispatch exclusively either fire or emergency medical services, or both; or (h) employees in the several classes of advanced life support technicians, as defined in RCW 18.71.200, who are employed by a public employer.

Sec. 3   RCW 41.56.510 and 2010 c 296 s 2 are each amended 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 language access providers. 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 of language access providers who, solely for the purposes of collective bargaining, are public employees. The governor or the governor's designee shall represent the public employer for bargaining purposes.
     (2) There shall be collective bargaining, as defined in RCW 41.56.030, between the governor and language access providers, except as follows:
     (a) ((A statewide unit of all language access providers is)) The only units appropriate for purposes of collective bargaining under RCW 41.56.060 are:
     (i) A statewide unit for language access providers who provide spoken language interpreter services for department of social and health services appointments or medicaid enrollee appointments; and
     (ii) A statewide unit for language access providers who provide spoken language interpreter services for department of labor and industries medical appointments. The public employment relations commission may not certify a bargaining unit under this subsection (2)(a)(ii) before July 1, 2013;
     (b) The exclusive bargaining representatives of language access providers in the units specified in (a) of this subsection shall be the representatives chosen in ((an)) elections 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 are 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 language access providers under this section is limited solely to: (i) Economic compensation, such as the manner and rate of payments; (ii) professional development and training; (iii) labor-management committees; and (iv) grievance procedures. Retirement benefits are not subject to collective bargaining. By such obligation neither party may 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 representatives of language access 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) Language access providers do not have the right to strike.
     (3) Language access 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 language access providers as provided in subsections (1) and (2) of this section.
     (4) Each party with whom the department of social and health services and the department of labor and industries contract((s)) for language access services and each of their subcontractors shall provide to the respective department an accurate list of language access providers, as defined in RCW 41.56.030, including their names, addresses, and other contact information, annually by January 30th, except that initially for language access providers as defined in RCW 41.56.030(10)(a)(ii) the lists must be provided within thirty days of ((June 10, 2010)) July 1, 2013. The department shall, upon request, provide a list of all language access providers, including their names, addresses, and other contact information, to a labor union seeking to represent language access providers.
     (5) This section does not create or modify:
     (a) The ((department's)) obligation of the department of social and health services or the department of labor and industries to comply with the federal statute and regulations; and
     (b) The legislature's right to make programmatic modifications to the delivery of state services under chapter 74.04 RCW or Title 51 RCW. The governor may not enter into, extend, or renew any agreement under this chapter that does not expressly reserve the legislative rights described in this subsection.
     (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 compensation and benefit provisions of a collective bargaining agreement entered into under this section or for legislation necessary to implement the agreement.
     (7) A request for funds necessary to implement the compensation and benefit provisions of a collective bargaining agreement entered into under this section may not be submitted by the governor to the legislature unless the request has been:
     (a) Submitted to the director of financial management by October 1st prior to the legislative session at which the requests are to be considered, except that, for initial negotiations under this section for the unit defined in subsection (2)(a)(ii) of this section, the request may not be submitted before July 1, ((2011)) 2014; and
     (b) Certified by the director of financial management as financially feasible for the state or reflective of a binding decision of an arbitration panel reached under subsection (2)(d) of 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 collective bargaining agreement must be reopened for the sole purpose of renegotiating the funds necessary to implement the agreement.
     (9) 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.
     (10) After the expiration date of any collective bargaining agreement entered into under this section, all of the terms and conditions specified in the 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.
     (11) If an exclusive bargaining representative represents both bargaining units defined in subsection (2)(a) of this section, the governor and the exclusive bargaining representative shall negotiate one collective bargaining agreement on behalf of all language access providers in both bargaining units.
     (12) In enacting this section, the legislature intends to provide state action immunity under federal and state antitrust laws for the joint activities of language access providers and their exclusive bargaining representative to the extent the activities are authorized by this chapter.

Sec. 4   RCW 74.04.025 and 2011 1st sp.s. c 15 s 63 are each amended to read as follows:
     (1) The department, the authority, and the office of administrative hearings shall ensure that bilingual services are provided to non-English speaking applicants and recipients. The services shall be provided to the extent necessary to assure that non-English speaking persons are not denied, or unable to obtain or maintain, services or benefits because of their inability to speak English.
     (2) If the number of non-English speaking applicants or recipients sharing the same language served by any community service office client contact job classification equals or exceeds fifty percent of the average caseload of a full-time position in such classification, the department shall, through attrition, employ bilingual personnel to serve such applicants or recipients.
     (3) Regardless of the applicant or recipient caseload of any community service office, each community service office shall ensure that bilingual services required to supplement the community service office staff are provided through contracts with language access providers, local agencies, or other community resources.
     (4) The department shall certify, authorize, and qualify language access providers as needed to maintain an adequate pool of providers.
     (5) The department shall require compliance with RCW 41.56.113(2) through its contracts with third parties.
     (6) Initial client contact materials shall inform clients in all primary languages of the availability of interpretation services for non-English speaking persons. Basic informational pamphlets shall be translated into all primary languages.
     (7) To the extent all written communications directed to applicants or recipients are not in the primary language of the applicant or recipient, the department and the office of administrative hearings shall include with the written communication a notice in all primary languages of applicants or recipients describing the significance of the communication and specifically how the applicants or recipients may receive assistance in understanding, and responding to if necessary, the written communication. The department shall assure that sufficient resources are available to assist applicants and recipients in a timely fashion with understanding, responding to, and complying with the requirements of all such written communications.
     (8) As used in this section:
     (a) "Language access provider" means any independent contractor who provides spoken language interpreter services for department appointments or medicaid enrollee appointments((, or provided these services on or after January 1, 2009, and before June 10, 2010)), whether paid by a broker, language access agency, or the department. "Language access provider" does not mean: An owner, manager, or employee of a broker or a language access agency; an interpreter appointed or required in legal proceedings pursuant to RCW 2.43.030; or an interpreter under the medicaid administrative match program.
     (b) "Department appointment" does not include legal proceedings of any nature, including criminal, civil, or administrative proceedings at any level.
     (c) "Medicaid enrollee appointment" does not include medicaid administrative match program appointments or any other service provided pursuant to that program.
     (d) "Primary languages" includes but is not limited to Spanish, Vietnamese, Cambodian, Laotian, and Chinese.

NEW SECTION.  Sec. 5   If any part of this act is found to be in conflict with federal requirements that are a prescribed condition to the allocation of federal funds to the state, 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. 6   This act applies both prospectively and retroactively.

NEW SECTION.  Sec. 7   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.