Location:
CHILD CARE; COLLECTIVE BARGAINING; GOVERNOR'S OFFICE; HOME CARE SERVICES;
Scope:
Connecticut laws/regulations;

OLR Research Report


November 30, 2011

 

2011-R-0391

EXECUTIVE ORDERS REGARDING COLLECTIVE BARGAINING FOR PERSONAL CARE ATTENDANTS AND CHILD CARE PROVIDERS

By: John Moran, Principal Analyst

You asked for a description of two recent executive orders regarding collective bargaining for (1) family child care providers and (2) personal care attendants (PCAs).

SUMMARY

The two executive orders (Nos. 9 and 10) establish similar steps for family child care providers and PCAs to (1) form organizations (referred to as the “majority representatives”) to represent them in discussions with the state and (2) potentially lead to formal collective bargaining with the state. Typically, collective bargaining only applies when there is an employer-employee relationship and these two groups are not state employees, but the state subsidizes their wages for the services they provide. Executive Order No. 9 addresses family child care providers, and No. 10 addresses PCAs.

Choosing the “majority representative” is central to each executive order. In each the majority representative is authorized to (1) meet and confer with the executive branch representatives to discuss ways to improve the quality and accessibility of family child care and PCA service and (2) collect dues from its members.

The majority representative must be selected according to the process the orders specify. In both orders, the state and the entity (most likely a union) seeking to become the majority representative agree on a mutually acceptable third party that is charged with conducting (1) an election to choose the majority representative or (2) a signature card authorization process for choosing the majority representative. The signature cards are cards that, once signed by a person, indicates his or her desire to be represented by the majority representative. Under the executive orders the cards can serve one of two purposes: (1) triggering an election, which occurs if at least 20% of the eligible members sign the cards, or (2) designating the majority representative if a majority of such members sign the cards.

Also, each order requires a working group to develop recommendations on how to enable its majority representative to collectively bargain with the state. The orders acknowledge that the recommendations may lead to proposed legislation or administrative action to permit collective bargaining between the state and the majority representatives.

It appears the selection of the majority representatives and the related activities can occur at the same time the working groups meet and develop recommendations. The orders do not require the working groups' activities be complete before majority representatives are selected.

The PCA order creates a Personal Care Attendant Quality Home Care Workforce Council charged with ensuring the quality of long-term personal home care in the state. The council must represent the executive branch in carrying out various responsibilities contained in the order.

DEFINING THE AFFECTED GROUPS

Family Child Care Providers

Executive Order No. 9 defines “family child care providers” as those who participate in the child care subsidy program known as Care 4 Kids program, which is intended to reduce the cost of child care for low and moderate income families (CGS 17b-749). By law, providers (1) must be licensed by the Department of Public Health or (2) may be exempt from the license requirement if the provider is a relative of the child (such as a grandmother) or cares for the child in the child's home (informally referred to as the kith and kin program). To be eligible for the subsidy, a parent must be working or attending a temporary family cash assistance program approved education or training program (i.e., a Jobs First participant).

PCAs

PCAs offer home- and community-based personal care services to the elderly and disabled through Medicaid waivers that allows services to be provided to the needy while they are in their own home (rather than the standard Medicaid assistance that is only available through institutions such as nursing homes). Executive Order No. 10 notes that PCA waiver programs annually save the state millions of dollars because the cost of providing in-home personal care is usually much lower than providing nursing home care.

The order specifically includes the following PCA waiver programs:

1. individuals with brain injuries (CGS 17b-260a),

2. personal care assistance program (CGS 17b-605a),

3. home care program for the elderly (CGS 17b-342),

4. home care for disabled persons (CGS 17b-617),

5. individual and family support administered by Department of Developmental Services (DDS), and

6. comprehensive waiver program administered by DDS.

It also includes any state–funded programs that provide services from a PCA.

PCA WORKFORCE COUNCIL

Responsibilities

The PCA order creates a Personal Care Attendant Quality Home Care Workforce Council (the “council”) to ensure the quality of long-term personal home care in the state. The council must represent the executive branch in carrying out various responsibilities contained in the order including:

1. meeting and conferring with the PCAs majority representative (as established under the order) to discuss a range of issues including PCA recruitment, retention, training, and compensation;

2. not later than November 1, 2011, beginning a study of recruitment and retention of PCAs;

3. developing a plan to present to the Department of Social Services (DSS) commissioner that recommends ways to improve the quality, stability, and availability of PCAs; and

4. studying the experiences and best practices of other states that administer similar programs involving PCAs.

Council Membership

Under the order, the seven-member council consists of:

1. Social services commissioner, or her designee (who serves as council chairperson);

2. developmental services commissioner, or his designee;

3. state healthcare advocate, or her designee; and

4. four governor-appointed members who are consumers or their surrogates or advocates for the elderly and people with disabilities.

All appointments must be made no later than October 1, 2011 and the chair must convene the first meeting by November 1, 2011. Later meetings will be held at times determined by the chair or upon written request to the chair by any three council members. All members serve at the governor's pleasure.

A majority of members constitute a quorum in order to transact business. The governor must fill any vacancies. Members receive no compensation for council service.

Additional Council Authority in 2013

The order gives the council the following additional authority beginning July 1, 2013:

1. recruit prospective PCAs,

2. provide training and education to PCAs and their customers,

3. establish and operate PCA registries.

The order authorizes the council to take these actions directly, through contractors, or through an agreement with DSS.

ESTABLISHING MAJORITY REPRESENTATIVE

Under both executive orders, the mutually acceptable third party is charged with conducting (1) an election to choose the majority representative or (2) a signature card authorization process for choosing the majority representative. It is also charged with verifying an election result or a signature card authorization drive that results in selecting the majority representative. Table 1 below describes the steps the orders specify to establish the majority representatives.

Table 1: Establishing the Majority Representative

 

Family Child Care Providers (E.O. 9)

PCAs (E.O. 10)

Groups authorized to select majority representative

Statewide unit of all family child care providers participating in the Care 4 Kids program

Statewide unit of all PCAs or two statewide units (one including all PCAs under social services programs, the other including all PCAs under development services programs)

Mutually Selected Impartial Third Party

Selects the majority representative according to steps in the orders through either an election or a signature card authorization process;

Verifies election or card authorization process.

Provider lists

DSS must compile a list of all providers who have participated in the Care 4 Kids program within the last six months; list must be provided within 30 days of the request by an entity seeking designation as the majority representative; list must be updated every month after that.

DSS, in consultation with DDS, each month must compile a list of all PCAs who have been paid through a PCA waiver program within the previous six months.

Who can vote in election or is eligible to sign authorization cards

All providers on most recent list.

All PCAs on most recent provider list.

Criterion for Initiating an Election

At least 20% of those on most recent provider list have signed authorization cards, which must be presented to the governor or his representative.

When another entity competes to become Majority Representative

Within 14 days after the request for an election is made, any other entity seeking to become the majority representative may also submit signed authorization cards representing at least 20% of those on most recent provider list.

Election winner

Impartial third party designates the entity with the majority of votes cast in the election as the majority representative.

Designation by Signature Authorization Card Process

Must show signed authorization cards from a majority of providers on the most recent list to the impartial third party. Third party must verify the majority representative is authorized by a majority of providers.

Costs

Must be paid by the entity or entities seeking to become the majority representative.

Removing an established majority representative

Providers may seek to remove an established majority representative through the same processes the orders establish to select one. Presumably this means either an election could be held or a signature card authorization drive could name a new majority representative.

Dues/Payroll Deductions

Any member of the majority representative may voluntarily authorize the state to deduct dues and contributions from the Care 4 Kids subsidy to the member within 90 days after authorization.

Workforce Council or contractor that provides fiscal services to the state must make payroll deductions of voluntary PCA-authorized, dues and contributions within 90 days after the approved majority representative makes the request.

MEET AND CONFER PROCESS

Both orders require that the newly designated majority representative meet with the executive branch, but the orders designate different parties to represent it. For family child care providers, the representative is DSS and any executive branch member the governor designates, and for PCAs it's the PCA council. The required topics of discussion and the process addressing any agreements are described in Table 2 below.

Table 2: Meet and Confer Process

 

Family Child Care Providers

PCAs

Required Topics

Ways for improving the quality and accessibility of family child care services for parents and children who participate in the Care 4 Kids program and the delivery of early childhood education;

Improving recruitment and retention of qualified family child care providers;

Standards for compensating family child care providers;

State payment procedures for Care 4 Kids grants to family child care providers;

Training, professional development, and other requirements and opportunities for family child care providers.

Ways for improving the quality and accessibility of PCA programs for consumers and surrogates who participate in state-administered programs;

Improving recruitment and retention of qualified PCAs;

Standards for compensating PCAs;

State payment procedures related to PCA waiver programs;

Training, professional development, and other requirements and opportunities for PCAs including consideration of training currently used by DSS and DDS.

Agreements

Any agreement or understandings must be documented in writing.

Legislation or Rule Making

If an agreement or understanding requires legislation or executive rule making, the majority representative may make a recommendation regarding the legislation or rule to the General Assembly or executive department, as appropriate.

WORKING GROUPS

Each order establishes a working group to recommend how to enable each majority representative to collectively bargain with the state. Both groups must include their recommendations in a report to the governor due no later than February 1, 2012. Table 3 presents other details concerning the working groups.

Table 3: Details of the Working Groups

 

Family Child Care Providers

PCAs

Established

No later than October 1, 2011

Membership

Nine members, all appointed by the governor; three members must have labor relations experience, four must have Medicaid or the Care 4 Kids program experience, and two must be family child care providers.

Five members, all appointed by the governor; at least two must have labor relations expertise, at least two must have expertise in Medicaid.

Charge

Recommend best way to structure collective bargaining rights and relationships for the family child care provider majority representative to bargain the terms and conditions of providers participating in the Care 4 Kids program.

Examine the systems other states have adopted for family child care provider collective bargaining.

Recommend best way to structure collective bargaining rights and relationships for the PCA majority representative to bargain the terms and conditions of PCAs participating in the PCA waiver programs.

Examine the systems other states have adopted for PCA collective bargaining.

Recommendations not permitted that would jeopardize the state's ability to receive federal Medicaid funds to subsidize in-home PCA services to low-income residents at current levels.

Recommendations & report

Report to the governor on issues and recommendations concerning the timing, structure, parties, and scope of collective bargaining for family child care providers participating in Care 4 Kids program.

Report to the governor on issues and recommendations concerning the timing, structure, parties, and scope of collective bargaining for PCAs participating in the PCA waiver program.

Recommendation deadline

February 1, 2011

JM:ts