Connecticut Seal

General Assembly

 

Raised Bill No. 5433

February Session, 2012

 

LCO No. 1852

 

*01852_______LAB*

Referred to Committee on Labor and Public Employees

 

Introduced by:

 

(LAB)

 

AN ACT CREATING A PROCEDURE FOR PERSONAL CARE ATTENDANTS TO COLLECTIVELY BARGAIN WITH THE STATE.

Be it enacted by the Senate and House of Representatives in General Assembly convened:

Section 1. (NEW) (Effective July 1, 2012) (a) For purposes of this section and sections 2 to 4, inclusive, of this act:

(1) "Consumer" means a person who receives services from a personal care attendant under a state-funded program, including, but not limited to, (A) the program for individuals with acquired brain injuries, established pursuant to section 17b-260a of the general statutes, (B) the personal care assistance program, established pursuant to section 17b-605a of the general statutes, (C) the Connecticut home care program for the elderly, established pursuant to section 17b-342 of the general statutes, (D) the pilot program to provide home care services to disabled persons, established pursuant to section 17b-617 of the general statutes, (E) the individual and family support waiver program administered by the Department of Developmental Services, (F) the comprehensive waiver program administered by the Department of Developmental Services, and (G) any state-funded program that provides services from a personal care attendant;

(2) "Surrogate" means a consumer's legal guardian or a person identified in a written agreement as having responsibility for the care of a consumer;

(3) "Personal care attendants" means persons employed by a consumer or surrogate to provide personal care assistance to a consumer; and

(4) "Personal care assistance" means supportive home care, personal care or another nonprofessional service provided to a person with a disability or an elderly person who requires assistance to (A) meet such person's daily living needs, (B) ensure such person may adequately function in such person's home, or (C) provide such person with safe access to the community.

Sec. 2. (NEW) (Effective July 1, 2012) (a) There is established the Personal Care Attendant Quality Home Care Workforce Council to ensure the quality of long-term personal home care. Said council shall be composed of nine members, which shall include: (1) The Commissioner of Social Services, or the commissioner's designee; (2) the Commissioner of Developmental Services, or the commissioner's designee; (3) the Healthcare Advocate or the Healthcare Advocate's designee; (4) the Secretary of the Office of Policy and Management; (5) one member appointed by the Governor; and (6) four members who shall each be a consumer or surrogate, one of whom shall be appointed by the speaker of the House of Representatives, one of whom shall be appointed by the president pro tempore of the Senate, one of whom shall be appointed by the minority leader of the House of Representatives, and one of whom shall be appointed by the minority leader of the Senate. All initial appointments to the Personal Care Attendant Quality Home Care Workforce Council shall be made not later than August 1, 2012. The chairperson of the Personal Care Attendant Quality Home Care Workforce Council shall be the member appointed by the Governor. The chairperson shall convene the first meeting of the council not later than September 1, 2012. Subsequent meetings shall be held at times determined by the chairperson of the Personal Care Attendant Quality Home Care Workforce Council or upon the written request of any five members of said council to the chairperson. Members may serve three-year terms from the date of their appointment or until successors are appointed, except (A) the initial appointees of the speaker of the House of Representatives and the president pro tempore of the Senate shall serve two-year terms, and (B) the initial appointees of the majority leader of the House of Representatives and the majority leader of the Senate shall serve one-year terms. A majority of the members of the Personal Care Attendant Quality Home Care Workforce Council shall constitute a quorum for the transaction of any business. Vacancies shall be filled by the appointing authority for the expiration of the term of the member being replaced not later than thirty days after the date of the vacancy. Members of the Personal Care Attendant Quality Home Care Workforce Council shall receive no compensation for their service but shall be reimbursed for actual expenses necessarily incurred in performance of their duties.

(b) The Personal Care Attendant Quality Home Care Workforce Council, with the assistance of the Department of Social Services, shall have the following duties and responsibilities relating to personal care attendants: (1) Study issues relating to the recruitment, retention and adequacy of personal care attendants; and (2) develop a plan to improve the quality, stability and availability of personal care attendants by (A) developing a means to identify and recruit personal care attendants, (B) developing training and educational opportunities for personal care attendants and consumers, (C) developing one or more registries to (i) provide routine, emergency and respite referrals of qualified personal care attendants to consumers and surrogates who are authorized to receive long-term, in-home personal care services by a personal care attendant, (ii) enable consumers and surrogates to access information about prospective personal care attendants such as their training, educational background and work experience, and (iii) provide appropriate employment opportunities for personal care attendants, and (D) establishing standards for wages, benefits and conditions of employment for personal care attendants.

(c) Commencing July 1, 2013, the Personal Care Attendant Quality Home Care Workforce Council shall have the authority to (1) recruit prospective personal care attendants, (2) provide training and education to personal care attendants and consumers, and (3) establish or operate the registries described in subsection (b) of this section. The council may contract with the Department of Social Services or any other entity for the purposes of this subsection.

(d) (1) The Personal Care Attendant Quality Home Care Workforce Council shall have the authority to bargain and enter into agreements with an organization representing personal care attendants that has been designated by the State Board of Labor Relations, pursuant to section 5-275 of the general statutes, as the exclusive bargaining agent of such personal care attendants to establish the terms and conditions of participation of personal care attendants in the programs covered by this section and section 1 of this act, including, but not limited to, state reimbursement rates, benefits, payment procedures, contract grievance arbitration, and training, professional development and other requirements and opportunities appropriate for such personal care attendants.

(2) For purposes of section 5-270 of the general statutes and subsections (a) and (b) of section 5-278 of the general statutes, the Personal Care Attendant Quality Home Care Workforce Council shall be considered an executive branch employer and the chairperson of said council shall be considered the employer's chief executive officer.

(3) No provision of any agreement or award which may be reached pursuant to collective bargaining between the Personal Care Attendant Quality Home Care Workforce Council and any organization representing personal care attendants shall interfere with the right of a consumer or surrogate to hire, refuse to hire, supervise, direct the activities of, or terminate the employment of any personal care attendant.

(e) (1) Not later than October 1, 2012, and monthly thereafter, the Personal Care Attendant Quality Home Care Workforce Council shall compile and maintain a list of the names and addresses of all personal care attendants who have been paid through a state-funded program that provides personal care services administered by the Department of Social Services or Developmental Services within the previous six calendar months. The list shall not include the name of any consumer, or indicate that a personal care attendant is a relative of a consumer or has the same address as a consumer. Any vendor or contractor that provides personal care services shall assist and cooperate with said council in compiling and maintaining such list. The Personal Care Attendant Quality Home Care Workforce Council shall utilize such list for the purposes of this section. Such list shall be a public record, as defined in section 1-200 of the general statutes.

(2) Not later than seven days after receiving a request from an employee organization, as defined in subsection (d) of section 5-270 of the general statutes, that is interested in representing an appropriate unit of personal care attendants, the Personal Care Attendant Quality Home Care Workforce Council shall provide to the employee organization the most recent list of personal care attendants compiled pursuant to subdivision (1) of this subsection.

Sec. 3. (NEW) (Effective July 1, 2012) (a) Personal care attendants shall have the right to bargain collectively, and shall have such other rights and obligations incident thereto as are created by sections 5-270 to 5-279, inclusive, of the general statutes, except:

(1) The following shall be prohibited subjects of bargaining: (A) Application of state employee benefits to personal care attendants, including, but not limited to, health benefits and pensions, (B) a consumer or surrogate's right to hire, refuse to hire, supervise, direct the activities of, or terminate the employment of any personal care attendant, (C) any proposal that would prevent surrogates from hiring personal care attendants not identified on the list described in subsection (e) of this section, and (D) a procedure for grievance arbitration against a consumer or surrogate;

(2) No provision of any contract or award shall provide for a reduction in the services provided by personal care attendants to consumers or a reduction in Medicaid funds provided to the state;

(3) The provisions of section 5-280 of the general statutes shall not apply to personal care attendants. A contract or award reached pursuant to this act may include provisions calling for the state or its fiscal intermediary to deduct from reimbursement payments the regular dues, fees and assessments that a member is charged and nonmember service fees limited to the lesser of dues and initiation fees required of members or the proportionate share of expenses incident to collective bargaining;

(4) The provisions of sections 5-276a and 5-276b of the general statutes and subsections (c) to (g), inclusive, of section 5-278 of the general statutes shall not apply to collective bargaining involving personal care attendants. Any impasse between the parties shall be resolved in accordance with subsection (b) of this section;

(5) In any proceeding which may be filed under section 5-272 of the general statutes, the State Board of Labor Relations shall be without jurisdiction over, or authority to issue any remedy against, any consumer or surrogate;

(6) Any election required in order to resolve any question concerning representation involving personal care attendants shall be conducted by mail ballot; and

(7) A personal care attendant shall not be considered a state employee and shall be exempt from any and all provisions of the general statutes creating rights, obligations, privileges or immunities to state employees as a result of or incident to their state service.

(b) (1) If the organization representing personal care attendants and the chief executive officer do not reach an agreement within one hundred fifty days after negotiations have begun, the parties shall jointly select an arbitrator. The arbitrator selected shall have experience as an impartial arbitrator of labor-management disputes, and shall not be an individual employed as an advocate or consultant for labor or management in labor-management disputes. If the parties fail to agree on an arbitrator within one hundred sixty days after the negotiations have begun, the selection shall be made using the procedures under the voluntary labor arbitration rules of the American Arbitration Association.

(2) Each party shall submit to the arbitrator, and to the other party, a proposal setting forth such party's position on how each of the unresolved issues shall be resolved.

(3) The arbitrator shall convene a hearing to allow each party to provide evidence and argument to the arbitrator. Each party shall have the right to submit written briefs to the arbitrator. The arbitration record shall be officially closed at the later of the close of the hearing or the arbitrator's receipt of briefs, whichever is later.

(4) The arbitrator's authority is limited to selecting the complete proposal of one party or the other's on any unresolved issue. The arbitrator shall issue an award not later than forty-five days after the close of the record.

(5) The factors to be considered by the arbitrator in arriving at a decision are: (A) The nature and needs of the personal care assistance program and the needs and welfare of consumers, including interests in better recruitment, retention and quality with respect to the covered personal care attendants; (B) the history of negotiations between each party including those leading to the proceeding; (C) the existing conditions of employment of similar groups of personal care attendants; (D) changes in the cost of living; and (E) the interests and welfare of the covered personal care attendants.

(6) The costs of the arbitrator and any fees associated with the arbitration proceeding shall be shared equally by each party.

(7) Any contract or award reached pursuant to this section shall be reduced to writing and submitted to the General Assembly pursuant to the provisions of subsection (b) of section 5-278 of the general statutes.

(c) The provisions of this section shall not alter the obligations of the state or the consumer to provide the state's or the consumer's share of Social Security, federal and state unemployment contributions, Medicare or workers' compensation insurance.

(d) The bargaining units of personal care attendants appropriate for the purpose of collective bargaining shall be (1) a state-wide unit of all personal care attendants, (2) a state-wide unit of personal care attendants who provide services under programs administered by the Department of Social Services, or (3) a state-wide unit of personal care attendants who provide services under programs administered by the Department of Developmental Services. Personal care attendants who are members of the consumer's or surrogate's family shall not be excluded from the bargaining unit solely because of such personal care attendant's familial relationship to a consumer or surrogate.

(e) Any organization certified as the majority representative of personal care attendants in any election held prior to the effective date of this section pursuant to Executive Order Number 10 of Governor Dannel P. Malloy may provide proof of such certification to the State Board of Labor Relations and the State Board of Labor Relations shall certify such majority representative as the exclusive bargaining representative for such personal care attendants without the requirement of an additional election unless and until such time as a question concerning representation is appropriately raised under this section and section 2 of this act.

Sec. 4. (NEW) (Effective July 1, 2012) The Commissioners of Social Services and Developmental Services shall submit any application for a waiver of federal law necessary to effectuate the provisions of sections 1 to 3, inclusive, of this act, in accordance with the provisions of section 17b-8 of the general statutes. The Commissioners of Social Services and Developmental Services and any other department or agency of the state shall take all actions reasonably necessary to obtain approval for any such waiver and to ensure the continuation of necessary federal funding.

This act shall take effect as follows and shall amend the following sections:

Section 1

July 1, 2012

New section

Sec. 2

July 1, 2012

New section

Sec. 3

July 1, 2012

New section

Sec. 4

July 1, 2012

New section

Statement of Purpose:

To provide a process for personal care attendants to collectively bargain with the state via the Personal Care Attendant Quality Home Care Workforce Council.

[Proposed deletions are enclosed in brackets. Proposed additions are indicated by underline, except that when the entire text of a bill or resolution or a section of a bill or resolution is new, it is not underlined.]