RCW 74.39A.270
Collective bargaining -- Circumstances in
which individual providers are considered public
employees -- Exceptions.
(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
department shall solicit input from 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 (5) and (6) 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; and
(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
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) 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 (5)(f).
(6) 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 to the training
partnership for the costs of: (a) Meeting all training and peer
mentoring required under this chapter; and (b) other training
intended to promote the career development of individual
providers.
(7) The state, the department, 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 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.
(8) 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.
[2011 1st sp.s. c 21 § 10; 2007 c 361 § 7; 2007 c 278 § 3; 2006 c 106 § 1; 2004 c 3 § 1; 2002 c 3 § 6 (Initiative Measure No. 775, approved November 6, 2001).]
NOTES:
Effective date -- 2011 1st sp.s. c 21: See note following RCW 72.23.025.
Effective date -- 2007 c 361 §§ 7 and 8: "Sections 7 and 8 of this act take effect March 1, 2008." [2007 c 361 § 14.]
Construction -- Severability -- Captions not law -- Short title -- 2007 c 361: See notes following RCW 74.39A.009.
Effective date -- 2006 c 106: "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 [March 17, 2006]." [2006 c 106 § 2.]
Severability -- 2004 c 3: "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." [2004 c 3 § 8.]
Effective date -- 2004 c 3: "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 [March 9, 2004]." [2004 c 3 § 9.]
Findings--Captions not law--Severability -- 2002 c 3 (Initiative Measure No. 775): See RCW 74.39A.220 and notes following.