THE COMPLETE TEXT OF INITIATIVE NO. 159
BE IT ENACTED BY THE PEOPLE OF THE STATE OF MONTANA:
NEW SECTION. Section 1. Findings. The people of the state of Montana find that:
(1) Montana persons with disabilities and persons who are elderly deserve to have home and community-care options allowing them to live independently if they choose, and those options are less costly than institutional care;
(2) hundreds of Montana persons with disabilities and persons who are elderly are currently on waiting lists for home and community- based services that would allow them to stay in their homes and the community rather than in long-term care facilities;
(3) quality long-term care community services that are widely available allow Montana persons with disabilities and persons who are elderly and their families to make the choice to remain in their homes;
(4) providing multiple service options in a cost-effective and streamlined manner would benefit Montana persons with disabilities and persons who are elderly;
(5) the quality of long-term in-home care services in Montana would benefit from improved regulation, higher standards, better accountability, and improved access to those services;
(6) the quality of long-term in-home care services in Montana would further be improved by a well-trained, stable individual provider workforce earning reasonable wages and benefits;
(7) it is of utmost importance to prevent fraud and abuse against Montana persons with disabilities and persons who are elderly. Fraud and abuse can be prevented by setting training standards and conducting criminal background checks for the individual provider workforce.
NEW SECTION. Section 2. Individual provider program. (1) As part of home and community-based services, the department shall establish and maintain an individual provider program to provide personal assistance, home care, respite care, and other similar residential services to consumers as an alternative to agency-based care under the following conditions:
(a) a consumer must have the right to choose, hire, schedule, supervise, and fire an individual provider;
(b) the terms of employment for an individual provider must be consistent with any collective bargaining agreement under [section 7];
(c) an individual provider must be paid directly through a personal contract with the department; and
(d) medicaid reimbursement must be the source of funds for payment for individual provider services.
(2) The program shall initially provide services to unserved and underserved consumers, including those consumers currently on waiting lists for medicaid home and community-based services.
(3) The department shall certify individual providers and establish and maintain a registry of certified individual providers to assist consumers and prospective consumers in finding individual providers.
NEW SECTION. Section 3. Rulemaking — certification, training, and criminal background checks for individual providers. (1) The department shall adopt rules necessary to implement [sections 1 through 5], including program administration, certification, and training.
(2) The rules may address any need of the program but must, at a minimum:
(a) establish requirements for certification of individual providers, including education, training, and no history of activity involving fraud, theft, or abuse;
(b) establish criminal background and general background check requirements necessary for certification of individual providers;
(c) establish continuing education, training, and background check requirements for renewal certification of individual providers; and
(d) establish standards for contracting between the department and individual providers.
NEW SECTION. Section 4. Long-term care assessment and counseling program. The department shall, in addition to any level-of- care determination:
(1) develop a long-term care assessment and counseling program available to all Montanans to help with current and future care needs for consumers and their families and make the program available to all Montanans using appropriate technology to assist with understanding long-term care costs and service options, including services that can be received at home;
(2) develop and implement an information, assessment, and counseling program for individuals who have been recently admitted to a nursing facility or other long-term care facility;
(3) develop a single standardized assessment tool for all medicaid long-term care applicants that determines financial eligibility, hours of care, level of care, health care needs, and living arrangements;
(4) require use of the assessment tool described in subsection (3) to assign a plan of care that fully addresses the needs of the consumer and accurately assigns hours of care to meet those needs;
(5) discuss all appropriate care options, including any options for public support, with consumers and their families within 7 days after admission to a long-term care facility; and
(6) help consumers, their families, and designated representatives plan for, locate, and secure services available at home and outside the nursing facility.
NEW SECTION. Section 5. Presumptive medicaid eligibility. (1) The department, in order to provide for continuous coverage for consumers, shall, to the extent funding is available, establish a medicaid-funded presumptive eligibility program that:
(a) presumes medicaid eligibility for those consumers who meet the requirements of a presumptive period as provided in 53-6-401; and
(b) assists consumers with accessing medicaid-funded home care during the presumptive period.
(2) The presumption established in subsection (1) ends when a consumer is found to be ineligible for medicaid funding.
(3) The department may recover any costs incurred by the department for providing services to a consumer during the presumptive period, including seeking payment from any consumer who is found to be ineligible for medicaid-funded services.
NEW SECTION. Section 6. Collective bargaining in individual provider program — consumer rights. (1) The individual provider program established in [section 2] does not limit the right of a consumer or prospective consumer to choose, hire, schedule work hours for, supervise the work of, fire any individual provider providing services to them, or allocate service hours among providers.
(2) The department of public health and human services may not increase or reduce the hours of service determined to be necessary for any consumer through an assessment under [section 4] because those hours of services are provided by an individual provider.
(3) Consumers may elect to receive long-term in-home care services from individual providers who are not referred to them by the department of public health and human services.
(4) The department of public health and human services shall solicit input from the Montana statewide independent living council and the governor’s advisory council on aging in establishing the individual provider program and prior to each negotiating session with any collective bargaining representative for the individual providers.
NEW SECTION. Section 7. Collective bargaining for individual providers. (1) A consumer is the employer of an individual provider for purposes other than collective bargaining. Individual providers are public employees solely for the purpose of collective bargaining under this section and are not employees of the state or its political subdivisions for any other purpose.
(2) The department of public health and human services shall set the terms of any contract for services entered into between the department and an individual provider. Upon certification of an exclusive representative of individual providers under 39-31-202 and 39-31-208, individual providers’ wages, hours, working conditions, training, workforce sustainability, and other benefits must be determined solely through collective bargaining. However, collective bargaining under this subsection does not limit:
(a) an individual consumer’s plan of care;
(b) consumer rights established by [section 6];
(c) the authority of the department of public health and human services to determine the level of long-term care each consumer is eligible to receive;
(d) the authority of the department of public health and human services to terminate or deny a contract with an individual provider who is not certified under [section 2] or has been fired by the consumer;
(e) the obligation of the department of public health and human services to comply with the federal medicaid statutes 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; or
(f) the legislature’s right to make programmatic modifications to the delivery and nature of state services provided, including standards of eligibility of consumers and individual providers participating in individual provider programs.
(3) The chief executive officer of the state or the designated authorized representative, when requested by the exclusive representative, shall engage in collective bargaining as to how the department’s exercise of its authority under subsections (2)(c), (2)(d), and (2)(e) affects the collective hours of work available for all individual providers.
(4) As a service to consumers, the department of public health and human services shall assume a consumer’s responsibility to make payments for unemployment insurance, worker’s compensation, and other legally required payments associated with an individual provider’s provision of medicaid services. The department shall also act as an agent of the consumer, directly or through a fiscal agent, in making payroll deductions associated with an individual provider’s provision of medicaid services, whether those deductions are requested in writing by the individual provider, agreed to in collective bargaining, or required by law. Individual providers may not be considered employees of the state as a result of the state assuming this responsibility.
NEW SECTION. Section8. Strikes by individual providers prohibited. (1) It is unlawful for an individual provider, as defined in 39-31-103, to strike or recognize a picket line of a labor organization while under the terms of any collective bargaining agreement negotiated under [section 7] or during negotiation or arbitration of any successor agreement.
(2)(a) For purposes of this section, “strike” means an action listed in subsection (2)(b), in concerted actions with others, for the purpose of inducing, influencing, or coercing a change in the conditions of employment, compensation, rights, privileges, or obligations of employment of an individual provider.
(b) An individual provider may not engage in the following actions in concert with others:
(i) refusal to report for work;
(ii) willful absence from work;
(iii) stoppage of work; or
(iv) departure from the full, faithful, or proper performance of duties of employment.
NEW SECTION. Section 9. Arbitration between individual providers and chief executive officer. (1) This section applies only to individual providers as defined in 39-31-103 and the chief executive officer of the state acting under 39-31-301.
(2) If an impasse is reached in the course of collective bargaining between the exclusive representative for individual providers and the chief executive officer of the state and if the procedures for mediation and factfinding contained in 39-31-307 through 39-31-310 have been exhausted, either party or both jointly may petition the board of personnel appeals for final and binding arbitration.
NEW SECTION. Section 10. Designation of arbitrator. (1) Within 3 days of the receipt of a petition for final and binding arbitration, the board of personnel appeals shall submit to the parties a list of five qualified and disinterested arbitrators. From the list submitted by the board, the parties shall alternately strike two names. The order of striking names must be determined by a coin toss. The remaining person must be designated as the arbitrator. The parties shall notify the board of the designated arbitrator within 5 days of the receipt of the list.
(2) If the parties have not designated the arbitrator and notified the board of personnel appeals of their choice within 5 days of receipt of the list, the board of personnel appeals shall appoint the arbitrator from the names on the list. However, if one of the parties strikes names from the list as provided in subsection (1), the board shall appoint an arbitrator from the names remaining on the list.
NEW SECTION. Section 11. Powers and duties of arbitrator for individual providers. (1) The arbitrator shall establish the dates, times, and places of hearings. The arbitrator may issue subpoenas. Within 14 calendar days prior to the date of a hearing, each party shall submit to the other party a written last best offer on all unresolved mandatory subjects. The last best offer may not be changed during arbitration. If the parties cannot agree on the issues to be determined by the arbitrator, the arbitrator shall certify the issues to be determined from the parties’ last best offers. The arbitrator may administer oaths and shall give the parties the opportunity to examine and cross-examine all witnesses and to present evidence relevant to the dispute.
(2) The arbitrator shall decide the unresolved mandatory subjects contained in the last best offers. The arbitrator shall base findings and opinions on the following criteria, giving each criteria equal weight. The criteria are:
(a) the interest and welfare of the public;
(b) the reasonable financial ability of the state to meet the costs of the proposed contract, giving consideration and weight to other services provided by the state;
(c) the ability to attract and retain qualified personnel at the wage and benefit levels provided;
(d) the state’s interest in promoting a stable long-term care workforce to provide quality and reliable care to vulnerable persons with disabilities and persons who are elderly;
(e) the overall compensation presently received by the providers, including direct wage compensation and all other direct or indirect monetary benefits;
(f) comparison of the wages, hours, and conditions of employment of public reimbursed personnel providing similar services to similar clients, including clients who are elderly, frail, or have developmental disabilities, in comparable communities in Montana and other northwestern states;
(g) the state’s interest in ensuring access to affordable, quality health care for all citizens of the state;
(h) the state’s fiscal interest in reducing reliance upon public benefits programs, including but not limited to, medical coupons, food stamps, subsidized housing, and emergency medical services;
(i) inflation as measured by the consumer price index, U.S. city average, commonly known as the cost of living;
(j) the stipulations of the parties; and
(k) other factors, consistent with subsections (2)(a) through (2)(j), that are traditionally taken into consideration in the determination of wages, hours, and other terms and conditions of employment. However, the arbitrator may not use factors if, in the judgment of the arbitrator, the factors listed in subsections (2)(a) through (2)(j) provide a sufficient basis for the award.
(3) Within 30 days after the conclusion of the hearings or an additional period agreed upon by the parties, the arbitrator shall select from among the last best offers submitted by the parties or certified by the arbitrator and shall make written findings along with an opinion and order. The opinion and order must be served on the parties and the board of personnel appeals. Service may be made by personal delivery or by certified mail. The findings, opinion, and order must be based upon the criteria listed in subsection (2).
NEW SECTION. Section 12. Collective bargaining permitted during arbitration. Nothing prohibits the parties to the impasse from reaching an agreement prior to the rendering of a determination by the arbitrator.
NEW SECTION. Section 13. Cost of arbitration. The cost of arbitration must be borne equally by the parties.
Section 14. Section 39-31-103, MCA, is amended to read:
“39-31-103. Definitions. When used in this chapter, the following definitions apply:
(1) “Appropriate unit” means a group of public employees banded together for collective bargaining purposes as designated by the board.
(2) “Board” means the board of personnel appeals provided for in 2-15-1705.
(3) “Consumer” has the meaning provided in 53-6-401.
(3) (4) “Confidential employee” means any person found by the board to be a confidential labor relations employee and any person employed in the personnel division, department of administration, who acts with discretionary authority in the creation or revision of state classification specifications.
(4) (5) “Exclusive representative” means the labor organization which has been designated by the board as the exclusive representative of employees in an appropriate unit or has been so recognized by the public employer.
(6) “Individual provider” has the meaning provided in 53-6-401.
(5) (7) “Labor dispute” includes any controversy concerning terms, tenure, or conditions of employment or concerning the association or representation of persons in negotiating, fixing, maintaining, changing, or seeking to arrange terms or conditions of employment, regardless of whether the disputants stand in the proximate relation of employer and employee.
(6) (8) “Labor organization” means any organization or association of any kind in which employees participate and which exists for the primary purpose of dealing with employers concerning grievances, labor disputes, wages, rates of pay, hours of employment, fringe benefits, or other conditions of employment.
(7) (9) “Management official” means a representative of management having authority to act for the agency on any matters relating to the implementation of agency policy.
(8) (10) “Person” includes one or more individuals, labor organizations, public employees, associations, corporations, legal representatives, trustees, trustees in bankruptcy, or receivers.
(9) (11) (a) “Public employee” means:
(i) except as provided in subsection (9)(b) (11)(b), a person employed by a public employer in any capacity; and
(ii) an individual whose work has ceased as a consequence of or in connection with any unfair labor practice or concerted employee action.
(b) Public employee does not mean:
(i) an elected official;
(ii) a person directly appointed by the governor;
(iii) a supervisory employee, as defined in subsection (11) (13);
(iv) a management official, as defined in subsection (7) (9);
(v) a confidential employee, as defined in subsection (3) (4);
(vi) a member of any state board or commission who serves the state intermittently;
(vii) a school district clerk;
(viii) a school administrator;
(ix) a registered professional nurse performing service for a health care facility;
(x) a professional engineer; or
(xi) an engineer intern.
(10) (12) “Public employer” means the state of Montana or any political subdivision thereof, including but not limited to any town, city, county, district, school board, board of regents, public and quasi-public corporation, housing authority or other authority established by law, and any representative or agent designated by the public employer to act in its interest in dealing with public employees. Public employer also includes any local public agency designated as a head start agency as provided in 42 U.S.C. 9836.
(11) (13) (a) “Supervisory employee” means an individual having the authority on a regular, recurring basis while acting in the interest of the employer to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to effectively recommend the above actions if, in connection with the foregoing, the exercise of the authority is not of a merely routine or clerical nature but requires the use of independent judgment.
(b) The authority described in subsection (11)(a) (13)(a) is the only criteria that may be used to determine if an employee is a supervisory employee. The use of any other criteria, including any secondary test developed or applied by the national labor relations board or the Montana board of personnel appeals, may not be used to determine if an employee is a supervisory employee under this section.
(12) (14) “Unfair labor practice” means any unfair labor practice listed in 39-31-401 or 39-31-402.”
Section 15. Section 39-31-202, MCA, is amended to read:
“39-31-202. Board to determine appropriate bargaining unit — factors to be considered — exception. (1) (a) Except as provided in subsection (1)(b), in In order to ensure employees the fullest freedom in exercising the rights guaranteed by this chapter, the board or an agent of the board shall decide the unit appropriate for the purpose of collective bargaining and shall consider such factors as community of interest, wages, hours, fringe benefits, and other working conditions of the employees involved, the history of collective bargaining, common supervision, common personnel policies, extent of integration of work functions and interchange among employees affected, and the desires of the employees.
(b) In the case of individual providers, the only unit appropriate for the purpose of collective bargaining is a statewide unitcomposed only of individual providers.
(2) If a state agency or facility of a state agency is reorganized to the extent that the reorganization results in substantial changes to the factors listed in subsection (1) (1)(a), the public employer representative, as provided in 39-31-301, may petition the board to make a new determination of the appropriate unit for the purpose of collective bargaining. In making this determination, the board shall take into account the consequences of the reorganization on each position in the affected agency or facility.
(3) Unless the board has received a petition, as provided in 39-31-207, to consider a collective bargaining unit that was not designated as an appropriate unit prior to the reorganization described in subsection (2), the board may not consider any labor organization that was not designated to represent employees of the affected agency or facility at the time that the reorganization became effective.”
Section 16. Section 39-31-301, MCA, is amended to read:
“39-31-301. Representative of public employer. (1) The chief executive officer of the state, the governing body of a political subdivision, the commissioner of higher education, whether elected or appointed, or the designated authorized representative shall represent the public employer in collective bargaining with an exclusive representative.
(2) In all collective bargaining matters involving individual providers, the chief executive officer of the state or the designated representative serves as the public employer representative.”
Section 17. Section 39-31-305, MCA, is amended to read:
“39-31-305. Duty to bargain collectively — good faith. (1) The public employer and the exclusive representative, through appropriate officials or their representatives, shall have the authority and the duty to bargain collectively. This duty extends to the obligation to bargain collectively in good faith as set forth in subsection (2) of this section.
(2) For the purpose of this chapter, to bargain collectively is the performance of the mutual obligation of the public employer or his designated representatives and the representatives of the exclusive representative to meet at reasonable times and negotiate in good faith with respect to wages, hours, fringe benefits, and other conditions of employment or the negotiation of an agreement or any question arising thereunder and the execution of a written contract incorporating any agreement reached. Such obligation does not compel either party to agree to a proposal or require the making of a concession.
(3) For purposes of state government only, the requirement of negotiating in good faith may be met by the submission of a negotiated settlement to the legislature in the executive budget or by bill or joint resolution. The failure to reach a negotiated settlement for submission is not, by itself, prima facie evidence of a failure to negotiate in good faith.
(4) For purposes of individual providers only, good faith bargaining under this chapter must be commenced by April 1 of any year prior to the year in which an existing collective bargaining agreement expires.”
Section 18. Section 53-6-401, MCA, is amended to read:
“53-6-401. Definitions. As used in this part, the following definitions apply:
(1) “Consumer” means a person with disabilities or a person who is elderly who is eligible for services under 53-6-131 or who may be in need of basic or ancillary services as provided in 53-6-402.
(1) (2) “Department” means the department of public health and human services provided for in 2-15-2201.
(3) “Direct-care worker” means a person who is a paid caregiver who provides home and community-based services directly to a consumer.
(2) (4) “Home and community-based services” means, as provided for in section 1915of Title XIX of the Social Security Act, 42 U.S.C. 1396n(c), and any regulations implementing that statute, long-term medical, habilitative, rehabilitative, and other services provided in personal residences or in community settings and funded by the department with medicaid money.
(5) “Individual provider” means a direct-care worker certified by the department for employment directly by the consumer with payment for the provider services made through medicaid reimbursement under contract with the department.
(3) (6) “Level-of-care determination” means an assessment of a person and the resulting determination establishing whether long-term care facility services to be provided to the person are appropriate to meet the health care and related circumstances and needs of the person.
(4) (7) “Long-term care facility” means a facility that is certified by the department, as provided in 53-6-106, to provide skilled or intermediate nursing care services, including intermediate nursing care services for persons with developmental disabilities or, for the purposes of implementation of medicaid-funded programs of home and community-based services, that is recognized by the U.S. department of health and human services to be an institutional setting from which persons may be diverted through the receipt of home and community-based services.
(5) (8) “Long-term care preadmission screening” means, in accordance with section 1919 of Title XIX of the Social Security Act, 42 U.S.C. 1396r, a process conducted according to a specific set of criteria for determining whether a person with mental retardation or mental illness may be admitted to a long-term care facility.
(6) (9) “Persons with disabilities or persons who are elderly” means, for purposes of establishing home and community-based services, those categories of persons who are elderly and disabled as defined in accordance with section 1915 of Title XIX of the Social Security Act, 42 U.S.C. 1396n.
(10) “Presumptive period” means a period of time no greater than 60 days following the discharge of a consumer from a health care facility as defined in 53-6-106, during which time the consumer has informed the department of expected medicaid eligibility and has sought medicaid payment approval for in-home and community-based services, including those provided during the presumptive period.
(11) “Program” means the individual provider program as provided in [section 2].”
NEW SECTION. Section 19. Codification instruction. (1) Sections 1 through 5 are intended to be codified as an integral part of Title 53, chapter 6, part 4, and the provisions of Title 53, chapter 6, part 4, apply to sections 1 through 5.
(2) Sections 6 and 7 are intended to be codified as an integral part of Title 39, chapter 31, and the provisions of Title 39, chapter 31, apply to sections 6 and 7.
(3) Sections 8 through 13 are intended to be codified as an integral part of Title 39, and the provisions of Title 39 apply to sections 8 through 13.
NEW SECTION. Section 20. Severability. If a part of this act is invalid, all valid parts that are severable from the invalid part remain in effect. If a part of this act is invalid in one or more of its applications, the part remains in effect in all valid applications that are severable from the invalid applications.
NEW SECTION. Section 21. Effective date. This act is effective upon approval by the electorate.