THE GOVERNOR
Title 4—ADMINISTRATION
[40 Pa.B. 6071]
[Saturday, October 23, 2010]
PART I. GOVERNOR'S OFFICE
[ 4 PA. CODE CH. 7a ]
[ EXECUTIVE ORDER NO. 2010-04 ]
Consumer-Directed Home Care Providers September 14, 2010
Whereas, the Commonwealth is committed to ensuring Pennsylvania residents have access to high quality home care services; and
Whereas, the Commonwealth, through its Office of Long-Term Living, presently administers various home and community based services, including the Attendant Care Waiver, the Attendant Care Services Act 150 Program, Options and the Aging Waiver; and
Whereas, under these home and community based waiver programs, consumers of home care services have the ability to self-direct their own care and to employ individual providers (providers) through the use of Financial Management Services agencies retained by the Commonwealth and selected by consumers to assist them with payroll and other supportive services; and
Whereas, there is a continuing workforce shortage in recruiting and retaining providers who support Pennsylvania citizens in their homes and the community; and
Whereas, successful home care programs for seniors and persons with disabilities require efforts and strategies to recruit and retain a qualified and trained workforce; and
Whereas, Pennsylvania is rebalancing its long-term living to increase the opportunities for seniors and persons with disabilities to live independently for as long as their health permits them to do so; and
Whereas, the Commonwealth, through its Office of Long-Term Living, is in the process of establishing a statewide rate structure for the payment of certain home and community based services; and
Whereas, consumers of home care services who desire to self-direct and employ providers are best served by an experienced, well-trained, stable provider workforce; and
Whereas, providers work throughout the Commonwealth in the homes of consumers and therefore without representation have no effective means of voicing their collective concerns about the terms of their provision of services; and
Whereas, the Commonwealth has a substantial public interest in protecting the rights of workers to join, form and assist organizations to negotiate on their behalf; and
Whereas, it is essential for the Commonwealth to hear the common concerns of consumers and providers employed by consumers in order to effectively and efficiently administer its home and community based waiver programs and to achieve its goals of rebalancing the system of long-term living and improving access to quality home care; and
Whereas, the Commonwealth is committed to developing a strategy that will address these concerns without interfering with a consumer's right to select, hire, schedule, supervise and terminate an individual provider employed by the consumer.
Now, Therefore, I, Edward G. Rendell, Governor of the Commonwealth of Pennsylvania, by virtue of the authority vested in me by the Constitution of the Commonwealth of Pennsylvania and other laws, do hereby direct the following:
Governor
Fiscal Note: 2010-07. No fiscal impact; (8) recommends adoption.
Annex A
TITLE 4. ADMINISTRATION
PART I. GOVERNOR'S OFFICE
CHAPTER 7a. ADDITIONAL MISCELLANEOUS PROVISIONS
Subchapter C. CONSUMER-DIRECTED HOME CARE PROVIDERS Sec.
7a.21. Selection of a provider representative. 7a.22. Meeting with the provider representative. 7a.23. Agreement memorialized. 7a.24. The Consumer Workforce Council. 7a.25. Procedure if the parties fail to reach agreements. 7a.26. Relationship between provider and consumer will not change 7a.27. Relationship between provider and the Commonwealth will not change 7a.28. State action exemption. 7a.29. Cooperation by State agencies. 7a.30. Term. § 7a.21. Selection of a provider representative.
To assist the Commonwealth in addressing the concerns and interests of individual providers, the Commonwealth will recognize a labor organization as the exclusive representative for individual providers, designated in the manner as follows:
(1) Providers defined. For the purpose of this subchapter, providers are defined as those providers who are consumer-directed and not employed by a private agency and who provide, under the jurisdiction of the Office of Long-Term Living, ongoing Medicaid or Commonwealth reimbursed nonmedical, direct care services to older Pennsylvanians and Pennsylvanians with disabilities, including but not limited to, the Attendant Care Waiver, the Attendant Care Services Act 150 Program, Options and the Aging Waiver.
(2) Eligible voters. The Commonwealth will create a list of providers who will constitute eligible voters for the purpose of determining a showing of interest justifying an election and for the election should the showing of interest occur. The list will be composed of providers reimbursed for services from the most recent 3-month period available.
(3) Showing of interest justifying an election. For an election to occur, a labor organization must demonstrate to the satisfaction of the Secretary of Labor and Industry, by either authorization cards or petition, that at least 10% of the providers on the eligible voter list request an election. The Secretary of Labor and Industry will designate the American Arbitration Association or another organization with experience in conducting representation elections as election monitor for purposes of showing of interest and conducting the election if a showing of interest occurs. The election shall be conducted by secret mail ballot and commence no later than 30 calendar days from the determination that a showing of interest has been demonstrated. Any other labor organization seeking to intervene or appear on the ballot must demonstrate a 10% showing of interest.
(4) Majority vote required. For any labor organization to be recognized as the provider representative of the providers, it must receive at least a majority of the votes cast. After the results are certified, the Commonwealth will recognize the labor organization as the exclusive representative of all consumer-directed providers covered under this subchapter working within this Commonwealth, for the purpose of negotiation of matters over which the Commonwealth has control.
(5) Decertification or selection of different provider representative. A petition to decertify an existing exclusive representative or select a different provider representative may be filed by providers in the same manner as a petition for election, provided the petition is no sooner than 12 months after the representative election has been conducted. In the event a valid agreement is reached that, by its terms, does not exceed 3 years in duration, a decertification petition may be filed by providers in the same manner as a petition for election during the period from 90 calendar days until 60 calendar days immediately preceding the expiration of the agreement.
§ 7a.22. Meeting with the provider representative.
The Commonwealth, acting through the Office of Long-Term Living or joint designee of the Secretaries of Aging and Public Welfare, will engage in negotiations with the provider representative concerning terms and conditions which directly impact providers and which are within the Commonwealth's control, including the maximum unit rate paid for services, minimum portion of Commonwealth payments passed through to providers, training standards and requirements, health care, payroll deductions such as dues and co-premiums, and the creation of a voluntary registry. The negotiation must begin within 30 calendar days after certification of the provider representative. The negotiation may not intrude upon or interfere with a consumer's right to select, hire, directly train, schedule, supervise and terminate any individual provider employed by the consumer.
§ 7a.23. Agreement memorialized.
When agreement is reached, it shall be memorialized in writing. The agreement shall be signed by the Governor, or a representative, and by the provider representative. The terms of the agreement which require State and Federal regulatory or legislative action shall be contingent upon the successful completion of the action. To the extent practical, if any provisions of the agreement require legislative action or the appropriation of funds, the parties will jointly seek the enactment of the legislative or regulatory action.
§ 7a.24. Consumer Workforce Council.
The Consumer Workforce Council (CWC) is established as the unified voice for consumer-employers for the purpose of engaging in discussions regarding common concerns of consumers and providers covered under this subchapter.
(1) Selection and terms of the CWC. The CWC will consist of 18 members, diverse by geography and age, selected by the Governor. The Pennsylvania Council for Independent Living, Centers for Independent Living, AARP and the P4A (representing the area agencies on aging) are invited to submit regionally diverse nominations. Each member will be appointed for a 2-year term, renewable for two additional terms if nominated by the Governor. The Chairperson will serve at the pleasure of the Governor and, other than the first Chairperson, must have served for at least 1-year prior to selection as the Chairperson. Other than the first Chairperson, the CWC will provide its recommendations to the Governor regarding selection of the Chairperson.
(2) Role of the CWC. To ensure a strong voice for the rights of consumers, the CWC will advise the Office of Long-Term Living or the joint designee of the Secretaries of Aging and Public Welfare designee with respect to any issues or concerns related to this subchapter.
§ 7a.25. Procedure if the parties fail to reach agreements.
Nothing in this subchapter permits providers to engage in a strike or collective cessation of the delivery of services. In the event the parties in the judgment of the Secretary of Labor and Industry reach impasse during negotiations, they will employ the services of a third-party neutral who will make a nonbinding recommendation as to contract provisions. The costs for the services of the arbitrator will be shared equally by the parties.
§ 7a.26. Relationship between provider and consumer will not change.
This subchapter in no way alters the unique relationship between the individual provider and individual consumer. Consumers retain the absolute right to select, hire, terminate and supervise their providers.
§ 7a.27. Relationship between provider and the Commonwealth will not change.
Nothing in this subchapter is intended to grant providers the status of Commonwealth employees.
§ 7a.28. State action exemption.
In affording providers the right to select an exclusive representative, engage in negotiations with the Commonwealth under the terms of this subchapter, the Commonwealth intends that the ''State Action'' exemption to Federal antitrust laws be fully available to the Commonwealth, to the providers, their provider representative and to the Consumer Workforce Council. The exempt conduct will be actively supervised by the Department of Labor and Industry.
§ 7a.29. Cooperation by State agencies.
Agencies under the Governor's jurisdiction shall take whatever steps necessary to implement this subchapter.
§ 7a.30. Term.
This subchapter shall be effective immediately and remain in effect until rescinded by the Governor.
[Pa.B. Doc. No. 10-1990. Filed for public inspection October 22, 2010, 9:00 a.m.]
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