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  • Acts
  • 2012
  • Chapter 189 AN ACT RELATIVE TO EARLY EDUCATION AND CARE BY FAMILY CHILD CARE PROVIDERS.

Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority of the same as follows:

SECTION 1. The second paragraph of section 2 of chapter 15D of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by adding the following clause:-
(u) subject to appropriation and notwithstanding any general or special law to the contrary, assure quality early education and care provided to children through family child care providers by working cooperatively with family child care providers to build upon the existing system and continuously improve the delivery of high quality early education and care services for eligible low income families through providers who have the requisite skills and training.

SECTION 2. Said chapter 15D is hereby further amended by adding the following section:-
Section 17. (a) As used in this section the following words shall, unless the context requires otherwise, have the following meanings:-
“Department of labor relations”, the department of labor relations established by section 9O of chapter 23.
“Employee organization”, an employee organization as defined in section 1 of chapter 150E.
“Family child care provider”, a person who provides family child care services on behalf of low-income and other at-risk children and receives payment from the commonwealth for such services under a rate structure for voucher and contracted payments.
“Family child care services”, child care services provided for less than 24 hours per day in the residence of the provider on behalf of low-income and other at-risk children, for which payment from the commonwealth is made under a rate structure for voucher and contracted payments.
(b) Family child care providers shall be considered public employees, as defined by and solely for the purposes of, chapter 150E and section 17J of chapter 180. Said chapter 150E, including subsection (c) of section 7, shall apply to family child care providers except to the extent that chapter 150E is inconsistent with this section, in which case this section shall control. In addition, family child care providers shall be treated as state employees solely for the purposes of sections 17A and 17G of said chapter 180. Family child care providers shall not be considered public employees or state employees for any purpose other than those set forth in this subsection. The department, acting through the commissioner, shall be the employer, solely for the purposes of said chapter 150E and said sections 17A, 17G and 17J of said chapter 180 and deductions under said sections 17A, 17G and 17J of said chapter 180 may be made by any entity authorized by the commonwealth to compensate family child care providers under a rate structure for voucher and contracted payments. Family child care providers shall not be eligible for benefits through the group insurance commission, the state board of retirement or the state employee workers' compensation program.
(c) Family child care providers who are employees of the commonwealth under this section are not, for that reason, public employees or employees of the commonwealth for any other purpose, and shall not be classified as employees of the commonwealth or as employees of family child care systems, as defined in section 1A, under section 148B of chapter 149. Nothing in this chapter shall alter the obligations of the commonwealth or the parent or legal guardian of the child receiving family child care services to provide their share of social security, federal and state unemployment taxes, Medicare and workers compensation insurance under the Federal Insurance Contributions Act, federal and state unemployment law, the Massachusetts Workers Compensation Act or vicarious liability in tort.
(d) Consistent with section 9A of said chapter 150E, no family child care provider shall engage in a strike and no family child care provider shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by any family child care provider.
(e) The only appropriate bargaining unit for family child care providers shall consist of all family child care providers in the commonwealth who are on the most current list provided by the commissioner, regardless of the number of hours of care such family child care providers have worked.
(f) An employee organization seeking to represent family child care providers shall file with the department of labor relations under section 4 of said chapter 150E.
(g) The mandatory subjects, as to which the department and an employee organization certified by the department of labor relations as the bargaining representative of family child care providers shall bargain, shall include developing and encouraging greater education and training opportunities for family child care providers, improvement of recruitment and retention of qualified providers and reimbursement and payment procedures. Nothing in this section shall inhibit the parties from discussing other permissive subjects of bargaining, including, but not limited to, the rate structure for family child care providers.
(h) In addition to the mandatory subjects under subsection (g), the department and an employee organization certified by the department of labor relations as the bargaining representative of family child care providers shall bargain about the rate structure for voucher and contracted payments for family child care services on behalf of low-income and other at-risk children.
(i) Nothing in this section shall modify any right of a parent or legal guardian to choose, terminate the services of or otherwise supervise a family child care provider.
(j) Nothing in this section shall alter or abridge the department’s statutory rights and responsibilities to visit, inspect and monitor facilities, or to suspend, revoke, sanction, assess fines or take any other action against a providers license in furtherance of sections 6 to 10, inclusive, and in furtherance of the department’s regulations promulgated in this regard. The collective bargaining process and the grievance procedures described in said chapter 150E including section 8 of said chapter 150E, shall not apply to the department’s statutory and regulatory licensing, monitoring and enforcement functions or to the contractual arrangements and reimbursements between the department and family child care systems as defined in section 1A of chapter 15D.
(k) Collective bargaining and related activity by providers, as authorized under this section, shall qualify for the state action exemption to the federal anti-trust laws.

SECTION 3. The first paragraph of subsection (c) of section 7 of chapter 150E of the General Laws, as appearing in the 2010 Official Edition, is hereby amended by inserting after the word “council”, in line 25, the following words:- , the department of early education and care with regard to bargaining with family child care providers.

SECTION 4. Section 17G of chapter 180 of the General Laws, as so appearing, is hereby amended by inserting after the word “council”, in line 7, the following words:- or a collective bargaining agreement with the department of early education and care covering family child care providers.

SECTION 5. Subsection (h) of section 17 of chapter 15D of the General Laws, as appearing in section 2, shall take effect on January 1, 2013.

Approved, August 1, 2012.