General Laws of Massachusetts - Chapter 118E Division of Medical Assistance - Section 73 Rights of consumers regarding PCAs; public employee status for limited purposes; collective bargaining

Section 73. (a) Consumers or the consumer’s surrogate shall retain the right to select, hire, schedule, train, direct, supervise and terminate any personal care attendant providing services to the consumer or consumer’s surrogate. Consumers or the consumer’s surrogate may elect to receive long-term, in-home personal care services from personal care attendants who are not referred to the consumer or consumer’s surrogate by the council.

(b) Personal care attendants 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 shall apply to personal care attendants except to the extent that chapter 150E is inconsistent with this section, in which case this section shall control. In addition, personal care attendants shall be treated as state employees solely for the purposes of sections 17A and 17G of chapter 180. Personal care attendants shall not be considered public employees or state employees for any purpose other than those set forth in this paragraph. The PCA quality home care workforce council shall be the employer, as defined by and 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 may be made by any entity authorized by the commonwealth to compensate personal care attendants through the MassHealth personal care attendant program. Personal care attendants shall not be eligible for benefits through the group insurance commission, the state board of retirement or the state employee workers’ compensation program.

(c) Personal care attendants who are employees of the council under this section shall not be considered, for that reason, public employees or employees of the council for any other purpose. Nothing in this chapter shall alter the obligations of the commonwealth or the consumer to provide their share of social security, federal and state unemployment taxes, Medicare and worker’s compensation insurance under the Federal Insurance Contributions Act, federal and state unemployment law or the Massachusetts Workers’ Compensation Act.

(d) Consistent with section 9A of chapter 150E, no personal care attendant shall engage in a strike and no personal care attendant shall induce, encourage or condone any strike, work stoppage, slowdown or withholding of services by any personal care attendant.

(e) The only bargaining unit appropriate for the purpose of collective bargaining shall be a statewide unit of all personal care attendants. The showing of interest required to request an election is 10 per cent of the bargaining unit. An intervener seeking to appear on the ballot must make the same showing of interest.

(f) The council or its contractors, may not be held vicariously liable for the action or inaction of any personal care attendant, whether or not that personal care attendant was included on the council’s referral directory or referred to a consumer or the consumer’s surrogate.

(g) The members of the council shall be immune from any liability resulting from implementation of sections 70 to 75, inclusive.

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Last modified: September 11, 2015