STATE OF NEW YORK
________________________________________________________________________
7257--B
Cal. No. 277
2015-2016 Regular Sessions
IN ASSEMBLY
April 29, 2015
___________
Introduced by M. of A. TITUS, HEASTIE, AUBRY, HOOPER, WRIGHT, FARRELL,
DINOWITZ, PEOPLES-STOKES, MARKEY, KAVANAGH, ABINANTI, SEPULVEDA,
BRAUNSTEIN, CLARK, DenDEKKER, FAHY, GOTTFRIED, JAFFEE, MAYER, ROSEN-
THAL, CAHILL, PICHARDO, COLTON, MORELLE, BRONSON, RUSSELL, SKARTADOS,
JEAN-PIERRE, KAMINSKY, MOYA, RODRIGUEZ, WALKER, LINARES -- Multi-Spon-
sored by -- M. of A. BLAKE, COOK, CRESPO, DAVILA, GANTT, GLICK, KIM,
LAVINE, LIFTON, MAGNARELLI, MOSLEY, NOLAN, ORTIZ, OTIS, PERRY, PRET-
LOW, RAMOS, ROBINSON, ROZIC, SCHIMEL, SIMOTAS, SOLAGES, STECK, THIELE,
TITONE, WEINSTEIN, WEPRIN -- read once and referred to the Committee
on Labor -- advanced to a third reading, amended and ordered
reprinted, retaining its place on the order of third reading -- again
amended on third reading, ordered reprinted, retaining its place on
the order of third reading
AN ACT to amend the labor law, the education law and the general munici-
pal law, in relation to the minimum wage; to amend the public health
law, in relation to home care worker wage parity; and to amend part H
of chapter 59 of the laws of 2011, amending the public health law and
other laws relating to known and projected department of health state
fund medicaid expenditures, in relation to medicaid disbursements
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Paragraph (n) of subdivision 5 of section 651 of the labor
2 law, as amended by chapter 481 of the laws of 2010, is amended to read
3 as follows:
4 (n) by [a] the federal[, state or municipal] government or political
5 subdivision thereof. The exclusions from the term "employee" contained
6 in this subdivision shall be as defined by regulations of the commis-
7 sioner; or
8 § 2. Subdivision 6 of section 651 of the labor law, as amended by
9 chapter 281 of the laws of 2002, is amended to read as follows:
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD10738-05-6
A. 7257--B 2
1 6. "Employer" includes any individual, partnership, association,
2 corporation, limited liability company, business trust, legal represen-
3 tative, state or municipal government or political subdivision thereof,
4 or any organized group of persons acting as employer.
5 § 3. Subdivision 1 of section 652 of the labor law, as amended by
6 section 1 of part P of chapter 57 of the laws of 2013 is amended to read
7 as follows:
8 1. Statutory. (a) Every employer shall pay to each of its employees
9 for each hour worked a wage of not less than:
10 $4.25 on and after April 1, 1991,
11 $5.15 on and after March 31, 2000,
12 $6.00 on and after January 1, 2005,
13 $6.75 on and after January 1, 2006,
14 $7.15 on and after January 1, 2007,
15 $8.00 on and after December 31, 2013,
16 $8.75 on and after December 31, 2014,
17 $9.00 on and after December 31, 2015, or, if greater, such other wage
18 as may be established by federal law pursuant to 29 U.S.C. section 206
19 or its successors
20 or such other wage as may be established in accordance with the
21 provisions of this article.
22 (b) Employers in all areas of the state not covered by paragraph (c)
23 of this subdivision shall pay to each of its employees for each hour
24 worked a wage of not less than:
25 $9.75 on and after July 1, 2016,
26 $10.75 on and after December 31, 2016,
27 $11.75 on and after December 31, 2017,
28 $12.75 on and after December 31, 2018,
29 $13.75 on and after December 31, 2019,
30 $14.50 on and after December 31, 2020, and
31 $15.00, and on and after December 31, 2021 and on each following
32 December thirty-first, the commissioner shall calculate and establish an
33 adjusted minimum wage rate by increasing the then current minimum wage
34 rate by the rate of inflation for the most recent twelve month period
35 available prior to each December thirty-first using the consumer price
36 index-all urban consumers, CPI-U, or a successor index as calculated by
37 the United States Department of Labor, if such rate of inflation is
38 greater than zero percent, or, if greater, such other wage as may be
39 established by federal law pursuant to 29 U.S.C. section 206 or its
40 successors or such other wage as may be established in accordance with
41 the provisions of this article.
42 (c) Employers in a city with a population in excess of one million and
43 in counties with a population of nine hundred thousand or more that fall
44 within the metropolitan commuter transportation district as defined in
45 section twelve hundred sixty-two of the public authorities law, shall
46 pay to each of its employees for each hour worked a wage of not less
47 than:
48 $10.50 on and after July 1, 2016,
49 $12.00 on and after December 31, 2016,
50 $13.50 on and after December 31, 2017, and
51 $15.00 on and after December 31, 2018 and on each following December
52 thirty-first, the commissioner shall calculate and establish an adjusted
53 minimum wage rate by increasing the then current minimum wage rate by
54 the rate of inflation for the most recent twelve month period available
55 prior to each December thirty-first using the consumer price index-all
56 urban consumers, CPI-U, or a successor index as calculated by the United
A. 7257--B 3
1 States Department of Labor, if such rate of inflation is greater than
2 zero percent, or, if greater, such other wage as may be established by
3 federal law pursuant to 29 U.S.C. section 206 or its successors or such
4 other wage as may be established in accordance with the provisions of
5 this article.
6 (d) The rates and schedule established in subdivision (c) of this
7 section shall not be deemed to be the minimum wage for purposes of the
8 calculations specified in subdivisions one and two of section five
9 hundred twenty-seven of this chapter.
10 § 4. Paragraph a of subdivision 3 of section 2023-a of the education
11 law is amended by adding a new subparagraph 3-a to read as follows:
12 (3-a) Add any increase attributable to increases in minimum wage
13 pursuant to section six hundred fifty-two of the labor law.
14 § 5. Paragraph (c) of subdivision 3 of section 3-c of the general
15 municipal law, as added by section 1 of part A of chapter 97 of the laws
16 of 2011, is amended to read as follows:
17 (c) Each local government shall calculate the tax levy limit applica-
18 ble to the coming fiscal year which shall be determined as follows:
19 (i) Ascertain the total amount of taxes levied for the prior fiscal
20 year.
21 (ii) Multiply the result by the tax base growth factor, calculated
22 pursuant to paragraph (b) of this subdivision, if any.
23 (iii) Add any payments in lieu of taxes that were receivable in the
24 prior fiscal year.
25 (iv) Add any increases attributable to increases in minimum wage
26 pursuant to section six hundred fifty-two of the labor law.
27 (v) Subtract the tax levy necessary to support expenditures pursuant
28 to subparagraph (i) of paragraph (g) of subdivision two of this section
29 for the prior fiscal year, if any.
30 [(v)] (vi) Multiply the result by the allowable levy growth factor.
31 [(vi)] (vii) Subtract any payments in lieu of taxes receivable in the
32 coming fiscal year.
33 [(vii)] (viii) Add the available carryover, if any.
34 § 6. Subdivision 1 of section 92 of part H of chapter 59 of the laws
35 of 2011, amending the public health law and other laws relating to known
36 and projected department of health state fund medicaid expenditures, as
37 amended by section 8 of part B of chapter 57 of the laws of 2015, is
38 amended to read as follows:
39 1. For state fiscal years 2011-12 through 2016-17, the director of the
40 budget, in consultation with the commissioner of health referenced as
41 "commissioner" for purposes of this section, shall assess on a monthly
42 basis, as reflected in monthly reports pursuant to subdivision five of
43 this section known and projected department of health state funds medi-
44 caid expenditures by category of service and by geographic regions, as
45 defined by the commissioner, and if the director of the budget deter-
46 mines that such expenditures are expected to cause medicaid disburse-
47 ments for such period to exceed the projected department of health medi-
48 caid state funds disbursements in the enacted budget financial plan
49 pursuant to subdivision 3 of section 23 of the state finance law, the
50 commissioner of health, in consultation with the director of the budget,
51 shall develop a medicaid savings allocation plan to limit such spending
52 to the aggregate limit level specified in the enacted budget financial
53 plan, provided, however, such projections may be adjusted by the direc-
54 tor of the budget to account for any changes in the New York state
55 federal medical assistance percentage amount established pursuant to the
56 federal social security act, changes in provider revenues, reductions to
A. 7257--B 4
1 local social services district medical assistance administration, and
2 beginning April 1, 2012 the operational costs of the New York state
3 medical indemnity fund and state costs or savings from the basic health
4 plan. Such projections may be adjusted by the director of the budget to
5 account for increased or expedited department of health state funds
6 medicaid expenditures as a result of a natural or other type of disas-
7 ter, including a governmental declaration of emergency. For purposes of
8 this section, for periods on and after July 1, 2016, medicaid disburse-
9 ments shall not include any additional expenditures related to increases
10 in the minimum wage established pursuant to section 652 of the labor
11 law.
12 § 7. Section 3614-c of the public health law, as added by section 33
13 of part H of chapter 59 of the laws of 2011, is amended to read as
14 follows:
15 § 3614-c. Home care worker wage parity. 1. As used in this section,
16 the following terms shall have the following meaning:
17 (a) "Living wage law" means any law enacted by Nassau, Suffolk or
18 Westchester county or a city with a population of one million or more
19 which establishes a minimum wage for some or all employees who perform
20 work on contracts with such county or city.
21 (b) "Total compensation" means all wages and other direct compensation
22 paid to or provided on behalf of the employee including, but not limited
23 to, wages, health, education or pension benefits, supplements in lieu of
24 benefits and compensated time off, except that it does not include
25 employer taxes or employer portion of payments for statutory benefits,
26 including but not limited to FICA, disability insurance, unemployment
27 insurance and workers' compensation.
28 (c) "Prevailing rate of total compensation" means the average hourly
29 amount of total compensation paid to all home care aides covered by
30 whatever collectively bargained agreement covers the greatest number of
31 home care aides in a city with a population of one million or more. For
32 purposes of this definition, any set of collectively bargained agree-
33 ments in such city with substantially the same terms and conditions
34 relating to total compensation shall be considered as a single collec-
35 tively bargained agreement.
36 (d) "Home care aide" means a home health aide, personal care aide,
37 home attendant or other licensed or unlicensed person whose primary
38 responsibility includes the provision of in-home assistance with activ-
39 ities of daily living, instrumental activities of daily living or
40 health-related tasks; provided, however, that home care aide does not
41 include any individual (i) working on a casual basis, or (ii) who is a
42 relative through blood, marriage or adoption of: (1) the employer; or
43 (2) the person for whom the worker is delivering services, under a
44 program funded or administered by federal, state or local government.
45 (e) "Managed care plan" means any managed care program, organization
46 or demonstration covering personal care or home health aide services,
47 and which receives premiums funded, in whole or in part, by the New York
48 state medical assistance program, including but not limited to all Medi-
49 caid managed care, Medicaid managed long term care, Medicaid advantage,
50 and Medicaid advantage plus plans and all programs of all-inclusive care
51 for the elderly.
52 (f) "Episode of care" means any service unit reimbursed, in whole or
53 in part, by the New York state medical assistance program, whether
54 through direct reimbursement or covered by a premium payment, and which
55 covers, in whole or in part, any service provided by a home care aide,
A. 7257--B 5
1 including but not limited to all service units defined as visits, hours,
2 days, months or episodes.
3 (g) "Cash portion of the minimum rate of home care aid total compen-
4 sation" means the minimum amount of home care aide total compensation
5 that may be paid in cash wages, as determined by the department in
6 consultation with the department of labor.
7 (h) "Benefit portion of the minimum rate of home care aide total
8 compensation" means the portion of home care aide total compensation
9 that may be paid in cash or health, education or pension benefits, wage
10 differentials, supplements in lieu of benefits and compensated time off,
11 as determined by the department in consultation with the department of
12 labor. Cash wages paid pursuant to increases in the state or federal
13 minimum wage cannot be used to satisfy the benefit portion of the mini-
14 mum rate of home care aide total compensation.
15 2. Notwithstanding any inconsistent provision of law, rule or regu-
16 lation, no payments by government agencies shall be made to certified
17 home health agencies, long term home health care programs or managed
18 care plans for any episode of care furnished, in whole or in part, by
19 any home care aide who is compensated at amounts less than the applica-
20 ble minimum rate of home care aide total compensation established pursu-
21 ant to this section.
22 3. (a) The minimum rate of home care aide total compensation in a city
23 with a population of one million or more shall be:
24 (i) for the period March first, two thousand twelve through February
25 twenty-eighth, two thousand thirteen, ninety percent of the total
26 compensation mandated by the living wage law of such city;
27 (ii) for the period March first, two thousand thirteen through Febru-
28 ary twenty-eighth, two thousand fourteen, ninety-five percent of the
29 total compensation mandated by the living wage law of such city;
30 (iii) for [all periods on and after] the period March first, two thou-
31 sand fourteen through March thirty-first two thousand sixteen, no less
32 than the prevailing rate of total compensation as of January first, two
33 thousand eleven, or the total compensation mandated by the living wage
34 law of such city, whichever is greater;
35 (iv) for all periods on or after April first, two thousand sixteen,
36 the cash portion of the minimum rate of home care aide total compen-
37 sation shall be ten dollars or the minimum wage as laid out in paragraph
38 (c) of subdivision one of section six hundred fifty-two of the labor
39 law, whichever is higher. The benefit portion of the minimum rate of
40 home care aide total compensation shall be four dollars and nine cents.
41 (b) The minimum rate of home care aide total compensation in the coun-
42 ties of Nassau, Suffolk and Westchester shall be:
43 (i) for the period March first, two thousand thirteen through February
44 twenty-eighth, two thousand fourteen, ninety percent of the total
45 compensation mandated by the living wage law as set on March first, two
46 thousand thirteen of a city with a population of a million or more;
47 (ii) for the period March first, two thousand fourteen through Febru-
48 ary twenty-eighth, two thousand fifteen, ninety-five percent of the
49 total compensation mandated by the living wage law as set on March
50 first, two thousand fourteen of a city with a population of a million or
51 more;
52 (iii) for the period March first, two thousand fifteen, through Febru-
53 ary twenty-eighth, two thousand sixteen, one hundred percent of the
54 total compensation mandated by the living wage law as set on March
55 first, two thousand fifteen of a city with a population of a million or
56 more;
A. 7257--B 6
1 (iv) for all periods on or after March first, two thousand sixteen,
2 [the lesser of (i) one hundred and fifteen percent of the total compen-
3 sation mandated by the living wage law as set on March first of each
4 succeeding year of a city with a population of one million or more or;
5 (ii) the total compensation mandated by the living wage law of Nassau,
6 Suffolk or Westchester county, based on the location of the episode of
7 care] the cash portion of the minimum rate of home care aide total
8 compensation shall be ten dollars or the minimum wage as laid out in
9 paragraph (c) of subdivision one of section six hundred fifty-two of the
10 labor law, whichever is higher. The benefit portion of the minimum rate
11 of home care aide total compensation shall be three dollars and twenty-
12 two cents.
13 4. [Any portion of the minimum rate of home care aide total compen-
14 sation attributable to health benefit costs or payments in lieu of
15 health benefits, and paid time off, as established pursuant to subdivi-
16 sion three of this section shall be superseded by the terms of any
17 employer bona fide collective bargaining agreement in effect as of Janu-
18 ary first, two thousand eleven, or a successor to such agreement, which
19 provides for home care aides' health benefits through payments to joint-
20 ly administered labor-management funds.
21 5.] The terms of this section shall apply equally to services provided
22 by home care aides who work on episodes of care as direct employees of
23 certified home health agencies, long term home health care programs, or
24 managed care plans, or as employees of licensed home care services agen-
25 cies, limited licensed home care services agencies, or under any other
26 arrangement.
27 [6.] 5. No payments by government agencies shall be made to certified
28 home health agencies, long term home health care programs, or managed
29 care plans for any episode of care without the certified home health
30 agency, long term home health care program, or managed care plan having
31 delivered prior written certification to the commissioner, on forms
32 prepared by the department in consultation with the department of labor,
33 that all services provided under each episode of care are in full
34 compliance with the terms of this section and any regulations promulgat-
35 ed pursuant to this section.
36 [7.] 6. If a certified home health agency or long term home health
37 care program elects to provide home care aide services through contracts
38 with licensed home care services agencies or through other third
39 parties, provided that the episode of care on which the home care aide
40 works is covered under the terms of this section, the certified home
41 health agency, long term home health care program, or managed care plan
42 must obtain a written certification from the licensed home care services
43 agency or other third party, on forms prepared by the department in
44 consultation with the department of labor, which attests to the licensed
45 home care services agency's or other third party's compliance with the
46 terms of this section. Such certifications shall also obligate the
47 certified home health agency, long term home health care program, or
48 managed care plan to obtain, on no less than a quarterly basis, all
49 information from the licensed home care services agency or other third
50 parties necessary to verify compliance with the terms of this section.
51 Such certifications and the information exchanged pursuant to them shall
52 be retained by all certified home health agencies, long term home health
53 care programs, or managed care plans, and all licensed home care
54 services agencies, or other third parties for a period of no less than
55 ten years, and made available to the department upon request.
A. 7257--B 7
1 [8.] 7. The commissioner shall distribute to all certified home health
2 agencies, long term home health care programs, and managed care plans
3 official notice of the minimum rates of home care aide compensation at
4 least one hundred twenty days prior to the effective date of each mini-
5 mum rate for each social services district covered by the terms of this
6 section.
7 [9.] 8. The commissioner is authorized to promulgate regulations, and
8 may promulgate emergency regulations, to implement the provisions of
9 this section.
10 [10.] 9. Nothing in this section should be construed as applicable to
11 any service provided by certified home health agencies, long term home
12 health care programs, or managed care plans except for all episodes of
13 care reimbursed in whole or in part by the New York Medicaid program.
14 [11.] 10. No certified home health agency, managed care plan or long
15 term home health care program shall be liable for recoupment of payments
16 for services provided through a licensed home care services agency or
17 other third party with which the certified home health agency, long term
18 home health care program, or managed care plan has a contract because
19 the licensed agency or other third party failed to comply with the
20 provisions of this section if the certified home health agency, long
21 term home health care program, or managed care plan has reasonably and
22 in good faith collected certifications and all information required
23 pursuant to subdivisions [six and seven] five and six of this section.
24 § 8. Notwithstanding any inconsistent provision or policy to the
25 contrary, any increase attributable to the increase in the minimum wage
26 established pursuant to section 652 of the labor law, shall be excluded
27 from the calculation of any policy of the state spending limitations in
28 the enacted budget financial plan pursuant to subdivision 3 of section
29 23 of the state finance law.
30 Notwithstanding any inconsistent provision of law, any program or
31 service including not-for-profits funded by New York state through the
32 department of the office of mental health, office for people with devel-
33 opmental disabilities, office of alcoholism and substance abuse
34 services, department of health, office of children and family services,
35 office of temporary and disabilities assistance, the state office for
36 the aging and the department of labor shall be adjusted to reflect the
37 increase in labor costs related to the minimum wage pursuant to section
38 652 of the labor law.
39 § 9. Severability clause. If an amendment made by section four or
40 section five of this act or their application to any person, legal enti-
41 ty, or circumstance is held invalid by a court of competent jurisdic-
42 tion, the remainder of this act or the application of such amendment to
43 other persons, legal entities or circumstances shall not be effected.
44 § 10. This act shall take effect immediately; provided, however, that
45 sections four and five of this act shall first apply to school district
46 budgets and the budget adoption process for the 2016 - 2017 school year;
47 provided, further, that section five of this act shall first apply to
48 the levy of taxes by local governments for the fiscal year that begins
49 in 2017; provided, further, that the amendments to paragraph a of subdi-
50 vision 3 of section 2023-a of the education law made by section four of
51 this act shall not affect the repeal of such section and shall be deemed
52 repealed therewith; provided, further, that the amendments to paragraph
53 (c) of subdivision 3 of section 3-c of the general municipal law made by
54 section five of this act shall not affect the repeal of such section and
55 shall be deemed repealed therewith.
