S05374 Summary:

BILL NOS05374A
 
SAME ASSAME AS A06329-A
 
SPONSORMAY
 
COSPNSRADDABBO, AKSHAR, BAILEY, BIAGGI, BRESLIN, BRISPORT, BROOKS, BROUK, CLEARE, COMRIE, COONEY, FELDER, GAUGHRAN, GIANARIS, GOUNARDES, HARCKHAM, HELMING, HINCHEY, HOYLMAN, JACKSON, JORDAN, KAPLAN, KAVANAGH, KENNEDY, LIU, MANNION, MARTUCCI, MAYER, MYRIE, OBERACKER, PALUMBO, PARKER, RAMOS, REICHLIN-MELNICK, RITCHIE, RIVERA, SALAZAR, SANDERS, SAVINO, SEPULVEDA, SERINO, SERRANO, SKOUFIS, STAVISKY, TEDISCO, THOMAS, WEIK
 
MLTSPNSR
 
Add §3614-f, amd §§3614-d & 3614-c, Pub Health L; add §91-h, St Fin L; amd Part H §92, Chap 59 of 2011
 
Enacts provisions to provide minimum wages for home care aides; requires at least 150% of minimum wage or other set minimum; directs the commissioner of health to set regional minimum rates of reimbursement for home care aides under medicaid and managed care plans.
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S05374 Actions:

BILL NOS05374A
 
03/03/2021REFERRED TO HEALTH
01/04/2022AMEND (T) AND RECOMMIT TO HEALTH
01/04/2022PRINT NUMBER 5374A
01/05/2022REFERRED TO HEALTH
02/01/2022REPORTED AND COMMITTED TO FINANCE
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S05374 Committee Votes:

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S05374 Floor Votes:

There are no votes for this bill in this legislative session.
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S05374 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         5374--A
 
                               2021-2022 Regular Sessions
 
                    IN SENATE
 
                                      March 3, 2021
                                       ___________
 
        Introduced by Sens. MAY, ADDABBO, AKSHAR, BAILEY, BIAGGI, BRESLIN, BRIS-
          PORT,  BROUK,  COMRIE, COONEY, GIANARIS, GOUNARDES, HARCKHAM, HINCHEY,
          HOYLMAN, JACKSON, KAVANAGH, KENNEDY, MANNION, MARTUCCI, MAYER,  MYRIE,
          OBERACKER,  PARKER, RAMOS, REICHLIN-MELNICK, RIVERA, SALAZAR, SANDERS,
          SAVINO, SEPULVEDA, SERINO, SERRANO, SKOUFIS, THOMAS -- read twice  and
          ordered  printed, and when printed to be committed to the Committee on
          Health -- committee discharged, bill  amended,  ordered  reprinted  as
          amended and recommitted to said committee
 
        AN  ACT to amend the public health law, the state finance law and 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  fair  pay  for  home  care
          aides
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. The public health law is amended by adding  a  new  section
     2  3614-f to read as follows:
     3    §  3614-f. Fair pay for home care. 1. For the purpose of this section,
     4  "home care aide" shall have the same meaning defined in section  thirty-
     5  six hundred fourteen-c of this article.
     6    2.  Beginning  January  first,  two thousand twenty-three, the minimum
     7  wage for a home care aide shall be no less than one  hundred  and  fifty
     8  percent  of  the  higher  of:  (a) the otherwise applicable minimum wage
     9  under section six hundred fifty-two of the labor law, or (b) any  other-
    10  wise  applicable  wage rule or order under article nineteen of the labor
    11  law.
    12    3. Where any home care  aide  is  paid  less  than  required  by  this
    13  section,  the  home  care  aide,  or the commissioner of labor acting on
    14  behalf of the home care aide, may bring an action under article  six  or
    15  nineteen of the labor law.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10145-03-1

        S. 5374--A                          2
 
     1    4. (a) The commissioner shall establish a regional minimum hourly base
     2  reimbursement  rate  for  all providers employing workers subject to the
     3  minimum wage provisions established in subdivision one of this  section.
     4  The  regional  minimum  hourly base reimbursement rate shall be based on
     5  regions established by the commissioner, provided that for areas subject
     6  to section thirty-six hundred fourteen-c of this article, each area with
     7  a  different  prevailing  rate of total compensation, as defined in that
     8  section, shall be its own region.
     9    (b) For the purposes of this section, "regional  minimum  hourly  base
    10  reimbursement rate" means a reimbursement rate that reflects the average
    11  combined costs associated with the provision of direct service inclusive
    12  of, but not limited to, overtime costs; all benefits; all payroll taxes,
    13  including  but not limited to federal insurance contributions act, medi-
    14  care, federal unemployment tax act, state unemployment insurance,  disa-
    15  bility  insurance, workers' compensation, and the metropolitan transpor-
    16  tation authority tax; related increases  tied  to  base  wages  such  as
    17  compression;  reasonable  administrative costs as defined by the commis-
    18  sioner; allowances for capital  costs;  the  development  of  profit  or
    19  reserves as allowable by law or regulations of the commissioner; and any
    20  additional supplemental payments.
    21    5.  (a)  The  initial  regional minimum hourly base reimbursement rate
    22  shall be no less than the following:
    23    (i) thirty-eight dollars and fifty cents per hour in the  wage  parity
    24  region,  encompassing all counties subject to section thirty-six hundred
    25  fourteen of this article; and
    26    (ii) thirty-eight dollars and eighteen cents per hour for the counties
    27  in the remainder of the state.
    28    (b) For consumer directed personal assistance services provided  under
    29  section  three  hundred  sixty-five-f  of  the  social services law, the
    30  initial regional minimum hourly base reimbursement  rate  shall  reflect
    31  the  rates  established  in  paragraph (a) of this subdivision, provided
    32  that the commissioner may reduce such rates by no more than  twelve  and
    33  nine-tenths  percent.  In  the  event  that such reduction occurs, a per
    34  member, per month  increase  reflective  of  actual  administrative  and
    35  general  costs,  adjusted to reflect regional differences as regions are
    36  defined in this section, shall be made to fiscal intermediaries adminis-
    37  tering such programs. If the department or a managed  care  organization
    38  chooses  not  to  utilize  the per member, per month payment established
    39  pursuant to this paragraph, the regional minimum hourly base  reimburse-
    40  ment  rate for that region, as defined in paragraph (a) of this subdivi-
    41  sion, shall apply.
    42    6. No payment made to a provider who employs home care  aides  subject
    43  to  this  section  that  is  less  than the regional minimum hourly base
    44  reimbursement rate established by the  commissioner  for  a  region  for
    45  services  provided  under  authorization by a local department of social
    46  services, a managed care provider under  section  three  hundred  sixty-
    47  four-j  of the social services law, or a managed long-term care provider
    48  under section forty-four hundred-f  of  this  chapter  shall  be  deemed
    49  adequate.
    50    (a)  The  commissioner shall submit any and all necessary applications
    51  for approvals and/or waivers to the federal  centers  for  medicare  and
    52  medicaid  services  to  secure approval to establish minimum hourly base
    53  reimbursement rates and make state-directed payments  to  providers  for
    54  the purposes of supporting wage increases.
    55    (b)  Directed  payments  shall  be  made to such providers of medicaid
    56  services through contracts with managed care organizations where  appli-

        S. 5374--A                          3
 
     1  cable,  provided  that  the  commissioner  ensures  that  such  directed
     2  payments are in accordance with the terms of this section.
     3    (c)  The  commissioner  shall  ensure  that managed care capitation is
     4  adjusted to ensure rate adequacy for the managed care organizations.
     5    7. Nothing in this section shall  preclude  providers  employing  home
     6  care  aides  covered  under  this section or payers from contracting for
     7  services  at  rates  higher  than  the  regional  minimum  hourly   base
     8  reimbursement rate if the parties agree to such terms.
     9    8.  The  commissioner  shall  publish and post regional minimum hourly
    10  base reimbursement rates annually and shall take all necessary steps  to
    11  advise  commercial  and government programs payers of home care services
    12  of the regional minimum hourly  base  reimbursement  rates  and  require
    13  other  state  authorized  payers  to  reimburse  providers  of home care
    14  services at the minimum hourly base reimbursement rate.
    15    9. Following the initial  established  regional  minimum  hourly  base
    16  reimbursement  rate  established  under  this  section, the commissioner
    17  shall annually adjust the regional hourly base  reimbursement  rate  for
    18  each  region  to reflect costs or other increases in wages, benefits, or
    19  other requirements. The commissioner shall  develop  a  methodology  for
    20  annual  increases,  taking  into  consideration  relevant  data sources,
    21  including but not limited to information from certified cost reports and
    22  statistical reports submitted to the department by  providers  employing
    23  individuals subject to this section for the prior calendar year, consum-
    24  er  price  index  increases;  subsequent pandemic or other public health
    25  emergencies; and other relevant economic factors.   Prior to  finalizing
    26  such  methodology,  the  commissioner shall establish a public workgroup
    27  that shall include provider, consumer, managed  care  organization,  and
    28  labor representatives from each geographical region in which there is an
    29  established  regional  minimum hourly base reimbursement rate; statewide
    30  associations; and other stakeholders to inform the process. The  commis-
    31  sioner  shall  publish and take public input on the proposed methodology
    32  to be used to update regional minimum hourly base reimbursement rates.
    33    10. Annual increases to the regional minimum hourly base reimbursement
    34  rates shall be issued and posted by the department by September  thirti-
    35  eth of the prior calendar year to when such rates shall take effect.
    36    11. For years in which rate adjustments to the regional minimum hourly
    37  base  reimbursement  rate have not been calculated prior to the start of
    38  the calendar year, the previous year's rate shall remain in place  until
    39  the  new  rate  is calculated. If it is determined that retroactive rate
    40  adjustments are necessary, payment adjustments will be made as a  direct
    41  pass through to providers within sixty days of the adjusted rate.
    42    §  2.  Section 3614-d of the public health law, as added by section 49
    43  of part B of chapter 57 of the laws of  2015,  is  amended  to  read  as
    44  follows:
    45    §  3614-d.  Universal  standards  for  coding  of  payment for medical
    46  assistance claims for long term care. Claims for payment submitted under
    47  contracts or agreements  with  insurers  under  the  medical  assistance
    48  program  for  home  and community-based long-term care services provided
    49  under this article,  by  fiscal  intermediaries  operating  pursuant  to
    50  section  three  hundred  sixty-five-f of the social services law, and by
    51  residential health care facilities operating pursuant to  article  twen-
    52  ty-eight  of this chapter shall have standard billing codes. Such insur-
    53  ers shall include but not be limited to Medicaid managed care plans  and
    54  managed  long term care plans. Such payments shall be based on universal
    55  billing codes approved by the  department  or  a  nationally  accredited
    56  organization  as  approved  by  the  department; provided, however, such

        S. 5374--A                          4

     1  coding shall be consistent with any  codes  developed  as  part  of  the
     2  uniform  assessment system for long term care established by the depart-
     3  ment and shall include, for any entity operating pursuant to this  arti-
     4  cle  or  section  three  hundred sixty-five-f of the social services law
     5  that is unable to control the cumulative hours worked by  an  individual
     6  in a given payroll period, a code that is specific to the hourly cost of
     7  services at an overtime rate.
     8    §  3. The state finance law is amended by adding a new section 91-h to
     9  read as follows:
    10    § 91-h. Fair pay for home care fund. 1. There is hereby established in
    11  the joint custody of the commissioner of taxation and  finance  and  the
    12  comptroller,  a  special fund to be known as the "fair pay for home care
    13  fund".
    14    2. The fund shall consist of, but not be limited to:
    15    a. revenues and federal medical assistance  percentage  reimbursements
    16  in  excess  of  the standard reimbursement received by the department of
    17  health pursuant to section thirty-seven of part B of chapter fifty-seven
    18  of the laws of two thousand fifteen;
    19    b. an amount equal to savings from the permanent conversion or  decer-
    20  tification  of  residential  health  care  facility  beds, as defined in
    21  section twenty-eight hundred one or  twenty-eight  hundred  two  of  the
    22  public health law;
    23    c.  any  unspent  monies  from the New York works economic development
    24  funds or a life sciences initiative created by section  one  of  chapter
    25  fifty-four  of  the laws of two thousand seventeen which were originally
    26  appropriated prior to the two thousand nineteen state fiscal year  which
    27  have  not  been bound by a contract as of April first two thousand twen-
    28  ty-one and which are not otherwise legally required to be spent on capi-
    29  tal projects under bonding requirements through the dormitory  authority
    30  of New York state or other bonding entity; and
    31    d.  any  grants,  gifts  or  bequests  received  by  the state for the
    32  purposes of the fund under this section.
    33    3. Monies of the fund shall be  distributed  to  the  commissioner  of
    34  health,  or  the  commissioner's designee, for the purpose of increasing
    35  medical assistance reimbursements under title eleven of article five  of
    36  the social services law to entities subject to minimum wage requirements
    37  for  home  care aides under section thirty-six hundred fourteen-f of the
    38  public health law, provided that  the  monies  of  this  fund  shall  be
    39  utilized  to  offset general fund expenses related to implementation and
    40  ongoing costs of section thirty-six hundred  fourteen-f  of  the  public
    41  health  law  and shall not be the sole source of funds made available to
    42  meet the requirements established by such section.
    43    § 4. Paragraph (c) of subdivision 1 of section 92 of part H of chapter
    44  59 of the laws of 2011 amending the public health  law  and  other  laws
    45  relating to known and projected department of health state fund Medicaid
    46  expenditures,  as  amended by section 1 of part CCC of chapter 56 of the
    47  laws of 2020, is amended to read as follows:
    48    (c) Projections may be adjusted by  the  director  of  the  budget  to
    49  account for any changes in the New York state federal medical assistance
    50  percentage  amount  established  pursuant to the federal social security
    51  act, changes in provider revenues, reductions to local  social  services
    52  district  medical  assistance  administration,  minimum  wage increases,
    53  increases to the mandatory base wage for home care workers  pursuant  to
    54  article  36  of  the  public health law, and beginning April 1, 2012 the
    55  operational costs of the New York state medical indemnity fund and state
    56  costs or savings from the basic health plan.   Such projections  may  be

        S. 5374--A                          5
 
     1  adjusted by the director of the budget to account for increased or expe-
     2  dited department of health state funds medicaid expenditures as a result
     3  of  a natural or other type of disaster, including a governmental decla-
     4  ration of emergency.
     5    §  5.   Paragraph (a) of subdivision 3 of section 3614-c of the public
     6  health law is amended by adding  a  new  subparagraph  (v)  to  read  as
     7  follows:
     8    (v)  for  all  periods on or after January first, two thousand twenty-
     9  three, the cash portion of the minimum rate  of  home  care  aide  total
    10  compensation shall be the minimum wage for home care aides in the appli-
    11  cable  region,  as  defined  in section thirty-six hundred fourteen-f of
    12  this article. The benefit portion of the minimum rate of home care  aide
    13  total compensation shall be four dollars and eighty-four cents.
    14    §  6.  Subparagraph  (iv) of paragraph (b) of subdivision 3 of section
    15  3614-c of the public health law, as amended by section 1 of part  OO  of
    16  chapter 56 of the laws of 2020, is amended and a new subparagraph (v) is
    17  added to read as follows:
    18    (iv)  for  all  periods on or after March first, two thousand sixteen,
    19  the cash portion of the minimum rate of home  care  aide  total  compen-
    20  sation shall be ten dollars or the minimum wage as laid out in paragraph
    21  (b)  of  subdivision  one  of section six hundred fifty-two of the labor
    22  law, whichever is higher. The benefit portion of  the  minimum  rate  of
    23  home  care aide total compensation shall be three dollars and twenty-two
    24  cents[.];
    25    (v) for all periods on or after January first,   two thousand  twenty-
    26  three,  the  cash  portion of the   minimum rate of home care aide total
    27  compensation shall be the minimum wage for  the  applicable  region,  as
    28  defined  in  section  thirty-six hundred fourteen-f of this chapter. The
    29  benefit portion of the minimum rate of home care aide total compensation
    30  shall be three dollars and eighty-nine cents.
    31    § 7. Severability. If any provision of this act, or any application of
    32  any provision of this act, is held to be invalid, or to  violate  or  be
    33  inconsistent  with  any federal law or regulation, that shall not affect
    34  the validity or effectiveness of any other provision of this act, or  of
    35  any  other  application  of any provision of this act which can be given
    36  effect without that provision or  application;  and  to  that  end,  the
    37  provisions and applications of this act are severable.
    38    § 8. This act shall take effect immediately.
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