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.
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.