Bill Text: NY S03189 | 2023-2024 | General Assembly | Introduced

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Enacts the "fair pay for home care act" relating to minimum wages applicable to home care aides; provides for a minimum wage of 150% of the applicable statewide or regional minimum wage.

Spectrum: Moderate Partisan Bill (Democrat 36-7)

Status: (Introduced) 2024-01-29 - PRINT NUMBER 3189A [S03189 Detail]

Download: New_York-2023-S03189-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          3189

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 30, 2023
                                       ___________

        Introduced  by  Sens.  MAY,  ADDABBO,  BAILEY, BRESLIN, BRISPORT, BROUK,
          CLEARE,  COMRIE,  COONEY,  FELDER,  FERNANDEZ,   GIANARIS,   GONZALEZ,
          GOUNARDES,   HARCKHAM,   HELMING,   HINCHEY,  HOYLMAN-SIGAL,  JACKSON,
          KAVANAGH, KENNEDY, LIU, MANNION,  MAYER,  MYRIE,  OBERACKER,  PALUMBO,
          PARKER,  RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, SKOUFIS,
          STAVISKY, TEDISCO, THOMAS, WEIK -- read twice and ordered printed, and
          when printed to be committed to the Committee on Health

        AN ACT to amend the public health law, in relation to enacting the "fair
          pay for home care act"

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  This act shall be known and may be cited as the "fair pay
     2  for home care act".
     3    § 2. Subdivision 2 of section 3614-f of  the  public  health  law,  as
     4  added  by  section  1  of  part XX of chapter 56 of the laws of 2022, is
     5  amended to read as follows:
     6    2. [In addition to the otherwise applicable minimum wage under section
     7  six hundred fifty-two of the labor law, or any otherwise applicable wage
     8  rule or order under article nineteen of the labor law] Beginning January
     9  first, two thousand twenty-four, the minimum  wage for a home care  aide
    10  shall  be  [increased  by  an  amount of three dollars and zero cents in
    11  accordance with the following schedule:
    12    (a) beginning October first, two thousand twenty-two, the minimum wage
    13  for a home care aide shall be increased by an amount of two dollars  and
    14  zero cents, and
    15    (b)  beginning  October  first, two thousand twenty-three, the minimum
    16  wage for a home care aide shall be increased by an additional amount  of
    17  one dollar and zero cents] no less than one hundred fifty percent of the
    18  otherwise applicable statewide minimum wage or applicable regional mini-
    19  mum wage pursuant to section six hundred fifty-two of the labor law.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD01890-04-3
        S. 3189                             2

     1    §  3. Section 3614-f of the public health law is amended by adding six
     2  new subdivisions 4, 5, 6, 7, 8 and 9 to read as follows:
     3    4. (a) The commissioner shall establish a regional minimum hourly base
     4  reimbursement  rate  for  all providers employing workers subject to the
     5  minimum wage provisions established in subdivision two of this  section.
     6  The  regional  minimum  hourly base reimbursement rate shall be based on
     7  regions established by the commissioner, provided that for areas subject
     8  to section thirty-six hundred fourteen-c of this article, each area with
     9  a different prevailing rate of total compensation, as  defined  in  such
    10  section, shall be its own region.
    11    (b)  For  the  purposes of this section, "regional minimum hourly base
    12  reimbursement rate" means a reimbursement rate that reflects the average
    13  combined costs associated with the provision of direct service inclusive
    14  of, but not limited to:
    15    (i) overtime costs;
    16    (ii) transportation costs;
    17    (iii) all benefits;
    18    (iv) all payroll taxes, including  but  not  limited  to  the  federal
    19  insurance contributions act, medicare, the federal unemployment tax act,
    20  state  unemployment  insurance,  disability  insurance, workers' compen-
    21  sation, and the metropolitan transportation authority tax;
    22    (v) related increases tied to base wages such as compression;
    23    (vi) reasonable administrative costs as defined by the commissioner;
    24    (vii) allowances for capital costs;
    25    (viii) the development of profit or reserves as allowable  by  law  or
    26  regulations of the commissioner; and
    27    (ix) any additional supplemental payments.
    28    5.  (a)  The  initial  regional minimum hourly base reimbursement rate
    29  shall be no less than the following:
    30    (i) thirty-eight dollars and fifty cents per hour in the  wage  parity
    31  region,  encompassing all counties subject to section thirty-six hundred
    32  fourteen of this article; and
    33    (ii) thirty-eight dollars and eighteen cents per hour for the counties
    34  in the remainder of the state.
    35    (b) For consumer directed personal assistance services provided  under
    36  section  three  hundred  sixty-five-f  of  the  social services law, the
    37  initial regional minimum hourly base reimbursement  rate  shall  reflect
    38  the  rates  established  in  paragraph (a) of this subdivision, provided
    39  that the commissioner may reduce such rates by no more than  twelve  and
    40  nine-tenths  percent.  In  the  event  that such reduction occurs, a per
    41  member, per month  increase  reflective  of  actual  administrative  and
    42  general  costs,  adjusted to reflect regional differences as regions are
    43  defined in this section, shall be made to fiscal intermediaries adminis-
    44  tering such programs. If the department or a managed  care  organization
    45  chooses  not  to  utilize  the per member, per month payment established
    46  pursuant to this paragraph, the regional minimum hourly base  reimburse-
    47  ment  rate for such region, as defined in paragraph (a) of this subdivi-
    48  sion, shall apply.
    49    (c) Following the initial established  regional  minimum  hourly  base
    50  reimbursement  rate  established  under  this  section, the commissioner
    51  shall annually adjust the regional  minimum  hourly  base  reimbursement
    52  rate  for  each  region by a trend factor to reflect and accommodate any
    53  additional labor law increases, changes or mandates. Updated rates shall
    54  be made publicly available the first day of each October thereafter  for
    55  use on the first day of January of the following year.
        S. 3189                             3

     1    6.  (a)  No  payment  made  to  a provider who employs home care aides
     2  subject to this  section that is less than the regional  minimum  hourly
     3  base reimbursement rate established pursuant to subdivision four of this
     4  section  for services provided under authorization by a local department
     5  of  social services, a managed care provider under section three hundred
     6  sixty-four-j of the social services law, or  a  managed  long-term  care
     7  provider  under section forty-four hundred three-f of this chapter shall
     8  be deemed adequate.
     9    (b) The commissioner shall submit any and all  necessary  applications
    10  for  approvals  and/or  waivers  to the federal centers for medicare and
    11  medicaid services to secure approval to establish regional minimum hour-
    12  ly base reimbursement rates and make state-directed payments to  provid-
    13  ers for the purposes of supporting wage increases.
    14    (i)  If approved, directed payments shall be made to such providers of
    15  medicaid services through  contracts  with  managed  care  organizations
    16  where  applicable,  provided  that  the  commissioner  ensures that such
    17  directed payments are in accordance with the terms of this section.
    18    (ii) If the state directed payment is  not  approved,  the  department
    19  shall  require plans to justify deviations apart from the regional mini-
    20  mum hourly base reimbursement rates.
    21    (c) The commissioner shall ensure  that  managed  care  capitation  is
    22  adjusted  to  ensure rate adequacy for the managed care organizations in
    23  order to comply with this section.
    24    7. Nothing in this section shall  preclude  providers  employing  home
    25  care aides covered under this section or payers from paying or contract-
    26  ing  for  services at rates higher than the regional minimum hourly base
    27  reimbursement rate if the parties agree to such terms.
    28    8. The commissioner shall publish and  post  regional  minimum  hourly
    29  base  reimbursement rates annually and shall take all necessary steps to
    30  advise commercial and government programs payers of home  care  services
    31  of  the  regional minimum hourly   base  reimbursement rates and require
    32  other state authorized  payers  to  reimburse  providers  of  home  care
    33  services at the regional minimum hourly base reimbursement rate.
    34    9.  For years in which rate adjustments to the regional minimum hourly
    35  base reimbursement rate have not been calculated prior to the  start  of
    36  the  calendar year, the previous year's rate shall remain in place until
    37  the new rate is calculated,  plus  the  annual  average  consumer  price
    38  index-urban  or  consumer  price  index-rural,  as  applicable. If it is
    39  determined that retroactive  rate  adjustments  are  necessary,  payment
    40  adjustments  will  be  made as a direct pass through to providers within
    41  sixty days of the adjusted rate.
    42    § 4. Subparagraph (v) of paragraph (a) of  subdivision  3  of  section
    43  3614-c  of  the  public  health law, as added by section 3 of part XX of
    44  chapter 56 of the laws of 2022, is amended and a new  subparagraph  (vi)
    45  is added to read as follows:
    46    (v)  for  all  periods on or after January first, two thousand twenty-
    47  three, the cash portion of the minimum rate  of  home  care  aide  total
    48  compensation shall be the minimum wage for home care aides in the appli-
    49  cable  region,  as  defined  in section thirty-six hundred fourteen-f of
    50  this article. The benefit portion of the minimum rate of home care  aide
    51  total compensation shall be four dollars and nine cents[.];
    52    (vi)  for  all periods on or after January first, two thousand twenty-
    53  four, the cash portion of the minimum  rate  of  home  care  aide  total
    54  compensation shall be the minimum wage for home care aides in the appli-
    55  cable  region,  as  defined  in section thirty-six hundred fourteen-f of
        S. 3189                             4

     1  this article. The benefit portion of the minimum rate of home care  aide
     2  total compensation shall be four dollars and eighty-four cents.
     3    §  5  Subparagraph  (v)  of  paragraph (b) of subdivision 3 of section
     4  3614-c of the public health law, as added by section 4  of  part  XX  of
     5  chapter  56  of the laws of 2022, is amended and a new subparagraph (vi)
     6  is added to read as follows:
     7    (v) for all periods on or after January first,  two  thousand  twenty-
     8  three,  the  cash  portion  of  the minimum rate of home care aide total
     9  compensation shall be the minimum wage for  the  applicable  region,  as
    10  defined  in  section  thirty-six hundred fourteen-f of this article. The
    11  benefit portion of the minimum rate of home care aide total compensation
    12  shall be three dollars and twenty-two cents[.];
    13    (vi) for all periods on or after January first, two  thousand  twenty-
    14  four,  the  cash  portion  of  the  minimum rate of home care aide total
    15  compensation shall be the minimum wage for  the  applicable  region,  as
    16  defined  in  section  thirty-six hundred fourteen-f of this article. The
    17  benefit portion of the minimum rate of home care aide total compensation
    18  shall be four dollars and eighty-four cents.
    19    § 6. To ensure compliance with this minimum wage increase,  the  comp-
    20  troller  shall  have  the authority to review the contracts entered into
    21  between a managed care organization and a licensed  home  care  services
    22  agency,  fiscal intermediary, or any agency subject to the provisions of
    23  section 3614-f of the public health  law  to  ensure  that  rates  being
    24  offered are adequate and meet the department of health's actuarial stan-
    25  dards.  The comptroller, in consultation with the medicaid fraud control
    26  unit, may develop and promulgate a process to ensure such audits  comply
    27  with  state  and  federal  law  to  protect  proprietary information and
    28  contracts. In the event that the comptroller finds evidence that managed
    29  care organizations are not paying sufficient adequate rates,  they  will
    30  refer  such instances to the department of health and the medicaid fraud
    31  control unit for enforcement. If the department of health or  the  medi-
    32  caid  fraud  control  unit  chooses not to pursue action related to this
    33  referral, it shall inform, in writing, the comptroller's  office  as  to
    34  the  reasoning.  Such reports, and the department of health's responses,
    35  shall be public information and  made  available  on  the  comptroller's
    36  website. For the purposes of this section, the term "managed care organ-
    37  ization" shall mean an entity operating pursuant to section 364-j of the
    38  social services law or article 44 of the public health law.
    39    §  7. Severability.   If any provision of this act, or any application
    40  of any provision of this act, is held to be invalid, or to violate or be
    41  inconsistent with any federal law or regulation, that shall  not  affect
    42  the validity or effectiveness of any other provision of this act, or any
    43  other application of any provision of this act which can be given effect
    44  without  that  provision or application; and to that end, the provisions
    45  and applications of this act are severable.
    46    § 8. This act shall take effect immediately; provided,  however,  that
    47  section two of this act shall take effect January 1, 2024.