Bill Text: NY S05374 | 2021-2022 | General Assembly | Amended
Bill Title: 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.
Spectrum: Moderate Partisan Bill (Democrat 38-10)
Status: (Introduced - Dead) 2022-02-01 - REPORTED AND COMMITTED TO FINANCE [S05374 Detail]
Download: New_York-2021-S05374-Amended.html
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. LBD10145-03-1S. 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, suchS. 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 beS. 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.