S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  7159

                            I N  S E N A T E

                              April 1, 2016
                               ___________

Introduced  by  BUDGET  BILL -- read twice and ordered printed, and when
  printed to be committed to the Committee on Finance

AN ACT to amend the public health law, in relation to home  care  worker
  wage parity

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1.   Section 3614-c of the public  health  law,  as  added  by
section  33  of  part H of chapter 59 of the laws of 2011, is amended to
read as follows:
  S 3614-c. Home care worker wage parity. 1. As used  in  this  section,
the following terms shall have the following meaning:
  (a)  "Living  wage  law"  means  any law enacted by Nassau, Suffolk or
Westchester county or a city with a population of one  million  or  more
which  establishes  a minimum wage for some or all employees who perform
work on contracts with such county or city.
  (b) "Total compensation" means all wages and other direct compensation
paid to or provided on behalf of the employee including, but not limited
to, wages, health, education or pension benefits, supplements in lieu of
benefits and compensated time off,  except  that  it  does  not  include
employer  taxes  or employer portion of payments for statutory benefits,
including but not limited to FICA,  disability  insurance,  unemployment
insurance and workers' compensation.
  (c)  "Prevailing  rate of total compensation" means the average hourly
amount of total compensation paid to all  home  care  aides  covered  by
whatever  collectively bargained agreement covers the greatest number of
home care aides in a city with a population of one million or more.  For
purposes  of  this  definition, any set of collectively bargained agree-
ments in such city with substantially  the  same  terms  and  conditions
relating  to  total compensation shall be considered as a single collec-
tively bargained agreement.
  (d) "Home care aide" means a home health  aide,  personal  care  aide,
home  attendant  or  other  licensed  or unlicensed person whose primary
responsibility includes the provision of in-home assistance with  activ-
ities  of  daily  living,  instrumental  activities  of  daily living or

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

                                                           LBD14888-01-6

S. 7159                             2

health-related tasks; provided, however, that home care  aide  does  not
include  any  individual (i) working on a casual basis, or (ii) who is a
relative through blood, marriage or adoption of: (1)  the  employer;  or
(2)  the  person  for  whom  the  worker is delivering services, under a
program funded or administered by federal, state or local government.
  (e) "Managed care plan" means any managed care  program,  organization
or  demonstration  covering  personal care or home health aide services,
and which receives premiums funded, in whole or in part, by the New York
state medical assistance program, including but not limited to all Medi-
caid managed care, Medicaid managed long term care, Medicaid  advantage,
and Medicaid advantage plus plans and all programs of all-inclusive care
for the elderly.
  (f)  "Episode  of care" means any service unit reimbursed, in whole or
in part, by the New  York  state  medical  assistance  program,  whether
through  direct reimbursement or covered by a premium payment, and which
covers, in whole or in part, any service provided by a home  care  aide,
including but not limited to all service units defined as visits, hours,
days, months or episodes.
  (G)  "CASH  PORTION OF THE MINIMUM RATE OF HOME CARE AID TOTAL COMPEN-
SATION" MEANS THE MINIMUM AMOUNT OF HOME CARE  AIDE  TOTAL  COMPENSATION
THAT  MAY  BE  PAID  IN  CASH  WAGES, AS DETERMINED BY THE DEPARTMENT IN
CONSULTATION WITH THE DEPARTMENT OF LABOR.
  (H) "BENEFIT PORTION OF THE MINIMUM  RATE  OF  HOME  CARE  AIDE  TOTAL
COMPENSATION"  MEANS  THE  PORTION  OF HOME CARE AIDE TOTAL COMPENSATION
THAT MAY BE PAID IN CASH OR HEALTH, EDUCATION OR PENSION BENEFITS,  WAGE
DIFFERENTIALS, SUPPLEMENTS IN LIEU OF BENEFITS AND COMPENSATED TIME OFF,
AS  DETERMINED  BY THE DEPARTMENT IN CONSULTATION WITH THE DEPARTMENT OF
LABOR. CASH WAGES PAID PURSUANT TO INCREASES IN  THE  STATE  OR  FEDERAL
MINIMUM  WAGE CANNOT BE USED TO SATISFY THE BENEFIT PORTION OF THE MINI-
MUM RATE OF HOME CARE AIDE TOTAL COMPENSATION.
  2. Notwithstanding any inconsistent provision of law,  rule  or  regu-
lation,  no  payments  by government agencies shall be made to certified
home health agencies, long term home health  care  programs  or  managed
care  plans  for  any episode of care furnished, in whole or in part, by
any home care aide who is compensated at amounts less than the  applica-
ble minimum rate of home care aide total compensation established pursu-
ant to this section.
  3. (a) The minimum rate of home care aide total compensation in a city
with a population of one million or more shall be:
  (i)  for  the period March first, two thousand twelve through February
twenty-eighth, two  thousand  thirteen,  ninety  percent  of  the  total
compensation mandated by the living wage law of such city;
  (ii)  for the period March first, two thousand thirteen through Febru-
ary twenty-eighth, two thousand fourteen,  ninety-five  percent  of  the
total compensation mandated by the living wage law of such city;
  (iii) for [all periods on and after] THE PERIOD March first, two thou-
sand  fourteen  THROUGH MARCH THIRTY-FIRST TWO THOUSAND SIXTEEN, no less
than the prevailing rate of total compensation as of January first,  two
thousand  eleven,  or the total compensation mandated by the living wage
law of such city, whichever is greater;
  (IV) FOR ALL PERIODS ON OR AFTER APRIL FIRST,  TWO  THOUSAND  SIXTEEN,
THE  CASH  PORTION  OF  THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPEN-
SATION SHALL BE TEN DOLLARS OR THE MINIMUM WAGE AS LAID OUT IN PARAGRAPH
(C) OF SUBDIVISION ONE OF SECTION SIX HUNDRED  FIFTY-TWO  OF  THE  LABOR
LAW,  WHICHEVER  IS  HIGHER.  THE BENEFIT PORTION OF THE MINIMUM RATE OF
HOME CARE AIDE TOTAL COMPENSATION SHALL BE FOUR DOLLARS AND NINE CENTS.

S. 7159                             3

  (b) The minimum rate of home care aide total compensation in the coun-
ties of Nassau, Suffolk and Westchester shall be:
  (i) for the period March first, two thousand thirteen through February
twenty-eighth,  two  thousand  fourteen,  ninety  percent  of  the total
compensation mandated by the living wage law as set on March first,  two
thousand thirteen of a city with a population of a million or more;
  (ii)  for the period March first, two thousand fourteen through Febru-
ary twenty-eighth, two thousand  fifteen,  ninety-five  percent  of  the
total  compensation  mandated  by  the  living  wage law as set on March
first, two thousand fourteen of a city with a population of a million or
more;
  (iii) for the period March first, two thousand fifteen, through Febru-
ary twenty-eighth, two thousand sixteen,  one  hundred  percent  of  the
total  compensation  mandated  by  the  living  wage law as set on March
first, two thousand fifteen of a city with a population of a million  or
more;
  (iv)  for  all  periods on or after March first, two thousand sixteen,
[the lesser of (i) one hundred and fifteen percent of the total  compen-
sation  mandated  by  the  living wage law as set on March first of each
succeeding year of a city with a population of one million or  more  or;
(ii)  the  total compensation mandated by the living wage law of Nassau,
Suffolk or Westchester county, based on the location of the  episode  of
care]  THE  CASH  PORTION  OF  THE  MINIMUM RATE OF HOME CARE AIDE TOTAL
COMPENSATION SHALL BE TEN DOLLARS OR THE MINIMUM WAGE  AS  LAID  OUT  IN
PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION SIX HUNDRED FIFTY-TWO OF THE
LABOR  LAW, WHICHEVER IS HIGHER. THE BENEFIT PORTION OF THE MINIMUM RATE
OF HOME CARE AIDE TOTAL COMPENSATION SHALL BE THREE DOLLARS AND  TWENTY-
TWO CENTS.
  4.  [Any  portion  of the minimum rate of home care aide total compen-
sation attributable to health benefit  costs  or  payments  in  lieu  of
health  benefits, and paid time off, as established pursuant to subdivi-
sion three of this section shall be  superseded  by  the  terms  of  any
employer bona fide collective bargaining agreement in effect as of Janu-
ary  first, two thousand eleven, or a successor to such agreement, which
provides for home care aides' health benefits through payments to joint-
ly administered labor-management funds.
  5.] The terms of this section shall apply equally to services provided
by home care aides who work on episodes of care as direct  employees  of
certified  home health agencies, long term home health care programs, or
managed care plans, or as employees of licensed home care services agen-
cies, limited licensed home care services agencies, or under  any  other
arrangement.
  [6.]  5. No payments by government agencies shall be made to certified
home health agencies, long term home health care  programs,  or  managed
care  plans  for  any  episode of care without the certified home health
agency, long term home health care program, or managed care plan  having
delivered  prior  written  certification  to  the commissioner, on forms
prepared by the department in consultation with the department of labor,
that all services provided under  each  episode  of  care  are  in  full
compliance with the terms of this section and any regulations promulgat-
ed pursuant to this section.
  [7.]  6.  If  a  certified home health agency or long term home health
care program elects to provide home care aide services through contracts
with licensed  home  care  services  agencies  or  through  other  third
parties,  provided  that the episode of care on which the home care aide
works is covered under the terms of this  section,  the  certified  home

S. 7159                             4

health  agency, long term home health care program, or managed care plan
must obtain a written certification from the licensed home care services
agency or other third party, on forms  prepared  by  the  department  in
consultation with the department of labor, which attests to the licensed
home  care  services agency's or other third party's compliance with the
terms of this section.  Such  certifications  shall  also  obligate  the
certified  home  health  agency,  long term home health care program, or
managed care plan to obtain, on no less  than  a  quarterly  basis,  all
information  from  the licensed home care services agency or other third
parties necessary to verify compliance with the terms of  this  section.
Such certifications and the information exchanged pursuant to them shall
be retained by all certified home health agencies, long term home health
care  programs,  or  managed  care  plans,  and  all  licensed home care
services agencies, or other third parties for a period of no  less  than
ten years, and made available to the department upon request.
  [8.] 7. The commissioner shall distribute to all certified home health
agencies,  long  term  home health care programs, and managed care plans
official notice of the minimum rates of home care aide  compensation  at
least  one hundred twenty days prior to the effective date of each mini-
mum rate for each social services district covered by the terms of  this
section.
  [9.]  8. The commissioner is authorized to promulgate regulations, and
may promulgate emergency regulations, to  implement  the  provisions  of
this section.
  [10.]  9. Nothing in this section should be construed as applicable to
any service provided by certified home health agencies, long  term  home
health  care  programs, or managed care plans except for all episodes of
care reimbursed in whole or in part by the New York Medicaid program.
  [11.] 10. No certified home health agency, managed care plan  or  long
term home health care program shall be liable for recoupment of payments
for  services  provided  through a licensed home care services agency or
other third party with which the certified home health agency, long term
home health care program, or managed care plan has  a  contract  because
the  licensed  agency  or  other  third  party failed to comply with the
provisions of this section if the certified  home  health  agency,  long
term  home  health care program, or managed care plan has reasonably and
in good faith collected  certifications  and  all  information  required
pursuant to subdivisions [six and seven] FIVE AND SIX of this section.
  S  2. This act shall take effect on the same date as part K of a chap-
ter of the laws of 2016 amending the labor law relating to the  rate  of
minimum  wage,  as  proposed  in  legislative  bill numbers S.6406-C and
A.9006-C, takes effect.