S T A T E O F N E W Y O R K
________________________________________________________________________
6329
2021-2022 Regular Sessions
I N A S S E M B L Y
March 16, 2021
___________
Introduced by M. of A. GOTTFRIED, REYES, DINOWITZ, FRONTUS, GONZALEZ-RO-
JAS -- read once and referred to the Committee on Health
AN ACT to amend the public health law, the social services law, the
state finance law and part H of chapter 59 of the laws of 2011, amend-
ing 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:
Section 1. The public health law is amended by adding a new section
3614-f to read as follows:
§ 3614-F. FAIR PAY FOR HOME CARE. 1. FOR THE PURPOSE OF THIS SECTION,
"HOME CARE AIDE" SHALL HAVE THE SAME MEANING DEFINED IN SECTION THIRTY-
SIX HUNDRED FOURTEEN-C OF THIS ARTICLE.
2. THE MINIMUM WAGE FOR A HOME CARE AIDE SHALL BE NO LESS THAN ONE
HUNDRED AND FIFTY PERCENT OF THE HIGHER OF: (A) THE OTHERWISE APPLICABLE
MINIMUM WAGE UNDER SECTION SIX HUNDRED FIFTY-TWO OF THE LABOR LAW, OR
(B) ANY OTHERWISE APPLICABLE WAGE RULE OR ORDER UNDER ARTICLE NINETEEN
OF THE LABOR LAW.
3. WHERE ANY HOME CARE AIDE IS PAID LESS THAN REQUIRED BY THIS
SECTION, THE HOME CARE AIDE, OR THE COMMISSIONER OF LABOR ACTING ON
BEHALF OF THE HOME CARE AIDE, MAY BRING AN ACTION UNDER ARTICLE SIX OR
NINETEEN OF THE LABOR LAW.
§ 2. Paragraph (c) of subdivision 4-a of section 365-f of the social
services law is amended by adding a new subparagraph (v) to read as
follows:
(V) (A) THE DEPARTMENT SHALL ANALYZE THE CERTIFIED COST REPORTS OF
EACH FISCAL INTERMEDIARY, GROUPED BY REGIONS, TO ESTABLISH A REGIONAL
MINIMUM RATE OF REIMBURSEMENT FOR EACH REGION. THE REGIONS SHALL BE
ESTABLISHED BY THE COMMISSIONER, PROVIDED THAT FOR AREAS SUBJECT TO
SECTION THIRTY-SIX HUNDRED FOURTEEN-C OF THE PUBLIC HEALTH LAW, EACH
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10145-01-1
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AREA WITH A DIFFERENT PREVAILING RATE OF TOTAL COMPENSATION, AS DEFINED
IN THAT SECTION, SHALL BE ITS OWN REGION.
(B) FOR THE PURPOSES OF THIS SECTION, "REGIONAL MINIMUM RATE OF
REIMBURSEMENT" MEANS A REIMBURSEMENT RATE REFLECTING THE AVERAGE
COMBINED COSTS ASSOCIATED WITH THE PROVISION OF DIRECT SERVICE, REASON-
ABLE ADMINISTRATIVE COSTS AS DEFINED BY THE COMMISSIONER, ALLOWANCES FOR
CAPITAL COSTS, THE DEVELOPMENT OF PROFIT OR RESERVES AS ALLOWABLE BY LAW
OR REGULATIONS OF THE COMMISSIONER, AND ANY ADDITIONAL SUPPLEMENTAL
PAYMENTS. THE REGIONAL MINIMUM RATE OF REIMBURSEMENT SHALL BE THE MINI-
MUM REIMBURSEMENT RATE FOR FISCAL INTERMEDIARIES PROVIDING SERVICES
UNDER THIS SECTION AND SHALL BE THE MINIMUM ALLOWABLE REIMBURSEMENT THAT
MAY BE DEEMED ADEQUATE FROM A MANAGED CARE PROVIDER, UNDER SECTION THREE
HUNDRED SIXTY-FOUR-J OF THIS CHAPTER OR A MANAGED LONG-TERM CARE PLAN,
UNDER SECTION FORTY-FOUR HUNDRED THREE-F OF THE PUBLIC HEALTH LAW.
(C) IN THE FIRST TWO YEARS AFTER AN INCREASE IN THE MINIMUM WAGE HAS
BEEN ESTABLISHED, ANALYSIS FOR THE REGIONAL MINIMUM RATE OF REIMBURSE-
MENT SHALL FACTOR IN COSTS THAT WERE NOT CAPTURED IN COST REPORTS THAT
RESULT FROM (A) THAT INCREASE; AND (B) WAGE COMPRESSION FROM THAT
INCREASE.
(D) THE REGIONAL MINIMUM RATE OF REIMBURSEMENT SHALL BE MODIFIED ANNU-
ALLY, BASED ON COST REPORTS SUBMITTED FOR THE PRIOR FISCAL YEAR, AS
MODIFIED UNDER THIS PARAGRAPH. IF THE MINIMUM RATE OF REIMBURSEMENT HAS
NOT BEEN CALCULATED PRIOR TO THE START OF THE FISCAL YEAR, THE PREVIOUS
YEAR'S RATE SHALL REMAIN IN PLACE UNTIL THE NEW RATE IS CALCULATED,
PROVIDED THAT RETROACTIVE ADJUSTMENTS SHALL BE MADE TO THE BEGINNING OF
THE FISCAL YEAR.
§ 3. Subdivision 8 of section 3612 of the public health law is amended
by adding a new paragraph (e) to read as follows:
(E)(I) THE DEPARTMENT SHALL ANALYZE THE CERTIFIED COST REPORTS OF EACH
LICENSED HOME CARE SERVICES AGENCY, GROUPED BY REGIONS, TO ESTABLISH A
REGIONAL MINIMUM RATE OF REIMBURSEMENT FOR EACH REGION. THE REGIONS
SHALL BE ESTABLISHED BY THE COMMISSIONER, PROVIDED THAT FOR AREAS
SUBJECT TO SECTION THIRTY-SIX HUNDRED FOURTEEN-C OF THIS ARTICLE, EACH
AREA WITH A DIFFERING PREVAILING RATE OF TOTAL COMPENSATION, AS DEFINED
IN THAT SECTION, SHALL BE ITS OWN REGION.
(II) FOR THE PURPOSES OF THIS SECTION, "REGIONAL MINIMUM RATE OF
REIMBURSEMENT" MEANS A REIMBURSEMENT RATE REFLECTING THE AVERAGE
COMBINED COSTS ASSOCIATED WITH THE PROVISION OF DIRECT SERVICE, REASON-
ABLE ADMINISTRATIVE COSTS AS DEFINED BY THE COMMISSIONER, ALLOWANCES FOR
CAPITAL COSTS, THE DEVELOPMENT OF PROFIT OR RESERVES AS ALLOWABLE BY LAW
OR REGULATIONS OF THE COMMISSIONER, AND ANY ADDITIONAL SUPPLEMENTAL
PAYMENTS. THE REGIONAL MINIMUM RATE OF REIMBURSEMENT SHALL BE THE MINI-
MUM REIMBURSEMENT RATE FOR FISCAL INTERMEDIARIES PROVIDING SERVICES
UNDER AUTHORIZATION BY A LOCAL DEPARTMENT OF SOCIAL SERVICES AND SHALL
BE THE MINIMUM ALLOWABLE REIMBURSEMENT THAT MAY BE DEEMED ADEQUATE FROM
A MANAGED CARE PROVIDER UNDER SECTION THREE HUNDRED SIXTY-FOUR-J OF THE
SOCIAL SERVICES LAW OR A MANAGED LONG TERM CARE PLAN UNDER SECTION
FORTY-FOUR HUNDRED-F OF THIS CHAPTER.
(III) IN THE FIRST TWO YEARS AFTER AN INCREASE IN THE APPLICABLE MINI-
MUM WAGE HAS BEEN ESTABLISHED, DETERMINATION OF THE REGIONAL MINIMUM
RATE OF REIMBURSEMENT SHALL FACTOR IN COSTS THAT WERE NOT CAPTURED IN
COST REPORTS THAT RESULT FROM (A) THAT INCREASE; AND (B) WAGE
COMPRESSION FROM THAT INCREASE.
(IV) THE REGIONAL MINIMUM RATE OF REIMBURSEMENT SHALL BE MODIFIED
ANNUALLY, BASED ON COST REPORTS SUBMITTED THE PRIOR FISCAL YEAR, AS
MODIFIED UNDER THIS PARAGRAPH. IF THE MINIMUM RATE OF REIMBURSEMENT HAS
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NOT BEEN CALCULATED PRIOR TO THE START OF THE FISCAL YEAR, THE PREVIOUS
YEAR'S RATE SHALL REMAIN IN PLACE UNTIL THE NEW RATE IS CALCULATED,
PROVIDED THAT RETROACTIVE ADJUSTMENTS SHALL BE MADE TO THE BEGINNING OF
THE FISCAL YEAR IF REIMBURSEMENTS TO LICENSED HOME CARE SERVICE AGENCIES
BY ANY PARTY WERE BELOW THE NEW RATE.
§ 4. Section 3614-d of the public health law, as added by section 49
of part B of chapter 57 of the laws of 2015, is amended to read as
follows:
§ 3614-d. Universal standards for coding of payment for medical
assistance claims for long term care. Claims for payment submitted under
contracts or agreements with insurers under the medical assistance
program for home and community-based long-term care services provided
under this article, by fiscal intermediaries operating pursuant to
section three hundred sixty-five-f of the social services law, and by
residential health care facilities operating pursuant to article twen-
ty-eight of this chapter shall have standard billing codes. Such insur-
ers shall include but not be limited to Medicaid managed care plans and
managed long term care plans. Such payments shall be based on universal
billing codes approved by the department or a nationally accredited
organization as approved by the department; provided, however, such
coding shall be consistent with any codes developed as part of the
uniform assessment system for long term care established by the depart-
ment AND SHALL INCLUDE, FOR ANY ENTITY OPERATING PURSUANT TO THIS ARTI-
CLE OR SECTION THREE HUNDRED SIXTY-FIVE-F OF THE SOCIAL SERVICES LAW
THAT IS UNABLE TO CONTROL THE CUMULATIVE HOURS WORKED BY AN INDIVIDUAL
IN A GIVEN PAYROLL PERIOD, A CODE THAT IS SPECIFIC TO THE HOURLY COST OF
SERVICES AT AN OVERTIME RATE.
§ 5. The state finance law is amended by adding a new section 91-h to
read as follows:
§ 91-H. FAIR PAY FOR HOME CARE FUND. 1. THERE IS HEREBY ESTABLISHED IN
THE JOINT CUSTODY OF THE COMMISSIONER OF TAXATION AND FINANCE AND THE
COMPTROLLER, A SPECIAL FUND TO BE KNOWN AS THE "FAIR PAY FOR HOME CARE
FUND".
2. THE FUND SHALL CONSIST OF:
A. REVENUES AND FEDERAL MEDICAL ASSISTANCE PERCENTAGE REIMBURSEMENTS
IN EXCESS OF THE STANDARD REIMBURSEMENT RECEIVED BY THE DEPARTMENT OF
HEALTH PURSUANT TO SECTION THIRTY-SEVEN OF PART B OF CHAPTER FIFTY-SEVEN
OF THE LAWS OF TWO THOUSAND FIFTEEN;
B. AN AMOUNT EQUAL TO SAVINGS FROM THE PERMANENT CONVERSION OR DECER-
TIFICATION OF RESIDENTIAL HEALTH CARE FACILITY BEDS, AS DEFINED IN
SECTION TWENTY-EIGHT HUNDRED ONE OR TWENTY-EIGHT HUNDRED TWO OF THE
PUBLIC HEALTH LAW;
C. ANY UNSPENT MONIES FROM THE NEW YORK WORKS ECONOMIC DEVELOPMENT
FUNDS OR A LIFE SCIENCES INITIATIVE CREATED BY SECTION ONE OF CHAPTER
FIFTY-FOUR OF THE LAWS OF TWO THOUSAND SEVENTEEN WHICH WERE ORIGINALLY
APPROPRIATED PRIOR TO THE TWO THOUSAND NINETEEN STATE FISCAL YEAR WHICH
HAVE NOT BEEN BOUND BY A CONTRACT AS OF APRIL FIRST TWO THOUSAND TWEN-
TY-ONE AND WHICH ARE NOT OTHERWISE LEGALLY REQUIRED TO BE SPENT ON CAPI-
TAL PROJECTS UNDER BONDING REQUIREMENTS THROUGH THE DORMITORY AUTHORITY
OF NEW YORK STATE OR OTHER BONDING ENTITY; AND
D. ANY GRANTS, GIFTS OR BEQUESTS RECEIVED BY THE STATE FOR THE
PURPOSES OF THE FUND UNDER THIS SECTION.
3. MONIES OF THE FUND SHALL BE DISTRIBUTED TO THE COMMISSIONER OF
HEALTH, OR THE COMMISSIONER'S DESIGNEE, FOR THE PURPOSE OF INCREASING
MEDICAL ASSISTANCE REIMBURSEMENTS UNDER TITLE ELEVEN OF ARTICLE FIVE OF
THE SOCIAL SERVICES LAW TO ENTITIES OPERATING UNDER ARTICLE THIRTY-SIX
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OF THE PUBLIC HEALTH LAW AND SECTION THREE HUNDRED SIXTY-FIVE-F OF THE
SOCIAL SERVICES LAW FOR WAGES OF HOME CARE AIDES, AS DEFINED IN SECTION
THIRTY-SIX HUNDRED FOURTEEN-F OF THE PUBLIC HEALTH LAW.
§ 6. The opening paragraph and paragraph (a) of subdivision 3 of
section 2802 of the public health law, as amended by chapter 609 of the
laws of 1982, is amended to read as follows:
Subject to the provisions of paragraph (b) of subdivision two OF THIS
SECTION, the commissioner in [approving] DETERMINING WHETHER TO APPROVE
OR DENY the construction of a hospital shall take into consideration and
be empowered to request information and advice as to (a) the availabili-
ty of facilities or services such as preadmission, ambulatory or home
care services which may serve as alternatives or substitutes for the
whole or any part of the proposed hospital construction, AND BETTER
ENABLE THE STATE TO MEET ITS OBLIGATIONS TO PROVIDE SERVICES IN THE
COMMUNITY SET FORTH IN OLMSTEAD V L.C. (BY ZIMRING) 527 U.S. 581 (1999);
§ 7. Paragraphs (c) of subdivision 18 of section 364-j of the
social services law, as added by sections 40-c and 55 of part B of
chapter 57 of the laws of 2015, are amended to read as follows:
(c) (I) In setting such reimbursement methodologies, the department
shall consider costs borne by the managed care program to ensure actuar-
ially sound and adequate rates of payment to ensure quality of care FOR
ITS ENROLLEES AND SHALL COMPLY WITH ALL APPLICABLE FEDERAL AND STATE
LAWS AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, THOSE RELATING TO
WAGES, INCLUDING COMPRESSION FROM INCREASES IN THE MINIMUM WAGE, LABOR,
AND ACTUARIAL SOUNDNESS.
[(c)] (II) The department [of health] shall require the independent
actuary selected pursuant to paragraph (b) of this subdivision to
provide a complete actuarial memorandum, along with all actuarial
assumptions made and all other data, materials and methodologies used in
the development of rates, to managed care providers thirty days prior to
submission of such rates to the centers for medicare and medicaid
services for approval. Managed care providers may request additional
review of the actuarial soundness of the rate setting process and/or
methodology.
(III) ANY CONTRACT FOR SERVICES UNDER THIS TITLE BY A MANAGED CARE
PROVIDER WITH A LONG TERM CARE ENTITY SHALL ENSURE THAT RESOURCES MADE
AVAILABLE BY THE PAYER UNDER SUCH CONTRACT WILL SUPPORT THE RECRUITMENT,
HIRING, TRAINING AND RETENTION OF A QUALIFIED WORKFORCE CAPABLE OF
PROVIDING QUALITY CARE, INCLUDING COMPLIANCE WITH ALL APPLICABLE FEDERAL
AND STATE LAWS AND REGULATIONS, INCLUDING, BUT NOT LIMITED TO, THOSE
RELATING TO WAGES AND LABOR. A MANAGED CARE PROVIDER WITH A LONG TERM
CARE ENTITY SHALL REPORT ITS METHOD OF COMPLIANCE WITH THIS SUBDIVISION
TO THE DEPARTMENT AS A COMPONENT OF COST REPORTS REQUIRED UNDER SECTION
FORTY-FOUR HUNDRED THREE-F OF THE PUBLIC HEALTH LAW.
(IV) A LONG TERM CARE ENTITY THAT CONTRACTS WITH A MANAGED CARE
PROVIDER SHALL ANNUALLY SUBMIT WRITTEN CERTIFICATION TO THE DEPARTMENT
AS A COMPONENT OF COST REPORTS REQUIRED UNDER SECTION THIRTY-SIX
HUNDRED TWELVE OF THE PUBLIC HEALTH LAW AND SECTIONS THREE HUNDRED
SIXTY-FIVE-A AND THREE HUNDRED SIXTY-SEVEN-Q OF THIS TITLE, AS APPLICA-
BLE, AS TO HOW IT APPLIED THE AMOUNTS PAID IN COMPLIANCE WITH
THIS SUBDIVISION TO SUPPORT THE RECRUITMENT, HIRING, TRAINING AND
RETENTION OF A QUALIFIED WORKFORCE CAPABLE OF PROVIDING QUALITY CARE
AND CONSISTENT WITH SECTION THREE HUNDRED SIXTY-FIVE-A OF THIS TITLE.
§ 8. Subdivision 8 of section 4403-f of the public health law, as
amended by section 21 of part B of chapter 59 of the laws of 2016, is
amended to read as follows:
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8. Payment rates for managed long term care plan enrollees eligible
for medical assistance. The commissioner shall establish payment rates
for services provided to enrollees eligible under title XIX of the
federal social security act. Such payment rates shall be subject to
approval by the director of the division of the budget and shall reflect
savings to both state and local governments when compared to costs which
would be incurred by such program if enrollees were to receive compara-
ble health and long term care services on a fee-for-service basis in the
geographic region in which such services are proposed to be provided.
Payment rates shall be risk-adjusted to take into account the character-
istics of enrollees, or proposed enrollees, including, but not limited
to: frailty, disability level, health and functional status, age,
gender, the nature of services provided to such enrollees, and other
factors as determined by the commissioner. The risk adjusted premiums
may also be combined with disincentives or requirements designed to
mitigate any incentives to obtain higher payment categories. In setting
such payment rates, the commissioner shall consider costs borne by the
managed care program to ensure actuarially sound and adequate rates of
payment to ensure quality of care AND shall comply with all applicable
laws and regulations, state and federal, including [regulations as to],
BUT NOT LIMITED TO, THOSE RELATING TO WAGES, LABOR AND actuarial sound-
ness [for medicaid managed care].
§ 9. Paragraph (c) of subdivision 1 of section 92 of 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, as amended by section 1 of part CCC of chapter 56 of the
laws of 2020, is amended to read as follows:
(c) Projections may be adjusted by the director of the budget to
account for any changes in the New York state federal medical assistance
percentage amount established pursuant to the federal social security
act, changes in provider revenues, reductions to local social services
district medical assistance administration, minimum wage increases,
INCREASES TO THE MANDATORY BASE WAGE FOR HOME CARE WORKERS PURSUANT TO
ARTICLE 36 OF THE PUBLIC HEALTH LAW, and beginning April 1, 2012 the
operational costs of the New York state medical indemnity fund and state
costs or savings from the basic health plan. Such projections may be
adjusted by the director of the budget to account for increased or expe-
dited department of health state funds medicaid expenditures as a result
of a natural or other type of disaster, including a governmental decla-
ration of emergency.
§ 10. Paragraph (a) of subdivision 3 of section 3614-c of the public
health law is amended by adding a new subparagraph (v) to read as
follows:
(V) FOR ALL PERIODS ON OR AFTER JULY FIRST, TWO THOUSAND TWENTY-ONE,
THE CASH PORTION OF THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPEN-
SATION SHALL BE THE MINIMUM WAGE FOR HOME CARE AIDES IN THE APPLICABLE
REGION, AS DEFINED IN SECTION THIRTY-SIX HUNDRED FOURTEEN-F OF THIS
ARTICLE. THE BENEFIT PORTION OF THE MINIMUM RATE OF HOME CARE AIDE TOTAL
COMPENSATION SHALL BE FOUR DOLLARS AND EIGHTY-FOUR CENTS.
§ 11. Subparagraph (iv) of paragraph (b) of subdivision 3 of section
3614-c of the public health law, as amended by section 1 of part OO of
chapter 56 of the laws of 2020, is amended and a new subparagraph (v) is
added to read as follows:
(iv) for all periods on or after March 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
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(b) 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[.];
(V) FOR ALL PERIODS ON OR AFTER JULY FIRST, TWO THOUSAND TWENTY-ONE,
THE CASH PORTION OF THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPEN-
SATION SHALL BE THE MINIMUM WAGE FOR THE APPLICABLE REGION, AS DEFINED
IN SECTION THIRTY-SIX HUNDRED FOURTEEN-F OF THIS CHAPTER. THE BENEFIT
PORTION OF THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPENSATION SHALL
BE THREE DOLLARS AND EIGHTY-NINE CENTS.
§ 12. Severability. If any provision of this act, or any application
of any provision of this act, is held to be invalid, that shall not
affect the validity or effectiveness of any other provision of this act,
any other application of any provision of this act, or any other
provision of any law or code amended by this act.
§ 13. This act shall take effect immediately; provided, however, that
the amendments to section 364-j of the social services law made by
section seven of this act and the amendments to section 4403-f of the
public health law made by section eight of this act shall not affect the
repeal of such sections and shall expire and be deemed repealed there-
with.