S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8821
 
                           I N  A S S E M B L Y
 
                             January 18, 2024
                                ___________
 
 Introduced by M. of A. PAULIN -- read once and referred 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:
 
   Section 1. This act shall be known and may be cited as the  "fair  pay
 for home care act".
   §  2.  Subdivision  2  of  section 3614-f of the public health law, as
 amended by section 3 of part NN of chapter 57 of the laws  of  2023,  is
 amended to read as follows:
   2.  (a)  Beginning October first, two thousand twenty-two, in addition
 to the otherwise applicable  minimum  wage  under  section  six  hundred
 fifty-two  of  the  labor  law, or any otherwise applicable wage rule or
 order under article nineteen of the labor law, the minimum  wage  for  a
 home  care  aide shall be increased by an amount of two dollars and zero
 cents.
   (b) [for] FOR the  period  January  first,  two  thousand  twenty-four
 through  December  thirty-first,  two  thousand twenty-four, the minimum
 wage for a home care aide shall be as follows:
   (i) for each hour worked in downstate, eighteen dollars and fifty-five
 cents; and
   (ii) for each hour worked in remainder of state, seventeen dollars and
 fifty-five cents;
   (c) [for] FOR the  period  January  first,  two  thousand  twenty-five
 through  [December  thirty-first] APRIL FIRST, two thousand twenty-five,
 the minimum wage for a home care aide shall be as follows:
   (i) for each hour worked in downstate, nineteen dollars and ten cents;
 and
   (ii) for each hour worked in remainder of state, eighteen dollars  and
 ten cents;
   (d)  [for]  FOR  the  period  [January  first, two thousand twenty-six
 through December thirty-first, two thousand twenty-six, the minimum wage
 for a home care aide shall be as follows:

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

                                                            LBD13749-01-3
 A. 8821                             2

   (i) for each hour worked in downstate, nineteen dollars and sixty-five
 cents; and
   (ii)  for each hour worked in remainder of state, eighteen dollars and
 sixty-five cents;
   (e) beginning January first, two thousand twenty-seven, and each Janu-
 ary first thereafter, the minimum wage for a home care aide shall be the
 sum of the minimum wage for a home care aide  from  the  prior  calendar
 year and the home care worker wage adjustment.
   (f)  (i)  Notwithstanding  any provision of law to the contrary, in no
 event shall the minimum wage for a home care aide  in  downstate  exceed
 the  sum  of the wage set by the commissioner of labor pursuant to para-
 graph (a) of subdivision one-b of section six hundred fifty-two  of  the
 labor law plus three dollars and zero cents.
   (ii) Notwithstanding any provision of law to the contrary, in no event
 shall the minimum wage for a home care aide in remainder of state exceed
 the  sum  of the wage set by the commissioner of labor pursuant to para-
 graph (b) of subdivision one-b of section six hundred fifty-two  of  the
 labor  law plus three dollars and zero cents] ON AND AFTER APRIL SECOND,
 TWO THOUSAND TWENTY-FIVE, THE MINIMUM WAGE FOR A HOME CARE AIDE SHALL BE
 NO LESS THAN ONE HUNDRED FIFTY PERCENT OF THE APPLICABLE STATEWIDE MINI-
 MUM WAGE OR APPLICABLE REGIONAL MINIMUM WAGE  PURSUANT  TO  SECTION  SIX
 HUNDRED FIFTY-TWO OF THE LABOR LAW.
   § 3. Section 3614-f of the public health law is amended by adding five
 new subdivisions 5, 6, 7, 8 and 9 to read as follows:
   5. (A) THE COMMISSIONER SHALL ESTABLISH A REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT  RATE  FOR  ALL PROVIDERS EMPLOYING WORKERS SUBJECT TO THE
 MINIMUM WAGE PROVISIONS ESTABLISHED IN SUBDIVISION TWO OF THIS  SECTION.
 THE  REGIONAL  MINIMUM  HOURLY BASE REIMBURSEMENT RATE SHALL BE BASED ON
 REGIONS ESTABLISHED BY THE COMMISSIONER, PROVIDED THAT FOR AREAS SUBJECT
 TO SECTION THIRTY-SIX HUNDRED FOURTEEN-C OF THIS ARTICLE, EACH AREA WITH
 A DIFFERENT PREVAILING RATE OF TOTAL COMPENSATION, AS  DEFINED  IN  SUCH
 SECTION, SHALL BE ITS OWN REGION.
   (B)  FOR  THE  PURPOSES OF THIS SECTION, "REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT RATE" MEANS A REIMBURSEMENT RATE THAT REFLECTS THE AVERAGE
 COMBINED COSTS ASSOCIATED WITH THE PROVISION OF DIRECT SERVICE INCLUSIVE
 OF, BUT NOT LIMITED TO:
   (I) OVERTIME COSTS;
   (II) TRANSPORTATION COSTS;
   (III) ALL BENEFITS;
   (IV) ALL PAYROLL TAXES, INCLUDING  BUT  NOT  LIMITED  TO  THE  FEDERAL
 INSURANCE CONTRIBUTIONS ACT, MEDICARE, THE FEDERAL UNEMPLOYMENT TAX ACT,
 STATE  UNEMPLOYMENT  INSURANCE,  DISABILITY  INSURANCE, WORKERS' COMPEN-
 SATION, AND THE METROPOLITAN TRANSPORTATION AUTHORITY TAX;
   (V) RELATED INCREASES TIED TO BASE WAGES SUCH AS COMPRESSION;
   (VI) REASONABLE ADMINISTRATIVE COSTS AS DEFINED BY THE COMMISSIONER;
   (VII) ALLOWANCES FOR CAPITAL COSTS;
   (VIII) THE DEVELOPMENT OF PROFIT OR RESERVES AS ALLOWABLE  BY  LAW  OR
 REGULATIONS OF THE COMMISSIONER; AND
   (IX) ANY ADDITIONAL SUPPLEMENTAL PAYMENTS.
   (C) FOLLOWING THE INITIAL ESTABLISHED  REGIONAL  MINIMUM  HOURLY  BASE
 REIMBURSEMENT  RATE  ESTABLISHED  UNDER  THIS  SECTION, THE COMMISSIONER
 SHALL  ANNUALLY ADJUST THE REGIONAL  MINIMUM  HOURLY  BASE REIMBURSEMENT
 RATE  FOR  EACH  REGION BY A TREND FACTOR TO REFLECT AND ACCOMMODATE ANY
 ADDITIONAL LABOR LAW INCREASES, CHANGES OR MANDATES. UPDATED RATES SHALL
 BE MADE PUBLICLY AVAILABLE THE FIRST DAY OF EACH OCTOBER THEREAFTER  FOR
 USE ON THE FIRST DAY OF JANUARY OF THE FOLLOWING YEAR.
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   6.  (A)  NO  PAYMENT  MADE  TO  A PROVIDER WHO EMPLOYS HOME CARE AIDES
 SUBJECT TO THIS  SECTION THAT IS LESS THAN THE REGIONAL  MINIMUM  HOURLY
 BASE REIMBURSEMENT RATE ESTABLISHED PURSUANT TO SUBDIVISION FIVE OF THIS
 SECTION  FOR SERVICES PROVIDED UNDER AUTHORIZATION BY A LOCAL DEPARTMENT
 OF  SOCIAL SERVICES, A MANAGED CARE PROVIDER UNDER SECTION THREE HUNDRED
 SIXTY-FOUR-J OF THE SOCIAL SERVICES LAW, OR  A  MANAGED  LONG-TERM  CARE
 PROVIDER  UNDER SECTION FORTY-FOUR HUNDRED THREE-F OF THIS CHAPTER SHALL
 BE DEEMED ADEQUATE.
   (B) THE COMMISSIONER SHALL SUBMIT ANY AND ALL  NECESSARY  APPLICATIONS
 FOR  APPROVALS  AND/OR  WAIVERS  TO THE FEDERAL CENTERS FOR MEDICARE AND
 MEDICAID SERVICES TO SECURE APPROVAL TO ESTABLISH REGIONAL MINIMUM HOUR-
 LY BASE REIMBURSEMENT RATES AND MAKE STATE-DIRECTED PAYMENTS TO  PROVID-
 ERS FOR THE PURPOSES OF SUPPORTING WAGE INCREASES.
   (I)  IF APPROVED, DIRECTED PAYMENTS SHALL BE MADE TO SUCH PROVIDERS OF
 MEDICAID SERVICES THROUGH  CONTRACTS  WITH  MANAGED  CARE  ORGANIZATIONS
 WHERE  APPLICABLE,  PROVIDED  THAT  THE  COMMISSIONER  ENSURES THAT SUCH
 DIRECTED PAYMENTS ARE IN ACCORDANCE WITH THE TERMS OF THIS SECTION.
   (II) IF THE STATE DIRECTED PAYMENT IS  NOT  APPROVED,  THE  DEPARTMENT
 SHALL  REQUIRE PLANS TO JUSTIFY DEVIATIONS APART FROM THE REGIONAL MINI-
 MUM HOURLY BASE REIMBURSEMENT RATES.
   (C) THE COMMISSIONER SHALL ENSURE  THAT  MANAGED  CARE  CAPITATION  IS
 ADJUSTED  TO  ENSURE RATE ADEQUACY FOR THE MANAGED CARE ORGANIZATIONS IN
 ORDER TO COMPLY WITH THIS SECTION.
   7. NOTHING IN THIS SECTION SHALL  PRECLUDE  PROVIDERS  EMPLOYING  HOME
 CARE AIDES COVERED UNDER THIS SECTION OR PAYERS FROM PAYING OR CONTRACT-
 ING  FOR  SERVICES AT RATES HIGHER THAN THE REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT RATE IF THE PARTIES AGREE TO SUCH TERMS.
   8. THE COMMISSIONER SHALL PUBLISH AND  POST  REGIONAL  MINIMUM  HOURLY
 BASE  REIMBURSEMENT RATES ANNUALLY AND SHALL TAKE ALL NECESSARY STEPS TO
 ADVISE COMMERCIAL AND GOVERNMENT PROGRAMS PAYERS OF HOME  CARE  SERVICES
 OF  THE  REGIONAL MINIMUM HOURLY   BASE  REIMBURSEMENT RATES AND REQUIRE
 OTHER STATE AUTHORIZED  PAYERS  TO  REIMBURSE  PROVIDERS  OF  HOME  CARE
 SERVICES AT THE REGIONAL MINIMUM HOURLY BASE REIMBURSEMENT RATE.
   9.  FOR YEARS IN WHICH RATE ADJUSTMENTS TO THE REGIONAL MINIMUM HOURLY
 BASE REIMBURSEMENT RATE HAVE NOT BEEN CALCULATED PRIOR TO THE  START  OF
 THE  CALENDAR YEAR, THE PREVIOUS YEAR'S RATE SHALL REMAIN IN PLACE UNTIL
 THE NEW RATE IS CALCULATED,  PLUS  THE  ANNUAL  AVERAGE  CONSUMER  PRICE
 INDEX-URBAN  OR  CONSUMER  PRICE  INDEX-RURAL,  AS  APPLICABLE. IF IT IS
 DETERMINED THAT RETROACTIVE  RATE  ADJUSTMENTS  ARE  NECESSARY,  PAYMENT
 ADJUSTMENTS  WILL  BE  MADE AS A DIRECT PASS THROUGH TO PROVIDERS WITHIN
 SIXTY DAYS OF THE ADJUSTED RATE.
   § 4. To ensure compliance with this minimum wage increase,  the  comp-
 troller  shall  have  the authority to review the contracts entered into
 between a managed care organization and a licensed  home  care  services
 agency,  fiscal intermediary, or any agency subject to the provisions of
 section 3614-f of the public health  law  to  ensure  that  rates  being
 offered are adequate and meet the department of health's actuarial stan-
 dards.  The comptroller, in consultation with the medicaid fraud control
 unit, may develop and promulgate a process to ensure such audits  comply
 with  state  and  federal  law  to  protect  proprietary information and
 contracts. In the event that the comptroller finds evidence that managed
 care organizations are not paying sufficient adequate rates,  they  will
 refer  such instances to the department of health and the medicaid fraud
 control unit for enforcement. If the department of health or  the  medi-
 caid  fraud  control  unit  chooses not to pursue action related to this
 referral, it shall inform, in writing, the comptroller's  office  as  to
 A. 8821                             4
 
 the  reasoning.  Such reports, and the department of health's responses,
 shall be public information and  made  available  on  the  comptroller's
 website. For the purposes of this section, the term "managed care organ-
 ization" shall mean an entity operating pursuant to section 364-j of the
 social services law or article 44 of the public health law.
   §  5. 1. The commissioners of the departments of taxation and finance,
 health and labor, in consultation with the office of temporary and disa-
 bility assistance, shall undertake a  study  regarding  the  use  of  an
 expanded  state  earned  income  tax credit as a strategy to improve the
 home care aide workforce. Such study  shall  include  an  evaluation  of
 issues, including but not limited to:
   a.  the range of increase needed to increase total compensation to the
 median compensation by county and/or region;
   b. implementation challenges related to  a  specific  sector  enhanced
 earned income credit;
   c. possible effects on worker recruitment and retention;
   d. fiscal impact on the state; and
   e.  any  other  issues  as determined by the commissioners and depart-
 ments.
   2. The study shall include a public hearing and/or other processes  to
 gather  information  from  all  interested  parties. The commissioner of
 taxation and finance shall report the findings of  the  study  no  later
 than  nine  months  after the effective date of this act or December 31,
 2024, whichever is sooner.
   § 6. Severability.  If any provision of this act, or  any  application
 of any provision of this act, is held to be invalid, or to violate or be
 inconsistent  with  any federal law or regulation, that shall not affect
 the validity or effectiveness of any other provision of this act, or any
 other application of any provision of this act which can be given effect
 without that provision or application; and to that end,  the  provisions
 and applications of this act are severable.
   §  7.  This act shall take effect immediately; provided, however, that
 section two of this act shall take effect January 1, 2025.