NY State Senate Bill 2023-S6963A

Current Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Mar 04, 2024	print number 6963a
Mar 04, 2024	amend and recommit to health
Jan 03, 2024	referred to health
May 16, 2023	referred to health

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2023-S6963 - Details

See Assembly Version of this Bill:: A7335
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §3614-f, Pub Health L

2023-S6963 - Summary

Requires the commissioner of health to establish regional minimum hourly base reimbursement rates for home care aides.

2023-S6963 - Sponsor Memo

                                 
BILL NUMBER: S6963

SPONSOR: RIVERA
 
TITLE OF BILL:

An act to amend the public health law, in relation to regional minimum
hourly base reimbursement rates for home care aides

 
PURPOSE:

To establish a reliable and predictable mechanism to ensure that home
care providers receive adequate reimbursement from managed care organ-
izations for the purpose of paying their employees mandated wages and
benefits and to cover other costs of the employer.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one of the legislation would add new subdivisions to section
3614-f of the public health law to accomplish the following:

* To require the Commissioner of Health to establish a regional minimum
hourly base reimbursement rate for providers employing home care and

personal care aides. The legislation would also identify specific
elements of the rate that must be included in its development, including
direct care related payments, components to reflect operational expenses
necessary to comply with state and federal mandates, and an administra-
tive and general expenses component. The legislation would require the
rates reflect regional variation and not be less than the established
fee for service county rates. The legislation would also require the
rates to be adjusted annually by a trend factor.

* To require the Department of Health to apply for federal approval for
a state directed payment for fully capitated Medicaid managed care plans
for the purpose of supporting the regional minimum hourly base
reimbursement rate.

* To require for partially capitated managed long term care plans, and
where federal approval is not secured for state directed payment, that
plans justify contracts offering deviations from the regional minimum
hourly base reimbursement rate. Providers would have an opportunity to
respond.

* To ensure that the Department of Health provides managed care organ-
izations with sufficient capitation payments to ensure rate adequacy to
comply with the requirements of regional minimum hourly base reimburse-
ment rates.

* To require the department to amend the Medicaid managed care model
contract rates to comply with requirements of the bill.

* To require the department to publicly post the regional minimum hourly
base reimbursement rates.

* To require the department to publicly post cost report data of plans
and providers in a simple and understandable manner.

* To grant the comptroller the authority to review contracts to ensure
rate adequacy.

Section two of the legislation establishes a severability section.

Section three of the legislative sets the effective date.

 
JUSTIFICATION:

The need for a reliable and predictable mechanism to ensure that home
care providers receive adequate reimbursement from managed care organ-
izations for the purpose of paying their employees was made clear in
October 2022, when the $2 per hour wage increase went into effect for
home care workers. There was overall confusion about what the expecta-
tions were with regard to rate sufficiency, timing and process. Legis-
lation to set clear standards for the plans, providers, and the State is
required.

Currently, there is no common understanding on what constitutes an
adequate rate to cover a worker's wages and benefits. This legislation
would require the Department of Health (DOH) to set a minimum hourly
base reimbursement rate, including the elements that are articulated by
statute and determined by DOH. This will help establish an objective
standard against which to measure negotiated rates. By articulating the
elements of the rate that must be accounted for by the DOH, this legis-
lation would drive the rate to a formula and bring clarity and predict-
ability to the current process.  It would set objective expectations for
providers, plans, and the State regulators.

The regional minimum hourly base reimbursement rate development process
should be informed by provider cost reports and Medicaid Managed Care
Operating Reports. This information should be available broadly and in a
searchable format.

The regional minimum hourly base reimbursement rate would set expecta-
tions based upon agreed upon standards. The legislation would propose
two mechanisms to ensure that the minimum hourly base reimbursement rate
reaches the provider. For fully-capitated plans (mainstream managed
care, PACE, MAP), the State would apply to the U.S. Centers for Medicare
& Medicaid Services (CMS) for a state-directed payment of minimum fee
schedules for home care agencies and fiscal intermediaries. Where there
is no approved state-directed payment and for Managed Long Term Care
(MLTC) plans, which are not fully capitated, the legislation would
establish a reporting mechanism for plans where they are paying less
than the minimum hourly base reimbursement rate. The plan's report must
include a rationale for paying under the minimum hourly base reimburse-
ment rate; the impacted provider would also have the opportunity to
address the report in writing. This approach would be paired with DOH
collecting and publicly reporting this data on a regular basis. Imple-
menting these processes would bring visibility as to whether there are
patterns of unjustified and/or unfair behavior.  The bill would make
exceptions, however, where the provider and a plan mutually agree to
enter into a value-based contract.

Finally, the bill would authorize the Comptroller to review contracts
between plans and providers to ensure compliance with regional minimum
hourly base reimbursement rates.

 
LEGISLATIVE HISTORY:

New legislation
 
FISCAL IMPLICATIONS:

None noted.

 
EFFECTIVE DATE:
This act shall take effect immediately.

2023-S6963 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   6963
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2023
                                ___________
 
 Introduced  by  Sens. RIVERA, MAY -- 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  regional  minimum
   hourly base reimbursement rates for home care aides
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Section 3614-f of the  public  health  law  is  amended  by
 adding  eight  new  subdivisions 5, 6, 7, 8, 9, 10, 11 and 12 to read as
 follows:
   5. (A) BY OCTOBER SIXTEENTH, TWO THOUSAND  TWENTY-THREE,  THE  COMMIS-
 SIONER  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 THAT
 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:
   (1) A DIRECT CARE RELATED PAYMENT WHICH SHALL REFLECT THE TOTAL DIRECT
 CARE  RELATED  COSTS  FOR  HOME CARE AIDES AND OTHER DIRECT CARE RELATED
 STAFF NECESSARY TO COMPLY WITH FEDERAL AND STATE STATUTORY AND REGULATO-
 RY REQUIREMENTS FOR SUCH PROVIDERS, AND WHICH SHALL INCLUDE:
   A.  BASE HOURLY WAGE GUARANTEED HOME CARE AIDES PURSUANT  TO  SUBDIVI-
 SION TWO OF THIS SECTION;
   B.  OVERTIME COSTS;
   C.    EMPLOYEE BENEFITS, INCLUDING BOTH PAID TIME OFF AND SUPPLEMENTAL
 BENEFITS OR BENEFITS AS DETERMINED BY COLLECTIVE BARGAINING AGREEMENTS;
   D.  FEDERAL INSURANCE CONTRIBUTIONS ACT;
   E.  MEDICARE;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10383-04-3

 S. 6963                             2
 
   F.  FEDERAL UNEMPLOYMENT TAX ACT;
   G.  WORKER WAGE PARITY AS PROVIDED BY SECTION THIRTY-SIX HUNDRED FOUR-
 TEEN-C OF THIS ARTICLE, AS APPLICABLE;
   H.  OTHER PAYROLL TAXES;
   I.  FAIR LABOR STANDARDS ACT COMPLIANCE;
   J.  NEW YORK STATE LABOR LAW COMPLIANCE;
   K.  COVID-19 SICK PAY;
   L.  STATE UNEMPLOYMENT INSURANCE;
   M.  DISABILITY  INSURANCE;
   N.  WORKERS' COMPENSATION;
   O.  TRAVEL TIME AND TRAVEL REIMBURSEMENT;
   P.  THE METROPOLITAN TRANSPORTATION AUTHORITY TAX; AND
   Q.  RELATED INCREASES  TIED  TO  BASE  WAGES;
   (2)    A COMPONENT TO REFLECT OPERATIONAL EXPENSES NECESSARY TO COMPLY
 WITH FEDERAL AND STATE STATUTORY AND REGULATORY  REQUIREMENTS  FOR  SUCH
 PROVIDERS, AND WHICH SHALL INCLUDE:
   A.   OPERATIONAL SUPERVISION AND SUPPORT, INCLUDING BUT NOT LIMITED TO
 NURSING STAFF, HOME HEALTH AIDE SUPERVISION AND TEAM SUPPORT; AND
   B.  OTHER OPERATIONAL SUPPORT, INCLUDING BUT NOT  LIMITED  TO  QUALITY
 ASSURANCE AND IMPROVEMENT PROGRAMS, EDUCATION AND RECRUITMENT; AND
   (3)  A  COMPONENT  TO  REFLECT  ADMINISTRATIVE  AND  GENERAL OPERATING
 EXPENSES WHICH SHALL INCLUDE RENT AND FACILITIES MANAGEMENT AND BUSINESS
 SUPPORT, INCLUDING BUT NOT  LIMITED  TO  INFORMATION  TECHNOLOGY,  HUMAN
 RESOURCES,  LEGAL,  COMPLIANCE, FINANCE, MANAGEMENT, MARGIN AND COMMUNI-
 CATIONS.
   (C) THE REGIONAL MINIMUM HOURLY BASE RATE CANNOT BE LESS THAN THE MOST
 CURRENT AVERAGE FEE FOR SERVICE COUNTY RATES FOR LEVEL TWO PERSONAL CARE
 SERVICE FOR EACH REGION AS POSTED BY THE DEPARTMENT  FOR  PERSONAL  CARE
 AGENCIES OR OTHER PROVIDERS DELIVERING LIKE SERVICES THROUGH OTHER MEDI-
 CAID PROGRAMS.
   (D)  ONCE  A REGIONAL   MINIMUM  HOURLY  BASE REIMBURSEMENT  RATE  HAS
 BEEN ESTABLISHED  UNDER  THIS  SECTION, THE COMMISSIONER SHALL THEREAFT-
 ER ANNUALLY ADJUST THE REGIONAL HOURLY BASE   REIMBURSEMENT   RATE   FOR
 EACH REGION  BY A TREND FACTOR TO REFLECT AND ACCOMMODATE ANY ADDITIONAL
 LABOR LAW INCREASES, CHANGES OR MANDATES.
   6.  FOR  MAINSTREAM  MANAGED CARE AND FULLY CAPITATED MEDICAID MANAGED
 CARE PRODUCTS FOR THOSE DUALLY ELIGIBLE FOR BOTH MEDICAID AND  MEDICARE,
 THE  COMMISSIONER  SHALL  SUBMIT  ANY AND ALL NECESSARY APPLICATIONS FOR
 APPROVALS AND/OR WAIVERS TO THE FEDERAL CENTERS FOR MEDICARE  AND  MEDI-
 CAID  SERVICES  TO  SECURE APPROVAL TO ESTABLISH REGIONAL MINIMUM HOURLY
 BASE REIMBURSEMENT RATES AND MAKE STATE-DIRECTED PAYMENTS    THROUGH  TO
 PROVIDERS  FOR THE PURPOSES OF SUPPORTING WAGE INCREASES.
   (A)  IF  APPROVED  BY  THE  FEDERAL  CENTERS FOR MEDICARE AND MEDICAID
 SERVICES, DIRECTED  PAYMENTS  SHALL  BE  MADE TO SUCH PROVIDERS OF MEDI-
 CAID 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.
   (B) IF THE STATE DIRECTED PAYMENT IS NOT APPROVED, THE  PROVISIONS  OF
 SUBDIVISION SEVEN OF THIS SECTION SHALL APPLY.
   7.  FOR  PARTIALLY  CAPITATED  MANAGED  LONG TERM CARE PLANS, OR WHERE
 STATE DIRECTED PAYMENTS PURSUANT TO SUBDIVISION SIX OF THIS SECTION HAVE
 NOT BEEN  APPROVED,  THE  DEPARTMENT  SHALL  REQUIRE  PLANS  TO  JUSTIFY
 CONTRACTS  OFFERING  DEVIATIONS  FROM  THE  REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT RATES IN A REPORT TO THE DEPARTMENT. THIS REPORT SHALL  BE
 SENT  TO THE DEPARTMENT, WITH A COPY TO THE PROVIDER PRIOR TO THE FINAL-
 IZING OF ANY CONTRACT, UNLESS OTHERWISE PERMITTED BY THIS SECTION, WITH-
 S. 6963                             3
 
 IN FIVE WORKING DAYS OF THE CONTRACT BEING OFFERED TO  A  PROVIDER  WITH
 RATE  DEVIATIONS.  ANY REPORT SHALL INCLUDE A RATIONALE FOR PAYING BELOW
 THE REGIONAL MINIMUM  HOURLY  BASE REIMBURSEMENT RATE, AND THE  IMPACTED
 PROVIDER  SHALL  HAVE  THE  OPPORTUNITY  TO RESPOND TO THE REPORT WITHIN
 THIRTY DAYS OF FILING WITH THE DEPARTMENT.  THE DEPARTMENT SHALL COMPILE
 SUCH REPORTS AND PUBLISH AND POST A SUMMARY OF THEM SEMI-ANNUALLY.
   8.  THE  COMMISSIONER  SHALL  ESTABLISH  ACTUARIALLY  SOUND   REGIONAL
 REIMBURSEMENT  RATE  RANGES  FOR  MEDICAID MANAGED CARE ORGANIZATIONS IN
 ORDER TO COMPLY WITH THIS SECTION.   THESE RANGES WILL  REFLECT  MANAGED
 CARE  ADJUSTMENTS  INCLUDING  BUT  NOT LIMITED TO: (A) MANAGED CARE PLAN
 VARIATIONS IN UTILIZATIONS FROM THE REGIONAL  UTILIZATION  AVERAGE;  (B)
 THE  IMPACT  OF RISK ADJUSTMENT;  AND (C) PREMIUM WITHHOLDS. RATE RANGES
 SHALL ALSO ACCOUNT FOR QUALITY INCENTIVES, VOLUME, COSTS ASSOCIATED WITH
 VALUE-BASED ARRANGEMENTS, AND REIMBURSEMENT FOR INDIVIDUALS WITH HARD TO
 SERVE NEEDS.
   9. NOTHING IN THIS SECTION SHALL  PRECLUDE  PROVIDERS  EMPLOYING  HOME
 HEALTH AIDES  COVERED   UNDER   THIS SECTION OR PAYERS  FROM  PAYING  OR
 CONTRACTING  FOR SERVICES  AT  RATES  HIGHER  THAN  THE  REGIONAL  MINI-
 MUM HOURLY BASE REIMBURSEMENT RATE IF THE PARTIES MUTUALLY AGREE TO SUCH
 TERMS. NOTWITHSTANDING SUBDIVISION SEVEN  OF  THIS  SECTION,  PLANS  AND
 PROVIDERS CAN ALSO MUTUALLY AGREE TO ENTER INTO VALUE-BASED CONTRACTS AT
 A RATE LESS THAN THE REGIONAL  MINIMUM  HOURLY BASE REIMBURSEMENT RATE.
   10.   THE COMMISSIONER SHALL AMEND THE MODEL MANAGED CARE CONTRACTS TO
 REFLECT THE REQUIREMENTS OF THIS SECTION. IN ADDITION, THE  COMMISSIONER
 SHALL  POST  THE MANAGED CARE, CERTIFIED AND LICENSED HOME CARE SERVICES
 AGENCIES  AND FISCAL INTERMEDIARIES COST REPORT DATA IN A SIMPLE  UNDER-
 STANDABLE  MANNER ON THE DEPARTMENT'S WEBSITE BY FEBRUARY FIFTEENTH, TWO
 THOUSAND TWENTY-FOUR AND ANNUALLY THEREAFTER.
   11. 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.
   12. TO ENSURE COMPLIANCE WITH  MINIMUM WAGE INCREASES, THE COMPTROLLER
 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 THIS
 SECTION TO ENSURE THAT RATES BEING OFFERED ARE  ADEQUATE  AND  MEET  THE
 DEPARTMENT'S  ACTUARIAL STANDARDS. THE COMPTROLLER, IN CONSULTATION WITH
 THE MEDICAID INSPECTOR GENERAL, SHALL 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 AND THE
 MEDICAID FRAUD CONTROL UNIT FOR ENFORCEMENT. IF THE  DEPARTMENT  OR  THE
 MEDICAID FRAUD CONTROL UNIT CHOOSES NOT TO PURSUE ACTION RELATED TO THIS
 REFERRAL,  IT  SHALL  INFORM, IN WRITING, THE COMPTROLLER'S OFFICE AS TO
 THE REASONING. SUCH REPORTS, AND THE DEPARTMENT'S  RESPONSES,  SHALL  BE
 PUBLIC INFORMATION AND MADE AVAILABLE ON THE COMPTROLLER'S WEBSITE.
   § 2. 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.
   § 3. This act shall take effect immediately.

co-Sponsors

View additional co-sponsors

2023-S6963A (ACTIVE) - Details

See Assembly Version of this Bill:: A7335
Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §3614-f, Pub Health L

2023-S6963A (ACTIVE) - Summary

Requires the commissioner of health to establish regional minimum hourly base reimbursement rates for home care aides.

2023-S6963A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S6963A

SPONSOR: RIVERA
 
TITLE OF BILL:

An act to amend the public health law, in relation to regional minimum
hourly base reimbursement rates for home care aides

 
PURPOSE::

To establish a reliable and predictable mechanism to ensure that home
care providers receive adequate reimbursement from managed care organ-
izations for the purpose of paying their employees mandated wages and
benefits and to cover other costs of the employer.

 
SUMMARY OF SPECIFIC PROVISIONS::

Section one of the legislation would add new subdivisions to section
3614-f of the public health law to:

Require the Commissioner of Health to establish a regional minimum hour-
ly base reimbursement rate for providers employing home care and

personal care aides. The legislation would also identify specific
elements of the rate that must be included in its development, including
direct care related payments, components to reflect operational expenses
necessary to comply with state and federal mandates, and an administra-
tive and general expenses component. The legislation would require the
rates reflect regional variation and not be less than the established
fee for service county rates. The legislation would also require the
rates to be adjusted annually by a trend factor.

Require the Department of Health to apply for federal approval for a
state directed payment for fully capitated Medicaid managed care plans
for the purpose of supporting the regional minimum hourly base
reimbursement rate.

Require for partially capitated managed long term care plans, and where
federal approval is not secured for state directed payment, that plans
justify contracts offering deviations from the regional minimum hourly
base reimbursement rate. Providers would have an opportunity to respond.

Ensure that the Department of Health provides managed care organizations
with sufficient capitation payments to ensure rate adequacy to comply
with the requirements of regional minimum hourly base reimbursement
rates.

Require the department to amend the Medicaid managed care model contract
rates to comply with requirements of the bill.  Require the department
to publicly post the regional minimum hourly base reimbursement rates.

Require the department to publicly post cost report data of plans and
providers in a simple and understandable manner.

Grant the comptroller the authority to review contracts to ensure rate
adequacy.

Section two of the legislation establishes a severability section.

Section three of the legislative sets the effective date.
 
JUSTIFICATION::

The need for a reliable and predictable mechanism to ensure that home
care providers receive adequate reimbursement from managed care organ-
izations for the purpose of paying their employees was made clear in
October 2022, when the $2 per hour wage increase went into effect for
home care workers. There was overall confusion about what the expecta-
tions were with regard to rate sufficiency, timing and process. Legis-
lation to set clear standards for the plans, providers, and the State is
required.

Currently, there is no common understanding on what constitutes an
adequate rate to cover a worker's wages and benefits. This legislation
would require the Department of Health (DOH) to set a minimum hourly
base reimbursement rate, including the elements that are articulated by
statute and determined by DOH. This will help establish an objective
standard against which to measure negotiated rates. By articulating the
elements of the rate that must be accounted for by the DOH, this legis-
lation would drive the rate to a formula and bring clarity and predict-
ability to the current process.  It would set objective expectations for
providers, plans, and the State regulators.

The regional minimum hourly base reimbursement rate development process
should be informed by provider cost reports and Medicaid Managed Care
Operating Reports. This information should be available broadly and in a
searchable format.

The regional minimum hourly base reimbursement rate would set expecta-
tions based upon agreed upon standards. The legislation would propose
two mechanisms to ensure that the minimum hourly base reimbursement rate
reaches the provider. For fully-capitated plans

(mainstream managed care, PACE, MAP), the State would apply to the U.S.
Centers for Medicare & Medicaid Services (CMS) for a state-directed
payment of minimum fee schedules for home care agencies and fiscal
intermediaries. Where there is no approved state-directed payment and
for Managed Long Term Care (MLTC) plans, which are not fully capitated,
the legislation would establish a reporting mechanism for plans where
they are paying less than the minimum hourly base reimbursement rate.
The plan's report must include a rationale for paying under the minimum
hourly base reimbursement rate; the impacted provider would also have
the opportunity to address the report in writing. This approach would be
paired with DOH collecting and publicly reporting this data on a regular
basis. Implementing these processes would bring visibility as to whether
there are patterns of unjustified and/or unfair behavior. The bill would
make exceptions, however, where the provider and a plan mutually agree
to enter into a value-based contract.

Finally, the bill would authorize the Comptroller to review contracts
between plans and providers to ensure compliance with regional minimum
hourly base reimbursement rates.

 
LEGISLATIVE HISTORY::

2023: S6963 (Rivera) - Referred to Health

 
FISCAL IMPLICATIONS::

None noted.

 
EFFECTIVE DATE::

This act shall take effect immediately.

2023-S6963A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  6963--A
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                               May 16, 2023
                                ___________
 
 Introduced  by Sens. RIVERA, MAY, CLEARE, COMRIE, GONZALEZ, MAYER, PARK-
   ER, SALAZAR, SKOUFIS, WEBB -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health --  recommitted  to
   the  Committee  on  Health in accordance with Senate Rule 6, sec. 8 --
   committee discharged, bill amended, ordered reprinted as  amended  and
   recommitted to said committee
 
 AN  ACT  to amend the public health law, in relation to regional minimum
   hourly base reimbursement rates for home care aides
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  Section  3614-f  of  the  public health law is amended by
 adding eight new subdivisions 5, 6, 7, 8, 9, 10, 11 and 12  to  read  as
 follows:
   5.  (A)  BY THE FIRST OF OCTOBER NEXT SUCCEEDING THE EFFECTIVE DATE OF
 THIS SUBDIVISION, 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 ARTI-
 CLE,  EACH  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  HOURLY  BASE
 REIMBURSEMENT RATE" MEANS A REIMBURSEMENT RATE THAT REFLECTS:
   (1) A DIRECT CARE RELATED PAYMENT WHICH SHALL REFLECT THE TOTAL DIRECT
 CARE  RELATED  COSTS  FOR  HOME CARE AIDES AND OTHER DIRECT CARE RELATED
 STAFF NECESSARY TO COMPLY WITH FEDERAL AND STATE STATUTORY AND REGULATO-
 RY REQUIREMENTS FOR SUCH PROVIDERS, AND WHICH SHALL INCLUDE:
   A.  BASE HOURLY WAGE GUARANTEED HOME CARE AIDES PURSUANT  TO  SUBDIVI-
 SION TWO OF THIS SECTION;
   B.  OVERTIME COSTS;
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10383-05-4

 S. 6963--A                          2
 
   C.    EMPLOYEE BENEFITS, INCLUDING BOTH PAID TIME OFF AND SUPPLEMENTAL
 BENEFITS OR BENEFITS AS DETERMINED BY COLLECTIVE BARGAINING AGREEMENTS;
   D.  FEDERAL INSURANCE CONTRIBUTIONS ACT;
   E.  MEDICARE;
   F.  FEDERAL UNEMPLOYMENT TAX ACT;
   G.  WORKER WAGE PARITY AS PROVIDED BY SECTION THIRTY-SIX HUNDRED FOUR-
 TEEN-C OF THIS ARTICLE, AS APPLICABLE;
   H.  OTHER PAYROLL TAXES;
   I.  FAIR LABOR STANDARDS ACT COMPLIANCE;
   J.  NEW YORK STATE LABOR LAW COMPLIANCE;
   K.  COVID-19 SICK PAY;
   L.  STATE UNEMPLOYMENT INSURANCE;
   M.  DISABILITY  INSURANCE;
   N.  WORKERS' COMPENSATION;
   O.  TRAVEL TIME AND TRAVEL REIMBURSEMENT;
   P.  THE METROPOLITAN TRANSPORTATION AUTHORITY TAX; AND
   Q.  RELATED INCREASES  TIED  TO  BASE  WAGES;
   (2)    A COMPONENT TO REFLECT OPERATIONAL EXPENSES NECESSARY TO COMPLY
 WITH FEDERAL AND STATE STATUTORY AND REGULATORY  REQUIREMENTS  FOR  SUCH
 PROVIDERS, AND WHICH SHALL INCLUDE:
   A.   OPERATIONAL SUPERVISION AND SUPPORT, INCLUDING BUT NOT LIMITED TO
 NURSING STAFF, HOME HEALTH AIDE SUPERVISION AND TEAM SUPPORT; AND
   B.  OTHER OPERATIONAL SUPPORT, INCLUDING BUT NOT  LIMITED  TO  QUALITY
 ASSURANCE AND IMPROVEMENT PROGRAMS, EDUCATION AND RECRUITMENT; AND
   (3)  A  COMPONENT  TO  REFLECT  ADMINISTRATIVE  AND  GENERAL OPERATING
 EXPENSES WHICH SHALL INCLUDE RENT AND FACILITIES MANAGEMENT AND BUSINESS
 SUPPORT, INCLUDING BUT NOT  LIMITED  TO  INFORMATION  TECHNOLOGY,  HUMAN
 RESOURCES,  LEGAL,  COMPLIANCE, FINANCE, MANAGEMENT, MARGIN AND COMMUNI-
 CATIONS.
   (C) THE REGIONAL MINIMUM HOURLY BASE RATE CANNOT BE LESS THAN THE MOST
 CURRENT AVERAGE FEE FOR SERVICE COUNTY RATES FOR LEVEL TWO PERSONAL CARE
 SERVICE FOR EACH REGION AS POSTED BY THE DEPARTMENT  FOR  PERSONAL  CARE
 AGENCIES OR OTHER PROVIDERS DELIVERING LIKE SERVICES THROUGH OTHER MEDI-
 CAID PROGRAMS.
   (D)  ONCE  A REGIONAL   MINIMUM  HOURLY  BASE REIMBURSEMENT  RATE  HAS
 BEEN ESTABLISHED  UNDER  THIS  SECTION, THE COMMISSIONER SHALL THEREAFT-
 ER ANNUALLY ADJUST THE REGIONAL HOURLY BASE   REIMBURSEMENT   RATE   FOR
 EACH REGION  BY A TREND FACTOR TO REFLECT AND ACCOMMODATE ANY ADDITIONAL
 LABOR LAW INCREASES, CHANGES OR MANDATES.
   6.  FOR  MAINSTREAM  MANAGED CARE AND FULLY CAPITATED MEDICAID MANAGED
 CARE PRODUCTS FOR THOSE DUALLY ELIGIBLE FOR BOTH MEDICAID AND  MEDICARE,
 THE  COMMISSIONER  SHALL  SUBMIT  ANY AND ALL NECESSARY APPLICATIONS FOR
 APPROVALS AND/OR WAIVERS TO THE FEDERAL CENTERS FOR MEDICARE  AND  MEDI-
 CAID  SERVICES  TO  SECURE APPROVAL TO ESTABLISH REGIONAL MINIMUM HOURLY
 BASE REIMBURSEMENT RATES AND MAKE STATE-DIRECTED PAYMENTS    THROUGH  TO
 PROVIDERS  FOR THE PURPOSES OF SUPPORTING WAGE INCREASES.
   (A)  IF  APPROVED  BY  THE  FEDERAL  CENTERS FOR MEDICARE AND MEDICAID
 SERVICES, DIRECTED  PAYMENTS  SHALL  BE  MADE TO SUCH PROVIDERS OF MEDI-
 CAID 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.
   (B) IF THE STATE DIRECTED PAYMENT IS NOT APPROVED, THE  PROVISIONS  OF
 SUBDIVISION SEVEN OF THIS SECTION SHALL APPLY.
   7.  FOR  PARTIALLY  CAPITATED  MANAGED  LONG TERM CARE PLANS, OR WHERE
 STATE DIRECTED PAYMENTS PURSUANT TO SUBDIVISION SIX OF THIS SECTION HAVE
 NOT BEEN  APPROVED,  THE  DEPARTMENT  SHALL  REQUIRE  PLANS  TO  JUSTIFY
 S. 6963--A                          3
 
 CONTRACTS  OFFERING  DEVIATIONS  FROM  THE  REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT RATES IN A REPORT TO THE DEPARTMENT. THIS REPORT SHALL  BE
 SENT  TO THE DEPARTMENT, WITH A COPY TO THE PROVIDER PRIOR TO THE FINAL-
 IZING OF ANY CONTRACT, UNLESS OTHERWISE PERMITTED BY THIS SECTION, WITH-
 IN  FIVE  WORKING  DAYS OF THE CONTRACT BEING OFFERED TO A PROVIDER WITH
 RATE DEVIATIONS.  ANY REPORT SHALL INCLUDE A RATIONALE FOR PAYING  BELOW
 THE  REGIONAL MINIMUM  HOURLY  BASE REIMBURSEMENT RATE, AND THE IMPACTED
 PROVIDER SHALL HAVE THE OPPORTUNITY TO  RESPOND  TO  THE  REPORT  WITHIN
 THIRTY DAYS OF FILING WITH THE DEPARTMENT.  THE DEPARTMENT SHALL COMPILE
 SUCH REPORTS AND PUBLISH AND POST A SUMMARY OF THEM SEMI-ANNUALLY.
   8.   THE  COMMISSIONER  SHALL  ESTABLISH  ACTUARIALLY  SOUND  REGIONAL
 REIMBURSEMENT RATE RANGES FOR MEDICAID  MANAGED  CARE  ORGANIZATIONS  IN
 ORDER  TO  COMPLY  WITH THIS SECTION.  THESE RANGES WILL REFLECT MANAGED
 CARE ADJUSTMENTS INCLUDING BUT NOT LIMITED TO:  (A)  MANAGED  CARE  PLAN
 VARIATIONS  IN  UTILIZATIONS  FROM THE REGIONAL UTILIZATION AVERAGE; (B)
 THE IMPACT OF RISK ADJUSTMENT;  AND (C) PREMIUM WITHHOLDS.  RATE  RANGES
 SHALL ALSO ACCOUNT FOR QUALITY INCENTIVES, VOLUME, COSTS ASSOCIATED WITH
 VALUE-BASED ARRANGEMENTS, AND REIMBURSEMENT FOR INDIVIDUALS WITH HARD TO
 SERVE NEEDS.
   9. NOTHING IN THIS SECTION SHALL  PRECLUDE  PROVIDERS  EMPLOYING  HOME
 HEALTH  AIDES    COVERED   UNDER   THIS SECTION OR PAYERS FROM PAYING OR
 CONTRACTING FOR SERVICES  AT  RATES  HIGHER  THAN  THE  REGIONAL   MINI-
 MUM HOURLY BASE REIMBURSEMENT RATE IF THE PARTIES MUTUALLY AGREE TO SUCH
 TERMS.  NOTWITHSTANDING  SUBDIVISION  SEVEN  OF  THIS SECTION, PLANS AND
 PROVIDERS CAN ALSO MUTUALLY AGREE TO ENTER INTO VALUE-BASED CONTRACTS AT
 A RATE LESS THAN THE REGIONAL  MINIMUM  HOURLY BASE REIMBURSEMENT RATE.
   10.  THE COMMISSIONER SHALL AMEND THE MODEL MANAGED CARE CONTRACTS  TO
 REFLECT  THE REQUIREMENTS OF THIS SECTION. IN ADDITION, THE COMMISSIONER
 SHALL POST THE MANAGED CARE, CERTIFIED AND LICENSED HOME  CARE  SERVICES
 AGENCIES   AND FISCAL INTERMEDIARIES COST REPORT DATA IN A SIMPLE UNDER-
 STANDABLE MANNER ON THE DEPARTMENT'S WEBSITE BY THE FIFTEENTH OF  FEBRU-
 ARY SECOND SUCCEEDING THE EFFECTIVE DATE OF THIS SUBDIVISION AND ANNUAL-
 LY THEREAFTER.
   11.  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.
   12. TO ENSURE COMPLIANCE WITH  MINIMUM WAGE INCREASES, THE COMPTROLLER
 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  THIS
 SECTION  TO  ENSURE  THAT  RATES BEING OFFERED ARE ADEQUATE AND MEET THE
 DEPARTMENT'S ACTUARIAL STANDARDS. THE COMPTROLLER, IN CONSULTATION  WITH
 THE  MEDICAID  INSPECTOR GENERAL, SHALL 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 AND THE
 MEDICAID  FRAUD  CONTROL  UNIT FOR ENFORCEMENT. IF THE DEPARTMENT OR THE
 MEDICAID FRAUD CONTROL UNIT CHOOSES NOT TO PURSUE ACTION RELATED TO THIS
 REFERRAL, IT SHALL INFORM, IN WRITING, THE COMPTROLLER'S  OFFICE  AS  TO
 THE  REASONING.  SUCH  REPORTS, AND THE DEPARTMENT'S RESPONSES, SHALL BE
 PUBLIC INFORMATION AND MADE AVAILABLE ON THE COMPTROLLER'S WEBSITE.
   § 2. 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
 S. 6963--A                          4
 
 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.
   § 3. This act shall take effect immediately.

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Senate Bill S6963A

Sponsored By

Current Bill Status - In Senate Committee Health Committee

Bill Amendments

co-Sponsors

2023-S6963 - Details

2023-S6963 - Summary

2023-S6963 - Sponsor Memo

2023-S6963 - Bill Text download pdf

co-Sponsors

2023-S6963A (ACTIVE) - Details

2023-S6963A (ACTIVE) - Summary

2023-S6963A (ACTIVE) - Sponsor Memo

2023-S6963A (ACTIVE) - Bill Text download pdf

Comments

Senate Bill S6963A

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Sponsored By

Current Bill Status - In Senate Committee Health Committee

Bill Amendments

co-Sponsors

2023-S6963 - Details

2023-S6963 - Summary

2023-S6963 - Sponsor Memo

2023-S6963 - Bill Text download pdf

co-Sponsors

2023-S6963A (ACTIVE) - Details

2023-S6963A (ACTIVE) - Summary

2023-S6963A (ACTIVE) - Sponsor Memo

2023-S6963A (ACTIVE) - Bill Text download pdf

Comments