§ 367-w. Health care and mental hygiene worker bonuses. 1. Purpose and
intent. New York's essential front line health care and mental hygiene
workers have seen us through a once-in-a-century public health crisis
and turned our state into a model for battling and beating COVID-19. To
attract talented people into the profession at a time of such
significant strain while also retaining those who have been working so
tirelessly these past two years, we must recognize the efforts of our
health care and mental hygiene workforce and reward them financially for
their service.

To do that, the commissioner of health is hereby directed to seek
federal approvals as applicable, and, subject to federal financial
participation, to support with federal and state funding bonuses to be
made available during the state fiscal year of 2023 to recruit, retain,
and reward health care and mental hygiene workers.

2. Definitions. As used in this section, the term:

(a) "Employee" means certain front line health care and mental hygiene
practitioners, technicians, assistants and aides that provide hands on
health or care services to individuals, without regard to whether the
person works full-time, part-time, on a salaried, hourly, or temporary
basis, or as an independent contractor, that received an annualized base
salary of one hundred twenty-five thousand dollars or less, to include:

(i) Physician assistants, dental hygienists, dental assistants,
psychiatric aides, pharmacists, pharmacy technicians, physical
therapists, physical therapy assistants, physical therapy aides,
occupational therapists, occupational therapy assistants, occupational
therapy aides, speech-language pathologists, respiratory therapists,
exercise physiologists, recreational therapists, all other therapists,
orthotists, prosthetists, clinical laboratory technologists and
technicians, diagnostic medical sonographers, nuclear medicine
technologists, radiologic technologists, magnetic resonance imaging
technologists, ophthalmic medical technicians, radiation therapists,
dietetic technicians, cardiovascular technologists and technicians,
certified first responders, emergency medical technicians, advanced
emergency medical technicians, paramedics, surgical technologists, all
other health technologists and technicians, orderlies, medical
assistants, phlebotomists, all other health care support workers, nurse
anesthetists, nurse midwives, nurse practitioners, registered nurses,
nursing assistants, and licensed practical and licensed vocational
nurses;

(ii) to the extent not already included in subparagraph (i) of this
paragraph, staff who perform functions as described in the consolidated
fiscal report (CFR) manual with respect to the following title codes:

Mental Hygiene Worker;

Residence/Site Worker;

Counselor (OMH);

Manager (OMH);

Senior Counselor (OMH);

Supervisor (OMH);

Developmental Disabilities Specialist QIDP - Direct Care (OPWDD);

Certified Recovery Peer Advocate;

Peer Professional - Non-CRPA (OASAS Only);

Job Coach/Employment Specialist (OMH and OPWDD);

Peer Specialist (OMH);

Counselor - Alcoholism and Substance Abuse (CASAC);

Counseling Aide/Assistant - Alcoholism and Substance Abuse;

Other Direct Care Staff;

Case Manager;

Counselor - Rehabilitation;

Developmental Disabilities Specialist/Habilitation Specialist QIDP -
Clinical (OPWDD);

Emergency Medical Technician;

Intensive Case Manager (OMH);

Intensive Case Manager/Coordinator (OMH);

Nurse - Licensed Practical;

Nurse - Registered;

Psychologist (Licensed);

Psychologist (Master's Level)/Behavioral Specialist;

Psychology Worker/Other Behavioral Worker;

Social Worker - Licensed (LMSW, LCSW);

Social Worker - Master's Level (MSW);

Licensed Mental Health Counselor (OASAS, OMH, OCFS);

Licensed Psychoanalyst (OMH);

Therapist - Recreation;

Therapist - Activity/Creative Arts;

Therapist - Occupational;

Dietician/Nutritionist;

Therapy Assistant/Activity Assistant;

Nurse's Aide/Medical Aide;

Behavior Intervention Specialist 1 (OPWDD);

Behavior Intervention Specialist 2 (OPWDD);

Clinical Coordinator;

Intake/Screening;

Pharmacist;

Marriage and Family Counselor/Therapist;

Residential Treatment Facility (RTF) Transition Coordinator (OMH);

Crisis Prevention Specialist (OMH);

Early Recognition Specialist (OMH);

Other Clinical Staff/Assistants;

Nurse Practitioner/Nursing Supervisor;

Therapist - Physical;

Therapist - Speech;

Program or Site Director; and

Assistant Program or Assistant Site Director; and

(iii) such titles as determined by the commissioner, or relevant
agency commissioner as applicable, and approved by the director of the
budget.

(b) "Employer" means a provider enrolled in the medical assistance
program under this title that employs at least one employee and that
bills for services under the state plan or a home and community based
services waiver authorized pursuant to subdivision (c) of section
nineteen hundred fifteen of the federal social security act, or that has
a provider agreement to bill for services provided or arranged through a
managed care provider under section three hundred sixty-four-j of this
title or a managed long term care plan under section forty-four hundred
three-f of the public health law, to include:

(i) providers and facilities licensed, certified or otherwise
authorized under articles twenty-eight, thirty, thirty-six or forty of
the public health law, articles sixteen, thirty-one, thirty-two or
thirty-six of the mental hygiene law, article seven of this chapter,
fiscal intermediaries under section three hundred sixty-five-f of this
title, pharmacies registered under section six thousand eight hundred
eight of the education law, or school based health centers;

(ii) programs that participate in the medical assistance program and
are funded by the office of mental health, the office of addiction
services and supports, or the office for people with developmental
disabilities; and

(iii) other provider types determined by the commissioner and approved
by the director of the budget;

(iv) provided, however, that unless the provider is subject to a
certificate of need process as a condition of state licensure or
approval, such provider shall not be an employer under this section
unless at least twenty percent of the provider's patients or persons
served are eligible for services under this title and title XIX of the
federal social security act.

(c) Notwithstanding the definition of employer in paragraph (b) of
this subdivision, and without regard to the availability of federal
financial participation, "employer" shall also include an institution of
higher education, a public or nonpublic school, a charter school, an
approved preschool program for students with disabilities, a school
district or boards of cooperative educational services, programs funded
by the office of mental health, programs funded by the office of
addiction services and supports, programs funded by the office for
people with developmental disabilities, programs funded by the office
for the aging, a health district as defined in section two of the public
health law, or a municipal corporation, where such program or entity
employs at least one employee. Such employers shall be required to
enroll in the system designated by the commissioner, or relevant agency
commissioners, in consultation with the director of the budget, for the
purpose of claiming bonus payments under this section. Such system or
process for claiming bonus payments may be different from the system and
process used under subdivision three of this section.

(d) "Vesting period" shall mean a series of six-month periods between
the dates of October first, two thousand twenty-one and March
thirty-first, two thousand twenty-four for which employees that are
continuously employed by an employer during such six-month periods, in
accordance with a schedule issued by the commissioner or relevant agency
commissioner as applicable, may become eligible for a bonus pursuant to
subdivision four of this section.

(e) "Base salary" shall mean, for the purposes of this section, the
employee's gross wages with the employer during the vesting period,
excluding any bonuses or overtime pay.

(f) "Municipal corporation" means a county outside the city of New
York, a city, including the city of New York, a town, a village, or a
school district.

3. Tracking and submission of claims for bonuses. (a) The
commissioner, in consultation with the commissioner of labor and the
Medicaid inspector general, and subject to any necessary approvals by
the federal centers for Medicare and Medicaid services, shall develop
such forms and procedures as may be needed to identify the number of
hours employees worked and to provide reimbursement to employers for the
purposes of funding employee bonuses in accordance with hours worked
during the vesting period.

(b) Using the forms and processes developed by the commissioner under
this subdivision, employers shall, for a period of time specified by the
commissioner:

(i) track the number of hours that employees work during the vesting
period and, as applicable, the number of patients served by the employer
who are eligible for services under this title; and

(ii) submit claims for reimbursement of employee bonus payments. In
filling out the information required to submit such claims, employers
shall use information obtained from tracking required pursuant to
paragraph (a) of this subdivision and provide such other information as
may be prescribed by the commissioner. In determining an employee's
annualized base salary, the employer shall use information based on
payroll records.

(c) Employers shall be responsible for determining whether an employee
is eligible under this section and shall maintain and make available
upon request all records, data and information the employer relied upon
in making the determination that an employee was eligible, in accordance
with paragraph (d) of this subdivision.

(d) Employers shall maintain contemporaneous records for all tracking
and claims related information and documents required to substantiate
claims submitted under this section for a period of no less than six
years. Employers shall furnish such records and information, upon
request, to the commissioner, the Medicaid inspector general, the
commissioner of labor, the secretary of the United States Department of
Health and Human Services, and the deputy attorney general for Medicaid
fraud control.

4. Payment of worker bonuses. (a) Upon issuance of a vesting schedule
by the commissioner, or relevant agency commissioner as applicable,
employers shall be required to pay bonuses to employees pursuant to such
schedule based on the number of hours worked during the vesting period.
The schedule shall provide for total payments not to exceed three
thousand dollars per employee in accordance with the following:

(i) employees who have worked an average of at least twenty but less
than thirty hours per week over the course of a vesting period would
receive a five hundred dollar bonus for the vesting period;

(ii) employees who have worked an average of at least thirty but less
than thirty-five hours per week over the course of a vesting period
would receive a one thousand dollar bonus for such vesting period;

(iii) employees who have worked an average of at least thirty-five
hours per week over the course of a vesting period would receive a one
thousand five hundred dollar bonus for such vesting period.

(iv) full-time employees who are exempt from overtime compensation as
established in the labor commissioner's minimum wage orders or otherwise
provided by New York state law or regulation over the course of a
vesting period would receive a one thousand five hundred dollar bonus
for such vesting period.

(b) Notwithstanding paragraph (a) of this subdivision, the
commissioner may through regulation specify an alternative number of
vesting periods, provided that total payments do not exceed three
thousand dollars per employee.

(c) Employees shall be eligible for bonuses for no more than two
vesting periods per employer, in an amount equal to but not greater than
three thousand dollars per employee across all employers.

(d) Upon completion of a vesting period with an employer, an employee
shall be entitled to receive the bonus and the employer shall be
required to pay the bonus no later than the date specified under this
subdivision, provided however that prior to such date the employee does
not terminate, through action or inaction, the employment relationship
with the employer, in accordance with any employment agreement,
including a collectively bargained agreement, if any, between the
employee and employer.

(e) Any bonus due and payable to an employee under this section shall
be made by the employer no later than thirty days after the bonus is
paid to the employer.

(f) an employer shall be required to submit a claim for a bonus to the
department no later than thirty days after an employee's eligibility for
a bonus vests, in accordance with and upon issuance of the schedule
issued by the commissioner or relevant agency commissioner.

(g) No portion of any dollars received from claims under subparagraph
(ii) of paragraph (b) of subdivision three of this section for employee
bonuses shall be returned to any person other than the employee to whom
the bonus is due or used to reduce the total compensation an employer is
obligated to pay to an employee under section thirty-six hundred
fourteen-c of the public health law, section six hundred fifty-two of
the labor law, or any other provisions of law or regulations, or
pursuant to any collectively bargained agreement.

(h) No portion of any bonus available pursuant to this subdivision
shall be payable to a person who has been suspended or excluded under
the medical assistance program during the vesting period and at the time
an employer submits a claim under this section.

(i) The use of any accruals or other leave, including but not limited
to sick, vacation, or time used under the family medical leave act,
shall be credited towards and included in the calculation of the average
number of hours worked per week over the course of the vesting period.

5. Audits, investigations and reviews. (a) The Medicaid inspector
general shall, in coordination with the commissioner, conduct audits,
investigations and reviews of employers required to submit claims under
this section. Such claims, inappropriately paid, under this section
shall constitute overpayments as that term is defined under the
regulations governing the medical assistance program. The Medicaid
inspector general may recover such overpayments to employers as it would
an overpayment under the medical assistance program, impose sanctions up
to and including exclusion from the medical assistance program, impose
penalties, and take any other action authorized by law where:

(i) an employer claims a bonus not due to an employee or a bonus
amount in excess of the correct bonus amount due to an employee;

(ii) an employer claims, receives and fails to pay any part of the
bonus due to a designated employee;

(iii) an employer fails to claim a bonus due to an employee.

(b) Any employer identified in paragraph (a) of this subdivision who
fails to identify, claim and pay any bonus for more than ten percent of
its employees eligible for the bonus shall also be subject to additional
penalties under subdivision four of section one hundred forty-five-b of
this article.

(c) Any employer who fails to pay any part of the bonus payment to a
designated employee shall remain liable to pay such bonus to that
employee, regardless of any recovery, sanction or penalty the Medicaid
inspector general may impose.

(d) In all instances recovery of inappropriate bonus payments shall be
recovered from the employer. The employer shall not have the right to
recover any inappropriately paid bonus from the employee.

(e) Where the Medicaid inspector general sanctions an employer for
violations under this section, they may also sanction any affiliates as
defined under the regulations governing the medical assistance program.

6. Rules and regulations. The commissioner, in consultation with the
Medicaid inspector general as it relates to subdivision five of this
section, may promulgate rules, to implement this section pursuant to
emergency regulation; provided, however, that this provision shall not
be construed as requiring the commissioner to issue regulations to
implement this section.