Bill Text: NY A06329 | 2021-2022 | General Assembly | Introduced
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Enacts provisions to provide minimum wages for home care aides; requires at least 150% of minimum wage or other set minimum; directs the commissioner of health to set regional minimum rates of reimbursement for home care aides under medicaid and managed care plans.
Spectrum: Strong Partisan Bill (Democrat 92-10)
Status: (Introduced - Dead) 2022-01-05 - referred to ways and means [A06329 Detail]
Download: New_York-2021-A06329-Introduced.html
Bill Title: Enacts provisions to provide minimum wages for home care aides; requires at least 150% of minimum wage or other set minimum; directs the commissioner of health to set regional minimum rates of reimbursement for home care aides under medicaid and managed care plans.
Spectrum: Strong Partisan Bill (Democrat 92-10)
Status: (Introduced - Dead) 2022-01-05 - referred to ways and means [A06329 Detail]
Download: New_York-2021-A06329-Introduced.html
STATE OF NEW YORK ________________________________________________________________________ 6329 2021-2022 Regular Sessions IN ASSEMBLY 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: 1 Section 1. The public health law is amended by adding a new section 2 3614-f to read as follows: 3 § 3614-f. Fair pay for home care. 1. For the purpose of this section, 4 "home care aide" shall have the same meaning defined in section thirty- 5 six hundred fourteen-c of this article. 6 2. The minimum wage for a home care aide shall be no less than one 7 hundred and fifty percent of the higher of: (a) the otherwise applicable 8 minimum wage under section six hundred fifty-two of the labor law, or 9 (b) any otherwise applicable wage rule or order under article nineteen 10 of the labor law. 11 3. Where any home care aide is paid less than required by this 12 section, the home care aide, or the commissioner of labor acting on 13 behalf of the home care aide, may bring an action under article six or 14 nineteen of the labor law. 15 § 2. Paragraph (c) of subdivision 4-a of section 365-f of the social 16 services law is amended by adding a new subparagraph (v) to read as 17 follows: 18 (v) (A) The department shall analyze the certified cost reports of 19 each fiscal intermediary, grouped by regions, to establish a regional 20 minimum rate of reimbursement for each region. The regions shall be 21 established by the commissioner, provided that for areas subject to 22 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. LBD10145-01-1A. 6329 2 1 area with a different prevailing rate of total compensation, as defined 2 in that section, shall be its own region. 3 (B) For the purposes of this section, "regional minimum rate of 4 reimbursement" means a reimbursement rate reflecting the average 5 combined costs associated with the provision of direct service, reason- 6 able administrative costs as defined by the commissioner, allowances for 7 capital costs, the development of profit or reserves as allowable by law 8 or regulations of the commissioner, and any additional supplemental 9 payments. The regional minimum rate of reimbursement shall be the mini- 10 mum reimbursement rate for fiscal intermediaries providing services 11 under this section and shall be the minimum allowable reimbursement that 12 may be deemed adequate from a managed care provider, under section three 13 hundred sixty-four-j of this chapter or a managed long-term care plan, 14 under section forty-four hundred three-f of the public health law. 15 (C) In the first two years after an increase in the minimum wage has 16 been established, analysis for the regional minimum rate of reimburse- 17 ment shall factor in costs that were not captured in cost reports that 18 result from (A) that increase; and (B) wage compression from that 19 increase. 20 (D) The regional minimum rate of reimbursement shall be modified annu- 21 ally, based on cost reports submitted for the prior fiscal year, as 22 modified under this paragraph. If the minimum rate of reimbursement has 23 not been calculated prior to the start of the fiscal year, the previous 24 year's rate shall remain in place until the new rate is calculated, 25 provided that retroactive adjustments shall be made to the beginning of 26 the fiscal year. 27 § 3. Subdivision 8 of section 3612 of the public health law is amended 28 by adding a new paragraph (e) to read as follows: 29 (e)(i) The department shall analyze the certified cost reports of each 30 licensed home care services agency, grouped by regions, to establish a 31 regional minimum rate of reimbursement for each region. The regions 32 shall be established by the commissioner, provided that for areas 33 subject to section thirty-six hundred fourteen-c of this article, each 34 area with a differing prevailing rate of total compensation, as defined 35 in that section, shall be its own region. 36 (ii) For the purposes of this section, "regional minimum rate of 37 reimbursement" means a reimbursement rate reflecting the average 38 combined costs associated with the provision of direct service, reason- 39 able administrative costs as defined by the commissioner, allowances for 40 capital costs, the development of profit or reserves as allowable by law 41 or regulations of the commissioner, and any additional supplemental 42 payments. The regional minimum rate of reimbursement shall be the mini- 43 mum reimbursement rate for fiscal intermediaries providing services 44 under authorization by a local department of social services and shall 45 be the minimum allowable reimbursement that may be deemed adequate from 46 a managed care provider under section three hundred sixty-four-j of the 47 social services law or a managed long term care plan under section 48 forty-four hundred-f of this chapter. 49 (iii) In the first two years after an increase in the applicable mini- 50 mum wage has been established, determination of the regional minimum 51 rate of reimbursement shall factor in costs that were not captured in 52 cost reports that result from (A) that increase; and (B) wage 53 compression from that increase. 54 (iv) The regional minimum rate of reimbursement shall be modified 55 annually, based on cost reports submitted the prior fiscal year, as 56 modified under this paragraph. If the minimum rate of reimbursement hasA. 6329 3 1 not been calculated prior to the start of the fiscal year, the previous 2 year's rate shall remain in place until the new rate is calculated, 3 provided that retroactive adjustments shall be made to the beginning of 4 the fiscal year if reimbursements to licensed home care service agencies 5 by any party were below the new rate. 6 § 4. Section 3614-d of the public health law, as added by section 49 7 of part B of chapter 57 of the laws of 2015, is amended to read as 8 follows: 9 § 3614-d. Universal standards for coding of payment for medical 10 assistance claims for long term care. Claims for payment submitted under 11 contracts or agreements with insurers under the medical assistance 12 program for home and community-based long-term care services provided 13 under this article, by fiscal intermediaries operating pursuant to 14 section three hundred sixty-five-f of the social services law, and by 15 residential health care facilities operating pursuant to article twen- 16 ty-eight of this chapter shall have standard billing codes. Such insur- 17 ers shall include but not be limited to Medicaid managed care plans and 18 managed long term care plans. Such payments shall be based on universal 19 billing codes approved by the department or a nationally accredited 20 organization as approved by the department; provided, however, such 21 coding shall be consistent with any codes developed as part of the 22 uniform assessment system for long term care established by the depart- 23 ment and shall include, for any entity operating pursuant to this arti- 24 cle or section three hundred sixty-five-f of the social services law 25 that is unable to control the cumulative hours worked by an individual 26 in a given payroll period, a code that is specific to the hourly cost of 27 services at an overtime rate. 28 § 5. The state finance law is amended by adding a new section 91-h to 29 read as follows: 30 § 91-h. Fair pay for home care fund. 1. There is hereby established in 31 the joint custody of the commissioner of taxation and finance and the 32 comptroller, a special fund to be known as the "fair pay for home care 33 fund". 34 2. The fund shall consist of: 35 a. revenues and federal medical assistance percentage reimbursements 36 in excess of the standard reimbursement received by the department of 37 health pursuant to section thirty-seven of part B of chapter fifty-seven 38 of the laws of two thousand fifteen; 39 b. an amount equal to savings from the permanent conversion or decer- 40 tification of residential health care facility beds, as defined in 41 section twenty-eight hundred one or twenty-eight hundred two of the 42 public health law; 43 c. any unspent monies from the New York works economic development 44 funds or a life sciences initiative created by section one of chapter 45 fifty-four of the laws of two thousand seventeen which were originally 46 appropriated prior to the two thousand nineteen state fiscal year which 47 have not been bound by a contract as of April first two thousand twen- 48 ty-one and which are not otherwise legally required to be spent on capi- 49 tal projects under bonding requirements through the dormitory authority 50 of New York state or other bonding entity; and 51 d. any grants, gifts or bequests received by the state for the 52 purposes of the fund under this section. 53 3. Monies of the fund shall be distributed to the commissioner of 54 health, or the commissioner's designee, for the purpose of increasing 55 medical assistance reimbursements under title eleven of article five of 56 the social services law to entities operating under article thirty-sixA. 6329 4 1 of the public health law and section three hundred sixty-five-f of the 2 social services law for wages of home care aides, as defined in section 3 thirty-six hundred fourteen-f of the public health law. 4 § 6. The opening paragraph and paragraph (a) of subdivision 3 of 5 section 2802 of the public health law, as amended by chapter 609 of the 6 laws of 1982, is amended to read as follows: 7 Subject to the provisions of paragraph (b) of subdivision two of this 8 section, the commissioner in [approving] determining whether to approve 9 or deny the construction of a hospital shall take into consideration and 10 be empowered to request information and advice as to (a) the availabili- 11 ty of facilities or services such as preadmission, ambulatory or home 12 care services which may serve as alternatives or substitutes for the 13 whole or any part of the proposed hospital construction, and better 14 enable the state to meet its obligations to provide services in the 15 community set forth in Olmstead v L.C. (by Zimring) 527 U.S. 581 (1999); 16 § 7. Paragraphs (c) of subdivision 18 of section 364-j of the 17 social services law, as added by sections 40-c and 55 of part B of 18 chapter 57 of the laws of 2015, are amended to read as follows: 19 (c) (i) In setting such reimbursement methodologies, the department 20 shall consider costs borne by the managed care program to ensure actuar- 21 ially sound and adequate rates of payment to ensure quality of care for 22 its enrollees and shall comply with all applicable federal and state 23 laws and regulations, including, but not limited to, those relating to 24 wages, including compression from increases in the minimum wage, labor, 25 and actuarial soundness. 26 [(c)] (ii) The department [of health] shall require the independent 27 actuary selected pursuant to paragraph (b) of this subdivision to 28 provide a complete actuarial memorandum, along with all actuarial 29 assumptions made and all other data, materials and methodologies used in 30 the development of rates, to managed care providers thirty days prior to 31 submission of such rates to the centers for medicare and medicaid 32 services for approval. Managed care providers may request additional 33 review of the actuarial soundness of the rate setting process and/or 34 methodology. 35 (iii) Any contract for services under this title by a managed care 36 provider with a long term care entity shall ensure that resources made 37 available by the payer under such contract will support the recruitment, 38 hiring, training and retention of a qualified workforce capable of 39 providing quality care, including compliance with all applicable federal 40 and state laws and regulations, including, but not limited to, those 41 relating to wages and labor. A managed care provider with a long term 42 care entity shall report its method of compliance with this subdivision 43 to the department as a component of cost reports required under section 44 forty-four hundred three-f of the public health law. 45 (iv) A long term care entity that contracts with a managed care 46 provider shall annually submit written certification to the department 47 as a component of cost reports required under section thirty-six 48 hundred twelve of the public health law and sections three hundred 49 sixty-five-a and three hundred sixty-seven-q of this title, as applica- 50 ble, as to how it applied the amounts paid in compliance with 51 this subdivision to support the recruitment, hiring, training and 52 retention of a qualified workforce capable of providing quality care 53 and consistent with section three hundred sixty-five-a of this title. 54 § 8. Subdivision 8 of section 4403-f of the public health law, as 55 amended by section 21 of part B of chapter 59 of the laws of 2016, is 56 amended to read as follows:A. 6329 5 1 8. Payment rates for managed long term care plan enrollees eligible 2 for medical assistance. The commissioner shall establish payment rates 3 for services provided to enrollees eligible under title XIX of the 4 federal social security act. Such payment rates shall be subject to 5 approval by the director of the division of the budget and shall reflect 6 savings to both state and local governments when compared to costs which 7 would be incurred by such program if enrollees were to receive compara- 8 ble health and long term care services on a fee-for-service basis in the 9 geographic region in which such services are proposed to be provided. 10 Payment rates shall be risk-adjusted to take into account the character- 11 istics of enrollees, or proposed enrollees, including, but not limited 12 to: frailty, disability level, health and functional status, age, 13 gender, the nature of services provided to such enrollees, and other 14 factors as determined by the commissioner. The risk adjusted premiums 15 may also be combined with disincentives or requirements designed to 16 mitigate any incentives to obtain higher payment categories. In setting 17 such payment rates, the commissioner shall consider costs borne by the 18 managed care program to ensure actuarially sound and adequate rates of 19 payment to ensure quality of care and shall comply with all applicable 20 laws and regulations, state and federal, including [regulations as to], 21 but not limited to, those relating to wages, labor and actuarial sound- 22 ness [for medicaid managed care]. 23 § 9. Paragraph (c) of subdivision 1 of section 92 of part H of chapter 24 59 of the laws of 2011 amending the public health law and other laws 25 relating to known and projected department of health state fund Medicaid 26 expenditures, as amended by section 1 of part CCC of chapter 56 of the 27 laws of 2020, is amended to read as follows: 28 (c) Projections may be adjusted by the director of the budget to 29 account for any changes in the New York state federal medical assistance 30 percentage amount established pursuant to the federal social security 31 act, changes in provider revenues, reductions to local social services 32 district medical assistance administration, minimum wage increases, 33 increases to the mandatory base wage for home care workers pursuant to 34 article 36 of the public health law, and beginning April 1, 2012 the 35 operational costs of the New York state medical indemnity fund and state 36 costs or savings from the basic health plan. Such projections may be 37 adjusted by the director of the budget to account for increased or expe- 38 dited department of health state funds medicaid expenditures as a result 39 of a natural or other type of disaster, including a governmental decla- 40 ration of emergency. 41 § 10. Paragraph (a) of subdivision 3 of section 3614-c of the public 42 health law is amended by adding a new subparagraph (v) to read as 43 follows: 44 (v) for all periods on or after July first, two thousand twenty-one, 45 the cash portion of the minimum rate of home care aide total compen- 46 sation shall be the minimum wage for home care aides in the applicable 47 region, as defined in section thirty-six hundred fourteen-f of this 48 article. The benefit portion of the minimum rate of home care aide total 49 compensation shall be four dollars and eighty-four cents. 50 § 11. Subparagraph (iv) of paragraph (b) of subdivision 3 of section 51 3614-c of the public health law, as amended by section 1 of part OO of 52 chapter 56 of the laws of 2020, is amended and a new subparagraph (v) is 53 added to read as follows: 54 (iv) for all periods on or after March first, two thousand sixteen, 55 the cash portion of the minimum rate of home care aide total compen- 56 sation shall be ten dollars or the minimum wage as laid out in paragraphA. 6329 6 1 (b) of subdivision one of section six hundred fifty-two of the labor 2 law, whichever is higher. The benefit portion of the minimum rate of 3 home care aide total compensation shall be three dollars and twenty-two 4 cents[.]; 5 (v) for all periods on or after July first, two thousand twenty-one, 6 the cash portion of the minimum rate of home care aide total compen- 7 sation shall be the minimum wage for the applicable region, as defined 8 in section thirty-six hundred fourteen-f of this chapter. The benefit 9 portion of the minimum rate of home care aide total compensation shall 10 be three dollars and eighty-nine cents. 11 § 12. Severability. If any provision of this act, or any application 12 of any provision of this act, is held to be invalid, that shall not 13 affect the validity or effectiveness of any other provision of this act, 14 any other application of any provision of this act, or any other 15 provision of any law or code amended by this act. 16 § 13. This act shall take effect immediately; provided, however, that 17 the amendments to section 364-j of the social services law made by 18 section seven of this act and the amendments to section 4403-f of the 19 public health law made by section eight of this act shall not affect the 20 repeal of such sections and shall expire and be deemed repealed there- 21 with.
