STATE OF NEW YORK
________________________________________________________________________
3189--A
2023-2024 Regular Sessions
IN SENATE
January 30, 2023
___________
Introduced by Sens. MAY, ADDABBO, BAILEY, BRESLIN, BRISPORT, BROUK, CHU,
CLEARE, COMRIE, COONEY, FELDER, FERNANDEZ, GALLIVAN, GIANARIS, GONZA-
LEZ, GOUNARDES, HARCKHAM, HELMING, HINCHEY, HOYLMAN-SIGAL, JACKSON,
KAVANAGH, KENNEDY, LIU, MANNION, MAYER, MYRIE, OBERACKER, PALUMBO,
PARKER, RAMOS, RIVERA, SALAZAR, SANDERS, SEPULVEDA, SERRANO, SKOUFIS,
STAVISKY, TEDISCO, THOMAS, WEBB, WEIK -- read twice and ordered print-
ed, 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 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:
1 Section 1. This act shall be known and may be cited as the "fair pay
2 for home care act".
3 § 2. Subdivision 2 of section 3614-f of the public health law, as
4 amended by section 3 of part NN of chapter 57 of the laws of 2023, is
5 amended to read as follows:
6 2. (a) Beginning October first, two thousand twenty-two, in addition
7 to the otherwise applicable minimum wage under section six hundred
8 fifty-two of the labor law, or any otherwise applicable wage rule or
9 order under article nineteen of the labor law, the minimum wage for a
10 home care aide shall be increased by an amount of two dollars and zero
11 cents.
12 (b) [for] For the period January first, two thousand twenty-four
13 through December thirty-first, two thousand twenty-four, the minimum
14 wage for a home care aide shall be as follows:
15 (i) for each hour worked in downstate, eighteen dollars and fifty-five
16 cents; and
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD01890-05-4
S. 3189--A 2
1 (ii) for each hour worked in remainder of state, seventeen dollars and
2 fifty-five cents;
3 (c) [for] For the period January first, two thousand twenty-five
4 through [December thirty-first] April first, two thousand twenty-five,
5 the minimum wage for a home care aide shall be as follows:
6 (i) for each hour worked in downstate, nineteen dollars and ten cents;
7 and
8 (ii) for each hour worked in remainder of state, eighteen dollars and
9 ten cents;
10 (d) [for] For the period [January first, two thousand twenty-six
11 through December thirty-first, two thousand twenty-six, the minimum wage
12 for a home care aide shall be as follows:
13 (i) for each hour worked in downstate, nineteen dollars and sixty-five
14 cents; and
15 (ii) for each hour worked in remainder of state, eighteen dollars and
16 sixty-five cents;
17 (e) beginning January first, two thousand twenty-seven, and each Janu-
18 ary first thereafter, the minimum wage for a home care aide shall be the
19 sum of the minimum wage for a home care aide from the prior calendar
20 year and the home care worker wage adjustment.
21 (f) (i) Notwithstanding any provision of law to the contrary, in no
22 event shall the minimum wage for a home care aide in downstate exceed
23 the sum of the wage set by the commissioner of labor pursuant to para-
24 graph (a) of subdivision one-b of section six hundred fifty-two of the
25 labor law plus three dollars and zero cents.
26 (ii) Notwithstanding any provision of law to the contrary, in no event
27 shall the minimum wage for a home care aide in remainder of state exceed
28 the sum of the wage set by the commissioner of labor pursuant to para-
29 graph (b) of subdivision one-b of section six hundred fifty-two of the
30 labor law plus three dollars and zero cents] on and after April second,
31 two thousand twenty-five, the minimum wage for a home care aide shall be
32 no less than one hundred fifty percent of the applicable statewide mini-
33 mum wage or applicable regional minimum wage pursuant to section six
34 hundred fifty-two of the labor law.
35 § 3. Section 3614-f of the public health law is amended by adding five
36 new subdivisions 5, 6, 7, 8 and 9 to read as follows:
37 5. (a) The commissioner shall establish a regional minimum hourly base
38 reimbursement rate for all providers employing workers subject to the
39 minimum wage provisions established in subdivision two of this section.
40 The regional minimum hourly base reimbursement rate shall be based on
41 regions established by the commissioner, provided that for areas subject
42 to section thirty-six hundred fourteen-c of this article, each area with
43 a different prevailing rate of total compensation, as defined in such
44 section, shall be its own region.
45 (b) For the purposes of this section, "regional minimum hourly base
46 reimbursement rate" means a reimbursement rate that reflects the average
47 combined costs associated with the provision of direct service inclusive
48 of, but not limited to:
49 (i) overtime costs;
50 (ii) transportation costs;
51 (iii) all benefits;
52 (iv) all payroll taxes, including but not limited to the federal
53 insurance contributions act, medicare, the federal unemployment tax act,
54 state unemployment insurance, disability insurance, workers' compen-
55 sation, and the metropolitan transportation authority tax;
56 (v) related increases tied to base wages such as compression;
S. 3189--A 3
1 (vi) reasonable administrative costs as defined by the commissioner;
2 (vii) allowances for capital costs;
3 (viii) the development of profit or reserves as allowable by law or
4 regulations of the commissioner; and
5 (ix) any additional supplemental payments.
6 (c) Following the initial established regional minimum hourly base
7 reimbursement rate established under this section, the commissioner
8 shall annually adjust the regional minimum hourly base reimbursement
9 rate for each region by a trend factor to reflect and accommodate any
10 additional labor law increases, changes or mandates. Updated rates shall
11 be made publicly available the first day of each October thereafter for
12 use on the first day of January of the following year.
13 6. (a) No payment made to a provider who employs home care aides
14 subject to this section that is less than the regional minimum hourly
15 base reimbursement rate established pursuant to subdivision five of this
16 section for services provided under authorization by a local department
17 of social services, a managed care provider under section three hundred
18 sixty-four-j of the social services law, or a managed long-term care
19 provider under section forty-four hundred three-f of this chapter shall
20 be deemed adequate.
21 (b) The commissioner shall submit any and all necessary applications
22 for approvals and/or waivers to the federal centers for medicare and
23 medicaid services to secure approval to establish regional minimum hour-
24 ly base reimbursement rates and make state-directed payments to provid-
25 ers for the purposes of supporting wage increases.
26 (i) If approved, directed payments shall be made to such providers of
27 medicaid services through contracts with managed care organizations
28 where applicable, provided that the commissioner ensures that such
29 directed payments are in accordance with the terms of this section.
30 (ii) If the state directed payment is not approved, the department
31 shall require plans to justify deviations apart from the regional mini-
32 mum hourly base reimbursement rates.
33 (c) The commissioner shall ensure that managed care capitation is
34 adjusted to ensure rate adequacy for the managed care organizations in
35 order to comply with this section.
36 7. Nothing in this section shall preclude providers employing home
37 care aides covered under this section or payers from paying or contract-
38 ing for services at rates higher than the regional minimum hourly base
39 reimbursement rate if the parties agree to such terms.
40 8. The commissioner shall publish and post regional minimum hourly
41 base reimbursement rates annually and shall take all necessary steps to
42 advise commercial and government programs payers of home care services
43 of the regional minimum hourly base reimbursement rates and require
44 other state authorized payers to reimburse providers of home care
45 services at the regional minimum hourly base reimbursement rate.
46 9. For years in which rate adjustments to the regional minimum hourly
47 base reimbursement rate have not been calculated prior to the start of
48 the calendar year, the previous year's rate shall remain in place until
49 the new rate is calculated, plus the annual average consumer price
50 index-urban or consumer price index-rural, as applicable. If it is
51 determined that retroactive rate adjustments are necessary, payment
52 adjustments will be made as a direct pass through to providers within
53 sixty days of the adjusted rate.
54 § 4. To ensure compliance with this minimum wage increase, the comp-
55 troller shall have the authority to review the contracts entered into
56 between a managed care organization and a licensed home care services
S. 3189--A 4
1 agency, fiscal intermediary, or any agency subject to the provisions of
2 section 3614-f of the public health law to ensure that rates being
3 offered are adequate and meet the department of health's actuarial stan-
4 dards. The comptroller, in consultation with the medicaid fraud control
5 unit, may develop and promulgate a process to ensure such audits comply
6 with state and federal law to protect proprietary information and
7 contracts. In the event that the comptroller finds evidence that managed
8 care organizations are not paying sufficient adequate rates, they will
9 refer such instances to the department of health and the medicaid fraud
10 control unit for enforcement. If the department of health or the medi-
11 caid fraud control unit chooses not to pursue action related to this
12 referral, it shall inform, in writing, the comptroller's office as to
13 the reasoning. Such reports, and the department of health's responses,
14 shall be public information and made available on the comptroller's
15 website. For the purposes of this section, the term "managed care organ-
16 ization" shall mean an entity operating pursuant to section 364-j of the
17 social services law or article 44 of the public health law.
18 § 5. 1. The commissioners of the departments of taxation and finance,
19 health and labor, in consultation with the office of temporary and disa-
20 bility assistance, shall undertake a study regarding the use of an
21 expanded state earned income tax credit as a strategy to improve the
22 home care aide workforce. Such study shall include an evaluation of
23 issues, including but not limited to:
24 a. the range of increase needed to increase total compensation to the
25 median compensation by county and/or region;
26 b. implementation challenges related to a specific sector enhanced
27 earned income credit;
28 c. possible effects on worker recruitment and retention;
29 d. fiscal impact on the state; and
30 e. any other issues as determined by the commissioners and depart-
31 ments.
32 2. The study shall include a public hearing and/or other processes to
33 gather information from all interested parties. The commissioner of
34 taxation and finance shall report the findings of the study no later
35 than nine months after the effective date of this act or December 31,
36 2024, whichever is sooner.
37 § 6. Severability. If any provision of this act, or any application
38 of any provision of this act, is held to be invalid, or to violate or be
39 inconsistent with any federal law or regulation, that shall not affect
40 the validity or effectiveness of any other provision of this act, or any
41 other application of any provision of this act which can be given effect
42 without that provision or application; and to that end, the provisions
43 and applications of this act are severable.
44 § 7. This act shall take effect immediately; provided, however, that
45 section two of this act shall take effect January 1, 2025.