S T A T E   O F   N E W   Y O R K
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                                 7257--B
                                                        Cal. No. 277

                       2015-2016 Regular Sessions

                          I N  A S S E M B L Y

                             April 29, 2015
                               ___________

Introduced  by  M. of A. TITUS, HEASTIE, AUBRY, HOOPER, WRIGHT, FARRELL,
  DINOWITZ,  PEOPLES-STOKES,  MARKEY,  KAVANAGH,  ABINANTI,   SEPULVEDA,
  BRAUNSTEIN,  CLARK,  DenDEKKER, FAHY, GOTTFRIED, JAFFEE, MAYER, ROSEN-
  THAL, CAHILL, PICHARDO, COLTON, MORELLE, BRONSON, RUSSELL,  SKARTADOS,
  JEAN-PIERRE, KAMINSKY, MOYA, RODRIGUEZ, WALKER, LINARES -- Multi-Spon-
  sored  by -- M.  of A. BLAKE, COOK, CRESPO, DAVILA, GANTT, GLICK, KIM,
  LAVINE, LIFTON, MAGNARELLI, MOSLEY, NOLAN, ORTIZ, OTIS,  PERRY,  PRET-
  LOW, RAMOS, ROBINSON, ROZIC, SCHIMEL, SIMOTAS, SOLAGES, STECK, THIELE,
  TITONE,  WEINSTEIN,  WEPRIN -- read once and referred to the Committee
  on  Labor  --  advanced  to  a  third  reading,  amended  and  ordered
  reprinted,  retaining its place on the order of third reading -- again
  amended on third reading, ordered reprinted, retaining  its  place  on
  the order of third reading

AN ACT to amend the labor law, the education law and the general munici-
  pal  law,  in relation to the minimum wage; to amend the public health
  law, in relation to home care worker wage parity; and to amend part  H
  of  chapter 59 of the laws of 2011, amending the public health law and
  other laws relating to known and projected department of health  state
  fund medicaid expenditures, in relation to medicaid disbursements

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Paragraph (n) of subdivision 5 of section 651 of the  labor
law,  as  amended by chapter 481 of the laws of 2010, is amended to read
as follows:
  (n) by [a] THE federal[, state or municipal] government  or  political
subdivision  thereof.  The exclusions from the term "employee" contained
in this subdivision shall be as defined by regulations  of  the  commis-
sioner; or
  S  2.  Subdivision  6  of  section 651 of the labor law, as amended by
chapter 281 of the laws of 2002, is amended to read as follows:

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD10738-05-6
              

A. 7257--B                          2

  6.  "Employer"  includes  any  individual,  partnership,  association,
corporation,  limited liability company, business trust, legal represen-
tative, STATE OR MUNICIPAL GOVERNMENT OR POLITICAL SUBDIVISION  THEREOF,
or any organized group of persons acting as employer.
  S  3.  Subdivision  1  of  section 652 of the labor law, as amended by
section 1 of part P of chapter 57 of the laws of 2013 is amended to read
as follows:
  1. Statutory. (A) Every employer shall pay to each  of  its  employees
for each hour worked a wage of not less than:
  $4.25 on and after April 1, 1991,
  $5.15 on and after March 31, 2000,
  $6.00 on and after January 1, 2005,
  $6.75 on and after January 1, 2006,
  $7.15 on and after January 1, 2007,
  $8.00 on and after December 31, 2013,
  $8.75 on and after December 31, 2014,
  $9.00  on and after December 31, 2015, or, if greater, such other wage
as may be established by federal law pursuant to 29 U.S.C.  section  206
or its successors
or  such  other  wage  as  may  be  established  in  accordance with the
provisions of this article.
  (B) EMPLOYERS IN ALL AREAS OF THE STATE NOT COVERED BY  PARAGRAPH  (C)
OF  THIS  SUBDIVISION  SHALL  PAY TO EACH OF ITS EMPLOYEES FOR EACH HOUR
WORKED A WAGE OF NOT LESS THAN:
  $9.75 ON AND AFTER JULY 1, 2016,
  $10.75 ON AND AFTER DECEMBER 31, 2016,
  $11.75 ON AND AFTER DECEMBER 31, 2017,
  $12.75 ON AND AFTER DECEMBER 31, 2018,
  $13.75 ON AND AFTER DECEMBER 31, 2019,
  $14.50 ON AND AFTER DECEMBER 31, 2020, AND
  $15.00, AND ON AND AFTER DECEMBER  31,  2021  AND  ON  EACH  FOLLOWING
DECEMBER THIRTY-FIRST, THE COMMISSIONER SHALL CALCULATE AND ESTABLISH AN
ADJUSTED  MINIMUM  WAGE RATE BY INCREASING THE THEN CURRENT MINIMUM WAGE
RATE BY THE RATE OF INFLATION FOR THE MOST RECENT  TWELVE  MONTH  PERIOD
AVAILABLE  PRIOR  TO EACH DECEMBER THIRTY-FIRST USING THE CONSUMER PRICE
INDEX-ALL URBAN CONSUMERS, CPI-U, OR A SUCCESSOR INDEX AS CALCULATED  BY
THE  UNITED  STATES  DEPARTMENT  OF  LABOR, IF SUCH RATE OF INFLATION IS
GREATER THAN ZERO PERCENT, OR, IF GREATER, SUCH OTHER  WAGE  AS  MAY  BE
ESTABLISHED  BY  FEDERAL  LAW  PURSUANT  TO 29 U.S.C. SECTION 206 OR ITS
SUCCESSORS OR SUCH OTHER WAGE AS MAY BE ESTABLISHED IN  ACCORDANCE  WITH
THE PROVISIONS OF THIS ARTICLE.
  (C) EMPLOYERS IN A CITY WITH A POPULATION IN EXCESS OF ONE MILLION AND
IN COUNTIES WITH A POPULATION OF NINE HUNDRED THOUSAND OR MORE THAT FALL
WITHIN  THE  METROPOLITAN COMMUTER TRANSPORTATION DISTRICT AS DEFINED IN
SECTION TWELVE HUNDRED SIXTY-TWO OF THE PUBLIC  AUTHORITIES  LAW,  SHALL
PAY  TO  EACH  OF  ITS EMPLOYEES FOR EACH HOUR WORKED A WAGE OF NOT LESS
THAN:
  $10.50 ON AND AFTER JULY 1, 2016,
  $12.00 ON AND AFTER DECEMBER 31, 2016,
  $13.50 ON AND AFTER DECEMBER 31, 2017, AND
  $15.00 ON AND AFTER DECEMBER 31, 2018 AND ON EACH  FOLLOWING  DECEMBER
THIRTY-FIRST, THE COMMISSIONER SHALL CALCULATE AND ESTABLISH AN ADJUSTED
MINIMUM  WAGE  RATE  BY INCREASING THE THEN CURRENT MINIMUM WAGE RATE BY
THE RATE OF INFLATION FOR THE MOST RECENT TWELVE MONTH PERIOD  AVAILABLE
PRIOR  TO  EACH DECEMBER THIRTY-FIRST USING THE CONSUMER PRICE INDEX-ALL
URBAN CONSUMERS, CPI-U, OR A SUCCESSOR INDEX AS CALCULATED BY THE UNITED

A. 7257--B                          3

STATES DEPARTMENT OF LABOR, IF SUCH RATE OF INFLATION  IS  GREATER  THAN
ZERO  PERCENT,  OR, IF GREATER, SUCH OTHER WAGE AS MAY BE ESTABLISHED BY
FEDERAL LAW PURSUANT TO 29 U.S.C. SECTION 206 OR ITS SUCCESSORS OR  SUCH
OTHER  WAGE  AS  MAY BE ESTABLISHED IN ACCORDANCE WITH THE PROVISIONS OF
THIS ARTICLE.
  (D) THE RATES AND SCHEDULE ESTABLISHED  IN  SUBDIVISION  (C)  OF  THIS
SECTION  SHALL  NOT BE DEEMED TO BE THE MINIMUM WAGE FOR PURPOSES OF THE
CALCULATIONS SPECIFIED IN SUBDIVISIONS  ONE  AND  TWO  OF  SECTION  FIVE
HUNDRED TWENTY-SEVEN OF THIS CHAPTER.
  S  4.  Paragraph a of subdivision 3 of section 2023-a of the education
law is amended by adding a new subparagraph 3-a to read as follows:
  (3-A) ADD ANY INCREASE  ATTRIBUTABLE  TO  INCREASES  IN  MINIMUM  WAGE
PURSUANT TO SECTION SIX HUNDRED FIFTY-TWO OF THE LABOR LAW.
  S  5.  Paragraph  (c)  of  subdivision 3 of section 3-c of the general
municipal law, as added by section 1 of part A of chapter 97 of the laws
of 2011, is amended to read as follows:
  (c) Each local government shall calculate the tax levy limit  applica-
ble to the coming fiscal year which shall be determined as follows:
  (i)  Ascertain  the  total amount of taxes levied for the prior fiscal
year.
  (ii) Multiply the result by the tax  base  growth  factor,  calculated
pursuant to paragraph (b) of this subdivision, if any.
  (iii)  Add  any  payments in lieu of taxes that were receivable in the
prior fiscal year.
  (iv) ADD ANY INCREASES  ATTRIBUTABLE  TO  INCREASES  IN  MINIMUM  WAGE
PURSUANT TO SECTION SIX HUNDRED FIFTY-TWO OF THE LABOR LAW.
  (V)  Subtract  the tax levy necessary to support expenditures pursuant
to subparagraph (i) of paragraph (g) of subdivision two of this  section
for the prior fiscal year, if any.
  [(v)] (VI) Multiply the result by the allowable levy growth factor.
  [(vi)]  (VII) Subtract any payments in lieu of taxes receivable in the
coming fiscal year.
  [(vii)] (VIII) Add the available carryover, if any.
  S 6. Subdivision 1 of section 92 of part H of chapter 59 of  the  laws
of 2011, amending the public health law and other laws relating to known
and  projected department of health state fund medicaid expenditures, as
amended by section 8 of part B of chapter 57 of the  laws  of  2015,  is
amended to read as follows:
  1. For state fiscal years 2011-12 through 2016-17, the director of the
budget,  in  consultation  with the commissioner of health referenced as
"commissioner" for purposes of this section, shall assess on  a  monthly
basis,  as  reflected in monthly reports pursuant to subdivision five of
this section known and projected department of health state funds  medi-
caid  expenditures  by category of service and by geographic regions, as
defined by the commissioner, and if the director of  the  budget  deter-
mines  that  such  expenditures are expected to cause medicaid disburse-
ments for such period to exceed the projected department of health medi-
caid state funds disbursements in  the  enacted  budget  financial  plan
pursuant  to  subdivision  3 of section 23 of the state finance law, the
commissioner of health, in consultation with the director of the budget,
shall develop a medicaid savings allocation plan to limit such  spending
to  the  aggregate limit level specified in the enacted budget financial
plan, provided, however, such projections may be adjusted by the  direc-
tor  of  the  budget  to  account  for any changes in the New York state
federal medical assistance percentage amount established pursuant to the
federal social security act, changes in provider revenues, reductions to

A. 7257--B                          4

local social services district medical  assistance  administration,  and
beginning  April  1,  2012  the  operational costs of the New York state
medical indemnity fund and state costs or savings from the basic  health
plan.  Such projections may be adjusted by the director of the budget to
account  for  increased  or  expedited  department of health state funds
medicaid expenditures as a result of a natural or other type  of  disas-
ter, including a governmental declaration of emergency.  FOR PURPOSES OF
THIS  SECTION, FOR PERIODS ON AND AFTER JULY 1, 2016, MEDICAID DISBURSE-
MENTS SHALL NOT INCLUDE ANY ADDITIONAL EXPENDITURES RELATED TO INCREASES
IN THE MINIMUM WAGE ESTABLISHED PURSUANT TO SECTION  652  OF  THE  LABOR
LAW.
  S  7.  Section 3614-c of the public health law, as added by section 33
of part H of chapter 59 of the laws of  2011,  is  amended  to  read  as
follows:
  S  3614-c.  Home  care worker wage parity. 1. As used in this section,
the following terms shall have the following meaning:
  (a) "Living wage law" means any law  enacted  by  Nassau,  Suffolk  or
Westchester  county  or  a city with a population of one million or more
which establishes a minimum wage for some or all employees  who  perform
work on contracts with such county or city.
  (b) "Total compensation" means all wages and other direct compensation
paid to or provided on behalf of the employee including, but not limited
to, wages, health, education or pension benefits, supplements in lieu of
benefits  and  compensated  time  off,  except  that it does not include
employer taxes or employer portion of payments for  statutory  benefits,
including  but  not  limited to FICA, disability insurance, unemployment
insurance and workers' compensation.
  (c) "Prevailing rate of total compensation" means the  average  hourly
amount  of  total  compensation  paid  to all home care aides covered by
whatever collectively bargained agreement covers the greatest number  of
home  care aides in a city with a population of one million or more. For
purposes of this definition, any set of  collectively  bargained  agree-
ments  in  such  city  with  substantially the same terms and conditions
relating to total compensation shall be considered as a  single  collec-
tively bargained agreement.
  (d)  "Home  care  aide"  means a home health aide, personal care aide,
home attendant or other licensed  or  unlicensed  person  whose  primary
responsibility  includes the provision of in-home assistance with activ-
ities of daily  living,  instrumental  activities  of  daily  living  or
health-related  tasks;  provided,  however, that home care aide does not
include any individual (i) working on a casual basis, or (ii) who  is  a
relative  through  blood,  marriage or adoption of: (1) the employer; or
(2) the person for whom the  worker  is  delivering  services,  under  a
program funded or administered by federal, state or local government.
  (e)  "Managed  care plan" means any managed care program, organization
or demonstration covering personal care or home  health  aide  services,
and which receives premiums funded, in whole or in part, by the New York
state medical assistance program, including but not limited to all Medi-
caid  managed care, Medicaid managed long term care, Medicaid advantage,
and Medicaid advantage plus plans and all programs of all-inclusive care
for the elderly.
  (f) "Episode of care" means any service unit reimbursed, in  whole  or
in  part,  by  the  New  York  state medical assistance program, whether
through direct reimbursement or covered by a premium payment, and  which
covers,  in  whole or in part, any service provided by a home care aide,

A. 7257--B                          5

including but not limited to all service units defined as visits, hours,
days, months or episodes.
  (G)  "CASH  PORTION OF THE MINIMUM RATE OF HOME CARE AID TOTAL COMPEN-
SATION" MEANS THE MINIMUM AMOUNT OF HOME CARE  AIDE  TOTAL  COMPENSATION
THAT  MAY  BE  PAID  IN  CASH  WAGES, AS DETERMINED BY THE DEPARTMENT IN
CONSULTATION WITH THE DEPARTMENT OF LABOR.
  (H) "BENEFIT PORTION OF THE MINIMUM  RATE  OF  HOME  CARE  AIDE  TOTAL
COMPENSATION"  MEANS  THE  PORTION  OF HOME CARE AIDE TOTAL COMPENSATION
THAT MAY BE PAID IN CASH OR HEALTH, EDUCATION OR PENSION BENEFITS,  WAGE
DIFFERENTIALS, SUPPLEMENTS IN LIEU OF BENEFITS AND COMPENSATED TIME OFF,
AS  DETERMINED  BY THE DEPARTMENT IN CONSULTATION WITH THE DEPARTMENT OF
LABOR. CASH WAGES PAID PURSUANT TO INCREASES IN  THE  STATE  OR  FEDERAL
MINIMUM  WAGE CANNOT BE USED TO SATISFY THE BENEFIT PORTION OF THE MINI-
MUM RATE OF HOME CARE AIDE TOTAL COMPENSATION.
  2. Notwithstanding any inconsistent provision of law,  rule  or  regu-
lation,  no  payments  by government agencies shall be made to certified
home health agencies, long term home health  care  programs  or  managed
care  plans  for  any episode of care furnished, in whole or in part, by
any home care aide who is compensated at amounts less than the  applica-
ble minimum rate of home care aide total compensation established pursu-
ant to this section.
  3. (a) The minimum rate of home care aide total compensation in a city
with a population of one million or more shall be:
  (i)  for  the period March first, two thousand twelve through February
twenty-eighth, two  thousand  thirteen,  ninety  percent  of  the  total
compensation mandated by the living wage law of such city;
  (ii)  for the period March first, two thousand thirteen through Febru-
ary twenty-eighth, two thousand fourteen,  ninety-five  percent  of  the
total compensation mandated by the living wage law of such city;
  (iii) for [all periods on and after] THE PERIOD March first, two thou-
sand  fourteen  THROUGH MARCH THIRTY-FIRST TWO THOUSAND SIXTEEN, no less
than the prevailing rate of total compensation as of January first,  two
thousand  eleven,  or the total compensation mandated by the living wage
law of such city, whichever is greater;
  (IV) FOR ALL PERIODS ON OR AFTER APRIL FIRST,  TWO  THOUSAND  SIXTEEN,
THE  CASH  PORTION  OF  THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPEN-
SATION SHALL BE TEN DOLLARS OR THE MINIMUM WAGE AS LAID OUT IN PARAGRAPH
(C) OF SUBDIVISION ONE OF SECTION SIX HUNDRED  FIFTY-TWO  OF  THE  LABOR
LAW,  WHICHEVER  IS  HIGHER.  THE BENEFIT PORTION OF THE MINIMUM RATE OF
HOME CARE AIDE TOTAL COMPENSATION SHALL BE FOUR DOLLARS AND NINE CENTS.
  (b) The minimum rate of home care aide total compensation in the coun-
ties of Nassau, Suffolk and Westchester shall be:
  (i) for the period March first, two thousand thirteen through February
twenty-eighth, two  thousand  fourteen,  ninety  percent  of  the  total
compensation  mandated by the living wage law as set on March first, two
thousand thirteen of a city with a population of a million or more;
  (ii) for the period March first, two thousand fourteen through  Febru-
ary  twenty-eighth,  two  thousand  fifteen,  ninety-five percent of the
total compensation mandated by the living  wage  law  as  set  on  March
first, two thousand fourteen of a city with a population of a million or
more;
  (iii) for the period March first, two thousand fifteen, through Febru-
ary  twenty-eighth,  two  thousand  sixteen,  one hundred percent of the
total compensation mandated by the living  wage  law  as  set  on  March
first,  two thousand fifteen of a city with a population of a million or
more;

A. 7257--B                          6

  (iv) for all periods on or after March first,  two  thousand  sixteen,
[the  lesser of (i) one hundred and fifteen percent of the total compen-
sation mandated by the living wage law as set on  March  first  of  each
succeeding  year  of a city with a population of one million or more or;
(ii)  the  total compensation mandated by the living wage law of Nassau,
Suffolk or Westchester county, based on the location of the  episode  of
care]  THE  CASH  PORTION  OF  THE  MINIMUM RATE OF HOME CARE AIDE TOTAL
COMPENSATION SHALL BE TEN DOLLARS OR THE MINIMUM WAGE  AS  LAID  OUT  IN
PARAGRAPH (C) OF SUBDIVISION ONE OF SECTION SIX HUNDRED FIFTY-TWO OF THE
LABOR  LAW, WHICHEVER IS HIGHER. THE BENEFIT PORTION OF THE MINIMUM RATE
OF HOME CARE AIDE TOTAL COMPENSATION SHALL BE THREE DOLLARS AND  TWENTY-
TWO CENTS.
  4.  [Any  portion  of the minimum rate of home care aide total compen-
sation attributable to health benefit  costs  or  payments  in  lieu  of
health  benefits, and paid time off, as established pursuant to subdivi-
sion three of this section shall be  superseded  by  the  terms  of  any
employer bona fide collective bargaining agreement in effect as of Janu-
ary  first, two thousand eleven, or a successor to such agreement, which
provides for home care aides' health benefits through payments to joint-
ly administered labor-management funds.
  5.] The terms of this section shall apply equally to services provided
by home care aides who work on episodes of care as direct  employees  of
certified  home health agencies, long term home health care programs, or
managed care plans, or as employees of licensed home care services agen-
cies, limited licensed home care services agencies, or under  any  other
arrangement.
  [6.]  5. No payments by government agencies shall be made to certified
home health agencies, long term home health care  programs,  or  managed
care  plans  for  any  episode of care without the certified home health
agency, long term home health care program, or managed care plan  having
delivered  prior  written  certification  to  the commissioner, on forms
prepared by the department in consultation with the department of labor,
that all services provided under  each  episode  of  care  are  in  full
compliance with the terms of this section and any regulations promulgat-
ed pursuant to this section.
  [7.]  6.  If  a  certified home health agency or long term home health
care program elects to provide home care aide services through contracts
with licensed  home  care  services  agencies  or  through  other  third
parties,  provided  that the episode of care on which the home care aide
works is covered under the terms of this  section,  the  certified  home
health  agency, long term home health care program, or managed care plan
must obtain a written certification from the licensed home care services
agency or other third party, on forms  prepared  by  the  department  in
consultation with the department of labor, which attests to the licensed
home  care  services agency's or other third party's compliance with the
terms of this section.  Such  certifications  shall  also  obligate  the
certified  home  health  agency,  long term home health care program, or
managed care plan to obtain, on no less  than  a  quarterly  basis,  all
information  from  the licensed home care services agency or other third
parties necessary to verify compliance with the terms of  this  section.
Such certifications and the information exchanged pursuant to them shall
be retained by all certified home health agencies, long term home health
care  programs,  or  managed  care  plans,  and  all  licensed home care
services agencies, or other third parties for a period of no  less  than
ten years, and made available to the department upon request.

A. 7257--B                          7

  [8.] 7. The commissioner shall distribute to all certified home health
agencies,  long  term  home health care programs, and managed care plans
official notice of the minimum rates of home care aide  compensation  at
least  one hundred twenty days prior to the effective date of each mini-
mum  rate for each social services district covered by the terms of this
section.
  [9.] 8. The commissioner is authorized to promulgate regulations,  and
may  promulgate  emergency  regulations,  to implement the provisions of
this section.
  [10.] 9. Nothing in this section should be construed as applicable  to
any  service  provided by certified home health agencies, long term home
health care programs, or managed care plans except for all  episodes  of
care reimbursed in whole or in part by the New York Medicaid program.
  [11.]  10.  No certified home health agency, managed care plan or long
term home health care program shall be liable for recoupment of payments
for services provided through a licensed home care  services  agency  or
other third party with which the certified home health agency, long term
home  health  care  program, or managed care plan has a contract because
the licensed agency or other third  party  failed  to  comply  with  the
provisions  of  this  section  if the certified home health agency, long
term home health care program, or managed care plan has  reasonably  and
in  good  faith  collected  certifications  and all information required
pursuant to subdivisions [six and seven] FIVE AND SIX of this section.
  S 8. Notwithstanding any  inconsistent  provision  or  policy  to  the
contrary,  any increase attributable to the increase in the minimum wage
established pursuant to section 652 of the labor law, shall be  excluded
from  the calculation of any policy of the state spending limitations in
the enacted budget financial plan pursuant to subdivision 3  of  section
23 of the state finance law.
  Notwithstanding  any  inconsistent  provision  of  law, any program or
service including not-for-profits funded by New York state  through  the
department of the office of mental health, office for people with devel-
opmental   disabilities,   office  of  alcoholism  and  substance  abuse
services, department of health, office of children and family  services,
office  of  temporary  and disabilities assistance, the state office for
the aging and the department of labor shall be adjusted to  reflect  the
increase  in labor costs related to the minimum wage pursuant to section
652 of the labor law.
  S 9. Severability clause. If an amendment  made  by  section  four  or
section five of this act or their application to any person, legal enti-
ty,  or  circumstance  is held invalid by a court of competent jurisdic-
tion, the remainder of this act or the application of such amendment  to
other persons, legal entities or circumstances shall not be effected.
  S  10. This act shall take effect immediately; provided, however, that
sections four and five of this act shall first apply to school  district
budgets and the budget adoption process for the 2016 - 2017 school year;
provided,  further,  that  section five of this act shall first apply to
the levy of taxes by local governments for the fiscal year  that  begins
in 2017; provided, further, that the amendments to paragraph a of subdi-
vision  3 of section 2023-a of the education law made by section four of
this act shall not affect the repeal of such section and shall be deemed
repealed therewith; provided, further, that the amendments to  paragraph
(c) of subdivision 3 of section 3-c of the general municipal law made by
section five of this act shall not affect the repeal of such section and
shall be deemed repealed therewith.