S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  7335--A
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 17, 2023
                                ___________
 
 Introduced  by  M.  of A. PAULIN, REYES, WEPRIN, L. ROSENTHAL, SHRESTHA,
   DINOWITZ, EPSTEIN, HEVESI,  SIMON,  STECK,  ZINERMAN,  GONZALEZ-ROJAS,
   GUNTHER, KELLES, SAYEGH, COLTON, McDONALD, SIMONE, SANTABARBARA, RAGA,
   STIRPE,  BRABENEC,  LEVENBERG,  BROOK-KRASNY,  LUCAS  -- read once and
   referred to the Committee on Health -- recommitted to the Committee on
   Ways and Means in accordance with Assembly Rule 3, sec. 2 --  reported
   and  referred  to  the  Committee  on  Ways  and  Means  --  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:
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10383-06-4
              

 A. 7335--A                          2
 
   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;
   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.
 A. 7335--A                          3
 
   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-
 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.
 A. 7335--A                          4
 
   § 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.