NY State Senate Bill S3189

Current Bill Status - In Senate Committee Health Committee

Introduced
In Committee
On Floor Calendar
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- Passed Assembly
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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Jan 30, 2023	referred to health

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S3189 (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §§3614-c & 3614-f, Pub Health L

S3189 (ACTIVE) - Summary

Relates to increasing the base wage for home care aides.

S3189 (ACTIVE) - Sponsor Memo

 
BILL NUMBER: S3189

SPONSOR: MAY
 
TITLE OF BILL:

An act to amend the public health law, in relation to enacting the "fair
pay for home care act"

 
PURPOSE OR GENERAL IDEA OF BILL:

To strengthen the ability of New Yorkers to live and age in the communi-
ty by investing in a high quality home care system through the estab-
lishment of a minimum wage specific to the home care sector indexed to
150% of the state minimum wage and ensure provider reimbursement from
the state and managed care organizations operating under Medicaid are
sufficient to fund a high quality system.

 
SUMMARY OF SPECIFIC PROVISIONS:

Section one of the bill names the act as the "Fair Pay for Home Care
Act"

Section two of the bill amends subdivision 2 of section 3614-f of the
public health law to establish the minimum wage for a home care aide
shall be no less than 150% of the otherwise applicable statewide minimum
wage or applicable regional minimum wage

Section three of the bill amends Section 3614-f of the public health law
by adding six new subdivisions 4, 5, 6, 7, 8 and 9:

4. requires the commissioner of health to establish a regional minimum
hourly base reimbursement rate for all providers employing workers
subject to the minimum wage provisions established by this section and
defines "regional minimum hourly base reimbursement rate"

5. lists what the regional minimum hourly base reimbursement rate shall
be no less than

6. states that no payment made to a provider who employs health care
aides that is less than the regional minimum hourly base reimbursement
rate shall be deemed, adequate; that the commissioner of health shall
submit all necessary applications to apply for approvals/waivers to CMS
to establish regional minimum hourly base reimbursement rates and make
state directed payments to providers; and if approved directed payments
be made to providers through contracts with managed care organizations;
and if not approved, the department shall require plans to justify devi-
ations apart from the regional minimum hourly base reimbursement rates

7. states that nothing in this section precludes providers employing
home care aides from paying or contracting for rates higher than the
regional minimum hourly base reimbursement rate if the parties agree

8. requires the commissioner of health to publish and post regional
minimum hourly base reimbursement rates annually and to advise payment
of those rates to all payers of home care services

9. states that for years in which rate adjustments have not been calcu-
lated prior to start of the calendar year, the prior year's rates shall

remain in place until the new rate is calculated plus annual average
consumer price index urban and rural;

Section four of the bill amends subparagraph (v) of paragraph (a) of
subdivision 3 of section 3614-c of the public health law and adds new
subparagraph (vi)addressing the cash portion and the benefit portion of
the minimum wage for home care aides

Section five of the bill amends subparagraph (v) of paragraph (b) of
subdivision 3 of section 3614-c of the public health law and adds new
subparagraph (vi) addressing the cash portion and the benefit portion of
the minimum wage for home care aides

Section six of the bill grants the state comptroller authority to review
contracts between managed care organizations and agencies subject to
provisions of section 3614-f of the public health law to ensure rates
being offered are adequate to meet the department of health actuarial
standards and authorizes the comptroller to develop and promulgate a
process to ensure audits comply with state and, federal law to protect
proprietary information and contracts and if finding that managed care
organizations are not paying sufficient adequate rates, refer such inci-
dents to the department of health and the Medicaid fraud control unit
for enforcement

Section seven of the bill is the severability clause

Section eight of the bill is the effective date

 
JUSTIFICATION:

New York has a larger need for home care than ever before and is at the
center of a national home care workforce crisis. Individuals are going
without services or becoming institutionalized because there are not
enough home care workers. Over the next ten years, the Public Health
Institute estimates that home care, including consumer directed personal
assistance, needs to add more new jobs than any other occupation in the
State.

The consulting firm Mercer estimates that despite this rapid growth
potential, the state will face a shortage of at least 80,000 home care
workers by 2025. The primary reason is that home care aids are among the
lowest paid workers in the state, averaging just $22,000 annual earn-
ings. Fifty seven percent of home care workers rely on public benefits
to care for their own families.

Despite the state acting in 2022 to raise wages for these workers, early
experience is showing that the increases alone are not enough to meet
the demand by attracting and retaining the high quality workforce that
is needed.

Fair Pay for Home Care responds to this crisis by providing a dignified
wage equal to 150% of the overall minimum wage to these workers.

A 2021 study by the CUNY School of Labor and Urban Studies and funded by
the NYS Office for the Aging fOund that if wages were increased at this
scale, and funded appropriately, the home care workforce shortage could
be solved in less than five years. According to this study, Fair Pay for
Home Care will create almost 18,000 new jobs in local economies through
increased spending capacity of these home care workers. The state would
see increased sales and income tax collections and savings from public
benefits totaling $7.6 billion, putting it on track to be one of the
most successful economic development programs in the state's history.

 
PRIOR LEGISLATIVE HISTORY:

A6329A of 2021/22 (Gottfried) Similar bill - referred to Ways & Means

 
FISCAL IMPLICATIONS:

To be determined

 
EFFECTIVE DATE:
Immediately and Section two effective January 1, 2024

S3189 (ACTIVE) - Bill Text download pdf

 
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   3189
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             January 30, 2023
                                ___________
 
 Introduced  by  Sens.  MAY,  ADDABBO,  BAILEY, BRESLIN, BRISPORT, BROUK,
   CLEARE,  COMRIE,  COONEY,  FELDER,  FERNANDEZ,   GIANARIS,   GONZALEZ,
   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, WEIK -- read twice and ordered printed, and
   when printed to be committed to the Committee on Health
 
 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:
 
   Section  1.  This act shall be known and may be cited as the "fair pay
 for home care act".
   § 2. Subdivision 2 of section 3614-f of  the  public  health  law,  as
 added  by  section  1  of  part XX of chapter 56 of the laws of 2022, is
 amended to read as follows:
   2. [In addition to the otherwise applicable minimum wage under section
 six hundred fifty-two of the labor law, or any otherwise applicable wage
 rule or order under article nineteen of the labor law] BEGINNING JANUARY
 FIRST, TWO THOUSAND TWENTY-FOUR, the minimum  wage for a home care  aide
 shall  be  [increased  by  an  amount of three dollars and zero cents in
 accordance with the following schedule:
   (a) beginning October first, two thousand twenty-two, the minimum wage
 for a home care aide shall be increased by an amount of two dollars  and
 zero cents, and
   (b)  beginning  October  first, two thousand twenty-three, the minimum
 wage for a home care aide shall be increased by an additional amount  of
 one dollar and zero cents] NO LESS THAN ONE HUNDRED FIFTY PERCENT OF THE
 OTHERWISE APPLICABLE STATEWIDE MINIMUM WAGE OR APPLICABLE REGIONAL MINI-
 MUM WAGE PURSUANT TO SECTION SIX HUNDRED FIFTY-TWO OF THE LABOR LAW.
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD01890-04-3
 S. 3189                             2

 
   §  3. Section 3614-f of the public health law is amended by adding six
 new subdivisions 4, 5, 6, 7, 8 and 9 to read as follows:
   4. (A) 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 ARTICLE, EACH AREA WITH
 A DIFFERENT PREVAILING RATE OF TOTAL COMPENSATION, AS  DEFINED  IN  SUCH
 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 THE AVERAGE
 COMBINED COSTS ASSOCIATED WITH THE PROVISION OF DIRECT SERVICE INCLUSIVE
 OF, BUT NOT LIMITED TO:
   (I) OVERTIME COSTS;
   (II) TRANSPORTATION COSTS;
   (III) ALL BENEFITS;
   (IV) ALL PAYROLL TAXES, INCLUDING  BUT  NOT  LIMITED  TO  THE  FEDERAL
 INSURANCE CONTRIBUTIONS ACT, MEDICARE, THE FEDERAL UNEMPLOYMENT TAX ACT,
 STATE  UNEMPLOYMENT  INSURANCE,  DISABILITY  INSURANCE, WORKERS' COMPEN-
 SATION, AND THE METROPOLITAN TRANSPORTATION AUTHORITY TAX;
   (V) RELATED INCREASES TIED TO BASE WAGES SUCH AS COMPRESSION;
   (VI) REASONABLE ADMINISTRATIVE COSTS AS DEFINED BY THE COMMISSIONER;
   (VII) ALLOWANCES FOR CAPITAL COSTS;
   (VIII) THE DEVELOPMENT OF PROFIT OR RESERVES AS ALLOWABLE  BY  LAW  OR
 REGULATIONS OF THE COMMISSIONER; AND
   (IX) ANY ADDITIONAL SUPPLEMENTAL PAYMENTS.
   5.  (A)  THE  INITIAL  REGIONAL MINIMUM HOURLY BASE REIMBURSEMENT RATE
 SHALL BE NO LESS THAN THE FOLLOWING:
   (I) THIRTY-EIGHT DOLLARS AND FIFTY CENTS PER HOUR IN THE  WAGE  PARITY
 REGION,  ENCOMPASSING ALL COUNTIES SUBJECT TO SECTION THIRTY-SIX HUNDRED
 FOURTEEN OF THIS ARTICLE; AND
   (II) THIRTY-EIGHT DOLLARS AND EIGHTEEN CENTS PER HOUR FOR THE COUNTIES
 IN THE REMAINDER OF THE STATE.
   (B) FOR CONSUMER DIRECTED PERSONAL ASSISTANCE SERVICES PROVIDED  UNDER
 SECTION  THREE  HUNDRED  SIXTY-FIVE-F  OF  THE  SOCIAL SERVICES LAW, THE
 INITIAL REGIONAL MINIMUM HOURLY BASE REIMBURSEMENT  RATE  SHALL  REFLECT
 THE  RATES  ESTABLISHED  IN  PARAGRAPH (A) OF THIS SUBDIVISION, PROVIDED
 THAT THE COMMISSIONER MAY REDUCE SUCH RATES BY NO MORE THAN  TWELVE  AND
 NINE-TENTHS  PERCENT.  IN  THE  EVENT  THAT SUCH REDUCTION OCCURS, A PER
 MEMBER, PER MONTH  INCREASE  REFLECTIVE  OF  ACTUAL  ADMINISTRATIVE  AND
 GENERAL  COSTS,  ADJUSTED TO REFLECT REGIONAL DIFFERENCES AS REGIONS ARE
 DEFINED IN THIS SECTION, SHALL BE MADE TO FISCAL INTERMEDIARIES ADMINIS-
 TERING SUCH PROGRAMS. IF THE DEPARTMENT OR A MANAGED  CARE  ORGANIZATION
 CHOOSES  NOT  TO  UTILIZE  THE PER MEMBER, PER MONTH PAYMENT ESTABLISHED
 PURSUANT TO THIS PARAGRAPH, THE REGIONAL MINIMUM HOURLY BASE  REIMBURSE-
 MENT  RATE FOR SUCH REGION, AS DEFINED IN PARAGRAPH (A) OF THIS SUBDIVI-
 SION, SHALL APPLY.
   (C) FOLLOWING THE INITIAL ESTABLISHED  REGIONAL  MINIMUM  HOURLY  BASE
 REIMBURSEMENT  RATE  ESTABLISHED  UNDER  THIS  SECTION, THE COMMISSIONER
 SHALL ANNUALLY ADJUST THE REGIONAL  MINIMUM  HOURLY  BASE  REIMBURSEMENT
 RATE  FOR  EACH  REGION BY A TREND FACTOR TO REFLECT AND ACCOMMODATE ANY
 ADDITIONAL LABOR LAW INCREASES, CHANGES OR MANDATES. UPDATED RATES SHALL
 BE MADE PUBLICLY AVAILABLE THE FIRST DAY OF EACH OCTOBER THEREAFTER  FOR
 USE ON THE FIRST DAY OF JANUARY OF THE FOLLOWING YEAR.
 S. 3189                             3
 
   6.  (A)  NO  PAYMENT  MADE  TO  A PROVIDER WHO EMPLOYS HOME CARE AIDES
 SUBJECT TO THIS  SECTION THAT IS LESS THAN THE REGIONAL  MINIMUM  HOURLY
 BASE REIMBURSEMENT RATE ESTABLISHED PURSUANT TO SUBDIVISION FOUR OF THIS
 SECTION  FOR SERVICES PROVIDED UNDER AUTHORIZATION BY A LOCAL DEPARTMENT
 OF  SOCIAL SERVICES, A MANAGED CARE PROVIDER UNDER SECTION THREE HUNDRED
 SIXTY-FOUR-J OF THE SOCIAL SERVICES LAW, OR  A  MANAGED  LONG-TERM  CARE
 PROVIDER  UNDER SECTION FORTY-FOUR HUNDRED THREE-F OF THIS CHAPTER SHALL
 BE DEEMED ADEQUATE.
   (B) THE COMMISSIONER SHALL SUBMIT ANY AND ALL  NECESSARY  APPLICATIONS
 FOR  APPROVALS  AND/OR  WAIVERS  TO THE FEDERAL CENTERS FOR MEDICARE AND
 MEDICAID SERVICES TO SECURE APPROVAL TO ESTABLISH REGIONAL MINIMUM HOUR-
 LY BASE REIMBURSEMENT RATES AND MAKE STATE-DIRECTED PAYMENTS TO  PROVID-
 ERS FOR THE PURPOSES OF SUPPORTING WAGE INCREASES.
   (I)  IF APPROVED, DIRECTED PAYMENTS SHALL BE MADE TO SUCH PROVIDERS OF
 MEDICAID 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.
   (II) IF THE STATE DIRECTED PAYMENT IS  NOT  APPROVED,  THE  DEPARTMENT
 SHALL  REQUIRE PLANS TO JUSTIFY DEVIATIONS APART FROM THE REGIONAL MINI-
 MUM HOURLY BASE REIMBURSEMENT RATES.
   (C) THE COMMISSIONER SHALL ENSURE  THAT  MANAGED  CARE  CAPITATION  IS
 ADJUSTED  TO  ENSURE RATE ADEQUACY FOR THE MANAGED CARE ORGANIZATIONS IN
 ORDER TO COMPLY WITH THIS SECTION.
   7. NOTHING IN THIS SECTION SHALL  PRECLUDE  PROVIDERS  EMPLOYING  HOME
 CARE AIDES COVERED UNDER THIS SECTION OR PAYERS FROM PAYING OR CONTRACT-
 ING  FOR  SERVICES AT RATES HIGHER THAN THE REGIONAL MINIMUM HOURLY BASE
 REIMBURSEMENT RATE IF THE PARTIES AGREE TO SUCH TERMS.
   8. 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 AND REQUIRE
 OTHER STATE AUTHORIZED  PAYERS  TO  REIMBURSE  PROVIDERS  OF  HOME  CARE
 SERVICES AT THE REGIONAL MINIMUM HOURLY BASE REIMBURSEMENT RATE.
   9.  FOR YEARS IN WHICH RATE ADJUSTMENTS TO THE REGIONAL MINIMUM HOURLY
 BASE REIMBURSEMENT RATE HAVE NOT BEEN CALCULATED PRIOR TO THE  START  OF
 THE  CALENDAR YEAR, THE PREVIOUS YEAR'S RATE SHALL REMAIN IN PLACE UNTIL
 THE NEW RATE IS CALCULATED,  PLUS  THE  ANNUAL  AVERAGE  CONSUMER  PRICE
 INDEX-URBAN  OR  CONSUMER  PRICE  INDEX-RURAL,  AS  APPLICABLE. IF IT IS
 DETERMINED THAT RETROACTIVE  RATE  ADJUSTMENTS  ARE  NECESSARY,  PAYMENT
 ADJUSTMENTS  WILL  BE  MADE AS A DIRECT PASS THROUGH TO PROVIDERS WITHIN
 SIXTY DAYS OF THE ADJUSTED RATE.
   § 4. Subparagraph (v) of paragraph (a) of  subdivision  3  of  section
 3614-c  of  the  public  health law, as added by section 3 of part XX of
 chapter 56 of the laws of 2022, is amended and a new  subparagraph  (vi)
 is added to read as follows:
   (v)  for  all  periods on or after January first, two thousand twenty-
 three, the cash portion of the minimum rate  of  home  care  aide  total
 compensation shall be the minimum wage for home care aides in the appli-
 cable  region,  as  defined  in section thirty-six hundred fourteen-f of
 this article. The benefit portion of the minimum rate of home care  aide
 total compensation shall be four dollars and nine cents[.];
   (VI)  FOR  ALL PERIODS ON OR AFTER JANUARY FIRST, TWO THOUSAND TWENTY-
 FOUR, THE CASH PORTION OF THE MINIMUM  RATE  OF  HOME  CARE  AIDE  TOTAL
 COMPENSATION SHALL BE THE MINIMUM WAGE FOR HOME CARE AIDES IN THE APPLI-
 CABLE  REGION,  AS  DEFINED  IN SECTION THIRTY-SIX HUNDRED FOURTEEN-F OF
 S. 3189                             4
 
 THIS ARTICLE. THE BENEFIT PORTION OF THE MINIMUM RATE OF HOME CARE  AIDE
 TOTAL COMPENSATION SHALL BE FOUR DOLLARS AND EIGHTY-FOUR CENTS.
   §  5  Subparagraph  (v)  of  paragraph (b) of subdivision 3 of section
 3614-c of the public health law, as added by section 4  of  part  XX  of
 chapter  56  of the laws of 2022, is amended and a new subparagraph (vi)
 is added to read as follows:
   (v) for all periods on or after January first,  two  thousand  twenty-
 three,  the  cash  portion  of  the minimum rate of home care aide total
 compensation shall be the minimum wage for  the  applicable  region,  as
 defined  in  section  thirty-six hundred fourteen-f of this article. The
 benefit portion of the minimum rate of home care aide total compensation
 shall be three dollars and twenty-two cents[.];
   (VI) FOR ALL PERIODS ON OR AFTER JANUARY FIRST, TWO  THOUSAND  TWENTY-
 FOUR,  THE  CASH  PORTION  OF  THE  MINIMUM RATE OF HOME CARE AIDE TOTAL
 COMPENSATION SHALL BE THE MINIMUM WAGE FOR  THE  APPLICABLE  REGION,  AS
 DEFINED  IN  SECTION  THIRTY-SIX HUNDRED FOURTEEN-F OF THIS ARTICLE. THE
 BENEFIT PORTION OF THE MINIMUM RATE OF HOME CARE AIDE TOTAL COMPENSATION
 SHALL BE FOUR DOLLARS AND EIGHTY-FOUR CENTS.
   § 6. To ensure compliance with this minimum wage increase,  the  comp-
 troller  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
 section 3614-f of the public health  law  to  ensure  that  rates  being
 offered are adequate and meet the department of health's actuarial stan-
 dards.  The comptroller, in consultation with the medicaid fraud control
 unit, may 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 of health and the medicaid fraud
 control unit for enforcement. If the department of health or  the  medi-
 caid  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 of health's responses,
 shall be public information and  made  available  on  the  comptroller's
 website. For the purposes of this section, the term "managed care organ-
 ization" shall mean an entity operating pursuant to section 364-j of the
 social services law or article 44 of the public health law.
   §  7. 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.
   § 8. This act shall take effect immediately; provided,  however,  that
 section two of this act shall take effect January 1, 2024.

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The New York State Senate

senate Bill S3189

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Current Bill Status - In Senate Committee Health Committee

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Co-Sponsors

S3189 (ACTIVE) - Details

S3189 (ACTIVE) - Summary

S3189 (ACTIVE) - Sponsor Memo

S3189 (ACTIVE) - Bill Text download pdf

Comments

senate Bill S3189

Share this bill

Sponsored By

Current Bill Status - In Senate Committee Health Committee

Your Voice

Actions

Co-Sponsors

S3189 (ACTIVE) - Details

S3189 (ACTIVE) - Summary

S3189 (ACTIVE) - Sponsor Memo

S3189 (ACTIVE) - Bill Text download pdf

Comments