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
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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.