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SECTION 3614-C
Home care worker wage parity
Public Health (PBH) CHAPTER 45, ARTICLE 36
§ 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
agreements in such city with substantially the same terms and conditions
relating to total compensation shall be considered as a single
collectively bargained agreement.

(d) "Home care aide" means a home health aide, personal care aide,
home attendant, personal assistant performing consumer directed personal
assistance services pursuant to section three hundred sixty-five-f of
the social services law, or other licensed or unlicensed person whose
primary responsibility includes the provision of in-home assistance with
activities 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) (except
for a person employed under the consumer directed personal assistance
program under section three hundred sixty-five-f of the social services
law) 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
Medicaid 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,
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 aide total
compensation" 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
minimum rate of home care aide total compensation.

(i) "Fiscal intermediary" means a fiscal intermediary in the consumer
directed personal assistance program under section three hundred
sixty-five-f of the social services law.

2. Notwithstanding any inconsistent provision of law, rule or
regulation, no payments by government agencies shall be made to
certified home health agencies, long term home health care programs,
managed care plans, fiscal intermediaries, the nursing home transition
and diversion waiver program under section three hundred sixty-six of
the social services law, or the traumatic brain injury waiver program
under section twenty-seven hundred forty of this chapter for any episode
of care furnished, in whole or in part, by any home care aide who is
compensated at amounts less than the applicable minimum rate of home
care aide total compensation established pursuant 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
February twenty-eighth, two thousand fourteen, ninety-five percent of
the total compensation mandated by the living wage law of such city;

(iii) for the period March first, two thousand 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
compensation shall be ten dollars or the minimum wage as laid out in
paragraph (a) 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
counties 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
February 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
February 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;

(iv) for all periods on or after March first, two thousand sixteen,
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 (b) 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. 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
agencies, limited licensed home care services agencies, or fiscal
intermediaries, or under any other arrangement.

5. No payments by government agencies shall be made to certified home
health agencies, licensed home care services agencies, long term home
health care programs, managed care plans, fiscal intermediaries for any
episode of care without the certified home health agency, licensed home
care services agency, long term home health care program, managed care
plan or the fiscal intermediary, having delivered prior written
certification to the commissioner annually, at a time prescribed by the
commissioner, on forms prepared by the department in consultation with
the department of labor, that all services provided under each episode
of care during the period covered by the certification are in full
compliance with the terms of this section and any regulations
promulgated pursuant to this section and that no portion of the dollars
spent or to be spent to satisfy the wage or benefit portion under this
section shall be returned to the certified home health agency, licensed
home care services agency, long term home health care program, managed
care plan, or fiscal intermediary, related persons or entities, other
than to a home care aide as defined in this section to whom the wage or
benefits are due, as a refund, dividend, profit, or in any other manner.
Such written certification shall also verify that the certified home
health agency, long term home health care program, or managed care plan
has received from the licensed home care services agency, fiscal
intermediary, or other third party an annual statement of wage parity
hours and expenses on a form provided by the department of labor
accompanied by an independently-audited financial statement verifying
such expenses.

5-a. No portion of the dollars spent or to be spent to satisfy the
wage or benefit portion under this section shall be returned to the
certified home health agency, licensed home care services agency, long
term home health care program, managed care plan, or fiscal
intermediary, related persons or entities, other than to a home care
aide as defined in this section to whom the wage or benefits are due, as
a refund, dividend, profit, or in any other manner.

6. If a certified home health agency, long term home health care
program or managed care plan elects to provide home care aide services
through contracts with licensed home care services agencies, fiscal
intermediaries, 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 shall include in its
contracts, a requirement that it be provided with a written
certification, verified by oath, from the licensed home care services
agency, fiscal intermediary, 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, fiscal
intermediary's, or other third party's compliance with the terms of this
section. Such contracts shall also obligate the licensed home care
services agency, fiscal intermediary, or other third party to provide
the certified home health agency, long term home health care program, or
managed care plan all information from the licensed home care services
agency, fiscal intermediary or other third party necessary to verify
compliance with the terms of this section, which shall include an annual
compliance statement of wage parity hours and expenses on a form
provided by the department of labor accompanied by an
independently-audited financial statement verifying such expenses. Such
annual statements shall be available no less than annually for the
previous calendar year, at a time as prescribed by the commissioner.
Such certifications, the information necessary to verify compliance, and
the annual compliance statement and financial statements 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, fiscal intermediaries, or other third parties for a
period of no less than ten years, and made available to the department
upon request. Any licensed home care services agency, fiscal
intermediary, or other third party who shall upon oath verify any
statement required to be transmitted under this section and any
regulations promulgated pursuant to this section which is known by such
party to be false shall be guilty of perjury and punishable as provided
by the penal law.

6-a. The certified home health agency, long term home health care
program, or managed care plan shall review and assess the annual
compliance statement of wage parity hours and expenses and make a
written referral to the department of labor for any reasonably suspected
failures of licensed home care services agencies, fiscal intermediaries,
or third parties to conform to the wage parity requirements of this
section.

7. The commissioner shall distribute to all certified home health
agencies, long term home health care programs, managed care plans,
licensed home care services agencies, and fiscal intermediaries official
notice of the minimum rates of home care aide compensation at least one
hundred twenty days prior to the effective date of each minimum rate for
each social services district covered by the terms of this section.

7-a. Any certified home health agency, licensed home care services
agency, long term home health care program, managed care plan, or fiscal
intermediary, or other third party that willfully pays less than such
stipulated minimums regarding wages and supplements, as established in
this section, shall be guilty of a misdemeanor and upon conviction shall
be punished, for a first offense by a fine of five hundred dollars or by
imprisonment for not more than thirty days, or by both fine and
imprisonment; for a second offense by a fine of one thousand dollars,
and in addition thereto the contract on which the violation has occurred
shall be forfeited; and no such person or corporation shall be entitled
to receive any sum nor shall any officer, agent or employee of the state
pay the same or authorize its payment from the funds under his or her
charge or control to any person or corporation for work done upon any
contract, on which the certified home health agency, licensed home care
services agency, long term home health care program, managed care plan,
or fiscal intermediary, or other third party has been convicted of a
second offense in violation of the provisions of this section.

8. The commissioner is authorized to promulgate regulations, and may
promulgate emergency regulations, to implement the provisions of this
section.

9. Nothing in this section should be construed as applicable to any
service provided by certified home health agencies, licensed home care
services agencies, long term home health care programs, managed care
plans, or fiscal intermediaries except for all episodes of care
reimbursed in whole or in part by the New York Medicaid program.

10. No certified home health agency, managed care plan, or long term
home health care program shall be liable for recoupment of payments or
any other penalty under this section for services provided through a
licensed home care services agency, fiscal intermediary, 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, fiscal intermediary, 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 this section and conducts the monitoring and reporting
required by this section.