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A08821 Summary:

BILL NOA08821
 
SAME ASSAME AS S03189-A
 
SPONSORPaulin
 
COSPNSRRosenthal L, Bores, Seawright, Burdick, Brabenec, Hevesi, Lupardo, De Los Santos, Meeks, Forrest, Santabarbara, Mitaynes, Davila
 
MLTSPNSR
 
Amd §3614-f, Pub Health L
 
Enacts the "fair pay for home care act" relating to minimum wages applicable to home care aides; provides for a minimum wage of 150% of the applicable statewide or regional minimum wage.
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A08821 Actions:

BILL NOA08821
 
01/18/2024referred to health
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A08821 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8821
 
SPONSOR: Paulin
  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 quality home care system through the establishment 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. This section is effective April 2, 2025. Section three of the bill amends Section 3614-f of the public health law by adding five new subdivisions 5, 6, 7, 8 and 9: 5. 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" 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 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 five of the bill requires the Department of Taxation and Finance, Heath and Labor in consultation with the Office of Temporary and disability assistance to undertake a study regarding the use of an expanded state earned income tax credit as a strategy to improve the home care workforce. Section six of the bill is the severability clause Section seven 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. One of the primary reasons is that home care aids are among the lowest paid workers in the state, averaging just $22,000 annu- al earnings It is reported that fifty seven percent of home care workers rely on public benefitsto 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. This legislation, (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 may 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.   PRIOR LEGISLATIVE HISTORY:: A6329A of 2021/22 (Gottfried) Similar bill - referred to Ways & Means   FISCAL IMPLICATIONS:: To be determined   EFFECTIVE DATE:: April 2, 2025 with section two effective January 1, 2025
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A08821 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          8821
 
                   IN ASSEMBLY
 
                                    January 18, 2024
                                       ___________
 
        Introduced by M. of A. PAULIN -- read once and referred 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:
 
     1    Section 1. This act shall be known and may be cited as the  "fair  pay
     2  for home care act".
     3    §  2.  Subdivision  2  of  section 3614-f of the public health law, as
     4  amended by section 3 of part NN of chapter 57 of the laws  of  2023,  is
     5  amended to read as follows:
     6    2.  (a)  Beginning October first, two thousand twenty-two, in addition
     7  to the otherwise applicable  minimum  wage  under  section  six  hundred
     8  fifty-two  of  the  labor  law, or any otherwise applicable wage rule or
     9  order under article nineteen of the labor law, the minimum  wage  for  a
    10  home  care  aide shall be increased by an amount of two dollars and zero
    11  cents.
    12    (b) [for] For the  period  January  first,  two  thousand  twenty-four
    13  through  December  thirty-first,  two  thousand twenty-four, the minimum
    14  wage for a home care aide shall be as follows:
    15    (i) for each hour worked in downstate, eighteen dollars and fifty-five
    16  cents; and
    17    (ii) for each hour worked in remainder of state, seventeen dollars and
    18  fifty-five cents;
    19    (c) [for] For the  period  January  first,  two  thousand  twenty-five
    20  through  [December  thirty-first] April first, two thousand twenty-five,
    21  the minimum wage for a home care aide shall be as follows:
    22    (i) for each hour worked in downstate, nineteen dollars and ten cents;
    23  and
    24    (ii) for each hour worked in remainder of state, eighteen dollars  and
    25  ten cents;
    26    (d)  [for]  For  the  period  [January  first, two thousand twenty-six
    27  through December thirty-first, two thousand twenty-six, the minimum wage
    28  for a home care aide shall be as follows:

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD13749-01-3

        A. 8821                             2

     1    (i) for each hour worked in downstate, nineteen dollars and sixty-five
     2  cents; and
     3    (ii)  for each hour worked in remainder of state, eighteen dollars and
     4  sixty-five cents;
     5    (e) beginning January first, two thousand twenty-seven, and each Janu-
     6  ary first thereafter, the minimum wage for a home care aide shall be the
     7  sum of the minimum wage for a home care aide  from  the  prior  calendar
     8  year and the home care worker wage adjustment.
     9    (f)  (i)  Notwithstanding  any provision of law to the contrary, in no
    10  event shall the minimum wage for a home care aide  in  downstate  exceed
    11  the  sum  of the wage set by the commissioner of labor pursuant to para-
    12  graph (a) of subdivision one-b of section six hundred fifty-two  of  the
    13  labor law plus three dollars and zero cents.
    14    (ii) Notwithstanding any provision of law to the contrary, in no event
    15  shall the minimum wage for a home care aide in remainder of state exceed
    16  the  sum  of the wage set by the commissioner of labor pursuant to para-
    17  graph (b) of subdivision one-b of section six hundred fifty-two  of  the
    18  labor  law plus three dollars and zero cents] on and after April second,
    19  two thousand twenty-five, the minimum wage for a home care aide shall be
    20  no less than one hundred fifty percent of the applicable statewide mini-
    21  mum wage or applicable regional minimum wage  pursuant  to  section  six
    22  hundred fifty-two of the labor law.
    23    § 3. Section 3614-f of the public health law is amended by adding five
    24  new subdivisions 5, 6, 7, 8 and 9 to read as follows:
    25    5. (a) The commissioner shall establish a regional minimum hourly base
    26  reimbursement  rate  for  all providers employing workers subject to the
    27  minimum wage provisions established in subdivision two of this  section.
    28  The  regional  minimum  hourly base reimbursement rate shall be based on
    29  regions established by the commissioner, provided that for areas subject
    30  to section thirty-six hundred fourteen-c of this article, each area with
    31  a different prevailing rate of total compensation, as  defined  in  such
    32  section, shall be its own region.
    33    (b)  For  the  purposes of this section, "regional minimum hourly base
    34  reimbursement rate" means a reimbursement rate that reflects the average
    35  combined costs associated with the provision of direct service inclusive
    36  of, but not limited to:
    37    (i) overtime costs;
    38    (ii) transportation costs;
    39    (iii) all benefits;
    40    (iv) all payroll taxes, including  but  not  limited  to  the  federal
    41  insurance contributions act, medicare, the federal unemployment tax act,
    42  state  unemployment  insurance,  disability  insurance, workers' compen-
    43  sation, and the metropolitan transportation authority tax;
    44    (v) related increases tied to base wages such as compression;
    45    (vi) reasonable administrative costs as defined by the commissioner;
    46    (vii) allowances for capital costs;
    47    (viii) the development of profit or reserves as allowable  by  law  or
    48  regulations of the commissioner; and
    49    (ix) any additional supplemental payments.
    50    (c) Following the initial established  regional  minimum  hourly  base
    51  reimbursement  rate  established  under  this  section, the commissioner
    52  shall  annually adjust the regional  minimum  hourly  base reimbursement
    53  rate  for  each  region by a trend factor to reflect and accommodate any
    54  additional labor law increases, changes or mandates. Updated rates shall
    55  be made publicly available the first day of each October thereafter  for
    56  use on the first day of January of the following year.

        A. 8821                             3
 
     1    6.  (a)  No  payment  made  to  a provider who employs home care aides
     2  subject to this  section that is less than the regional  minimum  hourly
     3  base reimbursement rate established pursuant to subdivision five of this
     4  section  for services provided under authorization by a local department
     5  of  social services, a managed care provider under section three hundred
     6  sixty-four-j of the social services law, or  a  managed  long-term  care
     7  provider  under section forty-four hundred three-f of this chapter shall
     8  be deemed adequate.
     9    (b) The commissioner shall submit any and all  necessary  applications
    10  for  approvals  and/or  waivers  to the federal centers for medicare and
    11  medicaid services to secure approval to establish regional minimum hour-
    12  ly base reimbursement rates and make state-directed payments to  provid-
    13  ers for the purposes of supporting wage increases.
    14    (i)  If approved, directed payments shall be made to such providers of
    15  medicaid services through  contracts  with  managed  care  organizations
    16  where  applicable,  provided  that  the  commissioner  ensures that such
    17  directed payments are in accordance with the terms of this section.
    18    (ii) If the state directed payment is  not  approved,  the  department
    19  shall  require plans to justify deviations apart from the regional mini-
    20  mum hourly base reimbursement rates.
    21    (c) The commissioner shall ensure  that  managed  care  capitation  is
    22  adjusted  to  ensure rate adequacy for the managed care organizations in
    23  order to comply with this section.
    24    7. Nothing in this section shall  preclude  providers  employing  home
    25  care aides covered under this section or payers from paying or contract-
    26  ing  for  services at rates higher than the regional minimum hourly base
    27  reimbursement rate if the parties agree to such terms.
    28    8. The commissioner shall publish and  post  regional  minimum  hourly
    29  base  reimbursement rates annually and shall take all necessary steps to
    30  advise commercial and government programs payers of home  care  services
    31  of  the  regional minimum hourly   base  reimbursement rates and require
    32  other state authorized  payers  to  reimburse  providers  of  home  care
    33  services at the regional minimum hourly base reimbursement rate.
    34    9.  For years in which rate adjustments to the regional minimum hourly
    35  base reimbursement rate have not been calculated prior to the  start  of
    36  the  calendar year, the previous year's rate shall remain in place until
    37  the new rate is calculated,  plus  the  annual  average  consumer  price
    38  index-urban  or  consumer  price  index-rural,  as  applicable. If it is
    39  determined that retroactive  rate  adjustments  are  necessary,  payment
    40  adjustments  will  be  made as a direct pass through to providers within
    41  sixty days of the adjusted rate.
    42    § 4. To ensure compliance with this minimum wage increase,  the  comp-
    43  troller  shall  have  the authority to review the contracts entered into
    44  between a managed care organization and a licensed  home  care  services
    45  agency,  fiscal intermediary, or any agency subject to the provisions of
    46  section 3614-f of the public health  law  to  ensure  that  rates  being
    47  offered are adequate and meet the department of health's actuarial stan-
    48  dards.  The comptroller, in consultation with the medicaid fraud control
    49  unit, may develop and promulgate a process to ensure such audits  comply
    50  with  state  and  federal  law  to  protect  proprietary information and
    51  contracts. In the event that the comptroller finds evidence that managed
    52  care organizations are not paying sufficient adequate rates,  they  will
    53  refer  such instances to the department of health and the medicaid fraud
    54  control unit for enforcement. If the department of health or  the  medi-
    55  caid  fraud  control  unit  chooses not to pursue action related to this
    56  referral, it shall inform, in writing, the comptroller's  office  as  to

        A. 8821                             4
 
     1  the  reasoning.  Such reports, and the department of health's responses,
     2  shall be public information and  made  available  on  the  comptroller's
     3  website. For the purposes of this section, the term "managed care organ-
     4  ization" shall mean an entity operating pursuant to section 364-j of the
     5  social services law or article 44 of the public health law.
     6    §  5. 1. The commissioners of the departments of taxation and finance,
     7  health and labor, in consultation with the office of temporary and disa-
     8  bility assistance, shall undertake a  study  regarding  the  use  of  an
     9  expanded  state  earned  income  tax credit as a strategy to improve the
    10  home care aide workforce. Such study  shall  include  an  evaluation  of
    11  issues, including but not limited to:
    12    a.  the range of increase needed to increase total compensation to the
    13  median compensation by county and/or region;
    14    b. implementation challenges related to  a  specific  sector  enhanced
    15  earned income credit;
    16    c. possible effects on worker recruitment and retention;
    17    d. fiscal impact on the state; and
    18    e.  any  other  issues  as determined by the commissioners and depart-
    19  ments.
    20    2. The study shall include a public hearing and/or other processes  to
    21  gather  information  from  all  interested  parties. The commissioner of
    22  taxation and finance shall report the findings of  the  study  no  later
    23  than  nine  months  after the effective date of this act or December 31,
    24  2024, whichever is sooner.
    25    § 6. Severability.  If any provision of this act, or  any  application
    26  of any provision of this act, is held to be invalid, or to violate or be
    27  inconsistent  with  any federal law or regulation, that shall not affect
    28  the validity or effectiveness of any other provision of this act, or any
    29  other application of any provision of this act which can be given effect
    30  without that provision or application; and to that end,  the  provisions
    31  and applications of this act are severable.
    32    §  7.  This act shall take effect immediately; provided, however, that
    33  section two of this act shall take effect January 1, 2025.
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