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A06329 Summary:

BILL NOA06329
 
SAME ASSAME AS S05374
 
SPONSORGottfried
 
COSPNSRReyes, Dinowitz, Frontus, Gonzalez-Rojas, Burgos, Carroll, Kim, Burdick, Jacobson, Simon, Gunther, Abinanti, Cymbrowitz, Brabenec, Galef, Epstein, Kelles, Mamdani, Paulin, Quart, Mitaynes, Lupardo, Bichotte Hermelyn, Steck, Rosenthal L, Tague, Englebright, Solages, Fall, Ramos, Hunter, Cruz, Gallagher, Cahill, Forrest, Miller M, Jones
 
MLTSPNSR
 
Add §3614-f, amd §§3612, 3614-d, 2802, 4403-f & 3614-c, Pub Health L; amd §§365-f & 364-j, Soc Serv L; add §91-h, St Fin L; amd Part H §92, Chap 59 of 2011
 
Enacts provisions to provide minimum wages for home care aides; requires at least 150% of minimum wage or other set minimum; directs the commissioner of health to set regional minimum rates of reimbursement for home care aids under medicaid and managed care plans.
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A06329 Actions:

BILL NOA06329
 
03/16/2021referred to health
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A06329 Memo:

NEW YORK STATE ASSEMBLY
MEMORANDUM IN SUPPORT OF LEGISLATION
submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A6329
 
SPONSOR: Gottfried
  TITLE OF BILL: An act to amend the public health law, the social services law, the state finance law and part H of chapter 59 of the laws of 2011, amending the public health law and other laws relating to known and projected department of health state fund Medicaid expenditures, in relation to fair pay for home care aides   PURPOSE OR GENERAL IDEA OF BILL: to establish a base wage for home care workers at 150% of the regional minimum wage (whether set by statute or under a wage order).   SUMMARY OF SPECIFIC PROVISIONS: Adds new Public Health Law § 3614-f to require that home care aides be paid a minimum of 150% of the regional minimum wage or wage order governing a particular sector, whichever is higher, and makes additional conforming amendments. The determination of regional differences will be determined by the Department of Health using currently required cost reports and updated yearly. The bill establishes the Fair Pay for Home Care Fund which will pool revenue from the federal community first choice enhanced rate, Medicaid savings from the decertification of nurs- ing home beds, unspent capital project moneys, and possible grant or gift awards, to subsidize Medicaid payment rates when necessary. The bill would require that review of certificate of need applications for new nursing home capacity consider a region's need and capacity to deliver long term care services in the home compared to an institution. Managed long term care plans would face greater transparency as to pass- through of funds intended for home care aide wages to be paid through licensed home care services agencies and fiscal intermediaries.   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, should 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 annu- al earnings. Fifty seven percent of home care workers rely on public benefits to care for their own families. Fair Pay for Home Care will respond to this crisis by providing a respectful wage to these workers. A recent 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. The study said the proposal would create almost 18,000 new jobs in local economies through increased spending capacity of these home care work- ers. 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: New bill   FISCAL IMPLICATIONS: to be determined   EFFECTIVE DATE: Immediately
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A06329 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                          6329
 
                               2021-2022 Regular Sessions
 
                   IN ASSEMBLY
 
                                     March 16, 2021
                                       ___________
 
        Introduced by M. of A. GOTTFRIED, REYES, DINOWITZ, FRONTUS, GONZALEZ-RO-
          JAS -- read once and referred to the Committee on Health
 
        AN  ACT  to  amend  the  public health law, the social services law, the
          state finance law and part H of chapter 59 of the laws of 2011, amend-
          ing the public health  law  and  other  laws  relating  to  known  and
          projected  department  of  health state fund Medicaid expenditures, in
          relation to fair pay for home care aides
 
          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:
 
     1    Section  1.  The  public health law is amended by adding a new section
     2  3614-f to read as follows:
     3    § 3614-f. Fair pay for home care. 1. For the purpose of this  section,
     4  "home  care aide" shall have the same meaning defined in section thirty-
     5  six hundred fourteen-c of this article.
     6    2. The minimum wage for a home care aide shall be  no  less  than  one
     7  hundred and fifty percent of the higher of: (a) the otherwise applicable
     8  minimum  wage  under  section six hundred fifty-two of the labor law, or
     9  (b) any otherwise applicable wage rule or order under  article  nineteen
    10  of the labor law.
    11    3.  Where  any  home  care  aide  is  paid  less than required by this
    12  section, the home care aide, or the  commissioner  of  labor  acting  on
    13  behalf  of  the home care aide, may bring an action under article six or
    14  nineteen of the labor law.
    15    § 2. Paragraph (c) of subdivision 4-a of section 365-f of  the  social
    16  services  law  is  amended  by  adding a new subparagraph (v) to read as
    17  follows:
    18    (v) (A) The department shall analyze the  certified  cost  reports  of
    19  each  fiscal  intermediary,  grouped by regions, to establish a regional
    20  minimum rate of reimbursement for each  region.  The  regions  shall  be
    21  established  by  the  commissioner,  provided  that for areas subject to
    22  section thirty-six hundred fourteen-c of the  public  health  law,  each
 
         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD10145-01-1

        A. 6329                             2
 
     1  area  with a different prevailing rate of total compensation, as defined
     2  in that section, shall be its own region.
     3    (B)  For  the  purposes  of  this  section,  "regional minimum rate of
     4  reimbursement"  means  a  reimbursement  rate  reflecting  the   average
     5  combined  costs associated with the provision of direct service, reason-
     6  able administrative costs as defined by the commissioner, allowances for
     7  capital costs, the development of profit or reserves as allowable by law
     8  or regulations of the  commissioner,  and  any  additional  supplemental
     9  payments.  The regional minimum rate of reimbursement shall be the mini-
    10  mum reimbursement rate  for  fiscal  intermediaries  providing  services
    11  under this section and shall be the minimum allowable reimbursement that
    12  may be deemed adequate from a managed care provider, under section three
    13  hundred  sixty-four-j  of this chapter or a managed long-term care plan,
    14  under section forty-four hundred three-f of the public health law.
    15    (C) In the first two years after an increase in the minimum  wage  has
    16  been  established,  analysis for the regional minimum rate of reimburse-
    17  ment shall factor in costs that were not captured in cost  reports  that
    18  result  from  (A)  that  increase;  and  (B)  wage compression from that
    19  increase.
    20    (D) The regional minimum rate of reimbursement shall be modified annu-
    21  ally, based on cost reports submitted for  the  prior  fiscal  year,  as
    22  modified  under this paragraph. If the minimum rate of reimbursement has
    23  not been calculated prior to the start of the fiscal year, the  previous
    24  year's  rate  shall  remain  in  place until the new rate is calculated,
    25  provided that retroactive adjustments shall be made to the beginning  of
    26  the fiscal year.
    27    § 3. Subdivision 8 of section 3612 of the public health law is amended
    28  by adding a new paragraph (e) to read as follows:
    29    (e)(i) The department shall analyze the certified cost reports of each
    30  licensed  home  care services agency, grouped by regions, to establish a
    31  regional minimum rate of reimbursement  for  each  region.  The  regions
    32  shall  be  established  by  the  commissioner,  provided  that for areas
    33  subject to section thirty-six hundred fourteen-c of this  article,  each
    34  area  with a differing prevailing rate of total compensation, as defined
    35  in that section, shall be its own region.
    36    (ii) For the purposes of  this  section,  "regional  minimum  rate  of
    37  reimbursement"   means  a  reimbursement  rate  reflecting  the  average
    38  combined costs associated with the provision of direct service,  reason-
    39  able administrative costs as defined by the commissioner, allowances for
    40  capital costs, the development of profit or reserves as allowable by law
    41  or  regulations  of  the  commissioner,  and any additional supplemental
    42  payments. The regional minimum rate of reimbursement shall be the  mini-
    43  mum  reimbursement  rate  for  fiscal  intermediaries providing services
    44  under authorization by a local department of social services  and  shall
    45  be  the minimum allowable reimbursement that may be deemed adequate from
    46  a managed care provider under section three hundred sixty-four-j of  the
    47  social  services  law  or  a  managed  long term care plan under section
    48  forty-four hundred-f of this chapter.
    49    (iii) In the first two years after an increase in the applicable mini-
    50  mum wage has been established, determination  of  the  regional  minimum
    51  rate  of  reimbursement  shall factor in costs that were not captured in
    52  cost  reports  that  result  from  (A)  that  increase;  and  (B)   wage
    53  compression from that increase.
    54    (iv)  The  regional  minimum  rate  of reimbursement shall be modified
    55  annually, based on cost reports submitted  the  prior  fiscal  year,  as
    56  modified  under this paragraph. If the minimum rate of reimbursement has

        A. 6329                             3
 
     1  not been calculated prior to the start of the fiscal year, the  previous
     2  year's  rate  shall  remain  in  place until the new rate is calculated,
     3  provided that retroactive adjustments shall be made to the beginning  of
     4  the fiscal year if reimbursements to licensed home care service agencies
     5  by any party were below the new rate.
     6    §  4.  Section 3614-d of the public health law, as added by section 49
     7  of part B of chapter 57 of the laws of  2015,  is  amended  to  read  as
     8  follows:
     9    §  3614-d.  Universal  standards  for  coding  of  payment for medical
    10  assistance claims for long term care. Claims for payment submitted under
    11  contracts or agreements  with  insurers  under  the  medical  assistance
    12  program  for  home  and community-based long-term care services provided
    13  under this article,  by  fiscal  intermediaries  operating  pursuant  to
    14  section  three  hundred  sixty-five-f of the social services law, and by
    15  residential health care facilities operating pursuant to  article  twen-
    16  ty-eight  of this chapter shall have standard billing codes. Such insur-
    17  ers shall include but not be limited to Medicaid managed care plans  and
    18  managed  long term care plans. Such payments shall be based on universal
    19  billing codes approved by the  department  or  a  nationally  accredited
    20  organization  as  approved  by  the  department; provided, however, such
    21  coding shall be consistent with any  codes  developed  as  part  of  the
    22  uniform  assessment system for long term care established by the depart-
    23  ment and shall include, for any entity operating pursuant to this  arti-
    24  cle  or  section  three  hundred sixty-five-f of the social services law
    25  that is unable to control the cumulative hours worked by  an  individual
    26  in a given payroll period, a code that is specific to the hourly cost of
    27  services at an overtime rate.
    28    §  5. The state finance law is amended by adding a new section 91-h to
    29  read as follows:
    30    § 91-h. Fair pay for home care fund. 1. There is hereby established in
    31  the joint custody of the commissioner of taxation and  finance  and  the
    32  comptroller,  a  special fund to be known as the "fair pay for home care
    33  fund".
    34    2. The fund shall consist of:
    35    a. revenues and federal medical assistance  percentage  reimbursements
    36  in  excess  of  the standard reimbursement received by the department of
    37  health pursuant to section thirty-seven of part B of chapter fifty-seven
    38  of the laws of two thousand fifteen;
    39    b. an amount equal to savings from the permanent conversion or  decer-
    40  tification  of  residential  health  care  facility  beds, as defined in
    41  section twenty-eight hundred one or  twenty-eight  hundred  two  of  the
    42  public health law;
    43    c.  any  unspent  monies  from the New York works economic development
    44  funds or a life sciences initiative created by section  one  of  chapter
    45  fifty-four  of  the laws of two thousand seventeen which were originally
    46  appropriated prior to the two thousand nineteen state fiscal year  which
    47  have  not  been bound by a contract as of April first two thousand twen-
    48  ty-one and which are not otherwise legally required to be spent on capi-
    49  tal projects under bonding requirements through the dormitory  authority
    50  of New York state or other bonding entity; and
    51    d.  any  grants,  gifts  or  bequests  received  by  the state for the
    52  purposes of the fund under this section.
    53    3. Monies of the fund shall be  distributed  to  the  commissioner  of
    54  health,  or  the  commissioner's designee, for the purpose of increasing
    55  medical assistance reimbursements under title eleven of article five  of
    56  the  social  services law to entities operating under article thirty-six

        A. 6329                             4
 
     1  of the public health law and section three hundred sixty-five-f  of  the
     2  social  services law for wages of home care aides, as defined in section
     3  thirty-six hundred fourteen-f of the public health law.
     4    §  6.  The  opening  paragraph  and  paragraph (a) of subdivision 3 of
     5  section 2802 of the public health law, as amended by chapter 609 of  the
     6  laws of 1982, is amended to read as follows:
     7    Subject  to the provisions of paragraph (b) of subdivision two of this
     8  section, the commissioner in [approving] determining whether to  approve
     9  or deny the construction of a hospital shall take into consideration and
    10  be empowered to request information and advice as to (a) the availabili-
    11  ty  of  facilities  or services such as preadmission, ambulatory or home
    12  care services which may serve as alternatives  or  substitutes  for  the
    13  whole  or  any  part  of  the proposed hospital construction, and better
    14  enable the state to meet its obligations  to  provide  services  in  the
    15  community set forth in Olmstead v L.C. (by Zimring) 527 U.S. 581 (1999);
    16    §  7.  Paragraphs  (c)  of  subdivision  18  of section 364-j of   the
    17  social services  law,  as added by sections 40-c and 55  of  part  B  of
    18  chapter 57 of the laws of 2015, are amended to read as follows:
    19    (c)  (i)  In  setting such reimbursement methodologies, the department
    20  shall consider costs borne by the managed care program to ensure actuar-
    21  ially sound and adequate rates of payment to ensure quality of care  for
    22  its  enrollees  and  shall  comply with all applicable federal and state
    23  laws  and  regulations, including, but not limited to, those relating to
    24  wages, including compression from increases in the minimum wage,  labor,
    25  and actuarial soundness.
    26    [(c)]  (ii)  The  department [of health] shall require the independent
    27  actuary selected pursuant  to  paragraph  (b)  of  this  subdivision  to
    28  provide  a  complete  actuarial  memorandum,  along  with  all actuarial
    29  assumptions made and all other data, materials and methodologies used in
    30  the development of rates, to managed care providers thirty days prior to
    31  submission of such rates  to  the  centers  for  medicare  and  medicaid
    32  services  for  approval.  Managed  care providers may request additional
    33  review of the actuarial soundness of the  rate  setting  process  and/or
    34  methodology.
    35    (iii)  Any  contract  for  services under this title by a managed care
    36  provider with a long term care entity shall ensure that  resources  made
    37  available by the payer under such contract will support the recruitment,
    38  hiring, training and retention  of  a  qualified  workforce  capable  of
    39  providing quality care, including compliance with all applicable federal
    40  and  state  laws  and  regulations, including, but not limited to, those
    41  relating to wages and labor. A managed care provider with  a  long  term
    42  care  entity shall report its method of compliance with this subdivision
    43  to the department as a component of cost reports required under  section
    44  forty-four hundred three-f of the public health law.
    45    (iv)  A  long  term  care  entity  that  contracts with a managed care
    46  provider shall  annually  submit written certification to the department
    47  as a component of cost reports   required   under   section   thirty-six
    48  hundred  twelve    of  the  public health law and sections three hundred
    49  sixty-five-a and three hundred sixty-seven-q of this title, as  applica-
    50  ble,  as  to   how it   applied  the  amounts  paid  in  compliance with
    51  this subdivision  to  support  the  recruitment,  hiring,  training  and
    52  retention  of  a  qualified workforce  capable of providing quality care
    53  and consistent with section three hundred sixty-five-a of this title.
    54    § 8. Subdivision 8 of section 4403-f of  the  public  health  law,  as
    55  amended  by  section  21 of part B of chapter 59 of the laws of 2016, is
    56  amended to read as follows:

        A. 6329                             5
 
     1    8. Payment rates for managed long term care  plan  enrollees  eligible
     2  for  medical  assistance. The commissioner shall establish payment rates
     3  for services provided to enrollees  eligible  under  title  XIX  of  the
     4  federal  social  security  act.  Such  payment rates shall be subject to
     5  approval by the director of the division of the budget and shall reflect
     6  savings to both state and local governments when compared to costs which
     7  would  be incurred by such program if enrollees were to receive compara-
     8  ble health and long term care services on a fee-for-service basis in the
     9  geographic region in which such services are proposed  to  be  provided.
    10  Payment rates shall be risk-adjusted to take into account the character-
    11  istics  of  enrollees, or proposed enrollees, including, but not limited
    12  to:   frailty, disability level,  health  and  functional  status,  age,
    13  gender,  the  nature  of  services provided to such enrollees, and other
    14  factors as determined by the commissioner. The  risk  adjusted  premiums
    15  may  also  be  combined  with  disincentives or requirements designed to
    16  mitigate any incentives to obtain higher payment categories. In  setting
    17  such  payment  rates, the commissioner shall consider costs borne by the
    18  managed care program to ensure actuarially sound and adequate  rates  of
    19  payment  to  ensure quality of care and shall comply with all applicable
    20  laws and regulations, state and federal, including [regulations as  to],
    21  but  not limited to, those relating to wages, labor and actuarial sound-
    22  ness [for medicaid managed care].
    23    § 9. Paragraph (c) of subdivision 1 of section 92 of part H of chapter
    24  59 of the laws of 2011 amending the public health  law  and  other  laws
    25  relating to known and projected department of health state fund Medicaid
    26  expenditures,  as  amended by section 1 of part CCC of chapter 56 of the
    27  laws of 2020, is amended to read as follows:
    28    (c) Projections may be adjusted by  the  director  of  the  budget  to
    29  account for any changes in the New York state federal medical assistance
    30  percentage  amount  established  pursuant to the federal social security
    31  act, changes in provider revenues, reductions to local  social  services
    32  district  medical  assistance  administration,  minimum  wage increases,
    33  increases to the mandatory base wage for home care workers  pursuant  to
    34  article  36  of  the  public health law, and beginning April 1, 2012 the
    35  operational costs of the New York state medical indemnity fund and state
    36  costs or savings from the basic health plan.   Such projections  may  be
    37  adjusted by the director of the budget to account for increased or expe-
    38  dited department of health state funds medicaid expenditures as a result
    39  of  a natural or other type of disaster, including a governmental decla-
    40  ration of emergency.
    41    § 10.  Paragraph (a) of subdivision 3 of section 3614-c of the  public
    42  health  law  is  amended  by  adding  a  new subparagraph (v) to read as
    43  follows:
    44    (v) for all periods on or after July first, two  thousand  twenty-one,
    45  the  cash  portion  of  the minimum rate of home care aide total compen-
    46  sation shall be the minimum wage for home care aides in  the  applicable
    47  region,  as  defined  in  section  thirty-six hundred fourteen-f of this
    48  article. The benefit portion of the minimum rate of home care aide total
    49  compensation shall be four dollars and eighty-four cents.
    50    § 11. Subparagraph (iv) of paragraph (b) of subdivision 3  of  section
    51  3614-c  of  the public health law, as amended by section 1 of part OO of
    52  chapter 56 of the laws of 2020, is amended and a new subparagraph (v) is
    53  added to read as follows:
    54    (iv) for all periods on or after March first,  two  thousand  sixteen,
    55  the  cash  portion  of  the minimum rate of home care aide total compen-
    56  sation shall be ten dollars or the minimum wage as laid out in paragraph

        A. 6329                             6
 
     1  (b) of subdivision one of section six hundred  fifty-two  of  the  labor
     2  law,  whichever  is  higher.  The benefit portion of the minimum rate of
     3  home care aide total compensation shall be three dollars and  twenty-two
     4  cents[.];
     5    (v)  for all periods on or after July first,  two thousand twenty-one,
     6  the cash portion of the  minimum rate of home care  aide  total  compen-
     7  sation  shall  be the minimum wage for the applicable region, as defined
     8  in section thirty-six hundred fourteen-f of this  chapter.  The  benefit
     9  portion  of  the minimum rate of home care aide total compensation shall
    10  be three dollars and eighty-nine cents.
    11    § 12. Severability. If any provision of this act, or  any  application
    12  of  any  provision  of  this  act, is held to be invalid, that shall not
    13  affect the validity or effectiveness of any other provision of this act,
    14  any other application of  any  provision  of  this  act,  or  any  other
    15  provision of any law or code amended by this act.
    16    §  13. This act shall take effect immediately; provided, however, that
    17  the amendments to section 364-j of   the   social services law  made  by
    18  section  seven  of  this act and the amendments to section 4403-f of the
    19  public health law made by section eight of this act shall not affect the
    20  repeal of such sections and shall expire and be deemed  repealed  there-
    21  with.
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