NY Pub Health L § 3614-C (2021)
2021 New York Laws PBH - Public Health Article 36 - Home Care Services 3614-C - Home Care Worker Wage Parity.

§  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.