2023 New York Laws › SOS - Social Services › Article 5 - Assistance and Care › Title 11 - Medical Assistance for Needy Persons › 367-W - Health Care and Mental Hygiene Worker Bonuses.

§ 367-w. Health care and mental hygiene worker bonuses. 1. Purpose and
intent.  New  York's essential front line health care and mental hygiene
workers have seen us through a once-in-a-century  public  health  crisis
and  turned our state into a model for battling and beating COVID-19. To
attract  talented  people  into  the  profession  at  a  time  of   such
significant  strain  while also retaining those who have been working so
tirelessly these past two years, we must recognize the  efforts  of  our
health care and mental hygiene workforce and reward them financially for
their service.
To  do  that,  the  commissioner  of health is hereby directed to seek
federal approvals as  applicable,  and,  subject  to  federal  financial
participation,  to  support with federal and state funding bonuses to be
made available during the state fiscal year of 2023 to recruit,  retain,
and reward health care and mental hygiene workers.
2. Definitions. As used in this section, the term:
(a) "Employee" means certain front line health care and mental hygiene
practitioners,  technicians,  assistants and aides that provide hands on
health or care services to individuals, without regard  to  whether  the
person  works  full-time, part-time, on a salaried, hourly, or temporary
basis, or as an independent contractor, that received an annualized base
salary of one hundred twenty-five thousand dollars or less, to include:
(i)  Physician  assistants,  dental  hygienists,  dental   assistants,
psychiatric   aides,   pharmacists,   pharmacy   technicians,   physical
therapists,  physical  therapy  assistants,  physical   therapy   aides,
occupational  therapists,  occupational therapy assistants, occupational
therapy aides,  speech-language  pathologists,  respiratory  therapists,
exercise  physiologists,  recreational therapists, all other therapists,
orthotists,  prosthetists,   clinical   laboratory   technologists   and
technicians,   diagnostic   medical   sonographers,   nuclear   medicine
technologists,  radiologic  technologists,  magnetic  resonance  imaging
technologists,  ophthalmic  medical  technicians,  radiation therapists,
dietetic  technicians,  cardiovascular  technologists  and  technicians,
certified  first  responders,  emergency  medical  technicians, advanced
emergency medical technicians, paramedics, surgical  technologists,  all
other   health   technologists   and   technicians,  orderlies,  medical
assistants, phlebotomists, all other health care support workers,  nurse
anesthetists,  nurse  midwives,  nurse practitioners, registered nurses,
nursing assistants,  and  licensed  practical  and  licensed  vocational
nurses;
(ii)  to  the  extent not already included in subparagraph (i) of this
paragraph, staff who perform functions as described in the  consolidated
fiscal report (CFR) manual with respect to the following title codes:
Mental Hygiene Worker;
Residence/Site Worker;
Counselor (OMH);
Manager (OMH);
Senior Counselor (OMH);
Supervisor (OMH);
Developmental Disabilities Specialist QIDP - Direct Care (OPWDD);
Certified Recovery Peer Advocate;
Peer Professional - Non-CRPA (OASAS Only);
Job Coach/Employment Specialist (OMH and OPWDD);
Peer Specialist (OMH);
Counselor - Alcoholism and Substance Abuse (CASAC);
Counseling Aide/Assistant - Alcoholism and Substance Abuse;
Other Direct Care Staff;
Case Manager;
Counselor - Rehabilitation;
Developmental  Disabilities  Specialist/Habilitation Specialist QIDP -
Clinical (OPWDD);
Emergency Medical Technician;
Intensive Case Manager (OMH);
Intensive Case Manager/Coordinator (OMH);
Nurse - Licensed Practical;
Nurse - Registered;
Psychologist (Licensed);
Psychologist (Master's Level)/Behavioral Specialist;
Psychology Worker/Other Behavioral Worker;
Social Worker - Licensed (LMSW, LCSW);
Social Worker - Master's Level (MSW);
Licensed Mental Health Counselor (OASAS, OMH, OCFS);
Licensed Psychoanalyst (OMH);
Therapist - Recreation;
Therapist - Activity/Creative Arts;
Therapist - Occupational;
Dietician/Nutritionist;
Therapy Assistant/Activity Assistant;
Nurse's Aide/Medical Aide;
Behavior Intervention Specialist 1 (OPWDD);
Behavior Intervention Specialist 2 (OPWDD);
Clinical Coordinator;
Intake/Screening;
Pharmacist;
Marriage and Family Counselor/Therapist;
Residential Treatment Facility (RTF) Transition Coordinator (OMH);
Crisis Prevention Specialist (OMH);
Early Recognition Specialist (OMH);
Other Clinical Staff/Assistants;
Nurse Practitioner/Nursing Supervisor;
Therapist - Physical;
Therapist - Speech;
Program or Site Director; and
Assistant Program or Assistant Site Director; and
(iii)  such  titles  as  determined  by  the commissioner, or relevant
agency commissioner as applicable, and approved by the director  of  the
budget.
(b)  "Employer"  means  a  provider enrolled in the medical assistance
program under this title that employs at least  one  employee  and  that
bills  for  services  under the state plan or a home and community based
services waiver  authorized  pursuant  to  subdivision  (c)  of  section
nineteen hundred fifteen of the federal social security act, or that has
a provider agreement to bill for services provided or arranged through a
managed  care  provider under section three hundred sixty-four-j of this
title or a managed long term care plan under section forty-four  hundred
three-f of the public health law, to include:
(i)   providers   and  facilities  licensed,  certified  or  otherwise
authorized under articles twenty-eight, thirty, thirty-six or  forty  of
the  public  health  law,  articles  sixteen,  thirty-one, thirty-two or
thirty-six of the mental hygiene law, article  seven  of  this  chapter,
fiscal  intermediaries  under section three hundred sixty-five-f of this
title, pharmacies registered under section six  thousand  eight  hundred
eight of the education law, or school based health centers;
(ii)  programs  that participate in the medical assistance program and
are funded by the office of  mental  health,  the  office  of  addiction
services  and  supports,  or  the  office  for people with developmental
disabilities; and
(iii) other provider types determined by the commissioner and approved
by the director of the budget;
(iv)  provided,  however,  that  unless  the  provider is subject to a
certificate of need  process  as  a  condition  of  state  licensure  or
approval,  such  provider  shall  not  be an employer under this section
unless at least twenty percent of the  provider's  patients  or  persons
served  are  eligible for services under this title and title XIX of the
federal social security act.
(c) Notwithstanding the definition of employer  in  paragraph  (b)  of
this  subdivision,  and  without  regard  to the availability of federal
financial participation, "employer" shall also include an institution of
higher education, a public or nonpublic school,  a  charter  school,  an
approved  preschool  program  for  students  with disabilities, a school
district or boards of cooperative educational services, programs  funded
by  the  office  of  mental  health,  programs  funded  by the office of
addiction services and supports,  programs  funded  by  the  office  for
people  with  developmental  disabilities, programs funded by the office
for the aging, a health district as defined in section two of the public
health law, or a municipal corporation, where  such  program  or  entity
employs  at  least  one  employee.  Such  employers shall be required to
enroll in the system designated by the commissioner, or relevant  agency
commissioners,  in consultation with the director of the budget, for the
purpose of claiming bonus payments under this section.  Such  system  or
process for claiming bonus payments may be different from the system and
process used under subdivision three of this section.
(d)  "Vesting period" shall mean a series of six-month periods between
the  dates  of  October  first,  two  thousand  twenty-one   and   March
thirty-first,  two  thousand  twenty-four  for  which employees that are
continuously employed by an employer during such six-month  periods,  in
accordance with a schedule issued by the commissioner or relevant agency
commissioner  as applicable, may become eligible for a bonus pursuant to
subdivision four of this section.
(e) "Base salary" shall mean, for the purposes of  this  section,  the
employee's  gross  wages  with  the  employer during the vesting period,
excluding any bonuses or overtime pay.
(f) "Municipal corporation" means a county outside  the  city  of  New
York,  a  city,  including the city of New York, a town, a village, or a
school district.
3.  Tracking  and  submission  of  claims   for   bonuses.   (a)   The
commissioner,  in  consultation  with  the commissioner of labor and the
Medicaid inspector general, and subject to any  necessary  approvals  by
the  federal  centers  for Medicare and Medicaid services, shall develop
such forms and procedures as may be needed to  identify  the  number  of
hours employees worked and to provide reimbursement to employers for the
purposes  of  funding  employee  bonuses in accordance with hours worked
during the vesting period.
(b) Using the forms and processes developed by the commissioner  under
this subdivision, employers shall, for a period of time specified by the
commissioner:
(i)  track  the number of hours that employees work during the vesting
period and, as applicable, the number of patients served by the employer
who are eligible for services under this title; and
(ii) submit claims for reimbursement of employee  bonus  payments.  In
filling  out  the  information required to submit such claims, employers
shall use  information  obtained  from  tracking  required  pursuant  to
paragraph  (a) of this subdivision and provide such other information as
may be prescribed by the  commissioner.  In  determining  an  employee's

annualized  base  salary,  the  employer  shall use information based on
payroll records.
(c) Employers shall be responsible for determining whether an employee
is  eligible  under  this  section and shall maintain and make available
upon request all records, data and information the employer relied  upon
in making the determination that an employee was eligible, in accordance
with paragraph (d) of this subdivision.
(d)  Employers shall maintain contemporaneous records for all tracking
and claims related information and documents  required  to  substantiate
claims  submitted  under  this  section for a period of no less than six
years. Employers  shall  furnish  such  records  and  information,  upon
request,  to  the  commissioner,  the  Medicaid  inspector  general, the
commissioner of labor, the secretary of the United States Department  of
Health  and Human Services, and the deputy attorney general for Medicaid
fraud control.
4. Payment of worker bonuses. (a) Upon issuance of a vesting  schedule
by  the  commissioner,  or  relevant  agency commissioner as applicable,
employers shall be required to pay bonuses to employees pursuant to such
schedule based on the number of hours worked during the vesting  period.
The  schedule  shall  provide  for  total  payments  not to exceed three
thousand dollars per employee in accordance with the following:
(i) employees who have worked an average of at least twenty  but  less
than  thirty  hours  per  week over the course of a vesting period would
receive a five hundred dollar bonus for the vesting period;
(ii) employees who have worked an average of at least thirty but  less
than  thirty-five  hours  per  week  over the course of a vesting period
would receive a one thousand dollar bonus for such vesting period;
(iii) employees who have worked an average  of  at  least  thirty-five
hours  per  week over the course of a vesting period would receive a one
thousand five hundred dollar bonus for such vesting period.
(iv) full-time employees who are exempt from overtime compensation  as
established in the labor commissioner's minimum wage orders or otherwise
provided  by  New  York  state  law  or  regulation over the course of a
vesting period would receive a one thousand five  hundred  dollar  bonus
for such vesting period.
(b)   Notwithstanding   paragraph   (a)   of   this  subdivision,  the
commissioner may through regulation specify  an  alternative  number  of
vesting  periods,  provided  that  total  payments  do  not exceed three
thousand dollars per employee.
(c) Employees shall be eligible for  bonuses  for  no  more  than  two
vesting periods per employer, in an amount equal to but not greater than
three thousand dollars per employee across all employers.
(d)  Upon completion of a vesting period with an employer, an employee
shall be entitled to  receive  the  bonus  and  the  employer  shall  be
required  to  pay  the bonus no later than the date specified under this
subdivision, provided however that prior to such date the employee  does
not  terminate,  through action or inaction, the employment relationship
with  the  employer,  in  accordance  with  any  employment   agreement,
including  a  collectively  bargained  agreement,  if  any,  between the
employee and employer.
(e) Any bonus due and payable to an employee under this section  shall
be  made  by  the  employer no later than thirty days after the bonus is
paid to the employer.
(f) an employer shall be required to submit a claim for a bonus to the
department no later than thirty days after an employee's eligibility for
a bonus vests, in accordance with and  upon  issuance  of  the  schedule
issued by the commissioner or relevant agency commissioner.
(g)  No portion of any dollars received from claims under subparagraph
(ii) of paragraph (b) of subdivision three of this section for  employee
bonuses  shall be returned to any person other than the employee to whom
the bonus is due or used to reduce the total compensation an employer is
obligated  to  pay  to  an  employee  under  section  thirty-six hundred
fourteen-c of the public health law, section six  hundred  fifty-two  of
the  labor  law,  or  any  other  provisions  of  law or regulations, or
pursuant to any collectively bargained agreement.
(h) No portion of any bonus available  pursuant  to  this  subdivision
shall  be  payable  to a person who has been suspended or excluded under
the medical assistance program during the vesting period and at the time
an employer submits a claim under this section.
(i) The use of any accruals or other leave, including but not  limited
to  sick,  vacation,  or  time  used under the family medical leave act,
shall be credited towards and included in the calculation of the average
number of hours worked per week over the course of the vesting period.
5. Audits, investigations and  reviews.  (a)  The  Medicaid  inspector
general  shall,  in  coordination with the commissioner, conduct audits,
investigations and reviews of employers required to submit claims  under
this  section.  Such  claims,  inappropriately  paid, under this section
shall  constitute  overpayments  as  that  term  is  defined  under  the
regulations  governing  the  medical  assistance  program.  The Medicaid
inspector general may recover such overpayments to employers as it would
an overpayment under the medical assistance program, impose sanctions up
to and including exclusion from the medical assistance  program,  impose
penalties, and take any other action authorized by law where:
(i)  an  employer  claims  a  bonus  not due to an employee or a bonus
amount in excess of the correct bonus amount due to an employee;
(ii) an employer claims, receives and fails to pay  any  part  of  the
bonus due to a designated employee;
(iii) an employer fails to claim a bonus due to an employee.
(b)  Any  employer identified in paragraph (a) of this subdivision who
fails to identify, claim and pay any bonus for more than ten percent  of
its employees eligible for the bonus shall also be subject to additional
penalties  under subdivision four of section one hundred forty-five-b of
this article.
(c) Any employer who fails to pay any part of the bonus payment  to  a
designated  employee  shall  remain  liable  to  pay  such bonus to that
employee, regardless of any recovery, sanction or penalty  the  Medicaid
inspector general may impose.
(d) In all instances recovery of inappropriate bonus payments shall be
recovered  from  the  employer. The employer shall not have the right to
recover any inappropriately paid bonus from the employee.
(e) Where the Medicaid inspector general  sanctions  an  employer  for
violations  under this section, they may also sanction any affiliates as
defined under the regulations governing the medical assistance program.
6. Rules and regulations. The commissioner, in consultation  with  the
Medicaid  inspector  general  as  it relates to subdivision five of this
section, may promulgate rules, to implement  this  section  pursuant  to
emergency  regulation;  provided, however, that this provision shall not
be construed as requiring  the  commissioner  to  issue  regulations  to
implement this section.