2023 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  the  period  April  first,  two  thousand  sixteen, through
December thirty-first, two thousand twenty-two 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;
(v)  for  the  period January first, two thousand twenty-three through
December thirty-first, two thousand twenty-three, the  cash  portion  of
the  minimum  rate  of  home  care  aide total compensation shall be the
minimum wage for home care aides in the applicable region, as defined in
section thirty-six hundred  fourteen-f  of  this  article.  The  benefit
portion  of  the minimum rate of home care aide total compensation shall
be four dollars and nine cents;
(vi)  for  all  periods  on  or  after  January  first,  two  thousand
twenty-four,  the  cash  portion  of  the minimum rate of home care aide
total compensation shall be the minimum wage for home care aides in  the
applicable  region,  as defined in section thirty-six hundred fourteen-f
of this article. The benefit portion of the minimum rate  of  home  care
aide total compensation shall be two dollars and fifty-four 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 the period March first, two thousand sixteen through December
thirty-first, two thousand twenty-two, 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;
(v) for the period January first, two  thousand  twenty-three  through
December  thirty-first,  two  thousand twenty-three, the cash portion of
the minimum rate of home care  aide  total  compensation  shall  be  the
minimum wage for the applicable region, as defined in section thirty-six
hundred  fourteen-f  of this article. The benefit portion of the minimum
rate of home care aide total compensation shall  be  three  dollars  and
twenty-two cents;
(vi)  for  all  periods  on  or  after  January  first,  two  thousand
twenty-four, the cash portion of the minimum  rate  of  home  care  aide
total  compensation shall be the minimum wage for the applicable region,
as defined in section thirty-six hundred fourteen-f of this article. The
benefit portion of the minimum rate of home care aide total compensation
shall be one dollar and sixty-seven 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.