N.Y. Public Health Law § 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.