2013 New York Consolidated Laws
PBH - Public Health
Article 36 - (3600 - 3622) 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  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) 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.
    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 or
  managed care plans 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 all periods on and after March first, two thousand fourteen,
  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.
    (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 lesser  of  (i)  one  hundred  and  fifteen  percent  of  the  total
  compensation  mandated  by  the living wage law as set on March first of
  each succeeding year of a city with a population of one million or  more
  or;  (ii)  the  total  compensation  mandated  by the living wage law of
  Nassau, Suffolk or Westchester county, based  on  the  location  of  the
  episode of care
    4.   Any  portion  of  the  minimum  rate  of  home  care  aide  total
  compensation attributable to health benefit costs or payments in lieu of
  health  benefits,  and  paid  time  off,  as  established  pursuant   to
  subdivision  three  of  this section shall be superseded by the terms of
  any employer bona fide collective bargaining agreement in effect  as  of
  January  first,  two  thousand eleven, or a successor to such agreement,
  which provides for home care aides' health benefits through payments  to
  jointly administered labor-management funds.
    5.  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 under any
  other arrangement.
    6. No payments by government agencies shall be made to certified  home
  health  agencies,  long  term home health care programs, or managed care
  plans for any episode of care without the certified home health  agency,
  long  term  home  health  care  program,  or  managed  care  plan having
  delivered prior written certification  to  the  commissioner,  on  forms
  prepared by the department in consultation with the department of labor,
  that  all  services  provided  under  each  episode  of care are in full
  compliance  with  the  terms  of  this  section  and   any   regulations
  promulgated pursuant to this section.
    7.  If  a  certified  home health agency or long term home health care
  program elects to provide home care aide services through contracts with
  licensed home care services agencies 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 must
  obtain a written certification from  the  licensed  home  care  services
  agency  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 or other third party's compliance  with  the
  terms  of  this  section.  Such  certifications  shall also obligate the
  certified  home  health  agency,  long term home health care program, or
  managed care plan to obtain, on no less  than  a  quarterly  basis,  all
  information  from  the licensed home care services agency or other third
  parties necessary to verify compliance with the terms of  this  section.
  Such certifications and the information exchanged pursuant to them 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, or other third parties for a period of no  less  than
  ten years, and made available to the department upon request.
    8.  The  commissioner  shall  distribute  to all certified home health
  agencies, long term home health care programs, and  managed  care  plans
  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.
    9. The commissioner is authorized to promulgate regulations,  and  may
  promulgate  emergency  regulations,  to implement the provisions of this
  section.
    10. Nothing in this section should be construed as applicable  to  any
  service  provided  by  certified  home  health  agencies, long term home
  health care programs, or managed care plans except for all  episodes  of
  care reimbursed in whole or in part by the New York Medicaid program.
    11.  No  certified  home health agency, managed care plan or long term
  home health care program shall be liable for recoupment of payments  for
  services  provided through a licensed home care services agency 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  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 subdivisions six and seven of this section.