2018 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.
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, the consumer directed  personal  assistance  program
  under section three hundred sixty-five-f of the social services law, 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 two thousand 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 the consumer
  directed  personal  assistance  program  under  section  three   hundred
  sixty-five-f of the social services law, or under any other arrangement.
5.  No payments by government agencies shall be made to certified home
  health agencies, long term  home  health  care  programs,  managed  care
  plans,  or  the  consumer  directed  personal  assistance  program under
  section three hundred sixty-five-f of the social services law,  for  any
  episode of care without the certified home health agency, long term home
  health care program, managed care plan or the consumer directed personal
  assistance  program  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.
6.  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,   fiscal
  intermediary  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.
7.  The  commissioner  shall  distribute  to all certified home health
  agencies, long term home health care programs, managed care  plans,  and
  fiscal  intermediaries  in  the  consumer  directed  personal assistance
  program under section three hundred sixty-five-f of the social  services
  law, 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.
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,  long  term  home
  health  care programs, managed care plans, or consumer directed personal
  assistance program under  section  three  hundred  sixty-five-f  of  the
  social  services law 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, long term home
  health care program, or fiscal intermediary  in  the  consumer  directed

  personal  assistance program under section three hundred sixty-five-f of
  the social services law 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, managed care plan, or fiscal intermediary
  has  reasonably  and  in  good  faith  collected  certifications and all
  information required pursuant to  subdivisions  five  and  six  of  this
  section.