DAL #: DHCBS 11-09 - Subject: Home Care Worker Wage Parity

August 22, 2011

Dear Administrator:

The purpose of this letter is to provide information and guidance on the recent addition to the Public Health Law of § 3614-c, Home Care Worker Wage Parity. This section establishes a minimum wage for home care aides who perform Medicaid reimbursed work for certified home health agencies (CHHAs), long term home health care programs (LTHHCPs) and managed care organizations (MCOs) within New York City and within the counties of Nassau, Suffolk and Westchester. MCOs include mainstream plans, as well as all forms of managed long term care plans. This section also affects licensed home care services agencies (LHCSAs), including limited licensed home care agencies (LLHCSAs), to the extent that they contract with a CHHA, LTHHCP or MCO to provide services to clients of those entities in the specified locations.

The implementation of the Home Care Worker Wage Parity provisions will take place in phases over the next several years during which time the percent of the minimum rate of home care aide total compensation will increase annually (Attachment A). Total compensation for this purpose 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. 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. Under certain circumstances, private collective bargaining agreements covering home care aides can impact the determination of total compensation and the calculation of health benefits.

The Department will provide all CHHAs, LTHHCPs and MCOs an official notice of the minimum rates of compensation for each social service district covered by this requirement by November 1 of each year.

All individuals defined as home care aides who are employed by covered entities must be paid at the minimum rates established according to the attached schedule, Attachment A. A home care aide has primary responsibility for providing in-home assistance with activities of daily living, instrumental activities of daily living or health-related tasks. Individuals who are classified as home care aides include home health aides, personal care aides, home attendants, and any other licensed or unlicensed person whose primary responsibility is to provide in home assistance with activities of daily living or health related tasks. Home care aides who provide services for CHHAs, LTHHCPs or MCOs that are reimbursed in whole or in part by Medicaid must be reimbursed at no less than the minimum rate established according to the attached schedule. The living wage requirement applies to all dually eligible cases where Medicaid is the payer in part or in whole.

On an annual basis, CHHAs, LTHHCPs and MCOs must provide the Commissioner of the Department of Health written certification that all services provided are in full compliance with the terms of the Home Care Worker Wage Parity Law; the certification must include collective bargaining agreement (CBA) status and identification of the entities the CBAs are with. For organizations that elect to contract with licensed home care services agencies or other third parties, the CHHA, LTHHCP, or MCO must obtain a written certification that attests that the contracted entity is in compliance with this provision. These certifications must include all information necessary to verify compliance and that such information has been submitted to the CHHA, LTHHCP or MCO at least quarterly by the contracted entity. All providers must maintain records of compliance for at least 10 years and such records are to be made available to the Department upon request. The forms to be used for these certifications are attached to this letter (Attachment B). To help ensure compliance, all CHHAs, LTHHCPs or MCOs should submit a list of all subcontractors which reflect the subcontractors' collective bargaining agreement (CBA) status, including the entities the CBAs are with. In addition, any certification that the CHHA, LTHHCP or MCO receives from a subcontractor should be submitted as well as kept on file for at least 10 years.

Failure to fully comply with the terms of the Home Care Worker Parity requirements will result in non-payment of services rendered, as required by Public Health Law § 3614-c(2). Any questions you may have regarding the Home Care Worker Parity provision and its implementation should be forwarded via email to: homecare@health.state.ny.us, with Home Care Worker Parity indicated in the subject line. The Department will be releasing a frequently asked question document in the future which will include instructions on submission of the certification forms.

Sincerely,

Mark L. Kissinger
Deputy Commissioner
Office of Long Term Care

Attachment A

Schedule of Implementation of the Home Care Worker Parity Living Wage Law

New York City

  • 3/1/2012 - 2/28/2013:
    • 90% of the total compensation mandated by the living wage law of NYC
  • 3/1/2013 - 2/28/2014:
    • 95% of the total compensation mandated by the living wage law of NYC
  • 3/1/2014 and beyond the following applies:
    • No less than the prevailing rate of total compensation as of 1/1/2011 or the total compensation mandated by the living wage law, whichever is greater.

Westchester, Suffolk, Nassau Counties

  • 3/1/2013 - 2/28/2014:
    • 90% of the total compensation mandated by the living wage law of NYC
  • 3/1/2014 - 2/28/2015:
    • 95% of the total compensation mandated by the living wage law of NYC
  • 3/1/2015 - 2/28/2016:
    • 100% of the total compensation mandated by the living wage law of NYC
  • 3/1/2016 and beyond: The lesser of the following will apply:
    • 115% of the total compensation of NYC; or
    • The total compensation mandated by the living wage law of Nassau, Suffolk or Westchester counties depending on episode of care location.

Attachment B: Annual Certification of Compliance with Home Care Worker Wage Parity