Home Health Care

Home Care Developments – NYS Governor’s Budget

Yesterday’s publication of the Governor’s Budget kicks off what promises to be an exciting Budget season for anyone in healthcare. In no particular order, below are the Proposals contained in the Governor’s Memorandum in Support of the Health and Mental Hygiene sections of the Budget:

  • The Home Care and Personal Care Workforce Recruitment and Retention programs would be renewed and extended through March 31, 2026.
  • MLTC moratorium would be extended until March 31, 2027. 
  • During the moratorium on MLTCs, all MLTC plans would be required to meet certain stated performance standards on or before October 1, 2024. The performance standards would include a plan’s commitment to contract “with the minimum number of [LHCSAs] needed to provide the necessary [PCA] services to the greatest practicable number of enrollees and the minimum number of [FIs] needed to provide necessary [CDPAS].” 
  • The proposed bill from the Governor states that “as of January 1, 2024, no entity would be permitted to provide, directly or through contract, [FI] services without an authorization as a [FI] issued by the Commissioner. ” The bill then contains a directive to the DOH Commissioner to “issue regulations, including emergency regulations, clarifying the authorization process, standards, and time frames.” It is not clear if this directive means that a whole new authorization process will be issued by the Department, or some modification of the prior authorization process will be conducted.
  • The wage parity law for CDPAP would be eliminated and replaced with reforms that would “better target the intent of wage parity.” The Governor proposes to establish a CDPAP “supplemental premium assistance funds” to ensure that healthcare workers in CDPAP maintain access to essential health care benefits. We are reviewing the proposed bill now, but it seems that this essential health care benefit would be Statewide, for all PAs, who do not otherwise have health coverage.
  • The Public Health Law would be amended to clarify that certain types of transfers of ownership interests for home care agencies do not require prior approval of the Public Health and Health Planning Council and could simply be done upon notice to the DOH.
  • In addition, the Governor proposes to amend the Public Health Law to reduce processing times for Certificate of Need applications that are submitted for new LHCSAs.
  • To increase the number of health care workers in New York State, New York would enter into Interstate Licensure Compacts and nurse licensure compacts that would make it easier for health care professionals that are licensed in other states to practice in New York, either physically or virtually.
  • The authorization for advanced home health aides would be extended for another six years.
  • Nurse staffing agencies would be required to register and report key data about their operations, with the goal of increasing transparency into the utilization and costs of contract labor.
  • The responsibilities for oversight of certain healthcare professionals would be transferred from the Department of Education to the Department of Health.
  • New York Would automatically increase the minimum wage, consistent with the year-over-year Consumer Price Index-W for the Northeast Region. Annual increases would be capped, and increases could be paused in the event of certain economic conditions.

If you’d like to read up on any of these proposals, please review the Health Care Briefing Book and the full Budget Briefing Book. These will contain summaries of the Governor’s proposals. 

We are reviewing the 1100 pages of proposed revisions to the law (see Bill Language) that would support the Governor’s plans and proposals and will discuss the details of the proposals with any clients who may have questions.   

Gov. budget legislation

Gov. Hochul’s Executive Budget Proposal Contains CON-Like Review of Certain Physician Practice Control Transactions

Responding to what is termed a lack of sufficient oversight of “unregulated” non-Article 28 practices and management services organizations, Governor Hochul proposed within her 2023-2024 Executive Budget submission legislation that would require certain transactions made related to these organizations to be reviewed and approved by the state Department of Health.

If enacted, the proposal would create Article 45-A of the Public Health Law entitled “Review and Oversight of Material Transactions” that would submit certain private equity supported practice transactions, private practice mergers and acquisitions, and management services organization (MSO) transactions to a new regulatory burden.

According to the legislation, much of the pretext for this action rests on concerns related to cost, access, quality, equity and competition held by state regulators and policy makers. It also likely results in part from years of intense lobbying by hospital interests as they seek to “level the playing field” concerning state approval differences between Article 28 and non-Article 28 practices. New York’s long-standing aversion to private-equity backed medical care may also play a role.

Specifically, the proposal targets “change of control” actions or what is termed “material transactions” related to MSOs that provide “all or substantially all administrative or management services under contract with one or more physician practice.” The bill language defines “material transactions” as mergers; acquisitions; affiliations; contracts or affiliations between a health care entity and a person; and the development of a “management services organization for the purpose of administering contracts with health plans, third-party administrators, pharmacy benefit managers, or health care providers.”

It is important to note that the proposal would also grant DOH the authority to unilaterally expand the definition of “material transaction” in the future.

Should this proposal become law, many currently unregulated routine transactions between private entities would be subject to state review and approval, including management contracts and asset acquisition contracts between MSOs and physician practices, and physician investments in an MSO.

The proposal, which closely mirrors laws recently enacted in Oregon, Washington and California, would require initiators of covered transactions to submit to DOH 30 days before the closing date of the transaction an application that includes: the purpose of the transaction; locations involved and subsequent impact thereon; a description of any service or plan participation elimination or reduction; copies of formal agreements; an analysis of the impact on cost, quality, access, equity, and competition; and a description of any commitments concerning expansion or health equity.

Should the information in the application meet the requirements, the application would be automatically approved at the conclusion of the 30-day review period. However, should DOH require additional information the application would pend until such time as DOH completes a more intensive review. At the conclusion of its review DOH may take any of the following actions:

  • Approve the application
  • Reject the application
  • Refer the application to the state Attorney General for scrutiny specific to competition concerns
  • Approve with “conditions” that may include community reinvestment requirements, contributions to New York’s “health care transformation fund,” or other actions.

Applicants should be aware that all information submitted through this process may be available to the public and in certain instances DOH may seek public comment concerning a given application.

Notably, the measure is not without teeth. Under its provisions DOH is authorized to impose a civil penalty of up to $10,000 per day for each day a transaction fails to comply, and/or pursue an injunction against any transaction failing to follow the application process.

While this is clearly a policy matter, it was nonetheless included within the comprehensive “Article 7” budget bill, which is one of several bills that collectively constitute the Executive Budget proposal. As such, the elimination or modification of its provisions is made more difficult within the context of the far more broad final budget negotiations between the Governor and the Legislature.

Interested parties are encouraged to contact their state lawmakers to express any concerns related to this proposal, including any deleterious impacts it would have on the ability to provide services in communities where needs are most acute. 

NY Now Requires Electronic Distribution of Mandatory Workplace Posters

Effective December 16, 2022, Labor Law Section 201 was amended to require New York employers to provide employee rights notices electronically.  Traditionally, employers satisfied their workplace notice posting requirements by physically posting government-issued posters in the workplace, often on bulletin boards or pre-printed posters. However, with this amendment of the Labor Law, employers are now required to provide these notices either by email or through the employer’s website, in addition to continuing to post the notices in any physical work location.  Employers are also required to notify employees that the employee workplace notices are available electronically.

This change to Section 201 of the Labor Law was sloppy, creating a number of practical challenges for already over-regulated New York employers.  For example, for employers who do not maintain a website or who do not communicate with employees through email, does the law require them to now create an electronic communication system with those employees?  The law specifically states that digital copies of the notices must be provided on a website or email, seemingly prohibiting the distribution of these notices via text messages.   

Separately, the law amended a New York Labor Law section discussing notices required by the New York Commissioner of Labor, thereby suggesting that only those notices required by the State’s Commissioner of Labor would have to be electronically distributed.  However, the new language in the law states that “all other documents required to be physically posted at a worksite pursuant to a state or federal law or regulation” must also be made electronically available.  This seems to suggest that non-employment type posters and/or those issued by the federal government would also be subject to this new electronic-distribution requirement. 

Lastly, while the law is effective immediately, it is not clear whether employers are required to implement this law for their current staff, or only apply the new requirements to new hires.  If it is the former, the new law creates a time-sensitive urgency for employers to act.

We will be reaching out to the Department of Labor to clarify these requirements.  In the meantime, employers should start considering how to comply with the new law, which is in effect.  For some employers, the law’s requirement of distributing workplace notices electronically will be simple to administer.  However, for other employers, such as those in the home care industry, the requirement may prove difficult to effectuate.  Failure to satisfy the electronic notice posting requirement could result in monetary fines.  In addition, non-compliance could be used as evidence against an employer in connection with allegations of other workplace violations.

NY DOL will Soon Issue New Requirements for Employers’ Mandatory Sexual Harassment Policies

The New York Department of Labor announced that it will release an updated Sexual Harassment Prevention Model Policy following a comprehensive effort to gather and review recommendations from stakeholders, including businesses around the State.  Also according to the State, key updates to the new policy include:

  • More plain language, less legal jargon to make it easier to understand
  • Updates to address sexual harassment of remote workers
  • Updates to define different gender identities and emphasizing that gender discrimination is sexual harassment
  • Additional examples of sexual harassment to account for a broader array of work experiences (i.e., service industries, remote work)

Following the release of the policy, the DOL will begin a comment period. 

New York employers will be required to adopt the new model policy once it is issued, and substitute it for the current policy they are utilizing OR update their currently policy to incorporate the newly required language. 

We will monitor this issue and, once the new policy language is issued, work with clients to update their harassment policies and training program to correspond to the new policy requirements.   

NYC Launches Mediation Center for Domestic Workers

New York City recently launched a new program addressing wage and other employment issues specifically for the City’s domestic workers. The initiative, termed the “Domestic Worker Mediation Program,” will be overseen by the Center for Creative Conflict Resolution, which is part of the Office of Administrative Trials and Hearings.

According to a report by the New York City Department of Consumer and Worker Protection, there are as many as 18,000 domestic workers employed in New York City (e.g. housecleaners, nannies, or other care providers), and more than half have reported experiencing wage theft, leave violations, harassment, discrimination, and fear of retaliation from their employers.

The Mayor and other city officials believe the program will provide an option to resolve disputes in a manner that is less costly and complex than traditional litigation. The program’s services are free, confidential, and offered regardless of immigration status. If both the worker and employer agree to mediation, a neutral mediator will meet with the two parties to identify a resolution acceptable to both parties.

Upstate Minimum Wage for Home Care Workers is Going up by $1.00, not $0.70

In August, the Department of Health (“DOH”) held a presentation for MLTCs regarding the State’s rate setting for Medicaid services. On one of the PowerPoint slides, the DOH noted that the minimum wage (“MW”) rate for upstate home care workers would be increased by an additional $.70 (on top of the $2.00 that was going into effect on October 1), effective as of December 31, 2022. This was the first indication of an upstate minimum wage increase and many providers took note of the $.70 notation and have been negotiating their rates with plans around a $.70 increase. However, as the Department of Labor has made clear several weeks ago, the $1.00 MW rate increase for upstate employers (in all industries) would be $1.00, and the DOL expects this $1.00 increase to be added onto the home care workers’ then-rate of $15.20.  Thus, effective with hours worked on December 31, 2022 and until October 1, 2023, the MW for upstate home care workers will be $16.20.

The Home care worker minimum wage legislation that was passed earlier this year in April stated home care workers would receive $2.00 “in addition to the otherwise applicable minimum wage .” Effectively, this means that the $2.00 for home care workers is paid on top of whatever MW rate is then in effect for the New York region at issue.  As providers probably have seen, the Upstate MW is going up from $13.20 to $14.20 on December 31, 2022 for all industries.  Thus, on December 31, when the new upstate MW increases to $14.20, the $2.00 home care worker MW premium will be added onto that rate of $14.20, resulting in a new upstate MW rate of $16.20. 

The State has published several MW posters which suggest that the DOL considers the new, higher, home care worker wage rates to be the “minimum wage.” This question is relevant to issues such as travel time pay, in-service pay and spread of hours. Thus, in accordance with the current interpretation of New York DOL, the MW for all home care intents and purposes would appear to be the new rate (inclusive of the $2.00 increase) and not the Statewide MW rate.

Please reach out to Poricanin Law if you have any questions about these minimum wage changes

Reminder: Home Care Providers cannot test for Marijuana Use, in Almost all Cases 

Given the recent legalization of recreational marijuana use in New York State, and the regular application of drug tests in the home care industry, it is imperative for employers to understand the limitations of their ability to screen and test for marijuana use.

The Marijuana Regulation and Taxation Act (“MRTA”) amended Section 201-d of the New York Labor Law – which prohibits discrimination by an employer against an employee because of certain lawful outside work activities – to include protections for recreational cannabis use. As such, employers are now prohibited from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and where use does not involve the employer’s equipment or property. Under the MRTA, employers cannot take adverse action against employees for their use of legal cannabis outside of the workplace and outside of working hours work hours, except where: (a) an employer is required to take such action by state or federal law; (b) the employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or (c) the employee, while working, manifests specific articulable symptoms of impairment that either decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a health and safe workplace.

We highlight below several Q&As from the New York Department of Labor guidance for employer’s


  • Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.
  • Can an employer drug test an employee if federal law allows for drug testingNo, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)
  • Can employers require that employees promise or agree not to use cannabis as a condition of employment? No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.

  • Are existing policies prohibiting use permitted? No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law
  • Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.

If you have any questions about this article, or need assistance in preparing lawful marijuana use policies for your workforce, please contact us.

Merger and Acquisition Considerations for Healthcare Providers

As the year comes to a close and operators continue seeking ways to grow through acquisitions and capitalize on some of the COVID relief to grow their businesses, we provide this article and overview of the key issues to consider in corporate transactions.

While mergers and acquisitions present considerable potential benefit, they can also present substantial compliance risks. Key regulatory and employment law considerations include:

  • Regulatory considerations. In home care, a license does not “transfer” with the sale of stock or membership interests of an organization. Thus, the duration of any change of ownership process should be considered, as well as the practical operational issues related to the business as the buyer is waiting for the license transfer process to be completed. Who will run the business until the change of ownership is complete, and what protections will the seller have while the license is still under their name from any liabilities that the buyer-operator may incur? These are important issues to address before signing off on a transaction.
  • Implications of federal, state and local laws applicable to the specific type of service being provided by the seller. In home care, wage parity is a major financial and operational burden that, upstate or out-of-state buyers should carefully consider and analyze before undertaking the acquisition of a downstate entity.  
  • Proper classification of workers that qualify as exempt or independent contractors, especially sales personnelDepending on the nature of the transaction, wage and hour issues that exist with the seller entity could be deemed assumed, or “inherited,” by the surviving or buyer entity. Thus, these issues should be carefully reviewed to ensure the buyer is not buying a liability. Further, in healthcare generally, 1099 relationships with marketing and business development professionals could carry significant antikickback violations that the buyer might not wish to assume.
  • The status of the license, if any, or contracts for services that the seller holds. The value of a business or an asset for licensed providers depends in large part on the contracts and licenses that the business holds. Thus, a buyer will want to ensure that the license or contract is “secure” with the seller. Did the seller have a bad survey recently that could result in revocation proceedings? Is the seller a CDPAP FI that did not receive the “lead” FI award and, thus, will have to cease operations at one point? Is the seller currently under investigation by regulators for fraud or other serious issues that could result in asset diminution? These are all issues that should be considered by a buyer.
  • Inclusion of non-discretionary bonuses when calculating overtime. For a bonus to qualify as discretionary, three key standards must be met: the employer has the sole discretion in determining whether to pay the bonus; the employer has the sole discretion in determining the amount of the bonus; and the bonus payment is not made according to any prior contract, agreement or promise.
  • Billing errors. If the seller bills any government payors, a prudent buyer will conduct a review of the claims submitted and paid, as well as claims submission process, to assess the level, if any, of noncompliance with federal, state or contractual billing requirements. Depending on the structure of the transaction, regulators, like the Attorney General or OMIG, may seek recoupment of wrongfully paid claims against a third-party buyer.
  • Successorship obligations when acquiring a unionized workforce. If a purchaser is deemed to be a successor, the purchaser is obligated to recognize and bargain with the union representing the seller’s employees. Therefore, the obligations and costs of the union contract must be carefully assessed.
  • Immigration employment issues and associated I-9 obligations. Does the seller retain all the documentation necessary to comply with immigration laws? Common problems include incomplete or fraudulent documents, failure to retain documents, and failure to track expiration dates, among others.
  • Employee background check obligations and prohibitions. Employers must meet specific obligations at three different stages: before a background check is requested; before “adverse” action is taken based on a background check; and after adverse action is taken based a background check. In addition, exclusion checks in the healthcare field have to be conducted on staff as a condition of billing for such staff services. The seller’s procedures in regards to background checks should be a subject of due diligence. 
  • Affordable Care Act requirements and the penalties associated with non-compliance. Under the Act, employers with 50 or more full-time employees, or with a part-time employee equivalent of 50 full-time employees, must offer affordable minimum-value health insurance to employees working 30 or more hours per week. Employers failing to comply must pay considerable penalties.
  • Federal and state tax consequences of “Golden Parachute” arrangements. For example, such payments often are not deductible by the corporation and are subject to an excise tax on the recipient.
  • Federal and state Worker Adjustment and Retraining Notice (WARN) obligations. Generally, employers with 100 or more employees who work more than 20 hours per week must assess whether compliance with the federal WARN Act is required relative to any certain job-reduction action. The same assessment must be made concerning compliance with the New York State WARN Act.
  • OSHA COVID prevention and mitigation requirements. OSHA’s enforcement of Covid and non-Covid related workplace hazards remains robust. Employers must have in place a Covid-19 prevention and mitigation policy, and that policy must be distributed to employees.

DOH has taken Steps to Address Healthcare Worker Bonus Portal Challenges for LHCSAs

The Healthcare Worker Bonus Portal (the “Portal”) is not accessible to LHCSAs that have a “non-billing” provider number, the MMIS.  LHCSAs that only bill managed care and not Medicaid directly might have been assigned a MMIS that is a “non-billing provider” MMIS. Unfortunately, this non-billing MMIS precludes the LHCSA from accessing the Portal and  processing requests for the healthcare worker bonus.

Today, however, the Department of Health (“DOH”) sent a notification to providers, requesting that they complete a survey. The survey will create a process for these LHCSAs – who otherwise meet the requirements for the healthcare worker bonus program – to register their employees for the bonus.  Only employers who are eligible but not currently registered for the bonus program should complete this survey, which was sent through eMedNY. The survey is only available until December 6, 2022. Following the close of the survey on December 6, 2022, DOH will provide additional information regarding the bonus program registration procedures. Providers are reminded that they are required to “register” their eligible employees for the bonus program and could be investigated by OMIG if they fail to do so. Thus, all providers that have been unable to complete the portal registration to date should take steps to respond to this survey and pursue the bonus for their employees.

DOH Updates Return-to-Work Protocols for Healthcare Personnel  

The State Department of Health (DOH) has updated its guidelines on return-to-work protocols for healthcare personnel (HCP) with COVID-19 infection or exposure. The guidelines supersede the most recent guidance from the DOH, which had been issued on February 4, 2022 and point providers to the CDC’s guidelines, which are available here and here

The CDC guidelines provide that, generally, asymptomatic HCP who have had a higher-risk exposure do not require work restriction, regardless of vaccination status, if they do not develop symptoms or test positive for SARS-CoV-2. 

For HCP that have tested positive for COVID, rights to time off from work depend on the staffing levels of the health care provider.  If the provider’s staffing levels are so low that the provider is in a “crisis” mode (and crisis mode must be reported to the DOH), then the provider has to follow certain standards when staffing cases with staff who are reporting COVID-positive results. See the CDC guidelines here. In our experience, very few agencies have acknowledged that they are in crisis mode, and even fewer have reported the same to the Department.

For healthcare providers that are in the “contingency capacity” mode, the following rules apply for employees that test positive for COVID:

HCP with mild to moderate illness who are not moderately to severely immunocompromised can return to work when:

  1. At least 5 days have passed since symptoms first appeared (day 0), and
  2. At least 24 hours have passed since last fever without the use of fever-reducing medications, and
  3. Symptoms (e.g., cough, shortness of breath) have improved.

HCP who were asymptomatic throughout their infection and are not moderately to severely immunocompromised may return to work when at least 5 days have passed since the date of their first positive viral test (day 0).

Providers are reminded that COVID sick pay is still in effect and employees must be paid for the time that they are not permitted to work due to COVID. Further, such paid time off cannot be deducted from the employees’ PTO/sick time accruals. Rather, the COVID sick leave is an employer-funded separate “bank” of paid time off to which employees may be entitled.