Effective Immediately, New York Will Cease Enforcement Of Covid-19 Vaccine Mandate For Healthcare Workers

The New York State Department of Health has now issued a Dear Administrator Letter (“DAL”), confirming that it has started to roll back the regulation that had required healthcare workers to be vaccinated against COVID as a condition of working in licensed home care services agencies, as well as other entities licensed under the Public Health Law.
Effective immediately, the Department will cease citing providers for failure to comply with the vaccination requirements. A formal repeal of the regulatory requirements will follow later, through the procedures of the Public Health and Health Planning Council (“PHHPC”).  The DAL warns that the Department may continue seeking sanctions against providers based on previously cited violations of the COVID vaccination mandate that allegedly occurred. 
Lastly, the DAL notes that the federal government has also started the process to end the vaccination mandate for healthcare facilities certified by CMS.  

Update on NY Healthcare Budget: Implications on Home Care

Sections of the health care budget seem to be slowly being released as the Legislature and the Governor work feverishly to finalize the New York State budget this week. By all accounts in Albany, the New York State budget will be finalized by the end of this week.

We have received what appears to be a close-to-final summary of the Minimum Wage Act and Wage Parity Law amendments that would take effect upon the adoption of the final budget. As relevant to our readers, this document indicates that the Budget would amend the law to provide the following:

  1. The home care worker wage parity hourly amounts of $3.22 and $4.09 would be reduced by $1.55 effective as of January 1, 2024. This would result in a New York City wage parity rate of $2.54 (instead of $4.09) and the Long Island/Westchester rate of $1.67 (instead of $3.22). If this is indeed the final budget language, we expect that this will not only reduce the wages of those workers who receive their wage parity as a wage (instead of a benefit), but that the plans will also reduce their reimbursements. It remains to be seen whether any such reduction will be by $1.55 or $1.55+overhead. Providers are advised to very carefully implement any wage reductions; the New York Labor Law governs (with strict penalties for noncompliance) the process of reducing wages or changing benefits.
  2. The $1.00 minimum wage increase that is scheduled for October 1, 2023 would be postponed to January 1, 2024. The new law would also cap the minimum wage of home care workers at the general minimum wage + $3.00.
  3. The law would be amended to allow the Department of Health greater authority to collect information from payers and providers about the wages and benefits being paid to home care workers. The owners of agencies would need to certify that the payroll records they are providing to the Department are “true,” under penalty of perjury. Failure to make such payroll records available may result in immediate suspension of the agency from Medicaid (including MLTC Medicaid), and the Department of Health will be empowered to direct MLTCs to suspend any payments to the provider.
  4. The law would be amended to allow the Department of Health greater oversight over managed care organizations, including the contracted rates of payments between such plans and the providers. The stated intent of this amendment is to provide for greater transparency and better enforcement of wage violations. This amendment could also open the door to providers making more kickback-type complaints against plans related to rate-setting between plans and providers.
  5. The Verification Organization program would be void and replaced by EVV.

We do not yet have access to the other parts of the Budget that are being discussed, such as the potential repeal or amendment of the CDPAP RFO. We will provide an update as more information becomes available.

New York Budget Has Been Finalized

Minimum Wage and Wage Parity

The final health and employment bills in the New York State Budget were signed last night. We reported several days ago on the wage parity and minimum wage changes from this year’s Budget as they apply to home care workers. As reported, the following are the newly scheduled minimum and wage parity rates taking effect:

  • January 1, 2024: The home care worker minimum wage for New York City, Westchester, and Long Island will increase to $18.55/hour with the wage parity benefit portion of $3.22 or $4.09 being reduced by $1.55. The minimum wage for the rest of New York State will increase to $17.55.
  • January 1, 2025: The home care worker minimum wage for New York City, Westchester, and Long Island will increase to $19.10/hour. The minimum wage for the rest of New York State will increase to $18.10.
  • January 1, 2026: The home care worker minimum wage for New York City, Westchester, and Long Island will increase to $19.65/hour. The minimum wage for the rest of New York State will increase to $18.65.

We have heard, but are still confirming, that SEIU1199 has lobbied for and, reportedly, secured additional QIVAPP funding to help offset the wage parity benefit subsidy reductions that are slated to take effect as a result of this Budget. As our readers know, the millions of dollars in QIVAPP will only go to home care providers whose workers are represented by SEIU1199 and a handful of other agencies whose workers are not represented by SEIU1199.

The Budget Contains a Significantly Reduced MLTC Oversight Standard than Proposed by Governor

As we had previously reported, the Budget was proposed to have a MLTC RFO-type system and approval process for managed care organizations. Based on the final Budget language that was passed, effective January 1, 2024, every MLTC that is currently authorized to operate will need to have a Medicare Dual Eligible Special Needs Plan in operation with a CMS Quality Star Rating of 3 stars or higher (with plans that do not have the rating being exempted). The MLTC will be required to “sufficiently demonstrate” “success” in the following performance metrics:

  • To “ensure network adequacy,” a “commitment to contracting with ‘adequate’ number of [LHCSAs and FIs] needed to provide necessary personal care services to the greatest practicable number of enrollees …”
  • Readiness to timely implement and adhere to the maximum wait time criteria for key categories of service
  • Commitment to quality improvement
  • Accessibility and geographic distribution of network providers, taking into account the needs of persons with disabilities and the differences between rural, suburban, and urban settings
  • Demonstrated cultural and language competencies specific to the population of participants
  • Ability to serve enrollees across the continuum of care, as demonstrated by the type and number of products the MLTC operates or has applied to operate
  • Value-based care readiness and experience

Many of the terms quoted above are not defined, so it is not clear what and how much the Department of Health will operationalize these Budget provisions to oversee and manage plans. The Commissioner could define what an “adequate” number of LHCSA and FI contracts could be, but it is more likely that the Department will just leave these decisions to be made by plans on a case-by-case basis. 

Budget Cracks Down on Staffing Agencies that Serve Healthcare Providers

The Budget creates registration and significant transparency and reporting requirements for “temporary health care services agencies” and “health care technology platforms,” which the Budget defines to mean “a person, firm, corporation, partnership, association or other entity in the business of providing or procuring temporary employment of health care personnel for health care entities.” Notably, mobile app companies and nurses’ registries are included in this definition. Excluded from the definition, and the law’s coverage, are LHCSAs and solo 1099 healthcare staff that are directly engaged by the covered healthcare provider. The law applies to “health care personnel,” which is defined to include CNAs, nurses, and other licensed or unlicensed direct care staff “provided by the temporary care services agency to provide temporary services.” For purposes of the law, a “health care entity” means an agency, corporation, facility, or individual providing medical or health care services.

Registration Requirements

Effective upon the issuance of regulations by the Department of Health (“DOH”), the Commissioner will require any operator of a temporary health care services agency (“staffing agency” or “agency”) to register that staffing agency with the DOH. The Commissioner will publish guidelines establishing the forms and procedures for the registration, but the forms will require the following information:

  • the name and address of any controlling person of that staffing agency
  • the name and address of healthcare entities where the controlling person or their family members have an ownership relationship or direct the management or policies of such healthcare entities. In other words, the DOH intends to go to the “nucleus” of the ownership structure
  • a demonstration that the applicant is of good moral character and able to comply with all applicable state laws and regulations relating to the activities in which it intends to engage. There is no indication of what factors the DOH we’ll consider in this analysis.
  • Registration and related annual renewal fees of $1000

As a condition of the registration, a staffing agency will be required to:

  • Document that each healthcare personnel provided to or contracted with healthcare entities meets the minimum licensing, training, and continuing education standards for the position in which the healthcare personnel will work
  • Shall comply with all “pertinent” requirements and qualifications for personnel employed in healthcare entities
  • Shall not restrict in any manner the employment opportunities of its healthcare personnel (which means that the staffing agency cannot have restrictive covenants, such as non-competes, in place with the staff)
  • Shall not require the payment of liquidated damages, employment fees, or other compensation should the temporary staff be hired permanently by the facility where they were placed to work
  • Shall retain all records for six years and make them available to the DOH upon request
  • Shall comply with any requests made by the DOH to examine the books and records of the agency, subpoena witnesses, and documents, and make such other investigation as is necessary in the event that the DOH has reason to believe that the books are records do not accurately reflect the financial condition or financial transactions of the agency.

The registration issued by the DOH to any Staffing Agency will be effective for one year.

Transfer of Ownership

When ownership interests of 10% or more, or management of a staffing agency, is sold or transferred, the registration of the staffing agency may be transferred to the new owner or operator for 30 days, or until the new owner or operator applies and is granted or denied a new registration by the DOH, whichever is sooner.

Public Notices and Reporting

The Commissioner of Health will make available a list of all staffing agencies that are registered with the DOH on its website.

The DOH will also publish a quarterly report, containing aggregated and “de-identified” data collected pursuant to this law.

The staffing agency must submit to the DOH copies of all contracts with healthcare facilities to which it assigns or refers healthcare personnel and copies of “all invoices to healthcare entities’ personnel. “The executed contracts must be sent to the DOH within 5 business days of their effective date and are not subject to disclosure under the Freedom of Information Law (“FOIL”).

Minimum Standards for Operations

The new law sets the minimum standards for the operation of the staffing agencies, as follows:

  • The staffing agency must appoint an administrator qualified by training, experience, or education to operate the staffing agency. Again, there is no indication of the level of experience, training, or education sufficient to meet this standard.
  • Every staffing agency location must have its own administrator.
  • The staffing agency must maintain a written agreement or contract with each healthcare facility with which it contracts, and the law establishes the minimum requirements for those contracts.

Compensation for Services

Staffing agencies will be required to report quarterly to the DOH a full list of charges and compensation, including a schedule of all hourly billing rates per category of healthcare personnel, a full description of any administrative charges, and a schedule of rates of all compensation per category of healthcare personnel, including but not limited to the following information:

  • Hourly regular pay rate, shift differential, weekend differential, hazard pay, charge nurse ad-on, overtime, holiday pay, travel or mileage pay, and any health or other fringe benefits provided,
  • The percentage of healthcare entity dollars that the agency spent on temporary staffing wages and benefits compared to the agency’s profits and other administrative costs,
  • A list of the States and zip codes of the healthcare personnel’s primary residences
  • The names of all healthcare entities that the staffing agencies contract with in New York State
  • The number of healthcare personnel of the staffing agency working at each entity, and
  • Any other information that may be required by the Commissioner of Health

Enforcement and Penalties

The New York Attorney General may, upon the request of the DOH, bring an action for an injunction against any individual or entity violating this law. “In addition to other remedies available by law,” violations of this law will be subject to penalties and fines, with each violation committed by any healthcare personnel of a staffing agency being considered a separate violation.

Home Care Employers Take Note “Sweat Bill” Moves Closer to Becoming Law

The SWEAT Bill (full text available here) is yet another well-intentioned but completely unnecessary anti-business piece of legislation that has been resurrected and gained traction with the New York Legislature in the last few days. As the legislative session is wrapping up this week, employee advocacy groups are working diligently in the last few days to ensure that this bill becomes a law. Employers that are in industries that are susceptible to wage claims, such as employers in the home care industry, should contact their local elected officials immediately to object to this bill becoming law.

As we had reported previously when this law was originally introduced several years ago (and, thankfully, had stalled in the Legislature since that time), the SWEAT Bill would allow alleged “victims” of wage theft to obtain a temporary lien against their employer’s (or alleged employer’s) assets upon the filing of a “wage claim.” (The term “wage claim” is not defined in the law and, thus it is unclear if a lawsuit has to be filed in order for the law’s provisions to be triggered, or whether a complaint to the Department of Labor would suffice).  In other words, a current or former employee could file a claim against their employer (or former employer) and immediately place a lien on that employer’s personal and real property. The problematic part of this bill is that it allows an employee to secure the lien without having prove any wrongdoing or error by the employer. The lien, once filed, would be in the amount of the alleged claim (which could be a class claim), plus liquidated damages. In effect, the employee lien could prevent an employer (or alleged employer in cases of fiscal intermediaries) from conveying, selling or transferring real or personal property while the employee lien is in place. The lien could impede a business’s attempts to sell the business or secure financing.

If the SWEAT bill is passed, employees and their attorneys will have significant new leverage to elicit, through threatened litigation or claims, favorable wage and hour payouts from employers. Employers, facing the prospect of expensive litigation and a lien, would be pressured into settling even the most meritless of claims. 

The SWEAT Bill was previously vetoed by Governor Cuomo. Perhaps the same fate will follow the bill with Governor Hochul, but no employer should sit idly by given the potential ramifications of this law. We encourage all our readers to contact their lobbyists, associations or attorney and the legislative officials directly to object to this bill becoming a law.

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