§ 367-W — Health care and mental hygiene worker bonuses

§ 367-w. Health care and mental hygiene worker bonuses. 1. Purpose and\nintent. New York's essential front line health care and mental hygiene\nworkers have seen us through a once-in-a-century public health crisis\nand turned our state into a model for battling and beating COVID-19. To\nattract talented people into the profession at a time of such\nsignificant strain while also retaining those who have been working so\ntirelessly these past two years, we must recognize the efforts of our\nhealth care and mental hygiene workforce and reward them financially for\ntheir service.\n To do that, the commissioner of health is hereby directed to seek\nfederal approvals as applicable, and, subject to federal financial\nparticipation, to support with federal and state funding bonuses to be\nmade available during the state fiscal year of 2023 to recruit, retain,\nand reward health care and mental hygiene workers.\n 2. Definitions. As used in this section, the term:\n (a) "Employee" means certain front line health care and mental hygiene\npractitioners, technicians, assistants and aides that provide hands on\nhealth or care services to individuals, without regard to whether the\nperson works full-time, part-time, on a salaried, hourly, or temporary\nbasis, or as an independent contractor, that received an annualized base\nsalary of one hundred twenty-five thousand dollars or less, to include:\n (i) Physician assistants, dental hygienists, dental assistants,\npsychiatric aides, pharmacists, pharmacy technicians, physical\ntherapists, physical therapy assistants, physical therapy aides,\noccupational therapists, occupational therapy assistants, occupational\ntherapy aides, speech-language pathologists, respiratory therapists,\nexercise physiologists, recreational therapists, all other therapists,\northotists, prosthetists, clinical laboratory technologists and\ntechnicians, diagnostic medical sonographers, nuclear medicine\ntechnologists, radiologic technologists, magnetic resonance imaging\ntechnologists, ophthalmic medical technicians, radiation therapists,\ndietetic technicians, cardiovascular technologists and technicians,\ncertified first responders, emergency medical technicians, advanced\nemergency medical technicians, paramedics, surgical technologists, all\nother health technologists and technicians, orderlies, medical\nassistants, phlebotomists, all other health care support workers, nurse\nanesthetists, nurse midwives, nurse practitioners, registered nurses,\nnursing assistants, and licensed practical and licensed vocational\nnurses;\n (ii) to the extent not already included in subparagraph (i) of this\nparagraph, staff who perform functions as described in the consolidated\nfiscal report (CFR) manual with respect to the following title codes:\n Mental Hygiene Worker;\n Residence/Site Worker;\n Counselor (OMH);\n Manager (OMH);\n Senior Counselor (OMH);\n Supervisor (OMH);\n Developmental Disabilities Specialist QIDP - Direct Care (OPWDD);\n Certified Recovery Peer Advocate;\n Peer Professional - Non-CRPA (OASAS Only);\n Job Coach/Employment Specialist (OMH and OPWDD);\n Peer Specialist (OMH);\n Counselor - Alcoholism and Substance Abuse (CASAC);\n Counseling Aide/Assistant - Alcoholism and Substance Abuse;\n Other Direct Care Staff;\n Case Manager;\n Counselor - Rehabilitation;\n Developmental Disabilities Specialist/Habilitation Specialist QIDP -\nClinical (OPWDD);\n Emergency Medical Technician;\n Intensive Case Manager (OMH);\n Intensive Case Manager/Coordinator (OMH);\n Nurse - Licensed Practical;\n Nurse - Registered;\n Psychologist (Licensed);\n Psychologist (Master's Level)/Behavioral Specialist;\n Psychology Worker/Other Behavioral Worker;\n Social Worker - Licensed (LMSW, LCSW);\n Social Worker - Master's Level (MSW);\n Licensed Mental Health Counselor (OASAS, OMH, OCFS);\n Licensed Psychoanalyst (OMH);\n Therapist - Recreation;\n Therapist - Activity/Creative Arts;\n Therapist - Occupational;\n Dietician/Nutritionist;\n Therapy Assistant/Activity Assistant;\n Nurse's Aide/Medical Aide;\n Behavior Intervention Specialist 1 (OPWDD);\n Behavior Intervention Specialist 2 (OPWDD);\n Clinical Coordinator;\n Intake/Screening;\n Pharmacist;\n Marriage and Family Counselor/Therapist;\n Residential Treatment Facility (RTF) Transition Coordinator (OMH);\n Crisis Prevention Specialist (OMH);\n Early Recognition Specialist (OMH);\n Other Clinical Staff/Assistants;\n Nurse Practitioner/Nursing Supervisor;\n Therapist - Physical;\n Therapist - Speech;\n Program or Site Director; and\n Assistant Program or Assistant Site Director; and\n (iii) such titles as determined by the commissioner, or relevant\nagency commissioner as applicable, and approved by the director of the\nbudget.\n (b) "Employer" means a provider enrolled in the medical assistance\nprogram under this title that employs at least one employee and that\nbills for services under the state plan or a home and community based\nservices waiver authorized pursuant to subdivision (c) of section\nnineteen hundred fifteen of the federal social security act, or that has\na provider agreement to bill for services provided or arranged through a\nmanaged care provider under section three hundred sixty-four-j of this\ntitle or a managed long term care plan under section forty-four hundred\nthree-f of the public health law, to include:\n (i) providers and facilities licensed, certified or otherwise\nauthorized under articles twenty-eight, thirty, thirty-six or forty of\nthe public health law, articles sixteen, thirty-one, thirty-two or\nthirty-six of the mental hygiene law, article seven of this chapter,\nfiscal intermediaries under section three hundred sixty-five-f of this\ntitle, pharmacies registered under section six thousand eight hundred\neight of the education law, or school based health centers;\n (ii) programs that participate in the medical assistance program and\nare funded by the office of mental health, the office of addiction\nservices and supports, or the office for people with developmental\ndisabilities; and\n (iii) other provider types determined by the commissioner and approved\nby the director of the budget;\n (iv) provided, however, that unless the provider is subject to a\ncertificate of need process as a condition of state licensure or\napproval, such provider shall not be an employer under this section\nunless at least twenty percent of the provider's patients or persons\nserved are eligible for services under this title and title XIX of the\nfederal social security act.\n (c) Notwithstanding the definition of employer in paragraph (b) of\nthis subdivision, and without regard to the availability of federal\nfinancial participation, "employer" shall also include an institution of\nhigher education, a public or nonpublic school, a charter school, an\napproved preschool program for students with disabilities, a school\ndistrict or boards of cooperative educational services, programs funded\nby the office of mental health, programs funded by the office of\naddiction services and supports, programs funded by the office for\npeople with developmental disabilities, programs funded by the office\nfor the aging, a health district as defined in section two of the public\nhealth law, or a municipal corporation, where such program or entity\nemploys at least one employee. Such employers shall be required to\nenroll in the system designated by the commissioner, or relevant agency\ncommissioners, in consultation with the director of the budget, for the\npurpose of claiming bonus payments under this section. Such system or\nprocess for claiming bonus payments may be different from the system and\nprocess used under subdivision three of this section.\n (d) "Vesting period" shall mean a series of six-month periods between\nthe dates of October first, two thousand twenty-one and March\nthirty-first, two thousand twenty-four for which employees that are\ncontinuously employed by an employer during such six-month periods, in\naccordance with a schedule issued by the commissioner or relevant agency\ncommissioner as applicable, may become eligible for a bonus pursuant to\nsubdivision four of this section.\n (e) "Base salary" shall mean, for the purposes of this section, the\nemployee's gross wages with the employer during the vesting period,\nexcluding any bonuses or overtime pay.\n (f) "Municipal corporation" means a county outside the city of New\nYork, a city, including the city of New York, a town, a village, or a\nschool district.\n 3. Tracking and submission of claims for bonuses. (a) The\ncommissioner, in consultation with the commissioner of labor and the\nMedicaid inspector general, and subject to any necessary approvals by\nthe federal centers for Medicare and Medicaid services, shall develop\nsuch forms and procedures as may be needed to identify the number of\nhours employees worked and to provide reimbursement to employers for the\npurposes of funding employee bonuses in accordance with hours worked\nduring the vesting period.\n (b) Using the forms and processes developed by the commissioner under\nthis subdivision, employers shall, for a period of time specified by the\ncommissioner:\n (i) track the number of hours that employees work during the vesting\nperiod and, as applicable, the number of patients served by the employer\nwho are eligible for services under this title; and\n (ii) submit claims for reimbursement of employee bonus payments. In\nfilling out the information required to submit such claims, employers\nshall use information obtained from tracking required pursuant to\nparagraph (a) of this subdivision and provide such other information as\nmay be prescribed by the commissioner. In determining an employee's\nannualized base salary, the employer shall use information based on\npayroll records.\n (c) Employers shall be responsible for determining whether an employee\nis eligible under this section and shall maintain and make available\nupon request all records, data and information the employer relied upon\nin making the determination that an employee was eligible, in accordance\nwith paragraph (d) of this subdivision.\n (d) Employers shall maintain contemporaneous records for all tracking\nand claims related information and documents required to substantiate\nclaims submitted under this section for a period of no less than six\nyears. Employers shall furnish such records and information, upon\nrequest, to the commissioner, the Medicaid inspector general, the\ncommissioner of labor, the secretary of the United States Department of\nHealth and Human Services, and the deputy attorney general for Medicaid\nfraud control.\n 4. Payment of worker bonuses. (a) Upon issuance of a vesting schedule\nby the commissioner, or relevant agency commissioner as applicable,\nemployers shall be required to pay bonuses to employees pursuant to such\nschedule based on the number of hours worked during the vesting period.\nThe schedule shall provide for total payments not to exceed three\nthousand dollars per employee in accordance with the following:\n (i) employees who have worked an average of at least twenty but less\nthan thirty hours per week over the course of a vesting period would\nreceive a five hundred dollar bonus for the vesting period;\n (ii) employees who have worked an average of at least thirty but less\nthan thirty-five hours per week over the course of a vesting period\nwould receive a one thousand dollar bonus for such vesting period;\n (iii) employees who have worked an average of at least thirty-five\nhours per week over the course of a vesting period would receive a one\nthousand five hundred dollar bonus for such vesting period.\n (iv) full-time employees who are exempt from overtime compensation as\nestablished in the labor commissioner's minimum wage orders or otherwise\nprovided by New York state law or regulation over the course of a\nvesting period would receive a one thousand five hundred dollar bonus\nfor such vesting period.\n (b) Notwithstanding paragraph (a) of this subdivision, the\ncommissioner may through regulation specify an alternative number of\nvesting periods, provided that total payments do not exceed three\nthousand dollars per employee.\n (c) Employees shall be eligible for bonuses for no more than two\nvesting periods per employer, in an amount equal to but not greater than\nthree thousand dollars per employee across all employers.\n (d) Upon completion of a vesting period with an employer, an employee\nshall be entitled to receive the bonus and the employer shall be\nrequired to pay the bonus no later than the date specified under this\nsubdivision, provided however that prior to such date the employee does\nnot terminate, through action or inaction, the employment relationship\nwith the employer, in accordance with any employment agreement,\nincluding a collectively bargained agreement, if any, between the\nemployee and employer.\n (e) Any bonus due and payable to an employee under this section shall\nbe made by the employer no later than thirty days after the bonus is\npaid to the employer.\n (f) an employer shall be required to submit a claim for a bonus to the\ndepartment no later than thirty days after an employee's eligibility for\na bonus vests, in accordance with and upon issuance of the schedule\nissued by the commissioner or relevant agency commissioner.\n (g) No portion of any dollars received from claims under subparagraph\n(ii) of paragraph (b) of subdivision three of this section for employee\nbonuses shall be returned to any person other than the employee to whom\nthe bonus is due or used to reduce the total compensation an employer is\nobligated to pay to an employee under section thirty-six hundred\nfourteen-c of the public health law, section six hundred fifty-two of\nthe labor law, or any other provisions of law or regulations, or\npursuant to any collectively bargained agreement.\n (h) No portion of any bonus available pursuant to this subdivision\nshall be payable to a person who has been suspended or excluded under\nthe medical assistance program during the vesting period and at the time\nan employer submits a claim under this section.\n (i) The use of any accruals or other leave, including but not limited\nto sick, vacation, or time used under the family medical leave act,\nshall be credited towards and included in the calculation of the average\nnumber of hours worked per week over the course of the vesting period.\n 5. Audits, investigations and reviews. (a) The Medicaid inspector\ngeneral shall, in coordination with the commissioner, conduct audits,\ninvestigations and reviews of employers required to submit claims under\nthis section. Such claims, inappropriately paid, under this section\nshall constitute overpayments as that term is defined under the\nregulations governing the medical assistance program. The Medicaid\ninspector general may recover such overpayments to employers as it would\nan overpayment under the medical assistance program, impose sanctions up\nto and including exclusion from the medical assistance program, impose\npenalties, and take any other action authorized by law where:\n (i) an employer claims a bonus not due to an employee or a bonus\namount in excess of the correct bonus amount due to an employee;\n (ii) an employer claims, receives and fails to pay any part of the\nbonus due to a designated employee;\n (iii) an employer fails to claim a bonus due to an employee.\n (b) Any employer identified in paragraph (a) of this subdivision who\nfails to identify, claim and pay any bonus for more than ten percent of\nits employees eligible for the bonus shall also be subject to additional\npenalties under subdivision four of section one hundred forty-five-b of\nthis article.\n (c) Any employer who fails to pay any part of the bonus payment to a\ndesignated employee shall remain liable to pay such bonus to that\nemployee, regardless of any recovery, sanction or penalty the Medicaid\ninspector general may impose.\n (d) In all instances recovery of inappropriate bonus payments shall be\nrecovered from the employer. The employer shall not have the right to\nrecover any inappropriately paid bonus from the employee.\n (e) Where the Medicaid inspector general sanctions an employer for\nviolations under this section, they may also sanction any affiliates as\ndefined under the regulations governing the medical assistance program.\n 6. Rules and regulations. The commissioner, in consultation with the\nMedicaid inspector general as it relates to subdivision five of this\nsection, may promulgate rules, to implement this section pursuant to\nemergency regulation; provided, however, that this provision shall not\nbe construed as requiring the commissioner to issue regulations to\nimplement this section.\n