Follow Up from NYS Council Thursday morning meeting

April 21, 2022


Our amazing government relations consultant Marcy Savage provides clarity (below) regarding some of the questions we discussed this morning related to the Healthcare Workforce Bonuses provision that was enacted as part of the new FY23 state budget. 

Below and attached.

Hi Lauri,
See attached pages 44-45 of our update with job title list for bonuses.  Also embedded below is Part ZZ in the final ELFA Article VII budget bill on HMH Bonuses.  I highlighted sections which speak to employee applicability.  See highlighted red font for commissioners’ discretion on titles.

PART ZZ, Final ELFA Article VII S8006C/A9006C

24 367-w to read as follows:
25 § 367-w. Health care and mental hygiene worker bonuses. 1. Purpose 26 and intent. New York’s essential front line health care and mental 27 hygiene workers have seen us through a once-in-a-century public health 28 crisis and turned our state into a model for battling and beating 29 COVID-19. To attract talented people into the profession at a time of 30 such significant strain while also retaining those who have been working 31 so tirelessly these past two years, we must recognize the efforts of our 32 health care and mental hygiene workforce and reward them financially for 33 their service.
34 To do that, the commissioner of health is hereby directed to seek 35 federal approvals as applicable, and, subject to federal financial 36 participation, to support with federal and state funding bonuses to be 37 made available during the state fiscal year of 2023 to recruit, retain, 38 and reward health care and mental hygiene workers.
39 2. Definitions. As used in this section, the term:
40 (a) “Employee” means certain front line health care and mental hygiene 41 practitioners, technicians, assistants and aides that provide hands on 42 health or care services to individuals, without regard to whether the 43 person works full-time, part-time, on a salaried, hourly, or temporary 44 basis, or as an independent contractor, that received an annualized base 45 salary of one hundred twenty-five thousand dollars or less, to include: 46 (i) Physician assistants, dental hygienists, dental assistants, 47 psychiatric aides, pharmacists, pharmacy technicians, physical thera- 48 pists, physical therapy assistants, physical therapy aides, occupational 49 therapists, occupational therapy assistants, occupational therapy aides, 50 speech-language pathologists, respiratory therapists, exercise physiolo- 51 gists, recreational therapists, all other therapists, orthotists, 52 prosthetists, clinical laboratory technologists and technicians, diag- 53 nostic medical sonographers, nuclear medicine technologists, radiologic 54 technologists, magnetic resonance imaging technologists, ophthalmic

Section 1.  The social services law is amended by adding a new section
    S. 8006--C                         253                        A. 9006--C

medical technicians, radiation therapists, dietetic technicians, cardio- vascular technologists and technicians, certified first responders, emergency medical technicians, advanced emergency medical technicians, paramedics, surgical technologists, all other health technologists and technicians, orderlies, medical assistants, phlebotomists, all other health care support workers, nurse anesthetists, nurse midwives, nurse practitioners, registered nurses, nursing assistants, and licensed prac- tical and licensed vocational nurses;

(ii) to the extent not already included in subparagraph (i) of this 10 paragraph, staff who perform functions as described in the consolidated 11 fiscal report (CFR) manual with respect to the following title codes:
12 Mental Hygiene Worker;

13 Residence/Site Worker; 14 Counselor (OMH);
15 Manager (OMH);
16 Senior Counselor (OMH); 17 Supervisor (OMH);

18 Developmental Disabilities Specialist QIDP – Direct Care (OPWDD); 19 Certified Recovery Peer Advocate;
20 Peer Professional – Non-CRPA (OASAS Only);
21 Job Coach/Employment Specialist (OMH and OPWDD);

22 Peer Specialist (OMH);
23 Counselor – Alcoholism and Substance Abuse (CASAC);
24 Counseling Aide/Assistant – Alcoholism and Substance Abuse;
25 Other Direct Care Staff;
26 Case Manager;
27 Counselor – Rehabilitation;
28 Developmental Disabilities Specialist/Habilitation Specialist QIDP – 29 Clinical (OPWDD);
30 Emergency Medical Technician;
31 Intensive Case Manager (OMH);
32 Intensive Case Manager/Coordinator (OMH);
33 Nurse – Licensed Practical;
34 Nurse – Registered;
35 Psychologist (Licensed);
36 Psychologist (Master’s Level)/Behavioral Specialist;
37 Psychology Worker/Other Behavioral Worker;
38 Social Worker – Licensed (LMSW, LCSW);
39 Social Worker – Master’s Level (MSW);
40 Licensed Mental Health Counselor (OASAS, OMH, OCFS);
41 Licensed Psychoanalyst (OMH);
42 Therapist – Recreation;
43 Therapist – Activity/Creative Arts;
44 Therapist – Occupational;
45 Dietician/Nutritionist;
46 Therapy Assistant/Activity Assistant;
47 Nurse’s Aide/Medical Aide;
48 Behavior Intervention Specialist 1 (OPWDD);
49 Behavior Intervention Specialist 2 (OPWDD);
50 Clinical Coordinator;
51 Intake/Screening;
52 Pharmacist;
53 Marriage and Family Counselor/Therapist;
54 Residential Treatment Facility (RTF) Transition Coordinator (OMH);
55 Crisis Prevention Specialist (OMH);
56 Early Recognition Specialist (OMH);

    S. 8006--C                         254                        A. 9006--C
  1. 1  Other Clinical Staff/Assistants;
  2. 2  Nurse Practitioner/Nursing Supervisor;
  3. 3  Therapist – Physical;
  4. 4  Therapist – Speech;
  5. 5  Program or Site Director; and
  6. 6  Assistant Program or Assistant Site Director; and
  7. 7  (iii) such titles as determined by the commissioner, or relevant agen-

cy commissioner as applicable, and approved by the director of the budg- et.

10 (b) “Employer” means a provider enrolled in the medical assistance 11 program under this title that employs at least one employee and that 12 bills for services under the state plan or a home and community based 13 services waiver authorized pursuant to subdivision (c) of section nine- 14 teen hundred fifteen of the federal social security act, or that has a 15 provider agreement to bill for services provided or arranged through a 16 managed care provider under section three hundred sixty-four-j of this 17 title or a managed long term care plan under section forty-four hundred 18 three-f of the public health law, to include:

19 (i) providers and facilities licensed, certified or otherwise author- 20 ized under articles twenty-eight, thirty, thirty-six or forty of the 21 public health law, articles sixteen, thirty-one, thirty-two or thirty- 22 six of the mental hygiene law, article seven of this chapter, fiscal 23 intermediaries under section three hundred sixty-five-f of this title, 24 pharmacies registered under section six thousand eight hundred eight of 25 the education law, or school based health centers;

26 (ii) programs that participate in the medical assistance program and 27 are funded by the office of mental health, the office of addiction 28 services and supports, or the office for people with developmental disa- 29 bilities; and

30 (iii) other provider types determined by the commissioner and approved 31 by the director of the budget;
32 (iv) provided, however, that unless the provider is subject to a 33 certificate of need process as a condition of state licensure or 34 approval, such provider shall not be an employer under this section 35 unless at least twenty percent of the provider’s patients or persons 36 served are eligible for services under this title and title XIX of the 37 federal social security act.

38 (c) Notwithstanding the definition of employer in paragraph (b) of 39 this subdivision, and without regard to the availability of federal 40 financial participation, “employer” shall also include an institution of 41 higher education, a public or nonpublic school, a charter school, an 42 approved preschool program for students with disabilities, a school 43 district or boards of cooperative educational services, programs funded 44 by the office of mental health, programs funded by the office of 45 addiction services and supports, programs funded by the office for 46 people with developmental disabilities, programs funded by the office 47 for the aging, a health district as defined in section two of the public 48 health law, or a municipal corporation, where such program or entity 49 employs at least one employee. Such employers shall be required to 50 enroll in the system designated by the commissioner, or relevant agency 51 commissioners, in consultation with the director of the budget, for the 52 purpose of claiming bonus payments under this section. Such system or 53 process for claiming bonus payments may be different from the system and 54 process used under subdivision three of this section.

55 (d) “Vesting period” shall mean a series of six-month periods between 56 the dates of October first, two thousand twenty-one and March thirty-

    S. 8006--C                         255                        A. 9006--C

first, two thousand twenty-four for which employees that are continuous- ly employed by an employer during such six-month periods, in accordance with a schedule issued by the commissioner or relevant agency commis- sioner as applicable, may become eligible for a bonus pursuant to subdi- vision four of this section.

(e) “Base salary” shall mean, for the purposes of this section, the employee’s gross wages with the employer during the vesting period, excluding any bonuses or overtime pay.
(f) “Municipal corporation” means a county outside the city of New

10 York, a city, including the city of New York, a town, a village, or a 11 school district.
12 3. Tracking and submission of claims for bonuses. (a) The commission- 13 er, in consultation with the commissioner of labor and the Medicaid 14 inspector general, and subject to any necessary approvals by the federal 15 centers for Medicare and Medicaid services, shall develop such forms and 16 procedures as may be needed to identify the number of hours employees 17 worked and to provide reimbursement to employers for the purposes of 18 funding employee bonuses in accordance with hours worked during the 19 vesting period.

20 (b) Using the forms and processes developed by the commissioner under 21 this subdivision, employers shall, for a period of time specified by the 22 commissioner:
23 (i) track the number of hours that employees work during the vesting 24 period and, as applicable, the number of patients served by the employer 25 who are eligible for services under this title; and

26 (ii) submit claims for reimbursement of employee bonus payments. In 27 filling out the information required to submit such claims, employers 28 shall use information obtained from tracking required pursuant to para- 29 graph (a) of this subdivision and provide such other information as may 30 be prescribed by the commissioner. In determining an employee’s annual- 31 ized base salary, the employer shall use information based on payroll 32 records.

33 (c) Employers shall be responsible for determining whether an employee 34 is eligible under this section and shall maintain and make available 35 upon request all records, data and information the employer relied upon 36 in making the determination that an employee was eligible, in accordance 37 with paragraph (d) of this subdivision.

38 (d) Employers shall maintain contemporaneous records for all tracking 39 and claims related information and documents required to substantiate 40 claims submitted under this section for a period of no less than six 41 years. Employers shall furnish such records and information, upon 42 request, to the commissioner, the Medicaid inspector general, the 43 commissioner of labor, the secretary of the United States Department of 44 Health and Human Services, and the deputy attorney general for Medicaid 45 fraud control.

46 4. Payment of worker bonuses. (a) Upon issuance of a vesting schedule 47 by the commissioner, or relevant agency commissioner as applicable, 48 employers shall be required to pay bonuses to employees pursuant to such 49 schedule based on the number of hours worked during the vesting period. 50 The schedule shall provide for total payments not to exceed three thou- 51 sand dollars per employee in accordance with the following:

52 (i) employees who have worked an average of at least twenty but less 53 than thirty hours per week over the course of a vesting period would 54 receive a five hundred dollar bonus for the vesting period;

    S. 8006--C                         256                        A. 9006--C

(ii) employees who have worked an average of at least thirty but less than thirty-five hours per week over the course of a vesting period would receive a one thousand dollar bonus for such vesting period;
(iii) employees who have worked an average of at least thirty-five hours per week over the course of a vesting period would receive a one thousand five hundred dollar bonus for such vesting period.

(iv) full-time employees who are exempt from overtime compensation as established in the labor commissioner’s minimum wage orders or otherwise provided by New York state law or regulation over the course of a vest-

10 ing period would receive a one thousand five hundred dollar bonus for 11 such vesting period.
12 (b) Notwithstanding paragraph (a) of this subdivision, the commission- 13 er may through regulation specify an alternative number of vesting peri- 14 ods, provided that total payments do not exceed three thousand dollars 15 per employee.

16 (c) Employees shall be eligible for bonuses for no more than two vest- 17 ing periods per employer, in an amount equal to but not greater than 18 three thousand dollars per employee across all employers.
19 (d) Upon completion of a vesting period with an employer, an employee 20 shall be entitled to receive the bonus and the employer shall be 21 required to pay the bonus no later than the date specified under this 22 subdivision, provided however that prior to such date the employee does 23 not terminate, through action or inaction, the employment relationship 24 with the employer, in accordance with any employment agreement, includ- 25 ing a collectively bargained agreement, if any, between the employee and 26 employer.

27 (e) Any bonus due and payable to an employee under this section shall 28 be made by the employer no later than thirty days after the bonus is 29 paid to the employer.
30 (f) an employer shall be required to submit a claim for a bonus to the 31 department no later than thirty days after an employee’s eligibility for 32 a bonus vests, in accordance with and upon issuance of the schedule 33 issued by the commissioner or relevant agency commissioner.

34 (g) No portion of any dollars received from claims under subparagraph 35 (ii) of paragraph (b) of subdivision three of this section for employee 36 bonuses shall be returned to any person other than the employee to whom 37 the bonus is due or used to reduce the total compensation an employer is 38 obligated to pay to an employee under section thirty-six hundred four- 39 teen-c of the public health law, section six hundred fifty-two of the 40 labor law, or any other provisions of law or regulations, or pursuant to 41 any collectively bargained agreement.

42 (h) No portion of any bonus available pursuant to this subdivision 43 shall be payable to a person who has been suspended or excluded under 44 the medical assistance program during the vesting period and at the time 45 an employer submits a claim under this section.

46 (i) The use of any accruals or other leave, including but not limited 47 to sick, vacation, or time used under the family medical leave act, 48 shall be credited towards and included in the calculation of the average 49 number of hours worked per week over the course of the vesting period. 50 5. Audits, investigations and reviews. (a) The Medicaid inspector 51 general shall, in coordination with the commissioner, conduct audits, 52 investigations and reviews of employers required to submit claims under 53 this section. Such claims, inappropriately paid, under this section 54 shall constitute overpayments as that term is defined under the regu- 55 lations governing the medical assistance program. The Medicaid inspector 56 general may recover such overpayments to employers as it would an over-

    S. 8006--C                         257                        A. 9006--C

payment under the medical assistance program, impose sanctions up to and including exclusion from the medical assistance program, impose penal- ties, and take any other action authorized by law where:
(i) an employer claims a bonus not due to an employee or a bonus amount in excess of the correct bonus amount due to an employee;

(ii) an employer claims, receives and fails to pay any part of the bonus due to a designated employee;
(iii) an employer fails to claim a bonus due to an employee.
(b) Any employer identified in paragraph (a) of this subdivision who

10 fails to identify, claim and pay any bonus for more than ten percent of 11 its employees eligible for the bonus shall also be subject to additional 12 penalties under subdivision four of section one hundred forty-five-b of 13 this article.

14 (c) Any employer who fails to pay any part of the bonus payment to a 15 designated employee shall remain liable to pay such bonus to that 16 employee, regardless of any recovery, sanction or penalty the Medicaid 17 inspector general may impose.

18 (d) In all instances recovery of inappropriate bonus payments shall be 19 recovered from the employer. The employer shall not have the right to 20 recover any inappropriately paid bonus from the employee.
21 (e) Where the Medicaid inspector general sanctions an employer for 22 violations under this section, they may also sanction any affiliates as 23 defined under the regulations governing the medical assistance program. 24 6. Rules and regulations. The commissioner, in consultation with the 25 Medicaid inspector general as it relates to subdivision five of this 26 section, may promulgate rules, to implement this section pursuant to 27 emergency regulation; provided, however, that this provision shall not 28 be construed as requiring the commissioner to issue regulations to 29 implement this section.

30    §  2.  Subparagraphs (iv) and (v) of paragraph (a) of subdivision 4 of
31  section 145-b of the social services law, as amended  by  section  1  of
32  part  QQ  of  chapter  56  of  the  laws of 2020, are amended to read as
33  follows:

34 (iv) such person arranges or contracts, by employment, agreement, or 35 otherwise, with an individual or entity that the person knows or should 36 know is suspended or excluded from the medical assistance program at the 37 time such arrangement or contract regarding activities related to the 38 medical assistance program is made[.];

39 (v) such person had an obligation to identify, claim, and pay a bonus 40 under subdivision three of section three hundred sixty-seven-w of this 41 article and such person failed to identify, claim and pay such bonus.
42 (vi) For purposes of this paragraph, “person” as used in subparagraph 43 (i) of this paragraph does not include recipients of the medical assist- 44 ance program; and “person” as used in subparagraphs (ii) [], (iii) and 45 (iv) of this paragraph, is as defined in paragraph (e) of subdivision 46 [(6)six of section three hundred sixty-three-d of this [chapterarti- 47 cle; and “person” as used in subparagraph (v) of this paragraph includes 48 employers as defined in section three hundred sixty-seven-w of this 49 article.

50 § 3. Paragraph (c) of subdivision 4 of section 145-b of the social 51 services law is amended by adding a new subparagraph (iii) to read as 52 follows:
53 (iii) For subparagraph (v) of paragraph (a) of this subdivision, a 54 monetary penalty shall be imposed for conduct described in subparagraphs 55 (i), (ii) and (iii) of paragraph (a) of subdivision five of section 56 three hundred sixty-seven-w of this article and shall not exceed one

    S. 8006--C                         258                        A. 9006--C

thousand dollars per failure to identify, claim and pay a bonus for each employee.
3 § 4. Health care and mental hygiene worker bonuses for state employ- 4 ees. 1. An employee who is employed by a state operated facility, an 5 institutional or direct-care setting operated by the executive branch of 6 the State of New York or a public hospital operated by the state univer- 7 sity of New York and who is deemed substantially equivalent to the defi- 8 nition of employee pursuant to paragraph (a) of subdivision 2 of section 9 367-w of the social services law as determined by the commissioner of

10  health, in consultation with the chancellor of the state  university  of
11  New  York,  the  commissioner  of  the  department of civil service, the
12  director of the office of employee relations, and the  commissioners  of
13  other state agencies, as applicable, and approved by the director of the
14  budget,  shall be eligible for the health care and mental hygiene worker
15  bonus.  Notwithstanding the definition of base salary pursuant to  para-
16  graph  (e)  of  subdivision 2 of section 367-w, such bonus shall only be
17  paid to employees that receive an annualized base salary of one  hundred
18  twenty-five thousand dollars or less.
19    2.  Employees  shall  be  eligible  for health care and mental hygiene
20  worker bonuses in an amount up  to  but  not  exceeding  three  thousand
21  dollars  per employee. The payment of bonuses shall be paid based on the
22  total number of hours worked during two vesting  periods  based  on  the
23  employee's  start  date  with  the employer. No employee's first vesting
24  period may begin later than March  thirty-first,  two  thousand  twenty-
25  three,  and  in  total  both  vesting periods may not exceed one year in
26  duration. For each vesting period, payments shall be in accordance  with
27  the following:
28    (a)  employees  who have worked an average of at least twenty but less
29  than thirty hours per week over the course of  a  vesting  period  shall
30  receive a five hundred dollar bonus for the vesting period;
31    (b)  employees  who have worked an average of at least thirty but less
32  than thirty-seven and one half hours per week over the course of a vest-
33  ing period shall receive a one thousand dollar bonus  for  such  vesting
34  period; and
35    (c)  employees who have worked an average of at least thirty-seven and
36  one half hours per week over  the  course  of  a  vesting  period  shall
37  receive  a one thousand five hundred dollar bonus for such vesting peri-
38  od.
39    § 5. An employee under this act shall be limited to a bonus  of  three
40  thousand  dollars  per  employee  without  regard  to  which  section or
41  sections such employee may be eligible or whether the employee is eligi-
42  ble to receive a bonus from more than one employer.
43    § 6. Notwithstanding any provision of law to the contrary,  any  bonus
44  payment  paid  pursuant  to  this act, to the extent includible in gross
45  income for federal income tax purposes, shall not be subject to state or
46  local income tax.
47    § 7. Bonuses under  this  act  shall  not  be  considered  income  for
48  purposes of public benefits or other public assistance.
49    §  8.  Paragraph  (a)  of subdivision 8 of section 131-a of the social
50  services law is amended by adding a new  subparagraph  (x)  to  read  as
51  follows:

52 (x) all of the income of a head of household or any person in the 53 household, who is receiving such aid or for whom an application for such 54 aid has been made, which is derived from the health care and mental 55 hygiene worker bonuses under section three hundred sixty-seven-w of this

S. 8006--C                         259                        A. 9006--C

article or under the chapter of the laws of two thousand twenty-two which added this subparagraph.
3 § 9. The department of health shall request any necessary waiver or 4 waivers from the centers for medicare and medicaid services to ensure 5 that the payments required by this act shall not be included in the 6 calculation of federal disproportionate share payments as determined by 7 42 CFR § 412.106, or in the calculation of the upper payment limit as 8 determined by 42 CFR § 447.272 and 42 CFR § 447.321, for any applicable 9 employer types that receive disproportionate share payments, upper

10  payment limit supplemental payments, or  similar  supplemental  payments
11  where  the  centers  for  medicare and medicaid services has a waiver or
12  similar process for the exclusion of the payments required by  this  act
13  from such calculations.



§ 10. This act shall take effect immediately.