New York City Council
Committee on Civil Service and Labor: Chair, Council Member De La Rosa
September 6, 2022
Oversight - Intro 175 of 2022
Thank you Chair De La Rosa and members of the Civil Service and Labor Committee for the opportunity to present testimony about Introduction 175 of 2022.
LiveOn NY’s members include more than 110 community-based nonprofits that provide core services which allow all New Yorkers to thrive in our communities as we age, such as older adult centers, home-delivered meals, affordable senior housing, NORCs, and home care. LiveOn NY is also home to the Reframing Aging NYC Initiative, part of the national Reframing Aging Initiative aimed to counteract ageism and improve the way policymakers, stakeholders, and the public think about aging and older people. With our members, we work to make New York a better place to age.
As long-standing champions of the rights of human services and home care workers throughout New York, LiveOn NY initially sought to support the intent of Intro 175 of 2022 to cap home care worker shift hours at 12 hours per day in most cases. However, the lack of amendments to redress the serious jurisdictional mismatch between this legislation and existing State policies makes it impossible for LiveOn NY to continue to offer our support. Given this, LiveOn NY opposes Intro 175 of 2022, sponsored by Council Member Marte.
After careful consideration, and despite similar goals to address the problematic 13-hour rule, LiveOn NY can no longer support legislation that would effectively shutter countless home care agencies as a result of their inability to comply with conflicting State and City regulations simultaneously. To be clear, home care agencies complying with the legal mandate to serve clients under the existing framework of regulations provided by the New York State Department of Labor (NYSDOL), would then receive heavy fines levied as a result of the City’s conflicting policies. The consequence will be forced closure of nonprofit home care agencies throughout New York City, resulting in the loss of jobs for workers and the loss of care for older adults and people with disabilities.
Instead of having State and City policies at odds, leaving home care agencies and consumers of home care hanging in the balance, LiveOn NY respectfully asks the sponsor, and all of New York City Council, to join us with in addressing this issue by supporting existing State legislation, S.359A (Persaud) / A.3145A (Epstein), which mirrors Intro 175.
Background
NYSDOL has established that residential home care employees who have 24-hour shifts must only be paid for 13 of those hours in most cases, despite work that often stretches throughout the night and rarely affords real meal or sleep breaks. This “13-hour rule” sets Medicaid reimbursement rates, so providers who want to pay workers fairly for the full 24 hours must find 11 hours of pay in their own budgets. For many home care providers, especially those that are nonprofit organizations, this is impossible. The result is a systematically underpaid workforce[1] comprised largely of women of color and immigrants.
Workers filed several lawsuits against their employers over the 13-hour rule in 2017, but the State Court of Appeals ruled against the workers in March 2019 and the status quo was maintained. The home care sector currently employs 330,000 people in New York—less than 10% of whom regularly have 24-hour shifts—and by 2025 the sector is expected to see a 33% growth in demand with a workforce shortage of a net 23,000 workers.[2] Now that the lawsuits are settled, New York State must take action to stabilize a sector in crisis and fairly compensate its workforce.
State Legislation and Fiscal Impact
Intro 175 is based on State legislation, S.359A (Persaud) / A.3145A (Epstein), which LiveOn NY deeply supports, and mirrors much of its language. Both bills seek to rectify the unfair pay structures that result from the NYSDOL’s 13-hour rule by capping the number of hours an employer can require a home care worker to work at 12 hours, with a cumulative limit of 50 hours of work per week. It would massively reduce if not eliminate the number of 24-hour shifts, offering a creative workaround to existing State policy. Notably, the State bill additionally includes limited exceptions to go over the weekly cap, with clear worker protections added for these cases including an anti-retaliation clause; and includes a legislative intent that this bill shall not be intended to reduce the hours of authorized care for patients. While both bills are similar in nature, only the State legislation can be passed with adequate authority to ensure funding for such a shift in the home care staffing pattern.
There is a significant fiscal impact of Intro 175, with industry estimates citing an additional $1-1.2 billion in funding needed to cover existing 24-hour cases as split shifts across the state, a portion of which would be applicable to New York City, even prior to accounting for recent wage increases included in the last State budget. This makes Intro 175 an unfunded mandate and further engrains the necessity of passing S.359A / A.3145A and providing such funding in the State budget. Without this investment the bill could have dramatic unintended consequences. The City would have to conduct a fiscal analysis and include hundreds of millions of dollars per year to Medicaid to contribute to this legislation’s success. Further, while Medicaid
[1] Mean annual wage of home health aide in New York, 2020: $28,750. https://dol.ny.gov/labor-data#31-0000.
[2] www.mercer.us/our-thinking/career/us-healthcare-labor-market-interactive-map.html
is the predominant funding source for home care in New York City, Medicare and private pay are two additional funding sources. The bill fails to clarify how Medicare and private pay patients will be able to afford split shifts.
Additional Concerns
We have several specific concerns with Introduction 175, laid out below:
Staffing: The bill requires more workers to fill the split 12-hour shifts which are currently filled by one 24-hour worker, yet there is nothing in the bill to encourage the creation or retention of these jobs. New York is already at a point of a pending workforce shortage, and without attention this bill could exacerbate the problem. By mandating split shifts during a worker shortage, the bill could lead to 24-hour patients becoming institutionalized as opposed to staying in their homes. It is also important to note that the State recently granted a minimum wage increase for home care workers or $3 per hour spread over two years. While this is absolutely needed, and was advocated for under the Fair Pay for Home Care campaign, which our organizations support, given nationwide inflation and labor concerns this increase does not on its own sufficiently address the workforce shortage.
Jurisdiction: It is unclear whether New York City is legally able to implement this bill for City-based home care workers, given the State’s strong role in regulating the industry. For example, it is unclear whether the City has jurisdiction to legislate Managed Care Organizations (MCOs). While MCOs and the NYC Human Resources Administration (HRA) currently assign 24-hour shifts and determine whether to approve 12-hour split shifts, these entities are not mentioned in the bill language. If legally allowable, the bill should mandate that MCOs and HRA split all 24-hour shifts, and that they modify their contracts with home care agencies to ensure split shifts are the rule for people who need 24-hours of care. The bill would also have to consider the role of unions, as much of the home care workforce is unionized and adheres to contractual labor agreements.
Violations: While both the State and City bills include a right to civil action for law violations, the City bill goes further by laying out a penalty schedule for violations. Though it is not clearly stated in the bill, those penalties would likely fall on the providers and not on the MCOs and HRA that serve as fiscal intermediaries and administrators, regardless of which entity was responsible for the violation. While penalties are important to ensure compliance with a given law, without addressing HRA and MCOs’ role in authorizing service hours and split shifts this bill is missing a key component of the home care system and placing undue burden on providers.
For these reasons, LiveOn NY opposes Intro 175, and implores City Council to address this issue by supporting state bill S.359A (Persaud) / A.3145A (Epstein).
Thank you for the opportunity to testify.