The New York State Budget for the FY 2021-2022 is being finalized as this alert is being written. We will know the final budget terms and conditions tomorrow, April 1. However, here is what we have heard thus far will be included in the final budget bill, as it relates to home care:

• LHCSA RFO is not going to be repealed. There have been pleas to the Legislature and the Governor to eliminate the LHCSA RFO which, as providers will recall, was issued summarily and without much provider input last year as part of MRTII's recommendations, and before the pandemic fully took its toll on New York State. As a result of these pandemic-driven and the emphasis on home care, provider shave been lobbying to have the LHCSA RFO repealed through the budget process. Unfortunately, however, as it stands today, it appears that the State will not be removing the LHCSA RFO. Unless there are other repeals, providers will be subject to the LHCSA RFO in the next few months.

• Fair Pay for Home Care, the bill that would raise caregivers' base rate of compensation 112 percent and also increase the wage parity benefit for covered providers seems almost certain to become law. (We have written about the Fair Pay for Home Care proposal in our previous alert, if you need a refresher on what the law would entail). Unfortunately, the Legislature has only appropriated funding for the associated increases to the base rate and wage parity for one year. Thus, providers will be required to fight - as they usually do - to ensure that they receive from MLTCs and the State adequate funding for these wage increases. As we discussed in our prior alert, while the idea behind the wage increase for home care workers is commendable, providers are all too familiar with the State's prior well intentioned, but poorly executed, wage increases (e.g., wage parity law, minimum wage increase). Thus, providers fear that Fair Pay for Home Care might become a nightmare in application. In addition, as proposed, the Fair Pay law would take effect April 1, and providers would be required to comply with the new and increased wage and wage parity benefit rates for hours worked on April 1 and afterwards. Such a quick effective date simply does not provide sufficient time for covered providers to actually come into compliance with the wage and benefit requirements of this legislation.

1. CDPAP RFO results will be adjusted based on a new process that the State will outline in the budget. The new process comes from the Governor's office and is largely similar to the Senate bill, which had proposed adding nonprofits and certain long-standing fiscal intermediaries to the list of awardees. The Gottfried proposal, which we had discussed in a prior alert, would have allowed additional fiscal intermediaries to apply for the RFO and, potentially, receive an award. Also under the Gottfried proposal, non-winning fiscal intermediaries would have been allowed to continue operating "as is." The Gottfried proposal, however, seems doomed and unlikely to make it into the State budget. In the below article, we discuss what is being proposed by the Executive as a "compromise" for non-winning fiscal intermediaries that have sought to repeal the results of the RFO.

As a compromise to the Gottfried bill, the Executive Chamber has issued a proposal that, if passed into law through the final budget, would allow certain additional fiscal intermediaries to be added to the list of RFO awardees. We summarize that proposal here, while emphasizing that this is just a proposal and the final budget bill language will be issued tomorrow, April 1.

Specifically, under the Executive's proposal, the Commissioner of the Department of Health would be authorized to either reoffer contracts to everyone or utilize the previous applications to “ensure that” there are adequate providers to serve consumers. 

To the extent the Commissioner chooses to simply add additional fiscal intermediaries to the list of existing awardees, the Executive’s proposal would require the Commissioner to “survey all qualified applicants” that responded to the RFO and obtain the following information about those provider applicants: (1) whether the applicant is a nonprofit charitable entity; (2) whether the applicant has been performing fiscal intermediary services continuously since January 1, 2012; (3) confirmation of the main office address for the applicant, as reported on the applicant’s tax returns; (4) whether the applicant is authorized to provide services under the OPWDD; (5) whether the applicant has historically provided fiscal intermediary services to racial and ethnic minority residents or new Americans, in such consumers’ primary language; and (6) whether the applicant entity is verified as a minority or woman-owned business enterprise. 

The Commissioner would provide non-awardees with 30 days to respond to the Commissioner with the above information. Failure to respond would disqualify the applicant from further consideration for the CDPAP RFO. 

As proposed by the Executive, the Commissioner would review the results, with the goal of “ensur[ing] the availability of fiscal intermediaries that are experienced at serving individuals with intellectual and developmental disabilities, racial and ethnic minorities, or new Americans in such consumers’ primary language.” In making decisions about additional RFO awards, the Commissioner would be authorized to: 

1.    Award up to 2 additional applicants that are located in each county with a population of more than 200,000 but less than 500,000 based on the provider’s primary mailing address

2.    Award to up to 5 additional applicants that are located in each county with a population of 500,000 or more, based on the applicant’s primary mailing address

3.    Award to up to 5 additional contracts to applicants that are (a) organized as a not-for-profit corporation; (b) have been performing administrative services as fiscal intermediaries since January 1, 2012; and (c) are currently authorized, funded, approved or certified to deliver state plan and home and community-based waiver supports and services to individuals with intellectual and developmental disabilities by the office for people with developmental disabilities.

4.  Award up to 5 additional RFO awards to nonprofit applicants that have been providing fiscal intermediary services continuously since January 1, 2012 and which have a proven record of serving racial and ethnic minority residents in their primary language.

5.    Award up to 5 additional contracts to businesses that have been verified as a minority or woman-owned business enterprise.

In awarding any new RFO contracts based on the above criteria, the Commissioner is not authorized to rescore the applications, but rather is directed to award contracts to the “next highest scoring” applicant that meets the above criteria.

The final budget bill – and the final CDPAP RFO language – comes out tomorrow. We will update you as we learn more. In the meantime, please do not hesitate to reach out if you have any questions. 

As the State expands the vaccination eligibility to all New Yorkers who are 16 years old and above, employers should ensure they understand the rights of employees to take time off for purposes of receiving the vaccine, and the right to take time off for any side-effects caused by the vaccine. The Families First Coronavirus Relief Act (as amended by the Biden "Rescue Plan") allows employees to take paid time off for purposes of resolving any health-related side effects from vaccination.

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