Guide to New York’s Amended Wage Parity Law

The Wage Parity Law (“WPL”), which originally went into effect in 2012, established a minimum wage rate, additional wages, and supplemental benefits for home care aides performing Medicaid-reimbursed work within the boroughs of New York City and the counties of Nassau, Suffolk, and Westchester.  Before the amendment, in addition to being entitled to the minimum wage as a base pay, within New York City, employers had to pay $4.09 per hour, while in Westchester, Nassau, and Suffolk counties, employers had to pay $3.22 per hour in the form of additional wages and/or supplemental benefits.  On April 3, 2020, former New York Governor Andrew Cuomo amended the Wage Parity Law to:

• Prohibit employers from using programs that refund dollars to the employer as supplemental wages;
• Add specific annual compliance certification requirements;
• Require additional information on Wage Theft Protect Act (WTPA) notices and wage statements; and
• Add new penalties for willful violations.

The WPL’s 2020 amendments also served to prohibit any portion of the Medicaid funds spent, or intending to be spent on employee wages, to satisfy the additional wage or supplemental benefit portion required under the WPL from being returned.  This prohibition applies regardless of whether the funds are returned in the form of a refund or profit to the Certified Home Health Care Agency (“CHHA”), Licensed Home Care Services Agency (“LHCSA”), Long Term Home Health Care Program (“LTHHCP”), Managed Care Plan (“MCP”), or Fiscal Intermediary (“FI”), or any other related entities or persons.

Further, under the 2020 amendments, the WPL requires that home care agencies provide additional information regarding a home care worker’s notice of pay rate and weekly wage statements.   Employers must include a benefit portion of the minimum rate of home care aide total compensation on their Notice and weekly wage statements.  Additionally, when the employer provides home care aide benefits, the agency must state the type of benefits offered and the name and address of the person or entity providing the benefits.

Annual Certification

Moreover, according to the 2020 amendment, if a CHHA, LTHHCP, or MCP chooses to provide home care aide services through contracts with an LHCSA, FI, or through other third parties, these contracts must include an expanded annual certification to the CHHA, LTHHCP or MCP.  Further, the certification must be verified under oath and must include an annual compliance statement of wage parity hours and expenses on a form provided by the New York State Department of Labor and must be accompanied by a financial statement verifying the purported costs.  Moreover, a LHCSA, FI, or other third party that knowingly signs a false certification may be charged with perjury.

Further, on September 21, 2023, the New York Department of Health issued guidance regarding the due date for Medicaid Managed Care Organizations (“MMCO”), Certified Home Health Care Agency (“CHHA”), Licensed Home Care Services Agency (“LHCSA”), and Fiscal Intermediary (“FI”) to submit their Wage Parity Law compliance certifications and statements.  The entities above must file their 2023 Annual Certification of Compliance with the Home Care Worker Wage via the eMedNY Provider Portal by December 1, 2023.  LHCSAs and FIs must file a completed Annual Compliance Statement of Wage Parity and Hours and Expenses to each MMCO and CHHA it contracted with to provide home health aide services within the year 2022 by December 31, 2023.

Penalties for Wage Parity Law Violations

Finally, the 2020 amendment establishes that any CHHA, LHCSA, LTHHCP, MCP, FI, or other third party that willfully pays less than the stipulated minimums regarding wages and supplements required under the Wage Parity Law will be guilty of a misdemeanor, and upon conviction will be subject to the following penalties and fines.

• First Offense: A third party may face imprisonment of no more than thirty days and/or a fine of $500.00.
• Second Offense: A third party may be subject to a fine of $1,000.00, and the contract under which the violation occurred will be forfeited along with all payments under that contract.

If you believe you are a home care aide and have not received the proper additional wages and/or supplemental benefits you are entitled to, please feel free to contact Borrelli & Associates, P.L.L.C., to schedule a free consultation through one of our websites, www.employmentlawyernewyork.com, www.516abogado.com, or any of our phone numbers: (516) 248-5550, (516) ABOGADO, or (212) 679-5000.