The New York City Department of Health is extending the deadline and issuing additional guidance for the health worker bonus program

In early August, the New York State Department of Health (DOH) announced and opened the New York Health Worker Bonus (HWB) Program, which provides $1.2 billion in health worker bonuses to eligible employees. On August 29, the Department of Health issued updated guidance and responded to a number of questions raised under the program. It should be noted that the DOH provides employers with a grace period to file claims for the first vesting period. The first acquisition period was previously scheduled to end this Friday, September 2, but has now been extended to October 31. Employers affected by this program should review the updated FAQs and consult with the Labor Board to ensure compliance with the complex processes involved.

Providing several updates and clarifications to the Program in response to thousands of inquiries and phone calls, DOH recently supplemented the previously issued guidelines. While we encourage all qualified Program employers to review the updated guidance in detail, the notable updates are outlined below:

Extended deadline for the first vesting period

Recognizing that employers may not be able to complete the claims process for the first vesting period before the upcoming deadline of September 2, 2022, the Department of Health has provided a grace period for filing first vesting period claims, allowing such claims to be submitted during the submission period for Vesting Period 2 (between October 1 and October 31, 2022):

Q. I am a qualified employer who is unable to complete my HWB portal submission of qualified employees for Vesting Period 1 to September 2, 2022. Can I submit vesting period 1 bonus eligible employees to Later date?

A. The Department recognizes that some providers may not be able to complete claims for Acquisition Period 1 by the end of the first acquisition period (September 2, 2022).

For Vesting Period 1 employers will be able to submit claims for Vesting Period 1 during Vesting Period 2

• Employers should make every effort to file Vesting Period 1 claims as soon as the employee qualifies

• Employers must confirm that the employee(s) meet all other eligibility criteria during the applicable vesting period

• The HWB Portal will be closed for submissions from September 3, 2022 to September 30, 2022, but Providers may submit for Acquisition Period 1 during the Acquisition Period 2 submission period, which begins on October 1, 2022 .and ends on October 31, 2022.

• Extension to submit for Acquisition Period 1 will be limited only to the deadline for submission for Acquisition Period 2 (31 October)

Contract staff already meet the requirements

While earlier guidelines under the Bonus Program indicated that contract and temporary staff were excluded from the Program, in an apparent reversal, the DOH guidelines have been updated to provide the following:

Q. Are contract employees eligible for the bonus? If they are, who is responsible for sending these employees for the bonus? For example, if a hospital employs staff who fall under one of the eligible headings but are jointly employed with a non-healthcare organization, are they eligible for the bonus?

A. Contract employees with eligible titles may receive HWB provided all other requirements are met. For purposes of the HWB program, qualified employers who have entered into staffing arrangements to obtain workforce services (PEOs and other third parties) for front-line health care workers in eligible employee positions , are eligible for HWB. The qualifying employer, not the contracting agencies, must submit bonus claims for personnel who perform work for the qualifying employer under such arrangements and who otherwise meet the eligibility criteria to be a qualifying employee.

A qualified employer is required to maintain records showing that the employee was employed for the full vesting period. All qualified Medicaid employers must maintain contemporaneous records tracking all claims submitted for not less than six (6) years. The qualified employer must provide such records upon request to the Department, the Office of the Medicaid Inspector General (OMIG), the US Department of Health and Human Services, and the Deputy Attorney General for Medicaid Fraud.

Managers and supervisors are not automatically excluded

The Department of Health’s updated FAQs clarifies that managers and supervisors may be eligible employees under the program if all other requirements for an eligible employee are met:
Question: Are management and supervisors such as nurses, technical supervisors, dietary supervisors who otherwise meet all eligibility criteria eligible for bonuses?

A. Management and supervisors who also work under an eligible title and otherwise meet all eligibility criteria may be eligible for the bonus. Management and supervisory responsibilities do not in themselves disqualify an employee.

Former Employees/Employee Separations

In response to a number of inquiries from employers, the DOH explained in the table reproduced below whether a former employee of a qualified employer is still eligible for the bonus:

Facts about divorce

The employee is eligible

The employee is not eligible

Acquisition period for employee certification. The vested employee was employed at the time of the claim and the employee continues to be employed when the employer receives the bonus payment.

The acquired employee was employed at the time of the claim and remained with the employer for at least 30 days after the employer received the bonus payment. The employer fails to pay the bonus within 30 days of receipt, after which the employee leaves.

The employee vests and before the employer files a claim, the employee is terminated by the employer.

The acquired employee was employed at the time of the claim, and the employee was subsequently terminated by the employer.

The employee vested, but the employee leaves the employer before the bonus is claimed.

The acquired employee was employed at the time of the claim, but the employee left before the employer received the bonus payment.

The acquired employee was employed at the time of the claim and when the employer received the payment, but the employee left less than 30 days after the employer received the payment.

The Department of Health appears to make a distinction between employees who are “terminated” by an employer and an employee who “leaves,” but the Department of Health has not elaborated on the distinction noted in its guidance.

Enforcement

August 29th the guidelines highlight for the first time the scheme for implementing the Bonus Program and explain that audits, investigations and reviews of qualified employer claims will be conducted by the DOH, the Medicaid Inspector General, the New York Department of Labor, the US Department of Labor Health and human services and the Medicaid Fraud Control Division of the Attorney General.

The DOH’s updated FAQ explains that employers who fail to claim bonuses “are subject to a penalty, including exclusion from the Medicaid program.” Although employers are subject to such a range of enforcement measures and significant financial consequences, the Department of Health explained that ineligible employees who receive bonuses will be entitled to keep the funds, but reimbursement will be claimed by the employer – and the employer will not be able to refund any bonus wrongfully paid by an employee.

Home care workers remain ineligible for bonuses

Despite reports of significant frustration and opposition from home care aides and their representatives, Department of Health guidance remains that such staff are not eligible for the bonus scheme as they are entitled to a pay rise effective from October of this year under Public Health Law § 3614-f. The Department of Health continues to note that other workers in home care agencies that provide hands-on services may be eligible for the bonus if they meet all employee eligibility requirements.

Eligibility of employees

The updated FAQ also provides additional guidance on which employees are eligible for the Program. The new FAQs include calculations of average weekly hours worked to determine employee eligibility, calculations of the annual base salary for a vesting period, clarifications about “patient-facing” workers, and guidance on how to consider workers, who are employed by multiple employers.

Qualified employers

The DOH also clarified the criteria for a qualified employer as highlighted below:

Q. Please clarify the criteria required for an employer to be subject to the Health Workforce Bonus (HWB) Program?

A. The HWB statute provides two separate definitions of qualified employers, both of which are subject to HWB program requirements.

• Look SOS § 367-w(2)(b) and (c).

Under paragraph (2)(b), an employer is subject to the HWB program if it meets all four of the following criteria:

  1. They are an enrolled Medicaid provider;
  2. They bill for Medicaid services (either through FFS, managed care, or a 1915(c) waiver);
  3. Hire at least one eligible employee;
  4. A. Are included in the list of providers and types of facilities in the statute, OR
    B. Subject to a Certificate of Need (CON) process, OR
    C. The provider serves at least 20% Medicaid enrollees.

The Department of Health does not prescribe a specific methodology for determining the 20% Medicaid threshold criteria. Employers must determine whether their organization meets this requirement as part of the employer certification required to file a HWB claim.

Conclusion

As evidenced by the Department of Health’s updated FAQs and weekly updated guidance, there are and will be numerous issues with the launch of the program that need guidance and further clarification. Employers navigating the Bonus Program should be informed of the newly issued guidelines and contact the Labor Board and DOH for answers to any questions or concerns that arise.

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