The New York Department of Health extends the deadline and publishes additional guidelines for the bonus program for healthcare professionals

In early August, the New York State Department of Health (DOH) announced and opened the New York Health Care Worker Bonus (HWB) program, which provides $ 1.2 billion in bonuses for healthcare professionals to eligible employees. On 29 August, the DOH released an updated guide and addressed a number of issues raised under the program. In particular, the DOH is offering employers a grace period to submit applications for the first vesting period. The first vesting period was supposed to close on Friday 2nd September, but has now been extended to 31st October. Employers affected by this program should review the updated FAQs and consult with the employment consultant to ensure compliance with the requirements of the complex processes involved.

By providing numerous updates and clarifications to the Program in response to thousands of inquiries and phone calls, DOH recently supplemented previously published guidelines. While we encourage all qualified employers under the program to review the updated guide in detail, the following are important updates:

Extended deadline for the first vesting period

Recognizing that employers may not be able to complete the application process for the first vesting period before the impending deadline of September 2, 2022, the DOH has provided a grace period for submitting applications for the first vesting period. vesting period, allowing the submission of such requests during the submission of Vesting Period 2 (between 1 October and 31 October 2022):

Q. I am a qualified employer who is unable to complete my referral of Qualified Employees on the HWB Portal for Vesting Period 1 by September 2, 2022. I can refer eligible employees for a bonus for Vesting Period 1 at a later time?

A. The Department acknowledges that some Suppliers may not be able to complete vesting period 1 requests by the end of the first vesting period (September 2, 2022)

For employers of the vesting period 1 want be able to submit applications for Vesting Period 1 during Vesting Period 2

• Employers must make every attempt to submit applications for Vesting Period 1 as soon as the employee is eligible

• Employers must validate that employees have met all other qualification criteria during their respective vesting period

• The HWB Portal will be closed for submissions from September 3, 2022 to September 30, 2022, but Suppliers may apply for Vesting Period 1 during the Vesting Period 2 Submission Period starting October 1, 2022 and ending October 31, 2022

• An extension for the submission of Vesting Period 1 will be limited only to the closing date of the submission for the Vesting Period 2 (31 October)

Contract staff now eligible

Although previous guidelines under the bonus program indicated that contract and temporary staff were excluded from the program, in an apparent turnaround, the DOH guidelines have been updated to provide the following:

Q. Can contract staff benefit from the bonus? If they are, who is responsible for submitting this staff for a bonus? For example, if a hospital employs staff who falls into one of the eligible qualifications but works with a non-health organization, is it eligible for the bonus?

A. Contract staff with eligible qualifications can receive the HWB assuming all other requirements are met. For the purposes of the HWB program, they are eligible for the HWB. The qualified employer, not the contracted agencies, must submit bonus claims for personnel who perform work for the qualified employer under those agreements and who otherwise meet the eligibility criteria to be an eligible employee.

The qualified employer is required to keep records showing that the employee has been employed for the entire vesting period. All Medicaid qualified employers must maintain contemporary records that track all applications submitted for no less than six (6) years. The qualified employer must provide these documents upon request to the department, the Office of Medicaid Inspector General (OMIG), the United States Department of Health and Human Services, and the Deputy Attorney General for Medicaid Fraud.

Executives and Supervisors not automatically excluded

The updated DOH FAQ clarifies that managers and supervisors can be eligible employees under the program if all other requirements to be an eligible employee are met:
D. Management and supervisors, such as nurses, technical supervisors, diet supervisors, who otherwise meet all eligible personnel criteria are eligible for bonuses?

A. Management and supervisors who also work with an eligible title and who otherwise meet all eligibility criteria are eligible for the bonus. Management and oversight responsibilities alone do not disqualify an employee from eligibility.

Separation of former employees / employees

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

Facts of separation

The employee is eligible

The employee is not eligible

Period of accrual for the attestation of the worker The retired worker was employed at the time of the report and the worker continues to be employed when the employer receives the payment of the bonus.

The employee was acquired, was employed at the time of the report, and remains with the employer for at least 30 days after the employer has received the bonus payment. The employer does not pay the bonus within 30 days of receipt, so the employee leaves.

The employee has acquired and before the employer files a claim, the employee is fired by the employer.

The worker who took over was employed at the time of the report, so the worker is fired by the employer.

The employee acquired but the employee leaves the employer before the bonus is claimed.

The accrued worker was employed at the time of the report but the worker left before the employer received the bonus payment.

The employee was hired at the time of the report and when the employer received the payment, but the employee leaves less than 30 days after the employer received the payment.

It appears that the DOH is drawing a distinction between employees who are “fired” by an employer versus an employee who “leaves,” but the DOH has not elaborated further on the distinction noted in its guide.

Reinforcement

August 29th the guidelines highlight, for the first time, the bonus program enforcement scheme and explain that audits, investigations and reviews of qualified employers’ claims will be conducted by the DOH, Inspector General Medicaid, the State Department of Labor New York, by the United States Department of Labor Health and Human Services and the Attorney General’s Medicaid Fraud Control Unit.

The updated DOH FAQ explains that employers who do not claim bonuses “are subject to penalties, up to and including exclusion from the Medicaid program.” Although employers are subject to such a series of taxation and significant financial consequences, the DOH explained that ineligible employees who receive the bonuses will be allowed to withhold the funds, but the employer will seek reimbursement and the employer will work will not be able to recover any bonuses unduly paid by an employee.

Home care workers remain ineligible for bonuses

Despite reports of significant disappointment and opposition from home care aides and their representatives, the DOH guidance remains that such employees are ineligible for the bonus program as they are eligible for a salary increase which will take effect in October this year under the Public Health Act § 3614-f. The DOH went on to note that other home care agency workers who provide hands-on services may be eligible for the bonus if they meet all employee eligibility requirements.

Employee eligibility

The updated FAQ also provides additional guidance on which employees are eligible for the Program. New FAQs include calculations of average weekly hours worked to determine employee eligibility, calculations of the annualized base salary for a vesting period, clarification on workers who are “in contact with patients” as well as guidance on how to consider employed workers from multiple employers.

Qualified employers

The DOH has also clarified the criteria for being a qualified employer, as outlined below:

Q. Clarify the criteria necessary for an employer to be eligible for the Healthcare Workforce Bonus (HWB) program?

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

• See SOS § 367-w (2) (b) and (c).

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

  1. I am a Medicaid registered provider;
  2. They bill for Medicaid services (via SBB, managed care, or a 1915 (c) exemption);
  3. Employ at least one suitable employee;
  4. A. They are included in the list of providers and types of facilities in the statute, OR
    B. They are subject to a Certificate of Necessity (CON) procedure, OR
    C. The provider serves at least 20% of Medicaid subscribers.

The Department of Health is not prescribing a specific methodology for determining Medicaid’s 20% threshold criteria. Employers must determine if their organization meets this requirement as part of the employer attestation required for submitting the HWB application.

Conclusion

As is evident from the updated FAQ and the weekly updated DOH guide at the start of the program, there are and will be numerous issues that emerge that need guidance and further clarification. Employers browsing the bonus program should keep themselves informed of the newly published guidelines and contact their employment counselor and DOH for answers to any questions or problems that arise.

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