PRINTER'S NO. 218
THE GENERAL ASSEMBLY OF PENNSYLVANIA
SENATE BILL
No.
236
Session of
2017
INTRODUCED BY LEACH, COSTA AND SCHWANK, JANUARY 26, 2017
REFERRED TO HEALTH AND HUMAN SERVICES, JANUARY 26, 2017
AN ACT
Providing for living wage accreditation for nursing facilities
and for employer responsibility penalties for nursing
facilities; establishing the Employer Responsibility for
Public Assistance Fund; and imposing penalties.
TABLE OF CONTENTS
Chapter 1. Preliminary Provisions
Section 101. Short title.
Section 102. Findings and declarations.
Section 103. Purposes.
Section 104. Definitions.
Chapter 3. Nursing Facility Living Wage Accreditation
Section 301. Reporting requirements.
Section 302. Determination and accreditation.
Section 303. Posting of information.
Section 304. Effect of accreditation.
Section 305. Inspection of records and data.
Section 306. Administration by Department of Health.
Section 307. Civil penalties.
Chapter 5. Nursing Facility Employer Responsibility Penalty
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Section 501. Reporting requirements.
Section 502. Determination.
Section 503. Employer responsibility penalty.
Section 504. Information regarding medical assistance.
Section 505. Prohibited practices.
Section 506. Employee remedies.
Section 507. Administrative appeal.
Section 508. Employer Responsibility for Public Assistance
Fund.
Section 509. Confidentiality.
Section 510. Administration by Department of Human Services.
Chapter 7. Miscellaneous Provisions
Section 701. Severability.
Section 702. Effective date.
The General Assembly of the Commonwealth of Pennsylvania
hereby enacts as follows:
CHAPTER 1
PRELIMINARY PROVISIONS
Section 101. Short title.
This act shall be known and may be cited as the Nursing
Facility Accountability Act.
Section 102. Findings and declarations.
The General Assembly finds and declares as follows:
(1) This Commonwealth has a large and growing population
of senior and disabled persons who require nursing facility
care.
(2) Nursing facilities are predominately taxpayer-funded
through reimbursements from the medical assistance program
and Medicare program. The Commonwealth reimburses nursing
facilities that participate in the medical assistance program
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at a level that is sufficient to pay their employees a living
wage so that their employees should not have to rely on
public assistance.
(3) Taxpayers should not subsidize nursing facilities to
reap profits while many of their employees are living in
poverty.
(4) Nursing facilities that receive public money have a
responsibility to report to their residents, the families of
their residents and the taxpayers of this Commonwealth about
the minimum hourly wage rates paid to their employees and the
number of their employees receiving public assistance, so
that the public may make informed decisions about the quality
and administration of nursing facilities.
(5) In 2011, the Department of Public Welfare, now the
Department of Human Services, found that one nursing facility
company and its subsidiaries employed 137 full-time workers
who received medical assistance.
(6) According to the Department of Labor and Industry,
the average wage for nurse assistants is $13.39 and the
average wage for dietary and housekeeping employees is $9.81.
According to PathWays PA, a wage of $15 per hour would meet
the sufficiency standard for many, but not all, counties of
this Commonwealth for an employee with one child to provide
for the employee and child without the need for public
assistance.
(7) Nursing facilities that are paying a living wage of
$15 per hour should be recognized with an accreditation from
this Commonwealth that can be prominently displayed onsite
and on their publicly accessible Internet website.
(8) The high rate of staff turnover is a chronic problem
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in nursing facilities. Turnover of certified nurse aides is
particularly high. Studies have addressed the importance of
continuity of care and the need to stabilize the work force
in nursing facilities to improve quality care. Higher wages
may actually help nursing facilities reduce turnover and fill
vacancies and can also lead to greater worker productivity by
improving morale and overall job satisfaction.
(9) Nursing facility employees should have affordable,
comprehensive health insurance coverage. Most nursing
facility employees obtain their health insurance coverage
through their employment, but some working Pennsylvanians are
covered by medical assistance and may be covered through the
Healthy PA private coverage option.
(10) The Patient Protection and Affordable Care Act
(Public Law 111-148, 124 Stat. 119) sets a standard for what
constitutes affordable, employment-based coverage and imposes
penalties on any large employer whose full-time, nonseasonal
employees receive coverage through the exchange. Federal law
imposes no penalty on employers whose employees receive
coverage through the taxpayer-funded medical assistance
program or the Healthy PA program.
(11) An employer who fails to provide affordable
coverage to a low-wage worker who is covered by medical
assistance shifts the cost of health care coverage from the
employer to the taxpayer. An employer can avoid the employer
responsibility penalty of the Patient Protection and
Affordable Care Act by reducing wages or hours worked, or
both, so that a worker is no longer a full-time, full-year
employee within the meaning of the Federal act. A worker who
faces low wages or part-time work, or both, is too often
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eligible for taxpayer-funded medical assistance instead of
affordable, employer-based coverage. Controlling health care
costs can be more readily achieved if a greater share of
working people and their families have health benefits so
that cost shifting is minimized.
Section 103. Purposes.
The purposes of this act are to:
(1) Create a living wage accreditation program for each
nursing facility that provides a base hourly wage of $15 per
hour for each directly employed or subcontracted employee of
the nursing facility.
(2) Encourage the provision of a living wage to each
nursing facility employee by providing information to each
nursing facility resident and the public on the wage rates
being paid to the employees of the nursing facility.
(3) Ensure that each nursing facility pay a nursing
facility employer responsibility penalty for health coverage
received by each employee of the nursing facility through the
medical assistance program and another public assistance
program that is fully or partially funded with funds from the
Commonwealth, with that penalty based on the costs incurred
by the Commonwealth for providing these benefits to the
employee of the nursing facility.
(4) Ensure that each nursing facility employee who
receives public assistance is protected from possible
retaliation by the nursing facility for seeking or obtaining
that assistance.
Section 104. Definitions.
The following words and phrases when used in this act shall
have the meanings given to them in this section unless the
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context clearly indicates otherwise:
"Base hourly wage." The hourly wage of an employee that is
exclusive of:
(1) Deductions for payroll taxes, benefits or other
employment charges.
(2) Adjustments for overtime compensation.
"Covered employee."
(1) An employee who:
(i) Is a recipient of public assistance.
(ii) Works an average of 20 hours or more per week
for the nursing facility.
(iii) Works more than 45 days during the calendar
year for the nursing facility.
(2) The term includes an individual who is a leased
employee or otherwise under the direction and control of the
nursing facility.
"Employee." An individual who is employed directly or
subcontracted by the nursing facility on a full-time, part-time,
temporary or seasonal basis.
"Fund." The Employer Responsibility for Public Assistance
Fund established under section 508.
"Living wage accreditation standard." The base hourly wage
of $15, which shall be adjusted annually by the Department of
Human Services in consultation with the Department of Labor and
Industry to reflect:
(1) any increase in the appropriate regional Consumer
Price Index; or
(2) the adequate living wage standard set by the
Department of Labor and Industry.
"Medical assistance program." The program established under
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the act of June 13, 1967 (P.L.31, No.21), known as the Human
Services Code.
"Nursing facility."
(1) A long-term care nursing facility, as defined in
section 802.1 of the act of July 19, 1979 (P.L.130, No.48),
known as the Health Care Facilities Act.
(2) The term includes each member of a controlled group
of corporations, as defined in section 1563(a) of the
Internal Revenue Code of 1986 (Public Law 99-514, 26 U.S.C. §
1563(a)), regarding the nursing facility.
"Public assistance."
(1) Includes, but is not limited to, assistance under
the medical assistance program, cash assistance or another
benefit under a program that is wholly or partially funded
with funds of the Commonwealth.
(2) The term does not include the assistance provided
under the Children's Health Insurance Program (CHIP),
Supplemental Nutrition Assistance Program (SNAP) or Low-
Income Home Energy Assistance Program (LIHEAP).
CHAPTER 3
NURSING FACILITY LIVING WAGE
ACCREDITATION
Section 301. Reporting requirements.
(a) Required information.--Beginning 90 days after the
effective date of this section, each nursing facility that is
certified to participate in the medical assistance program shall
provide the following information on an annual basis as part of
its cost report under 55 Pa. Code § 1187.71 (relating to cost
reporting):
(1) The minimum base hourly wage paid for each job
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classification at the nursing facility, categorized by full-
time, part-time, temporary and seasonal employee, and
including total numbers for each category.
(2) The number of employees for each job classification
at the nursing facility, categorized by full-time, part-time,
temporary and seasonal employee, and including the total
number of employees.
(3) The total number of employees who receive a base
hourly wage at, above and below the living wage accreditation
standard at the nursing facility, categorized by full-time,
part-time, temporary and seasonal employee and including the
total number of employees.
(b) Verification.--Information provided under subsection (a)
shall be based on payroll records and other data in a uniform
format that is verifiable and able to be audited.
(c) Time for submission of information.--A nursing facility
shall provide the information under this section within 90 days
of the end of the fiscal year for the nursing facility.
Section 302. Determination and accreditation.
(a) Analysis of submitted information.--The Department of
Health shall determine whether a nursing facility qualifies for
a living wage accreditation by comparing the information
provided under section 301 to the living wage accreditation
standard for the corresponding period.
(b) Issuance of accreditation document.--The Department of
Health shall issue an accreditation document to each nursing
facility whose employees all earn the living wage accreditation
standard. The document shall detail the nursing facility's
accreditation as an employer that provides wages to its
employees that meet the living wage accreditation standard.
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(c) Annual analysis and issuance.--The analysis of
information provided and the issuance of an accreditation
document under this section shall occur annually.
Section 303. Posting of information.
(a) Posting by Department of Health.--The Department of
Health shall post the following on its publicly accessible
Internet website, including the page dedicated to the nursing
facility locator, or other appropriate websites of the
Commonwealth:
(1) The information provided under section 301.
(2) The list of nursing facilities that have received an
accreditation document under section 302 for the current
year.
(b) Posting by nursing facility.--Each nursing facility
shall post the following in a publicly accessible area of the
nursing facility:
(1) The information provided under section 301.
(2) The accreditation document under section 302 that
the nursing facility received for the current year.
Section 304. Effect of accreditation.
Nothing in this chapter shall require a nursing facility to
provide wages to some or all of its employees in an amount equal
to or exceeding the living wage accreditation standard.
Section 305. Inspection of records and data.
The Department of Health shall inspect payroll records and
other data under section 301 during the annual inspection of the
nursing facility to verify that the information provided under
section 301 is complete and accurate.
Section 306. Administration by Department of Health.
The Department of Health shall promulgate regulations, rules
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or orders necessary to administer the provisions of this
chapter.
Section 307. Civil penalties.
(a) Imposition of penalty.--The Department of Health shall
impose a civil penalty upon a nursing facility that fails to:
(1) provide complete, accurate, timely or properly
formatted information that is required under section 301; or
(2) submit the information under section 301 for
inspection as required by section 305.
(b) Amount.--The Department of Health shall determine the
appropriate amount of the penalty imposed under subsection (a).
CHAPTER 5
NURSING FACILITY EMPLOYER RESPONSIBILITY
PENALTY
Section 501. Reporting requirements.
Each nursing facility shall annually provide information
required by the Department of Human Services to administer and
enforce the provisions of this chapter, including, but not
limited to, the following:
(1) The Social Security number of each employee of the
nursing facility.
(2) The number of hours that the employee worked at the
nursing facility during the fiscal year.
(3) The number of days that the employee was employed at
the nursing facility during the fiscal year.
Section 502. Determination.
The Department of Human Services shall match Social Security
numbers of recipients of public assistance with the information
provided under section 501, to determine if the nursing facility
is subject to an employer responsibility penalty under this
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chapter.
Section 503. Employer responsibility penalty.
(a) When penalty applicable.--A nursing facility shall be
subject to an employer responsibility penalty if it employs a
covered employee.
(b) Amount of penalty.--
(1) The amount of the employer responsibility penalty
shall be based on the actual cost of providing public
assistance to each covered employee for the most recent
fiscal year.
(2) The employer responsibility penalty for each covered
employee shall be determined by multiplying the actual cost
of providing public assistance to the covered employee by a
fraction, the numerator of which is the amount of annualized
hours worked by the covered employee per year and the
denominator of which is 1,820 hours per year.
(3) An employer responsibility penalty may not exceed
100% of the actual cost of providing public assistance to the
covered employee.
(c) Notice of penalty.--The Department of Human Services
shall annually send a notice of the following to each nursing
facility that is subject to an employer responsibility penalty
under this chapter:
(1) The amount of the employer responsibility penalty
imposed.
(2) The date on which payment is due.
(d) Payment.--A nursing facility shall pay any employer
responsibility penalty imposed under this chapter to the
Department of Human Services for deposit into the fund
established under section 508.
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(e) Interest.--
(1) Interest shall be assessed at 10% per annum on an
employer responsibility penalty that is not paid on or before
the due date of the payment.
(2) Interest under this subsection shall begin to accrue
the day after the due date of the employer responsibility
penalty.
(3) Interest under this subsection shall be deposited
into the fund established under section 508.
(f) Additional interest penalty.--
(1) If an employer responsibility penalty is not paid
within 60 days after the due date of the payment, an interest
penalty equal to the interest charged under subsection (e)
shall be assessed and due for each month, or part thereof,
that the employer responsibility penalty payment is not
received.
(2) The additional interest penalty under this
subsection shall be deposited in the fund under section 508.
(g) Deduction from medical assistance program payment.--
(1) If a nursing facility is a medical assistance
provider or is related through common ownership or control,
as defined in 42 CFR 413.17(b) (relating to cost to related
organizations), to a medical assistance provider and the
nursing facility fails to pay all or part of an employer
responsibility penalty within 60 days after the due date of
the payment, the Department of Human Services may deduct the
unpaid penalty and any interest owed on the penalty from any
medical assistance program payment due to the nursing
facility until the full amount due under this section is
recovered.
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(2) A deduction under paragraph (1) may be made:
(i) Only after written notice to the nursing
facility under paragraph (1).
(ii) In amounts over a period of time, taking into
account the financial condition of the nursing facility.
(h) Effect on licensing.--
(1) Within 60 days after the end of each calendar
quarter, the Department of Human Services shall notify the
Department of Health of each nursing facility with penalty or
interest amounts that have remained unpaid for 90 days or
more.
(2) The Department of Health may not renew the license
of a nursing facility unless:
(i) the Department of Human Services notifies the
Department of Health that the nursing facility has paid
any outstanding amount due under this section in its
entirety; or
(ii) the Department of Human Services agrees to
permit the nursing facility to repay the outstanding
amount due under this section in installments and that,
to date, the nursing facility has paid the installments
in the amount and by the date required by the Department
of Human Services.
(i) Change of ownership or control.--After a nursing
facility changes ownership or control, the successor of the
nursing facility shall be liable for the outstanding amount due
under this section from the nursing facility before the change
of ownership or control.
Section 504. Information regarding medical assistance.
(a) Duty to share information.--Each nursing facility shall
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provide information to each newly hired and existing employee
regarding the availability of medical assistance coverage for a
low-income employee.
(b) Written notice.--The Department of Human Services shall
develop a simple, uniform written notice containing the
information required under this section.
Section 505. Prohibited practices.
A nursing facility may not:
(1) Designate an employee as an independent contractor,
reduce an employee's hours of work or terminate an employee
if the purpose of the action is to avoid the obligations
under this chapter.
(2) Request or otherwise seek to obtain information on
the income, family income or other eligibility requirements
for public assistance regarding an employee, other than the
information about the employee's employment status otherwise
known to the nursing facility and consistent with Federal and
State law.
(3) Require as a condition of employment that an
employee not enroll or withdraw from enrollment in public
assistance.
(4) Encourage or discourage an employee to enroll in
public assistance for which the employee is eligible, but the
nursing facility may provide information on public assistance
as otherwise provided by Federal or State law.
(5) Discharge or in any manner discriminate or retaliate
against an employee who enrolls in public assistance.
Section 506. Employee remedies.
An employee of a nursing facility who is discharged,
threatened with discharge, demoted, suspended or in any other
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manner discriminated or retaliated against in the terms and
conditions of employment by the nursing facility because the
employee has enrolled in public assistance shall be entitled to
reinstatement and reimbursement for lost wages and work benefits
caused by the acts of the nursing facility.
Section 507. Administrative appeal.
(a) Request for review.--Except as otherwise provided in
subsection (b), a nursing facility that is aggrieved by a
determination of the Department of Human Services under this
chapter may file a request for review of the decision of the
Department of Human Services by the Bureau of Hearings and
Appeals, which shall have exclusive jurisdiction in the matters.
(b) Procedures.--The procedures and requirements of 67
Pa.C.S. Ch. 11 (relating to medical assistance hearings and
appeals) shall apply to requests for review filed under this
section, except that in the request for review, the nursing
facility may not challenge the penalty rate determined by the
Department of Human Services but only whether the Department of
Human Services correctly determined the number of covered
employees that are the subject of the penalty.
Section 508. Employer Responsibility for Public Assistance
Fund.
(a) Establishment.--The Employer Responsibility for Public
Assistance Fund is established in the State Treasury.
(b) Receipt of money.--The fund under this section shall
receive money regarding the employer responsibility penalty,
interest and other penalties under section 503.
(c) Use of money in fund.--The Department of Human Services
may use money in the fund under this section to pay:
(1) The Commonwealth's share of public assistance costs
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for covered employees.
(2) The costs to implement and administer this chapter.
Section 509. Confidentiality.
Each document and record that contains personal or
identifying information and results from the operation of
sections 501 and 502 shall be subject to the confidentiality
requirements and privacy standards under the Health Insurance
Portability and Accountability Act of 1996 (Public Law 104-191,
110 Stat. 1936).
Section 510. Administration by Department of Human Services.
The Department of Human Services shall promulgate
regulations, rules or orders necessary to administer the
provisions of this chapter.
CHAPTER 7
MISCELLANEOUS PROVISIONS
Section 701. Severability.
The provisions of this act are severable. If any provision of
this act or its application to any person or circumstance is
held invalid, the invalidity shall not affect other provisions
or applications of this act that can be given effect without the
invalid provision or application.
Section 702. Effective date.
This act shall take effect in 90 days.
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