STATE OF NEW YORK, SUPREME COURT APPELLATE DIVISION

THIRD JUDICIAL DEPARTMENT

CONCERNED HOME CARE PROVIDERS, INC., AMERICAN CHILDREN SERVICES, INC. D/B/A CITY CHOICE HOME CARE SERVICES, COMMUNITY HOME CARE REFERRAL SERVICE, INC., EAGLE HOME CARE, LLC, PELLA CARE, LLC, and PLATINUM HOME HEATH CARE, INC.,

Plaintiffs-Appellants,

- against — Albany County Index No.: 1145-12 RJI No.: 01-12-ST-3441

ANDREW M. CUOMO IN HIS CAPACITY AS THE GOVERNOR OF THE STATE OF NEW YORK, NIRAV R. SHAH, M.D., M.P.H., IN HIS CAPACITY AS THE COMMISSIONER OF THE NEW YORK STATE DEPARTMENT OF HEALTH,

Defendants-Respondents.

MEMORANDUM OF LAW OF HOME CARE ASSOCIATION OF NEW YORK STATE, INC. AS AMICUS CURIAE, IN SUPPORT OF APPEAL OF

CONCERNED HOME CARE PROVIDERS, INC., ET AL.

NIXON PEABODY LLP 677 Broadway, 10th Floor Albany, New York 12207 Phone: (518) 427-2650

ATTORNEYS FOR The Home Care Association of New York State, Inc. as Amicus Curiae

Of Counsel: Peter J. Millock, Esq. Barbara A. Asheld, Esq.

I•

PRELIMINARYSTATEMENT .....................................................................................................1

QUESTIONSPRESENTED ............................................................................................................2

STATEMENTOF CASE ................................................................................................................2

A. Home Health Care Contracting and Payments ........................................................2 B. The Wage Parity Law ..............................................................................................3 C. Identity and Interest of HCA ....................................................................................6

ARGUMENT...................................................................................................................................8

POINT I THE WAGE PARITY LAW VIOLATES ARTICLE III, § 1 OF THE STATE CONSTITUTION....................................................................................................... 9

POINT II THE WAGE PARITY LAW INTRUDES UPON THE LOCAL GOVERNMENT POWERS OF THE METRO COUNTIES IN VIOLATION OF ARTICLE IX OF THENYS CONSTITUTION ...................................................................................12

POINT III THE WAGE PARITY LAW INCORPORATES PROVISIONS OF LOCAL LAW IN VIOLATION OF STATE CONSTITUTION ARTICLE III, § 16 ...........13

POINT IV THE WAGE PARITY LAW DEPRIVES HOME HEALTH CARE PROVIDERS IN THE METRO COUNTIES OF EQUAL PROTECTION............15

POINT V THE WAGE PARITY LAW DEPRIVES HCA MEMBERS OPERATING IN THE THREE COUNTIES OF DUE PROCESS OF LAW .................................19

POINT VI THE NYSDOH INTERPRETATION OF THE WAGE PARITY LAW IS INCONSISTENT WITH THE TERMS OF THE LAW AND IS ARBITRARY ANDCAPRICIOUS .................................................................................................21

CONCLUSION..............................................................................................................................25

(i)

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Charry v Hall, 709 F2d 139 [2d Cir 1983] .......................................................................................................20

Montano v Suffolk County Legislature, 268 F Supp 2d 243 [EDNY 2003] ...........................................................................................16

Reynolds v Sims, 377 U.S ....................................................................................................................................16

Sioux City Bridge Co. v Dakota County, 260 US 441 [1923] ...................................................................................................................15

Town of Lockport. v Citizens for Community Action at the Local Level, Inc., 430 US 259 [1976] ...................................................................................................................16

United States Baseball v City of NY, 509 F Supp 2d 285 [SDNY 2007] ...........................................................................................11

STATE CASES

8200 Realty Corp. v Lindsay, 27 NY2d 124, appeal dismissed 400 US 962 [1970] .........................................................10, 11

Alevy v Downstate Med. Ctr, 39 NY2d 326 [1976] ....................................................................................................15, 16, 17

Aliessa v Novello, 96 NY2d 418 [2001 ] ................................................................................................................15

Boreali v Axelrod, 71 NY2d 1 [1987] ....................................................................................................................10

Brock v Board of Educ., 194 Misc 689 [Sup Ct Kings County 1949], affd 275 AD 1042 [2d Dept 1949] ....................24

Burke v Kern, 287 NY 203 [1941] ....................................................................................................................9

Cohen v Cuomo, 19 NY3d 196 [2012] ..................................................................................................................8

Dorsey v Stuyvesant Town Corp, 299 NY 512 [1949] ..................................................................................................................15

(ii)

Page(s)

Fink v Cole, 302 NY 216 [1951] ....................................................................................................................9

Hosp. Ass 'n of N. Y State v Axelrod, 165 AD2d 152 [3d Dept 1991] ................................................................................................21

Howard v Wyman, 28 NY2d 434 [19711 ................................................................................................................21

La Rossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583 [1984] ................................................................................................................20

Levine v O'Connell, 275 AD 217 [ 1st Dept 1949] ....................................................................................................10

Matter of Linda C, 86 AD2d 356 [3d Dept 1982] ..................................................................................................20

Medical Socy. of the State of N Y. v State Dept. of Health, 83 NY2d 447 [ 1994] ..........................................................................................................14, 15

Montgomery v Daniels, 38 NY2d 41 [1975] ..................................................................................................................19

New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194 [ 1994] ................................................................................................................21

New York Good Humor, Inc. v Morgan, 171 Misc 899 [Sup Ct NY Co 1939] .......................................................................................24

NYLife Ins. Co. v State Tax Comm., 80 AD2d 675 [3d Dept 1981] ..................................................................................................21

People ex rel. Luyster v Cocks, 172 AD 737 [2d Dept 1916] ......................................................................................................9

People ex rel. New York C. & H. R. R. Co. v Woodbury, 208 NY 421 [1913] ..................................................................................................................23

People ex rel. Salisbury Axle Co. v Lynch, 259 NY 228 [1932] ..................................................................................................................23

People ex rel. Wakely v McIntyre, 154 NY 628 [1898] ..............................................................................................................9, 12

People v Dugan, 91 Misc 2d 239 [County Ct Dutchess County 1977]......._ ................................ ....................23

(iii)

Page(s)

People v Mobil Oil Corp„ 101 Misc 2d 882 [Nassau County Dist Ct 1979] ...........................................................9, 11, 14

People v Shore Realty Corp., 127 Misc 2d 419 [Dist Ct Nassau Co 1984] ............................................................................11

People v South Shore Amusements, Inc., 82 Misc 2d 892 [Nassau Dist Ct 1975] ....................................................................................20

Schulz v NYS Exec, 92 NY2d 1 [ 1998] ....................................................................................................................14

Town of Greenburgh v Board of Supervisors of Westchester County, 53 Misc 2d 88 [Sup Ct Westchester County 1967] ..................................................................16

Under 21, Catholic Home Bureau for Dependent Children v City of New York, 65 NY2d 344 [1985] ................................................................................................................15

Weaver v Town of Rush, 1 AD3d 920 [4th Dept 2003] ...................................................................................................15

Wholesale Laundry Board of Trade v City of New York, 17 AD2d 327 [ 1st Dept 1962], affd 12 NY2d 998 [ 1963] .......................................................13

FEDERAL STATUTES

29 USC 206(a) ...............................................................................................................................23

STATE STATUTES

AdministrativeCode § 6-109 .........................................................................................................13

CPLR § 7803(2) and (3) ................................................................................................................21

LaborLaw 652(1) ..........................................................................................................................23

Misc . L. Title 57 .........................................................................................................................5, 23

New York State Public Health Law ("PHL") § 3614-c .....................................................1, 2, 3, 25

PHL3600 .................................................................................................................................17, 18

PHL 3605, 3611, 3614 ...................................................................................................................25

PHL3614[1] ....................................................................................................................................3

PHL3614-c[1][b] .......................................................................................................................3, 22

PHL3614-c [ 1 ] [c] ................................................................................................................3,4,13,22

(iv)

Page(s)

PHLArticle 36 ...............................................................................................................................18

REGULATIONS

10 NYCRR pt. 766 .........................................................................................................................25

NYCAdmin Code 6-109[b] .................................................................................................4, 22, 24

CONSTITUTIONAL PROVISIONS

NewYork State Constitution ...........................................................................................................2

NYConst Article IX, 1 ..................................................................................................................12

U.S. Constitution ............................................................................................................................15

OTHER AUTHORITIES

Nassau County Comptroller's Office, Living Wage, http://www.nassaucountyny.gov/agencies/ Comptroller/LivingWage/

[accessed Nov. 26, 2012] .................................................................................................................5

Suffolk County Code Chapter 575 .............................................................................................5, 23

Suffolk County Govt. Living Wage , http://www.suffolkcountyny.og v/departments/Labor/livingwage.aspx

[accessed Nov. 26, 2012] .................................................................................................................5

Webster's Third New International Dictionary of the English Language Unabridged, GC Merriam Co., Springfield MA [1966] ......................................................................................11

(v)

PRELIMINARY STATEMENT

The Home Care Association of New York State ("HCA") supports the appeal by

Concerned Home Care Providers, Inc., American Chore Services, Inc., d/b/a City Choice Home

Care Services, Community Home Care Referral Service, Inc., Eagle Home Care, LLC, Pella

Care, LLC, and Platinum Home Health Care, Inc. ("Appellants") of the September 7, 2012

decision, order and judgment of Hon. Roger D. McDonough, Acting J.S.C., Albany County

("Decision"), that dismissed Appellants' claims challenging the validity of New York State

Public Health Law ("PHL") § 3614-c ("the Wage Parity Law" or "the Law") and the

interpretation of that law by the New York State Department of Health ("NYSDOH".)

If this Court does not grant review and overturn the Decision: (1) HCA members

operating in three counties outside of New York City (Nassau, Suffolk and Westchester) will be

required to pay wages to their employees in amounts determined without legislative standards by

the New York City Council, a legislative body not elected by them and not created to represent

them; (2) HCA members in New York City and in those three counties covered by the Law will

be prevented from determining wages for their employees, a right preserved for HCA members

outside of the areas covered by the Law; (3) on and after March 1, 2014, some HCA members in

New York City will be required to pay amounts determined by a collective bargaining

agreement to which they are not parties and by successor agreements not yet even negotiated;

and (4) HCA members operating in New York City, Long Island and Westchester will be

required to compensate employees in amounts greater than required by statute because of

erroneous and arbitrary interpretations of law by the NYSDOH. As a consequence, HCA

members will suffer a significant adverse financial impact, and in some instances they will be

unable to provide the high quality of care the Wage Parity Law was intended to encourage.

HCA urges the Court to grant Concerned Home Care Providers, Inc.'s appeal from the

Decision; to find PHL § 3614-c to be unconstitutional under the New York State Constitution; to

find NYSDOH interpretations of that law to be arbitrary and capricious; and to enjoin the

implementation of PHL § 3614-c.

QUESTIONS PRESENTED

1. Did the lower court properly conclude that the Wage Parity Law does not violate Article III, § 1 of the State Constitution?

Answer: No.

2. Did the lower court properly conclude that the Wage Parity Law does not violate Article IX of the State Constitution?

Answer: No.

3. Did the lower court properly conclude that the Wage Parity Law does not violate Article III, § 16 of the State Constitution?

Answer: No.

4. Did the lower court properly conclude that the Wage Parity Law does violate Article I, § 11 of the State Constitution?

Answer: No.

5. Did the lower court properly conclude that the Wage Parity Law does not violate Article 1, § 6 of the State Constitution?

Answer: No.

6. Did the lower court properly conclude that NYSDOH's interpretation of the Wage Parity Law is not affected by an error in law and arbitrary and capricious?

Answer: No.

STATEMENT OF CASE

A. Home Health Care Contracting and Payments

Certified home health agencies ("CHHAs") and long term home health care programs

("LTHHCPs") provide health services to people in their homes. They often staff this function by

2

contracts with licensed home care services agencies ("LHCSAs"). This kind of "contracting out"

or outsourcing is a well-established health care industry business practice that, in the case of

home care, achieves efficiency and cost savings in training, recruiting, managing and deploying

home health aides. In fact, the PHL provides that these contracts cannot be prohibited as long as

the CHHA or LTHHCP retains responsibility for the contracted services. (PHL 3614[1]).

Currently, CHHAs and LTHHCPs are paid directly by Medicaid and they will be paid by

Medicaid funded managed care or managed long term care plans in the future. LHCSAs obtain

their revenue from CHHAs and LTHHCPs through their contracts to provide home care workers

to CHHAs and LTHHCPs.

B. The Wage Parity Law

The New York State Legislature enacted the Wage Parity Law set forth in PHL § 3614-c

as part of the 2011-2012 State Budget passed in March 2011. PHL § 3614-c increases in phases

the "minimum rate of home care aide total compensation" certain home care agencies, including

CHHAs, LTHHCPs, managed care plans, and the LHCSAs with which they contract for home

health aide services ("agencies"), must pay the home health aides they employ to provide

services to Medicaid beneficiaries (PHL 3614-c[3]). "Total compensation" is defined to include

wages, health, education or pension benefits, supplements in lieu of time off and compensated

time off (PHL 3614-c[1][b]). The Law affected wages in New York City beginning March 1,

2012, and will affect wages in Nassau, Suffolk, and Westchester Counties ("Metro Counties") as

of March 1, 2013. Under the Law, annually increasing wage and benefit payments are to be

phased in between March 1, 2012 and March 1, 2014 for home health aide employers in New

York City, and between March 1, 2013 and March 1, 2016 for such employers in the Metro

Counties.

3

The Law provides that, in New York City and the Metro Counties, the minimum rate of

total compensation to be paid is and will be established by reference to the New York City

Living Wage Law set forth in NYC Admin. Code §6-109, and collective bargaining agreements

in effect as of January 1, 2011 or successor collective bargaining agreements (PHL 3614-

c[3],[4]). The New York City Living Wage Law mandates payment of a living wage equal to

$10 per hour and either the employer's health benefits or the health benefits supplement rate of

$1.50 per hour (NYC Admin. Code 6-109[b][1][a], [2], [3][b]). This provision thus requires

home care aides in the downstate metropolitan region providing services paid for by Medicaid to

be paid minimum compensation from their home care provider/employer based on the amount

New York City requires New York City vendors to pay their employees under a New York City

law. New York City may amend that law at any time, and no standards for future amendments

of the New York City law are established in the Wage Parity Law.

Furthermore, the Law specifies that, on and after March 1, 2014, in New York City, the

minimum rate of compensation will be based on another indiscernible factor, "prevailing rate of

total compensation," which is defined as "the average hourly amount of total compensation paid

to all home care aides covered by whatever collectively bargained agreement covers the greatest

number of home care aides in a city with a population of one million or more" or "the total

compensation mandated by the living wage law of such city, whichever is greater." (PHL 3614-

c[l][c],[3][a][iii]. Similarly, for home health care providers in New York City or other affected

counties, the portion of the minimum rate of total compensation attributable to health benefit

costs or payments in lieu of health benefits will be determined in reference to collective

bargaining agreements that may not yet be negotiated. (PHL 3614-c[4]. Finally, on and after

March 1, 2016, employers in the Metro Counties will be required to pay the lesser of 115- percent

GI

of New York City local law compensation for that year, or compensation required by the local

living wage law of the particular county. New York City and, in later years, private parties to

collective bargaining agreements are, therefore able to determine unilaterally the compensation

responsibilities of home care providers in New York City and the Metro Counties. And failure

to comply with the Wage Parity Law will make the providers subject to it ineligible to be paid

for services rendered to Medicaid patients (PHL 3614-c[6]).

Like New York City, Suffolk, Nassau, and Westchester Counties each have enacted

living wage laws applicable to their contractors and subcontractors. (See Suffolk County Code

Ch. 575, Nassau County Misc. L. Title 57, and Admin. Code of Westchester County, Ch. 233,

Art. III). As of January 1, 2012 the living wage in Suffolk County is $11.27 per hour with health

benefits, and $12.84 per hour without health benefits. It is adjusted upward annually only in

accordance with the area consumer price index. (See Suffolk County Govt. Living Wage,

ham://www.suffolkcount ny. ov/departments/Labor/livingwage aspx [accessed Nov. 26, 2012].

As of August 1, 2012, the living wage in Nassau County is $14.91 ($13.11 wage with a health

supplement in lieu of health benefits of $1.80). It will be adjusted on August 1, 2013, based

upon the June 2012-June 2013 New York Metropolitan Area All Urban Index (NY CPI-U)

published by the U.S. Department of Labor, with a wage increase cap of 3'/2 percent. (See

Nassau County Comptroller's Office, Living Wage, http://www.nassaucountyny.gov/agencies/

Comptroller/LivingWage/ [accessed Nov. 26, 2012]). The living wage in Westchester County is

$11.50 per hour plus $1.50 per hour for health benefits or $13.50 per hour without benefits. ($ee

Admin. Code of Westchester County, Ch. 233, Art. III, 233.402).

Compensation for home health aides working in the 54 other counties in New York State

is not addressed.

E

C. Identity and Interest of HCA

HCA is a not-for-profit trade association representing approximately 250 home health

care providers operating across New York State. It is the primary industry association

representing home health care providers in New York State. It serves as a central educational

and technical resource to its members, and as an advocate and spokesperson for the industry to

the New York State Legislature, New York State and federal regulatory agencies, and New

Yorkers whom its members serve.

HCA members include CHHAs, LHCSAs, LTHHCPs, managed long term care plans,

and hospices. Its members provide people throughout New York State with non-residential

health care services, including nursing, physical, occupational, and speech therapies, home health

aides and personal care aides. The care HCA members provide is critical to keeping tens of

thousands of New York State residents out of long term care facilities and in their own homes.

More than one half of HCA's approximately 250 provider members serve the areas impacted by

the Wage Parity Law.

In most instances the Wage Parity Law will increase the hourly wages affected HCA

members must pay to the home health aides they employ to provide services to Medicaid

patients, but without any corresponding increases in Medicaid reimbursement to cover the costs

of the increase. Thus, many HCA member agencies simply cannot afford to comply with this

Law and they cannot, through non-compliance, afford to stop serving Medicaid patients. Based

upon a conservative estimate, compliance with the Wage Parity Law will cost affected HCA

agencies an additional $50 million to $75 million in the first effective year of the Law.

HCA agencies serve patients insured by Medicare, Medicaid and commercial and other

payers, but Medicaid revenues represent 65 percent of all revenues paid to HCA agencies. In

6

New York City and the counties affected by the Wage Parity Law, Medicaid represents 70

percent of all revenues paid to HCA members. If HCA's members fail to comply with this

unconstitutional law, and consequently lose Medicaid revenues, they will experience severe

fiscal distress and, in many cases, go out of business. Provision of home care services to

thousands of Medicaid recipients will thus be jeopardized.

According to RCA's analysis of Medicaid cost reports submitted to NYSDOH by

CHHAs and LTHHCPs for calendar year 2010, 65 percent of the state's providers had negative

operating margins because their revenues were less than their costs. And most of the remaining

providers were barely able to cover their costs.

Furthermore, since 2010 the financial condition of the industry has worsened

dramatically. In each of the budget years 2011-2012 and 2012-2013, New York State reduced

Medicaid payments for home care services by approximately $500 million. Between 1997 and

2011, New York's home care agencies experienced cuts of $269 million in Medicare

reimbursement. And according to 2010 Medicare cost reports, New York providers had negative

margins for Medicare for the tenth year in a row. Nationally, New York has the sixth highest

number of home care agencies with Medicare margins of zero or less.

The Wage Parity Law and NYSDOH policy interpreting it impose additional costs on

only certain Medicaid providers without reimbursing these costs and, as described above,

threaten the survival of numerous home care providers . This adverse impact is especially

egregious because the State has imposed these costs on providers in an unconstitutional manner,

in only a portion of the state, and has delegated determination of the amount of these costs to a

local government outside of the jurisdiction where the provider employs those whose wages are

affected (instead of to their local government), and to parties to collective bargaining

agreements who do not necessarily represent the providers or the providers' employees.

Moreover, the State has done so without guidance or standards. And it has done so without the

provision of commensurate funding or without regard to agency affordability, sustainability or

the consequences to employees or patients, and while simultaneously reducing home care

funding by unprecedented levels.

This case compels HCA to advance its industry wide perspective as amicus curiae, in

order to protect its many affected members' ability to operate, to help keep some of New York's

neediest in their homes for their medical treatment. HCA endorses Appellants' brief and asks the

court to consider, in addition, the arguments herein.

ARGUMENT

The Court of Appeals recently declared that, while it is not the court's task to address the

wisdom of the methods employed by the Legislature to accomplish its constitutional mandate,

courts are nonetheless charged with assessing whether the methods chosen amount to "a gross

and deliberate violation of the plain intent of the Constitution and a disregard of its spirit and the

purpose for which express limitations are included therein." (Cohen v Cuomo, 19 NY3d 196,

202 [2012] [quoting Sherrill v O'Brien, 188 NY 185, 198 [1907]). In this case, the New York

defendants grossly violated the plain intent and purpose of the State Constitution when they

enacted and implemented the Wage Parity Law, and the New York State Department of Health

acted arbitrarily, capriciously and contrary to the plain language of the Law in its implementation

of the Law.

POINT I

THE WAGE PARITY LAW VIOLATES ARTICLE III, § 1 OF THE STATE CONSTITUTION.

The Legislative power of the State may not be delegated to any other legislative body,

except that the State Legislature may delegate to local government the power to legislate

regarding matters of local concern. (See People ex rel. Luyster v Cocks, 172 AD 737 [2d Dept

1916]; Burke v Kern, 287 NY 203 [1941]). The intent of the framers of the Constitution in

permitting such delegations was to carry out a public policy that assumes that the interests of a

particular locality are best served by those familiar with its affairs (People ex rel. Wakely v

McIntyre, 154 NY 628, 632 [1898]). In enacting the Wage Parity Law, the Legislature has

improperly delegated to New York City the power to legislate beyond matters of its local

concern, i.e., local wages, and in derogation of the interests of the governments and residents of

Nassau, Suffolk and Westchester Counties. In doing so, it has left the citizens of those counties,

including home care workers and HCA members, without recourse or a voice to challenge those

who will establish the wages to be paid.

The Legislature also improperly delegated to private entities — a union and other parties

to a collective bargaining agreement — the determination of the prevailing rate of total

compensation and the portion of total compensation attributable to health benefit costs by

requiring that portion established by the Law to be set by the terms of existing (as of January 1,

2011) or successor collective bargaining agreements. (PHL 3614-c[3][a][iii],[4]. Such

delegation of legislative functions to private individuals or to private corporations is similarly

unconstitutional. (See Fink v Cole, 302 NY 216 [1951]; People v Mobil Oil Corp_, 101 Misc 2d

882 [Nassau County Dist Ct 1979]).

G1

Even when the Legislature delegates functions to a government agency, if the agency

builds a regulatory scheme based on its own conclusions about the appropriate balance between

promoting good health and cost to particular industries in the private sector, and acting solely on

its own ideas of sound public policy, it is operating outside of its constitutional authority (Boreali

v Axelrod, 71 NY2d 1 [1987]). For example, with regard to a delegation of price fixing to an

administrative board once court announced that: "Whether mandatory price-fixing shall be

adopted is not a fit subject to be relegated to determination by an administrative board, under the

guise of making rules and regulations to facilitate the accomplishment of its purpose .... It is the

function of the Legislature to determine fundamental matters of policy[.]" (Levine v O'Connell,

275 AD 217, 221 [1st Dept 1949]). In Levine, which involved setting the prices for alcoholic

beverages, the court noted that the Legislature did not direct the State Liquor Authority to

establish prices in accordance with some articulated standard or policy, and it declared that the

Constitution of the State and the orderly processes of representative government require that the

Legislature should make such important decisions itself, "[o]therwise there is no method by

which the people can locate responsibility for such fundamental determinations of public

policy." (Id. at 224).

The Legislature's delegation of its responsibility to New York City and the private parties

to a collective bargaining agreement under the Wage Parity Law raises the same concern. Under

the Wage Parity Law, the City government will not implement the statute under the close and

detailed control of the Legislature or of any other governmental entity (C£ 8200 Realty Corp. v

Lindsay, 27 NY2d 124, appeal dismissed 400 US 962 [1970]). And the terms of future

amendments of the New York City local law and successor union agreements were not known to

the Legislature when it approved the Wage Parity Law nor are they now available for review (Cf

10

People v Shore Realty Corp., 127 Misc 2d 419 [Dist Ct Nassau Co 1984]; United States Baseball

v City of NY, 509 F Supp 2d 285 [SDNY 2007]). Rather, the new Law gives the New York City

government unfettered discretion to determine the compensation paid both within and outside of

its jurisdiction now and in the future. The Law uses collective bargaining agreements negotiated

by private parties, again without standards, to determine the prevailing rate of total compensation

in New York City on and after March 1, 2014. And since the terms of successor collective

bargaining agreements are not yet even negotiated, the Legislature has delegated the

determination of the health benefit portion of minimum compensation for purposes of the Wage

Parity Law to the private parties negotiating any such successor agreement, again without any

standards whatsoever. (See, e.gj People v Mobil Oil Corp., 101 Misc 2d at 887 [by enacting a

private association's standards, prior to their adoption, the County of Nassau improperly

delegated to the association sovereign and legislative power]. Each outcome reflects an

unconstitutional delegation of legislative authority.

In attempting to legitimize its decision to uphold the Law, the trial court found, without

citation, that the establishment of "benchmarks" does not warrant a finding of unconstitutional

delegation. "Bench marks" are mere "point[s] of reference from which measurements of any

sort may be made." (Webster's Third New International Dictionary of the English Language

Unabridged, GC Merriam Co., Springfield MA [1966]). However, the Wage Parity Law does

much more than establish mere benchmarks, it authorizes New York City to establish the actual

mandated minimum compensation home care providers will be required to pay their employees

if they wish to continue as Medicaid providers in the impacted counties. This is standard setting

in its purest form, a prerogative of the Legislature alone. (See 8200 Realty Corp_, 27 NY2d 124).

11

The trial court also deemed the Law constitutional, again without citation, because the

Legislature retains the power to alter or amend it in any manner to respond to changing

conditions and contingencies. That simplistic logic does nothing to cure the constitutional flaw.

Indeed, the same can be said of every law. The fact that an unconstitutional law might be

changed to make it constitutional in the future certainly does not make it constitutional now.

POINT II

THE WAGE PARITY LAW INTRUDES UPON THE LOCAL GOVERNMENT POWERS OF THE METRO COUNTIES IN VIOLATION OF ARTICLE IX OF THE

NYS CONSTITUTION

The trial court superficially held that Appellants did not establish that the Wage Parity

Law interferes with local governments' power to enact laws relating to the locality's property,

affairs and government and, therefore, found no violation of the municipal home rule provisions

of NYS Constitution Article IX. This was error. In fact, in enacting the Law, the Legislature has

interfered in the affairs of local government by applying New York City law, as it may be

amended from time to time, to home health care providers providing Medicaid services in

Westchester, Nassau and Suffolk Counties. In essence, it has impermissibly authorized New

York City to substitute its judgment for the judgments of the governments in the three Metro

Counties regarding what constitutes an appropriate living wage in those counties.

Effective local self-government is a purpose of the people of the State. (See NY Const

Art IX, 1). And thus, every local government has the power to elect local officers and to adopt

local laws relating to their property, affairs and government, and the State can grant them

additional powers to regulate their affairs. But, a local government shall not have the power to

adopt local laws which impair the powers of any other local government. (See NY Const Art IX,

[1][a],[b],[2][c], [2][b]j1], [2][d]). This alignment of powers best effectuates the public policy,

expressed in People ex rel. Wakely, 154 NY 628 (1898), supra, that the interests of a particular

12

locality are best served by those familiar with its affairs. Here, by authorizing New York City to

establish wages for home care workers outside its boundaries, the Legislature has empowered the

City to act in contravention of these constitutional protections for local prerogatives.

The legislatures of the three Metro Counties have adopted their own local living wage

laws for their vendors, just as New York City did in its Administrative Code § 6-109. However,

should these counties wish to amend those local laws to impact the wages paid to Medicaid home

care providers in their jurisdiction before March 1, 2016, they cannot do so. Under the Wage

Parity Law, as enacted, any such amendment would be superseded by the New York City living

wage law. (PHL 3614-c[3] [b] [i]-[iii]; See Wholesale Laundry Board of Trade v City of New

York, 17 AD2d 327 [1st Dept 1962], affd 12 NY2d 998 [1963]). Likewise, if the Metro Counties

pursue such an amendment for application on or after March 1, 2016, that amendment could

apply only if it sets compensation at a level less than 115 percent of the compensation

determined under the New York City law. (PHL 3614-c[3][b][iv]). Thus, these counties are

effectively paralyzed in fulfilling their local mandates by constraints derived and imposed upon

them by a foreign local government. Surely nothing could more clearly suggest patent

interference in local matters contrary to Article IX of the NYS Constitution.

POINT III

THE WAGE PARITY LAW INCORPORATES PROVISIONS OF LOCAL LAW IN VIOLATION OF STATE CONSTITUTION ARTICLE III, § 16

State Constitution Article III, § 16 prohibits the incorporation of one law into another. It

says that "[n]o act shall be passed which shall provide that any existing law, or any part thereof,

shall be made or deemed a part of said act, or which shall enact that any existing law, or part

thereof, shall be applicable, except by inserting it in such act." The trial court found that, while

the Wage Parity Law clearly uses the New York City local law "as a means of formally

13

executing the provisions" of the Wage Parity Law, "the constitutional prohibition against

incorporation has not been violated." (R. 12-13). That finding is superficial and illogical.

Indeed, without reference to the New York City wage law, the level of compensation the Wage

Parity Law requires home care providers to pay their employees is unascertainable.

Incorporation by reference is not prohibited in all instances (Medical Socy. of the State of

N.Y. v State Dept. of Health, 83 NY2d 447, 452 [1994]). But the prohibition does apply to

prevent the enactment of affirmative legislation, the nature of which is explainable only by

reference, rather than by explicit articulation in the legislation itself. ( See id. at 453). Thus, the

prohibition avoids the enactment of legislation that might affect public or private interests in a

manner and to an extent not disclosed upon the face of the act in question. ( See id_; People v

Mobil Oil Corp., 101 Misc 2d at 884). And it insures that all acts contain within themselves the

information necessary to permit the Legislature to act upon them intelligently and discreetly

(Med. Socy., 83 NY2d at 453; Schulz v NYS Exec, 92 NY2d 1 [1998]).

That the Wage Parity Law does not, in and of itself, contain sufficient information to

allow the Legislature to act on it intelligently is without question, since (1) it was enacted as part

of a 185-page budget bill without being referenced or included in the title of that bill (i.e., See

NY Laws of 2011, Ch. 59); (2) it makes only a cursory reference to the New York City Wage

law and a collective bargaining agreement, without reference to what these external sources

provide; and (3) by its terms, the Legislature can have no idea what obligation it has placed on

home health care employers because the Law articulates no standards to guide the City Council

regarding future amendments of its local wage law or to guide the union regarding successor

collective bargaining agreements. These are precisely the kinds of blatant gaps the constitutional

provision against incorporation by reference was intended to prevent.

14

The Wage Parity Law simply cannot stand on its own without its improper incorporation

by reference of New York City local law. Indeed, absent that incorporation the new Law fails to

disclose, even through some general standard, the amount of minimum compensation currently

mandated, or the amount to be mandated if New York City amends its local law or if successor

union agreements have modified terms. On its face, the Law is devoid of substance on the

obligation being placed upon home care providers, now or in the future. Where incorporation by

reference creates such ambiguous substantive requirements, Article III, § 16 renders that

incorporation unconstitutional. (See Med Socy., 83 NY2d 447).

POINT IV

THE WAGE PARITY LAW DEPRIVES HOME HEALTH CARE PROVIDERS IN THE METRO COUNTIES OF EQUAL PROTECTION

Article 1, § 11 of the State Constitution provides: "No person shall be denied the equal

protection of the laws of this state or any subdivision thereof." The purpose of this clause is to

secure every person within the state against intentional and arbitrary discrimination, whether by

the express terms of a statute or its improper execution. (See Sioux City Bridge Co. v Dakota

County, 260 US 441, 445 [1923][discussing analogous provision of U.S. Constitution]; Weaver v

Town of Rush, 1 AD3d 920 [4th Dept 2003][same]).' When, as here, deprivation of a

fundamental right is at issue, the offending law can only withstand constitutional challenge by

surviving a strict scrutiny analysis, i.e., it must be shown to further a compelling state interest by

the least restrictive means practically available. (See Alevy v Downstate Med. Ctr,, 39 NY2d 326

[1976]; Aliessa v Novello, 96 NY2d 418 [2001]). Even when a legislative classification does not

The breadth of coverage offered by the equal protection provisions of the Federal and New York State Constitutions is the same (Dorsey v Stuyvesant Town Corp, 299 NY 512, 544 [1949]; Under 21, Catholic Home Bureau for Dependent Children v City of New York, 65 NY2d 344, 360 n.6 [ 1985]).

15

impact a fundamental interest, it will be upheld only if it is rationally related to a legitimate State

purpose (See Alevy, 39 NY2d at 332).

It is a fundamental principle of representative government in this country that there be

equal representation for equal numbers of people, without regard to, inter alia, place of residence

within a state (Town of Lockport. v Citizens for Community Action at the Local Level, Inc., 430

US 259, 264-65 [ 1976]). "Representative government is in essence self-government through the

medium of elected representatives of the people, and each and every citizen has an inalienable

right to full and effective participation in the political processes of his State's legislative bodies."

(Town of Greenburgh v Board of Supervisors of Westchester County, 53 Misc 2d 88, 93 [Sup Ct

Westchester County 1967] quoting from Reynolds v Sims, 377 U.S. at 565). Indeed, any

abridgement or dilution of such equal representation in the citizenry's right to vote constitutes

irreparable harm (Montano v Suffolk County Legislature, 268 F Supp 2d 243, 260 [EDNY

2003]).

The Wage Parity Law burdens this fundamental interest in representative democracy for

home health care providers in the three Metro Counties, irreparably harms them, and deprives

them of equal protection by imposing, only in those three counties, the wage law of another

jurisdiction (New York City) and by eliminating the ability of locally-elected representatives to

choose whether and how to regulate home care worker wages in their counties. Such

discriminatory line-drawing strikes directly at the heart of the fundamental right of equal

representation held by providers in the Metro Counties. Therefore, the Wage Parity Law must

Iri

withstand strict scrutiny, and the state must show that the legislative purpose is so compelling as

to justify the means utilized. (See Alevy, 39 NY2d 326 [19761.2

According to the State, the legislative purpose of the Law is to help reduce home health

aide turnover in the home and community-based care system by raising the compensation of

direct care workers, to enhance recruitment and retention of direct care personnel, and to

improve the quality of care in the affected counties. (R. 307). Even assuming that higher pay

means higher quality of care, a contention that the NYSDOH has not supported in this action,

this purpose is not compelling enough to justify the discriminatory methodology embodied in the

Wage Parity Law. Nor is that methodology the least restrictive means available to accomplish

that purpose, since each of the affected Metro Counties has enacted its own living wage law.

The wages established under those local laws vary with local conditions recognized by local

governments and likely better reflect a localized incentive pay structure that achieves the same

legislative purposes of worker retention and enhanced care. Thus, the Legislature could have

simply used those local laws as the basis for determining the wages to be paid in each of the

three counties. But it did not. Instead, it granted that authority to New York City, and thus

created an unequal and unfair burden on affected home health care providers' fundamental right

of equal representation when it simply did not need to do so.

Even when the Wage Parity Law is judged under the lesser equal protection standard —

"rationally related to the legitimate government purpose"— it fails. While retention and

recruitment of workers and quality of home services may be legitimate purposes, they are not

unique or confined to New York City and the Metro Counties. All residents of the State have an

equal interest in these laudable purposes (PHL 3600). However, the Wage Parity Law operates

2 The lower court was not persuaded that the Wage Parity Law implicates any fundamental rights and therefore applied the rational basis standard to this challenge.

17

in a wholly irrational way to achieve those purposes because it assumes that: (1) although the

NYSDOH generally defines quality of care and setting standards for quality care is within its

expertise, the New York City Council should now determine the level of compensation sufficient

to assure quality of care in New York City and in the three counties outside of the City; and (2)

home health care providers elsewhere in the State are competent to determine the minimum

compensation needed to achieve this goal but, for reasons not explained, those in New York City

and Nassau, Suffolk and Westchester Counties are not.

It is ironic, and patently irrational, that the Wage Parity Law could actually defeat the

Legislature's own stated intent regarding home health care services in this State:

The legislature hereby finds and declares that the provision of high quality home care services to residents of New York state is a priority concern. Expanding these services to make them available throughout the state as a viable part of the health care system and as an alternative to institutional care should be a primary focus of the state's actions.

Home health care has only recently been recognized legislatively as an integral part of the health care delivery system and has proven to have an important and valuable role in patient care. The certified home health agencies render a coordinated array of services to patients in their homes, thereby avoiding prolonged institutionalization, concomitant high costs and associated adverse social and medical implications.

The legislature intends that there be a public commitment to the appropriate provision and expansion of services rendered to the residents of the state by certified home health agencies, to the maintenance of a consistently high level of services by all homes care services agencies, to the central collection and public accessibility of information concerning all organized home care services, and to the adequate regulation and coordination of existing home care services.

(PHL 3600 [emphasis added]). Although this language was enacted in 1977, it remains the

stated intent of PHL Article 36. Clearly, the legislative purpose is to expand services, not

contract them. But contraction is precisely the likely outcome if HCA members are unable to

18

continue the provision of services because the costs imposed in NYC and the Metro Counties by

the Wage Parity Law are simply too high for them to bear, particularly in their already fragile

financial state. The legislative purpose also contemplates the maintenance of a consistently high

level of services "by all" home care service agencies. There can be no rational justification for

singling out these four localities, nor can there be any rational basis upon which to vest New

York City with control over wages paid by home care employers in the three affected Metro

Counties. For that matter, on a more basic level, the Law draws no rational correlation between

computation of wages according to its provisions and improved quality of care. This is

particularly so given that each of the Metro Counties had already enacted its own living wage

law when the Wage Parity Law was passed.

Thus, whether considered under a strict scrutiny or rational basis analysis, the Wage

Parity Law violates the equal protection guarantee of the State Constitution.

POINT V

THE WAGE PARITY LAW DEPRIVES HCA MEMBERS OPERATING IN THE THREE COUNTIES OF DUE PROCESS OF LAW

Under State Constitution Art I, §6 "[n]o person shall be deprived of life, liberty or

property without due process of law." Legislation will violate substantive due process when, in

enacting the legislation, the Legislature pursues permissible state objectives, but the means

adopted to do so are not reasonably related to the accomplishment of those objectives

(Montgomery v Daniels, 38 NY2d 41, 54 [1975]). For the reasons stated in Point IV, supra, the

means of achieving the State's legitimate quality of care objective through the Wage Party Law-

by imposing upon businesses in only three counties, each of which already has its own living

wage law, the living wage law of New York City- are not reasonably related to accomplishing

that objective.

19

Whether a statute complies with procedural due process depends on the balancing of

three factors: (1) the nature of the private interest sought to be protected; (2) the risk that the

statutory procedure will erroneously deprive that interest and the probability that additional

safeguards would alleviate that risk; and (3) the governmental interest, including fiscal and

administrative burdens, that would be placed upon that interest by additional safeguards (Charry

v Hall, 709 F2d 139, 145 [2d Cir 1983]; La Rossa, Axenfeld & Mitchell v Abrams, 62 NY2d 583,

589 [1984]; Matter of Linda C, 86 AD2d 356, 357 [3d Dept 1982]).

Home health care providers in the three Metro Counties, including HCA members, have a

right to engage in lawful business that is within the protection of the due process guarantee

(People v South Shore Amusements, Inc., 82 Misc 2d 892, 893 [Nassau Dist Ct 1975]). The risk

of depriving them of that right, by ignoring the locally-determined living wage laws of each of

the three affected counties and instead imposing upon them the living wage law of New York

City, is obvious and high. This is especially true because New York City has unfettered

discretion to amend its incorporated living wage law, thus creating a situation where the

operation of the Wage Parity Law is effectively "a moving target," without standards to prevent

or govern any New York City amendment that may apply to home health care providers in the

three affected counties. Finally, that the State would suffer no significant fiscal or administrative

burden if it enacted standards governing future New York City wage laws, or calculated and

applied a wage parity law without reference to a foreign jurisdiction's local law or collective

bargaining agreements.

20

POINT VI

THE NYSDOH INTERPRETATION OF THE WAGE PARITY LAW IS INCONSISTENT WITH THE TERMS OF THE LAW AND IS ARBITRARY AND

CAPRICIOUS

A court may annul an administrative action that is based upon a determination affected by

an error of law, or that is arbitrary and capricious. (See CPLR § 7803(2) and (3)). This includes

the authority to enjoin administrative agency policies that are based on an arbitrary and

capricious interpretation of a statute. (See Hosp. Ass 'n ofN. Y. State v Axelrod, 165 AD2d 152

[3d Dept 1991]). Indeed, an "error of law" occurs when an agency improperly interprets or

applies a statute. (See New York City Health & Hosps. Corp. v McBarnette, 84 NY2d 194, 205

[1994]). Although an agency's interpretation of a statute or regulation it is responsible to

administer will generally be upheld, that is not so if its interpretation is unreasonable. (See

Howard v Wyman, 28 NY2d 434, 438 [1971]). Moreover when the question is one of pure

statutory reading and analysis, and depends only on an accurate understanding of legislative

intent, there is little reason to give special deference to an administrative agency's competence or

expertise, and its interpretations should be given much less weight. And if the interpretation is at

variance with the clear wording of a statute, it should be given no weight (NYLife Ins. Co. v

State Tax Comm., 80 AD2d 675, 676 [3d Dept 1981]).

In this case, the NYSDOH interpreted the Wage Parity Law: (1) to prohibit credits for the

cost of health and non-cash benefits against the wage portion of the compensation mandate; and

(2) to require employers to provide health benefits costing $1.35 per hour in premiums or cash

supplements worth $1.35 per hour for the period March 1, 2012 through February 28, 2013. (R.

135-136). These interpretations are inconsistent with the express terms of the new Law.

The Wage Parity law requires that providers pay no less than "the minimum rate of home

care aide total compensation" equivalent to a percentage of "total compensation" mandated by

21

New York City local law. (See PHL 3614-c[2],[3]). The term "total compensation" is defined to

mean "all wages and other direct compensation paid to or provided on behalf of the employee

including, but not limited to, wages, health, education or pension benefits, supplements in lieu of

benefits and compensated time off...." (PHL 3614-c[1][b]). The required minimum rate of

compensation is therefore a percentage of the sum of wages and health benefits under the New

York City local law. And, the New York City local law requires city contractors and

subcontractors who provide homecare services to pay their covered employees at least the living

wage rate of $10 per hour, and to provide health benefits or to supplement the employees' hourly

wage rate by an amount no less than the $1.50 per hour health benefits supplement rate (NYC

Admin Code 6-109[b]). The health benefit supplement amount, therefore, is the alternative to

providing a health benefit itself The Law does not require a home health provider to pay the

minimum expense for the health benefit if the employer provides the benefit instead of paying

the supplement. The NYSDOH requirement that health coverage should cost no less than $1.35

per hour precludes the employer option that the Wage Parity Law offers.

NYSDOH has said that employers are not required to provide benefits to comply with the

Wage Parity Law, but if they do, they may obtain a credit for the cost of those benefits. (R. 135).

That credit, NYSDOH maintains, may only be taken against the benefit supplement amount; it

may not be taken against the wage amount. (R. 135). This NYSDOH-credit limitation is

contrary to the new Law, which broadly defines "total compensation" to include all wages and

benefits, and authorizes providers to count a range of benefit costs against such compensation to

satisfy the Law's mandate. Not coincidentally, NYSDOH's overreaching and erroneous

interpretation is more costly to employer/providers than the plain language of the statute, i.e., it

22

can result in increasing provider costs because providers cannot reduce benefits if benefit

contracts are already in place.

When the Legislature defines terms in a statute, the definitions determine the construction

of the terms (People v Dugan, 91 Misc 2d 239, 240 [County Ct Dutchess County 1977]). And

neither administrative agencies nor courts are to interpret a statute where the language is clear

and unequivocal. (See People ex rel. Salisbury Axle Co. v Lynch, 259 NY 228, 238 [1932];

People ex rel. New York C. & H. R. R. Co. v Woodbury, 208 NY 421 [1913]). In the Wage

Parity Law, the term "total compensation" is defined to include wages and health benefits.

Accordingly, the minimum rate of total compensation must be determined based upon this

definition.

The NYSDOH maintains that its interpretation is consistent with state and federal

minimum wage laws, local living wage laws, and state prevailing wage law. (R. 146). The State

also maintains that if this distinction is disregarded, benefits could be used to reduce or eliminate

wages in ways inconsistent with those laws. (R. 146). The NYSDOH interpretation is arbitrary

and capricious because (1) the other laws with which NYSDOH purports to insure consistency

(minimum wage, local living wage, prevailing wage) do not calculate wages as a percentage of

"total compensation" as the Wage Parity Law does; and (2) in any event, consistency with those

other laws is nowhere required in the Law.

The total amounts to be paid under New York and federal minimum wage laws are

established in terms of dollars and cents, not by a percentage of total compensation. (See Labor

Law 652(1); 29 USC 206(a)). Local living wage laws of the three Metro Counties do the same

(Suffolk County Code Ch. 575, supra; Nassau County Misc. L. Title 57, supra; and Admin. Code

of Westchester County, Ch. 233, Art. III, supra). Thus, any offset against the cash value required

23

under those laws would reduce statutorily required payments. That is not the case under the

plain language of the Wage Parity Law, which does not define total compensation by cash value.

In addition, there is no mandate requiring the Wage Parity Law to be interpreted

consistently with other laws. Rather, NYSDOH must comply with the plain language of the

statute, which should be given effect according to its terms. This is so even if an alternate

interpretation might yield what could be perceived as a fairer result, or one that would better

serve a particular economic viewpoint. (See Brock v Board of Educ., 194 Misc 689, 691 [Sup Ct

Kings County 1949], affd 275 AD 1042 [2d Dept 1949]; New York Good Humor, Inc. v Morgan,

171 Misc 899 [Sup Ct NY Co 1939]).

In interpreting the new Law, NYSDOH has also required employers to incur a health

benefit premium cost equal to or greater than the benefit supplement amount. (R. 143). Again,

the Law requires only the payment of a percent of total compensation, no more. The New York

City living wage law that the Wage Parity Law incorporates by reference requires workers to be

given health benefits or a health benefit supplement payment, not health benefits of a certain

amount (NYC Admin Code 6-109 [b]). Thus, nowhere does the new Law authorize regulation of

the premium to be paid for health benefits.

Finally, NYSDOH has suggested that home care providers keep up to 52 cents of every

Medicaid dollar "for themselves." (R. 306). The State apparently sees these funds as a source of

payment for wages required under the Wage Parity Law. (R. 475-476). Most LHCSA operators

do not keep 52 cents of every Medicaid dollar. And they incur significant costs to meet DOH

and Medicaid standards and to do business. (R. 476). The PHL recognizes the function of

CHHAs, LTHHCPs, and LHCSAs, and endorses the existence of contracts between them. The

DOH licenses and regulates home health care providers and establishes the Medicaid

24

reimbursement they receive. (See PHL 3605, 3611, 3614, 10 NYCRR Part 766, see esp.

766.10). And the licensure and operation of proprietary home care agencies is specifically

permitted by law. (PHL 3605(6). NYSDOH's interpretation of the Wage Parity Law that is

based upon contrary assumptions is simply arbitrary and capricious.

CONCLUSION

For the reasons discussed above, HCA respectfully requests that this Court reverse the

Decision of the trial court and find that Public Health Law § 3614-c is unconstitutional and that

New York State Department of Health interpretations of that law are arbitrary, capricious and

without force of law.

Dated: December 5, 2012 NIXON PF1BODY LLP

By: f

✓ j ` mt Peter J. Mill c Barbara AsheTd 677 Broadway, 10th floor Albany, NY 12207 Phone: (518) 427-2659 Attorneys for The Home Care Association of New York State, as Amicus Curiae

25

STATE OF NEW YORK

APPELLATE DIVISION SUPREME COURT

THIRD DEPARTMENT

CONCERNED HOME CARE PROVIDERS, INC., AMERICAN CHORE SERVICES, INC. D/B/A CITY CHOICE HOME CARE SERVICES, COMMUNITY HOME CARE REFERRAL SERVICE, INC., EAGLE HOME CARE, LLC, PELLA CARE, LLC, and PLATINUM HOME HEATH CARE, INC.,

Plaintiffs-Appellants,

- against —

THE STATE OF NEW YORK, ANDREW M. CUOMO in his capacity as the Governor of the State of New York, NIRAV R. SHAH, M.D.. M.F.N. in his capacity as the Commissioner of the New York State Department of Health,

Defendants-Respondents.

AFFIDAVIT OF SERVICE

Albany County Index No.: 1145-12

RJI No.: 01-12-ST-3441

STATE OF NEW YORK ) COUNTY OF ALBANY ) SS:

PAULA J. MUELLER, being duly sworn, deposes and says: I am over the age of eighteen and am employed by NIXON PEABODY LLP. On the 5th of December, 2012, I mailed via Federal Express, an overnight delivery service, on behalf of non-party The Home Care Association of New York State a copy of a Brief Amicus Curiae in Support of Plaintiffs-Appellants' appeal upon the following Attorneys of Record:

Philip Rosenberg, Esq., of Counsel Wilson, Elser, Moskowitz, Edelman, & Dicker, LLP 677 Broadway, 9th Floor Albany, NY 12207-2996 Attorneys for Plaintiffs Appellants

Sworn to before me this 5th day of December, 2012

c /Notary Public`s

Not--ry York

Adrienne J. Kerwin, Esq., Assistant Attorney General Eric T. Schneiderman New York State Attorney General The Capitol Albany, NY 12224-0341 At s for Defendants-Respondents

PAULA J. MU LER