N.Y. Mental Hygiene Law § 43.04: Provider of services assessments

§ 43.04 Provider of services assessments.

1. For purposes of this section, provider of services shall refer to

(i) those providers as defined by subdivision five of section 1.03 of

this chapter which are licensed by the office for people with

developmental disabilities pursuant to article sixteen of this chapter

as intermediate care facilities for individuals with developmental

disabilities, providers of day treatment services or specialty

hospitals, except that on and after December first, nineteen hundred

ninety-seven, provider of services shall not include specialty

hospitals, and (ii), for purposes of paragraph (c) of subdivision two of

this section only, the term provider of services, shall mean, and for

purposes of this subdivision shall include, the office for people with

developmental disabilities as the operator of intermediate care

facilities for individuals with developmental disabilities. Providers of

services are charged assessments on their gross receipts received from

services and care related to intermediate care facilities, day treatment

services, or specialty hospitals until November thirtieth, nineteen

hundred ninety-seven, for individuals with developmental disabilities

and other operating income, less personal needs allowances and refunds,

on a cash basis in the percentage amounts and for the periods specified

in subdivision two of this section. Such assessments shall be submitted

by or on behalf of such providers of services to the commissioner of the

office for people with developmental disabilities or his or her

designee.

2. (a) (i) For each provider of services in the categories of services

set forth in subdivision one of this section located in Regions II and

III, as defined in the methodology established pursuant to paragraph

(ii) of subdivision (c) of section 43.02 of this article, the assessment

shall be six-tenths of one percent of each such provider of services'

gross receipts received for all services rendered within such service

categories on a cash basis beginning January first, nineteen hundred

ninety-one.

(ii) For each provider of services in the categories of services set

forth in subdivision one of this section, excluding, on and after April

first, nineteen hundred ninety-four, providers of day treatment

services, located in Regions II and III, as defined in the methodology

established pursuant to paragraph (ii) of subdivision (c) of section

43.02 of this article, an additional assessment shall be two and

four-tenths percent of each such provider of services' gross receipts

received for all services rendered within such service categories on a

cash basis beginning April first, nineteen hundred ninety-two; provided,

however, such additional assessment shall be five and four-tenths

percent of each such provider of services' gross receipts received for

all services rendered within such service categories on a cash basis

beginning April first, nineteen hundred ninety-six and ending March

thirty-first, nineteen hundred ninety-seven.

(iii) For each provider of services in the categories of services set

forth in subdivision one of this section, excluding, on and after April

first, nineteen hundred ninety-four, providers of day treatment

services, located in Regions II and III, as defined in the methodology

established pursuant to paragraph (ii) of subdivision (c) of section

43.02 of this article, notwithstanding any other provision of this

paragraph, the total assessment shall be six percent of each such

provider's gross receipts received on a cash basis for all services

rendered, beginning April first, nineteen hundred ninety-seven, and five

and five-tenths percent of each such provider's gross receipts received

on a cash basis for all services rendered, beginning January first, two

thousand eight.

(b) (i) For each provider of services in the categories of services

set forth in subdivision one of this section located in Region I, as

defined in the methodology established pursuant to paragraph (ii) of

subdivision (c) of section 43.02 of this article, the assessment shall

be six-tenths of one percent of each such provider of services' gross

receipts received for all services rendered within such service

categories on a cash basis beginning July first, nineteen hundred

ninety-one.

(ii) For each provider of services in the categories of services set

forth in subdivision one of this section, excluding, on and after April

first, nineteen hundred ninety-four, providers of day treatment

services, located in Region I, as defined in the methodology established

pursuant to paragraph (ii) of subdivision (c) of section 43.02 of this

article, an additional assessment shall be two and four-tenths percent

of each such provider of services' gross receipts received for all

services rendered within such service categories on a cash basis

beginning April first, nineteen hundred ninety-two; provided, however,

such additional assessment shall be five and four-tenths percent of each

such provider of services' gross receipts received for all services

rendered within such service categories on a cash basis beginning April

first, nineteen hundred ninety-six and ending March thirty-first,

nineteen hundred ninety-seven.

(iii) For each provider of services in the categories of services set

forth in subdivision one of this section, excluding, on and after April

first, nineteen hundred ninety-four, providers of day treatment

services, located in Region I, as defined in the methodology established

pursuant to paragraph (ii) of subdivision (c) of section 43.02 of this

article, notwithstanding any other provision of this paragraph, the

total assessment shall be six percent of each such provider's gross

receipts received on a cash basis for all services rendered, beginning

April first, nineteen hundred ninety-seven, and five and five-tenths

percent of each such provider's gross receipts received on a cash basis

for all services rendered, beginning January first, two thousand eight.

(c) (i) For the provider of services as set forth in clause (ii) of

subdivision one of this section in the category of intermediate care

facilities for individuals with developmental disabilities operated by

the office for people with developmental disabilities, the assessment

shall be six-tenths of one percent of the gross receipts received for

all services rendered within such service category on a cash basis

beginning April first, nineteen hundred ninety-five and ending March

thirty-first, two thousand one.

(ii) For the provider of services as set forth in clause (ii) of

subdivision one of this section in the category of intermediate care

facilities for individuals with developmental disabilities operated by

the office for people with developmental disabilities, an additional

assessment shall be two and four-tenths percent of the gross receipts

for all services rendered within such service category on a cash basis

beginning April first, nineteen hundred ninety-five; provided, however,

such additional assessment shall be five and four-tenths percent of the

gross receipts received for all services rendered within such service

category on a cash basis beginning April first, nineteen hundred

ninety-six and ending March thirty-first, two thousand one.

(iii) For each provider of services as set forth in clause (ii) of

subdivision one of this section in the category of intermediate care

facilities for individuals with developmental disabilities operated by

the office for people with developmental disabilities, notwithstanding

any other provision of this paragraph, the total assessment shall be six

percent of the provider's gross receipts received on a cash basis for

all services rendered, beginning April first, two thousand one, and five

and five-tenths percent of the provider's gross receipts received on a

cash basis for all services rendered, beginning January first, two

thousand eight.

(d) Notwithstanding any other provisions of law to the contrary, for

each provider of day treatment services, the assessment on each such

provider's gross receipts for all services rendered on a cash basis

shall be as follows: (i) for all such gross receipts received on or

after April first, nineteen hundred ninety-nine, such assessment shall

be two-tenths of one percent; (ii) for all gross receipts received on or

after April first, two thousand, such assessment shall expire and be of

no further effect.

3. The commissioner is authorized to contract with the article

forty-three insurance law plans, or such other administrators as the

commissioner shall designate, to receive and distribute provider of

services assessment funds. In the event contracts with the article

forty-three insurance law plans or other commissioner's designees are

effectuated, the commissioner shall conduct annual audits of the receipt

and distribution of the assessment funds. The reasonable cost and

expenses of such administrators as approved by the commissioner, not to

exceed for personnel services on an annual basis one hundred thousand

dollars for all assessments established pursuant to this section, shall

be paid from the assessment funds.

4. Gross receipts received from all services rendered within the

service categories set forth in subdivision one of this section shall

include, without limitation, all monies received on account of such

services pursuant to rates of reimbursement established by the office

for people with developmental disabilities and paid by the state, and

shall not include, subject to the provisions of subdivision twelve of

this section, charitable contributions, grants, donations, bequests and

income from non-service related fund raising activities and governmental

deficit financing.

5. Estimated payments by or on behalf of providers of services to the

commissioner of the office for people with developmental disabilities of

funds due from the assessments pursuant to subdivision two of this

section shall be made on a monthly basis. Estimated payments shall be

due on or before the fifteenth day following the end of a calendar month

to which an assessment applies.

6. (a) If an estimated payment made for a month to which an assessment

applies is less than seventy percent of an amount the commissioner of

the office for people with developmental disabilities determines is due,

based on evidence of prior period moneys received by a provider of

services or evidence of moneys received by such provider of services for

that month, such commissioner may estimate the amount due from such

provider of services and may collect the deficiency pursuant to

paragraph (c) of this subdivision.

(b) If an estimated payment made for a month to which an assessment

applies is less than ninety percent of an amount the commissioner of the

office for people with developmental disabilities determines is due,

based on evidence of prior period moneys received by a provider of

service or evidence of monies received by such provider of services for

that month, and at least two previous estimated payments within the

preceding six months were less than ninety percent of the amount due,

based on similar evidence, such commissioner may estimate the amount due

from such provider of services and may collect the deficiency pursuant

to paragraph (c) of this subdivision.

(c) Upon receipt of notification from the commissioner of the office

for people with developmental disabilities of a provider of service's

delinquency under this section, the comptroller or a fiscal intermediary

designated by the director of the budget, or the commissioner of social

services, shall withhold from the amount of any payment to be made by

the state to a provider of services the amount of the deficiency

determined under paragraph (a) or (b) of this subdivision or paragraph

(d) of subdivision seven of this section. Upon withholding such amount,

the comptroller or a designated fiscal intermediary, or the commissioner

of social services, shall pay the commissioner of the office for people

with developmental disabilities, or his designee, such amount withheld

on behalf of the provider of services.

(d) The commissioner of the office for people with developmental

disabilities shall provide a provider of services with notice of any

estimate of an amount due for an assessment pursuant to paragraph (a) or

(b) of this subdivision or paragraph (d) of subdivision seven of this

section at least three days prior to collection of such amount by such

commissioner. Such notice shall contain the financial basis for such

commissioner's estimate.

(e) In the event a provider of services objects to an estimate by the

commissioner of the office for people with developmental disabilities

pursuant to paragraph (a) or (b) of this subdivision or paragraph (d) of

subdivision seven of this section of the amount due for an assessment,

the provider of services, within sixty days of notice of an amount due,

may request a hearing. If a hearing is requested, such commissioner

shall provide the provider of services an opportunity to be heard and to

present evidence bearing on the amount due for an assessment within

thirty days after collection of an amount due or receipt of a request

for a hearing, whichever is later. An administrative hearing is not a

prerequisite to seeking judicial relief.

(f) The commissioner of the office for people with developmental

disabilities may direct that a hearing be held without any request by a

provider of services.

7. (a) Every provider of services shall submit reports on a cash basis

of actual gross receipts received from all services rendered within the

services categories set forth in subdivision one of this section to

persons with developmental disabilities and operating income for each

month as follows:

(i) for the period January first, nineteen hundred ninety-one through

January thirtieth, nineteen hundred ninety-one, the report shall be

filed on or before March fifteenth, nineteen hundred ninety-one.

(ii) for the period January first, nineteen hundred ninety-one through

March thirty-first, nineteen hundred ninety-one and each quarter

thereafter, the report shall be filed on or before the forty-fifth day

after the end of the quarter.

(b) Every provider of services shall submit a certified annual report

on a cash basis of gross receipts received in such calendar year from

all services to persons with developmental disabilities and operating

income. The reports shall be in such form as may be prescribed by the

commissioner of the office for people with developmental disabilities to

accurately disclose information required to implement this section.

(c) Final payments shall be due for all providers of services for the

assessments pursuant to subdivision two of this section upon the due

date for submission of the applicable quarterly report.

(d) The commissioner of the office for people with developmental

disabilities may recoup deficiencies in final payments pursuant to

paragraph (c) of subdivision six of this section.

8. (a) If an estimated payment made for a month to which an assessment

applies is less than ninety percent of the actual amount due for such

month, interest shall be due and payable to the commissioner of the

office for people with developmental disabilities on the difference

between the amount paid and the amount due from the day of the month the

estimated payment was due until the date of payment. The rate of

interest shall be twelve percent per annum or at the rate of interest

set by the commissioner of taxation and finance with respect to

underpayments of tax pursuant to subsection (e) of section one thousand

ninety-six of the tax law minus four percentage points. Interest under

this paragraph shall not be paid if the amount thereof is less than one

dollar. Interest, if not paid by the due date of the following month's

estimated payment, may be collected by the commissioner of the office

for people with developmental disabilities pursuant to paragraph (c) of

subdivision six of this section in the same manner as an assessment

pursuant to subdivision two of this section.

(b) If an estimated payment made for a month to which an assessment

applies is less than seventy percent of the actual amount due for such

month, a penalty shall be due and payable to the commissioner of the

office for people with developmental disabilities of five percent of the

difference between the amount paid and the amount due for such month

when the failure to pay is for a duration of not more than one month

after the due date of the payment with an additional five percent for

each additional month or fraction thereof during which such failure

continues, not exceeding twenty-five percent in the aggregate. A penalty

may be collected by such commissioner pursuant to paragraph (c) of

subdivision six of this section in the same manner as an assessment

pursuant to subdivision two of this section.

(c) Overpayment by a provider of services of an estimated payment

shall be applied to any other payment due from the provider of services

pursuant to this section, or, if no payment is due, at the election of

the provider of services shall be applied to future estimated payments

or refunded to the provider of services. Interest shall be paid on

overpayments from the date of overpayment to the date of crediting or

refund at the rate determined in accordance with paragraph (a) of this

subdivision if the overpayment was made at the direction of the

commissioner. Interest under this paragraph shall not be paid if the

amount thereof is less than one dollar.

9. Funds accumulated, including income from invested funds, from the

assessments specified in this section, including interest and penalties,

shall be deposited by the commissioner of the office for people with

developmental disabilities and credited to the general fund.

10. Notwithstanding any inconsistent provision of law or regulation to

the contrary:

(a) the assessments pursuant to this section shall not be an allowable

cost in the determination of reimbursement rates pursuant to this

article:

(b) provided, however, that for purposes of determining rates of

payment pursuant to this article for providers, the additional

assessment imposed pursuant to the provisions of subparagraph (ii) of

paragraph (a), subparagraph (ii) of paragraph (b) and subparagraph (ii)

of paragraph (c) of subdivision two of this section shall be a

reimbursable cost to be reflected as timely as practicable in rates of

payment applicable within the assessment period, contingent, for

payments by governmental agencies, on all federal approvals necessary by

federal law and regulation for federal financial participation in

payments made for beneficiaries eligible for medical assistance under

title XIX of the federal social security act.

(c) provided, however, that for purposes of determining rates of

payment pursuant to this article for providers, three-tenths of one

percent of the assessment imposed pursuant to this section on the gross

receipts of intermediate care facilities received on or after April

first, nineteen hundred ninety-nine shall be a reimbursable cost to be

reflected as timely as practicable in rates of payment applicable within

the assessment period, contingent, for payments by governmental

agencies, on all federal approvals necessary by federal law and

regulation for federal financial participation in payments made for

beneficiaries eligible for medical assistance under title XIX of the

federal social security act.

(d) provided, however, that for purposes of determining rates of

payment pursuant to this article for providers, the assessment imposed

pursuant to this section on the gross receipts of intermediate care

facilities received on or after April first, two thousand shall be a

reimbursable cost to be reflected as timely as practicable in rates of

payment applicable within the assessment period, contingent, for

payments by governmental agencies, on all federal approvals necessary by

federal law and regulation for federal financial participation in

payments made for beneficiaries eligible for medical assistance under

title XIX of the federal social security act.

11. (a) The assessment shall not be collected in excess of six million

two hundred thousand dollars from providers of services specified in

subdivision two of this section for the period of April first, nineteen

hundred ninety-seven through March thirty-first, nineteen hundred

ninety-eight. The amount of the assessment collected pursuant to

subdivision two of this section in excess of six million two hundred

thousand dollars for the period of April first, nineteen hundred

ninety-seven through March thirty-first, nineteen hundred ninety-eight

shall be refunded to providers of services by the commissioner of the

office for people with developmental disabilities based on the ratio

which a provider of services' assessment for such period bears to the

total of the assessments for such period paid by such providers of

services.

(b) The additional assessment shall not be collected in excess of

thirty-six million one hundred thousand dollars from providers of

services specified in subdivision two of this section for the period of

April first, nineteen hundred ninety-seven through March thirty-first,

nineteen hundred ninety-eight. The amount of the additional assessment

collected pursuant to subdivision two of this section in excess of

thirty-six million one hundred thousand dollars for the period of April

first, nineteen hundred ninety-seven through March thirty-first,

nineteen hundred ninety-eight shall be refunded to providers of services

by the commissioner of the office for people with developmental

disabilities based on the ratio which a provider of services' additional

assessment for such period bears to the total of the additional

assessments for such period paid by such providers of services.

12. Each exclusion of sources of gross receipts received from the

assessments effective on or after April first, nineteen hundred

ninety-two established pursuant to this section shall be contingent upon

either: (a) qualification of the assessments for waiver pursuant to

federal law and regulation; or (b) consistent with federal law and

regulation, not requiring a waiver by the secretary of the department of

health and human services related to such exclusion; in order for the

assessments under this section to be qualified as a broad-based health

care related tax for purposes of the revenues received by the state

pursuant to the assessments not reducing the amount expended by the

state as medical assistance for purposes of federal financial

participation. The commissioner of the office for people with

developmental disabilities shall collect the assessments relying on such

exclusions, pending any contrary action by the secretary of the

department of health and human services. In the event the secretary of

the department of health and human services determines that the

assessments do not so qualify based on any such exclusion, then the

exclusion shall be deemed to have been null and void as of April first,

nineteen hundred ninety-two, and the commissioner of the office for

people with developmental disabilities shall collect any retroactive

amount due as a result, without interest or penalty provided the

provider of services pays the retroactive amount due within ninety days

of notice from the commissioner of the office for people with

developmental disabilities to the provider of services that an exclusion

is null and void. Interest and penalties shall be measured from the due

date of ninety days following notice from the commissioner of the office

for people with developmental disabilities to the provider of services.