N.Y. Public Health Law § 2807-d: Hospital assessments

§ 2807-d. Hospital assessments. 1. (a) Hospitals, as defined in this

article, excluding hospitals specified in paragraph (b) of this

subdivision, are charged assessments on their gross receipts received

from all patient care services 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 hospitals to the

commissioner or his designee.

(b) Subject to the provisions of subdivision twelve of this section,

the following categories of hospitals shall not be charged assessments

pursuant to this section: (i) voluntary nonprofit and private

proprietary general hospitals which qualify for distributions made in

accordance with paragraph (c) of subdivision nineteen of section

twenty-eight hundred seven-c of this article, or for assessments during

the period January first, nineteen hundred ninety-seven through December

thirty-first, nineteen hundred ninety-seven voluntary nonprofit and

private proprietary general hospitals which qualified for distributions

made in accordance with paragraph (c) of subdivision nineteen of section

twenty-eight hundred seven-c of this article as of December

thirty-first, nineteen hundred ninety-five; (ii) voluntary nonprofit

hospitals totally financed by charitable contributions or by the income

thereon dedicated to free care of low income patients; and (iii) any

facility dedicated solely to the care of police, firefighters,

volunteer firefighters, and emergency service personnel.

(c) On and after December first, nineteen hundred ninety-seven, the

term "general hospital", as used in this section, includes specialty

hospitals for persons who are developmentally disabled, licensed by the

office for people with developmental disabilities and which are also

issued an operating certificate pursuant to section twenty-eight hundred

five of this article.

2. (a) (i) For general hospitals the overall assessment shall be

six-tenths of one percent and the assessment shall vary from 0.5% to

0.675% of each general hospital's gross receipts received from all

patient care services and other operating income on a cash basis during

the period January first, nineteen hundred ninety-one through March

thirty-first, nineteen hundred ninety-two for hospital or health-related

services, including but not limited to inpatient service, outpatient

service, emergency service, referred ambulatory service and ambulatory

surgical service. The assessment shall vary according to the percentage

of nineteen hundred eighty-nine medicaid inpatient revenues as a

percentage of total nineteen hundred eighty-nine inpatient revenues as

reported on the institutional cost report submitted to the department

for nineteen hundred eighty-nine according to the following: for

hospitals with medicaid revenue up to and including 10%, the assessment

shall be .5%, for hospitals with medicaid revenue greater than 10% up

to and including 15%, the assessment shall be .525%, for hospitals with

medicaid revenue greater than 15% up to and including 20%, the

assessment shall be .65%, and for hospitals with medicaid revenue over

20%, the assessment shall be .675%. In the event that the provisions

relating to the additional supplementary low income patient adjustment

established in accordance with subdivision fourteen-d of section

twenty-eight hundred seven-c of this article cannot be implemented,

then the general hospital assessment established in accordance with this

paragraph shall be calculated without variation specified in this

paragraph and the assessment for each general hospital whose assessment

was greater than six-tenths of one percent shall become six-tenths of

one percent.

(ii) For general hospitals the assessment shall be six-tenths of one

percent of each general hospital's gross receipts received from all

patient care services and other operating income on a cash basis

beginning April first, nineteen hundred ninety-two for hospital or

health-related services, including, but not limited to inpatient

service, outpatient service, emergency service, referred ambulatory

service and ambulatory surgical service; provided, however, that for all

such gross receipts received on or after December first, nineteen

hundred ninety-eight, such assessment shall be two-tenths of one

percent, and further provided that for all such gross receipts received

on or after April first, nineteen hundred ninety-nine, such assessment

shall be one-tenth of one percent, and further provided that such

assessment shall expire and be of no further effect for all such gross

receipts received on or after January first, two thousand.

(iii) For general hospitals an additional assessment shall be

one-tenth of one percent of each general hospital's gross receipts

received from all patient care services and other operating income on a

cash basis beginning April first, nineteen hundred ninety-two for

hospital or health-related services, including, but not limited to

inpatient service, outpatient service, emergency service, referred

ambulatory service and ambulatory surgical service; provided, however,

that such additional assessment shall expire and be of no further effect

for all such gross receipts received on or after December first,

nineteen hundred ninety-seven.

(iv) Subject to the provisions of subdivision twelve of this section,

the assessment and additional assessment pursuant to subparagraphs (ii)

and (iii) of this paragraph during the period January first, nineteen

hundred ninety-eight through December thirty-first, nineteen hundred

ninety-eight for voluntary nonprofit and private proprietary general

hospitals which qualified for distributions made in accordance with

paragraph (c) of subdivision nineteen of section twenty-eight hundred

seven-c of this article as of December thirty-first, nineteen hundred

ninety-five shall be abated by seventy-five percent, and during the

period January first, nineteen hundred ninety-nine through December

thirty-first, nineteen hundred ninety-nine shall be abated by

twenty-five percent.

(v) Notwithstanding any contrary provisions of this paragraph or any

other provision of law or regulation, for general hospitals the

assessment shall be thirty-five hundredths of one percent of each

general hospital's gross receipts received from all patient care

services and other operating income on a cash basis for the period April

first, two thousand five through March thirty-first two thousand seven

for hospital or health-related services, including, but not limited to

inpatient service, outpatient service, emergency service, referred

ambulatory service and ambulatory surgical services, but not including

residential health care facilities services or home health care

services.

(vi) Notwithstanding any contrary provisions of this paragraph or any

other provision of law or regulation, for general hospitals the

assessment shall be thirty-five hundredths of one percent of each

general hospital's gross receipts received from all patient care

services and other operating income on a cash basis for periods on and

after April first, two thousand nine, for hospital or health-related

services, including, but not limited to inpatient services, outpatient

services, emergency services, referred ambulatory services and

ambulatory surgical services, but not including residential health care

facilities services or home health care services.

(b) (i) For residential health care facilities the assessment shall be

six-tenths of one percent of each residential health care facility's

gross receipts received from all patient care services and other

operating income on a cash basis beginning April first, nineteen hundred

ninety-one for hospital or health-related services, including adult day

services; provided, however, that for all such gross receipts received

on or after September first, nineteen hundred ninety-seven such

assessment shall be three-tenths of one percent, and further provided

that such assessment shall expire and be of no further effect for all

such gross receipts received on or after December first, nineteen

hundred ninety-eight.

(ii) For residential health care facilities an additional assessment

shall be one and two-tenths percent of each residential health care

facility's gross receipts received from all patient care services and

other operating income on a cash basis beginning April first, nineteen

hundred ninety-two for hospital or health-related services, including

adult day services; provided, however, that such additional assessment

shall expire and be of no further effect for all such gross receipts

received on or after April first, nineteen hundred ninety-nine.

(iii) For residential health care facilities a further additional

assessment shall be three and eight tenths percent of each residential

health care facility's gross receipts received from all patient care

services and other operating income on a cash basis for the period of

July first, nineteen hundred ninety-five through March thirty-first,

nineteen hundred ninety-six for hospital or health-related services,

including adult day services. The residential health care facility shall

file the assessment return with any balance due or any refund claimed by

May first, nineteen hundred ninety-six. Notwithstanding any inconsistent

provision of this section, the residential health care facility shall

make estimated payments to the commissioner on a monthly basis starting

August fifteenth, nineteen hundred ninety-five and continuing on the

fifteenth of each month through March fifteenth, nineteen hundred

ninety-six equal to one-eighth of the total estimated for this further

additional assessment for the further additional assessment period. If

the total of estimated payments is less than ninety-five percent of the

actual payment due, the residential health care facility shall pay to

the commissioner a penalty of fifteen percent of the difference due for

each month in addition to the amount due. The commissioner may recoup

deficiencies and penalties pursuant to paragraph (c) of subdivision six

of this section.

* (iv) For residential health care facilities a further additional

assessment shall be one and nine-tenths percent of each residential

health care facility's gross receipts received from all patient care

services and other operating income on a cash basis for the period of

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

nineteen hundred ninety-seven for hospital or health-related services,

including adult day services. The residential health care facility shall

file the assessment return with any balance due or any refund claimed by

May first, nineteen hundred ninety-seven. Notwithstanding any

inconsistent provision of this section, the residential health care

facility shall make estimated payments to the commissioner on a monthly

basis starting May fifteenth, and continuing on the fifteenth of each

month through March fifteenth equal to one-eleventh of the total

estimated for this further additional assessment for the period April

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

hundred ninety-seven. If the total of estimated payments is less than

ninety-five percent of the actual payment due, the residential health

care facility shall pay to the commissioner a penalty of fifteen percent

of the difference due each month in addition to the amount due. The

commissioner may recoup deficiencies and penalties pursuant to paragraph

(c) of subdivision six of this section.

* NB There are 2 subpar (iv)'s

* (iv) For residential health care facilities a further additional

assessment shall be one and nine-tenths percent of each residential

health care facility's gross receipts received from all patient care

services and other operating income on a cash basis for the period of

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

nineteen hundred ninety-seven for hospital or health-related services,

including adult day services. The residential health care facility shall

file the assessment return with any balance due or any refund claimed by

May first, nineteen hundred ninety-seven. Notwithstanding any

inconsistent provision of this section, the residential health care

facility shall make estimated payments to the commissioner on a monthly

basis starting May fifteenth, and continuing on the fifteenth of each

month through March fifteenth, equal to one-eleventh of the total

estimated for this further additional assessment for the period

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

thirty-first, nineteen hundred ninety-seven. If the total of the eleven

required estimated payments is less than ninety-five percent of the

actual payment due, the residential health care facility shall pay to

the commissioner a penalty of fifteen percent of the difference due for

each month in addition to the amount due. The commissioner may recoup

deficiencies and penalties pursuant to paragraph (c) of subdivision six

of this section.

* NB There are 2 subpar (iv)'s

* (v) For residential health care facilities in addition a further

additional assessment shall be (a) two and three-tenths percent of each

residential care facility's gross receipts received from all patient

care services and other operating income on a cash basis beginning May

first, nineteen hundred ninety-six through December thirty-first,

nineteen hundred ninety-six for hospital or health-related services,

including adult day services and (b) one and nine-tenths percent of each

residential care facility's gross receipts received from all patient

care services and other operating income on a cash basis beginning

January first, nineteen hundred ninety-seven and ending February

twenty-eighth, nineteen hundred ninety-seven for hospital or

health-related services, including adult day services.

* NB There are 2 subpar (v)'s

* (v) For residential health care facilities in addition a further

additional assessment shall be (a) two and three-tenths percent of each

residential care facility's gross receipts received from all patient

care services and other operating income on a cash basis beginning May

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

nineteen hundred ninety-six for hospital or health-related services,

including adult day services and (b) one and nine-tenths percent of each

residential care facility's gross receipts received from all patient

care services and other operating income on a cash basis beginning

January first, nineteen hundred ninety-seven and ending February

twenty-eighth, nineteen hundred ninety-seven for hospital or

health-related services, including adult day services; provided,

however, that for all such gross receipts received on or after April

first, nineteen hundred ninety-seven, such further additional assessment

shall be three and six-tenths percent, and further provided that for all

such gross receipts received on or after April first, nineteen hundred

ninety-nine, such further additional assessment shall be two and

four-tenths percent, and further provided that such further additional

assessment shall expire and be of no further effect for all such gross

receipts received on or after January first, two thousand.

* NB There are 2 subpar (v)'s

(vi) Notwithstanding any contrary provision of this paragraph or any

other provision of law or regulation to the contrary, for residential

health care facilities the assessment shall be six percent of each

residential health care facility's gross receipts received from all

patient care services and other operating income on a cash basis for the

period April first, two thousand two through March thirty-first, two

thousand three for hospital or health-related services, including adult

day services; provided, however, that residential health care

facilities' gross receipts attributable to payments received pursuant to

title XVIII of the federal social security act (medicare) shall be

excluded from the assessment; provided, however, that for all such gross

receipts received on or after April first, two thousand three through

March thirty-first, two thousand five, such assessment shall be five

percent, and further provided that for all such gross receipts received

on or after April first, two thousand five through March thirty-first,

two thousand nine, and on or after April first, two thousand nine

through March thirty-first, two thousand eleven such assessment shall be

six percent, and further provided that for all such gross receipts

received on or after April first, two thousand eleven through March

thirty-first, two thousand thirteen such assessment shall be six

percent, and further provided that for all such gross receipts received

on or after April first, two thousand thirteen through March

thirty-first, two thousand fifteen such assessment shall be six percent,

and further provided that for all such gross receipts received on or

after April first, two thousand fifteen through March thirty-first, two

thousand seventeen such assessment shall be six percent, and further

provided that for all such gross receipts received on or after April

first, two thousand seventeen through March thirty-first, two thousand

nineteen such assessment shall be six percent, and further provided that

for all such gross receipts received on or after April first, two

thousand nineteen through March thirty-first, two thousand twenty-one

such assessment shall be six percent, and further provided that for all

such gross receipts received on or after April first, two thousand

twenty-one through March thirty-first, two thousand twenty-three such

assessment shall be six percent, and further provided that for all such

gross receipts received on or after April first, two thousand

twenty-three through March thirty-first, two thousand twenty-five such

assessment shall be six percent, and further provided that for all such

gross receipts received on or after April first, two thousand

twenty-five through March thirty-first, two thousand twenty-nine such

assessment shall be six percent.

(c) For all other facilities issued an operating certificate pursuant

to section twenty-eight hundred five of this article, including

diagnostic and treatment centers, the assessment shall be six-tenths of

one percent of each facility's gross receipts received from all patient

care services and other operating income on a cash basis beginning

January first, nineteen hundred ninety-one for hospital or

health-related services, including diagnostic and treatment center

services; provided, however, that for all such gross receipts received

on or after April first, nineteen hundred ninety-nine, such assessment

shall be two-tenths of one percent, and further provided that such

assessment shall expire and be of no further effect for all such gross

receipts received on or after January first, two thousand.

3. Gross receipts received from all patient care services and other

operating income for purposes of the assessment pursuant to this section

shall include, but not be limited to:

(a) for general hospitals, all monies received for or on account of

inpatient hospital service, outpatient service, emergency service,

referred ambulatory service and ambulatory surgical service, or other

hospital or health-related services, excluding, subject to the

provisions of subdivision twelve of this section: distributions from bad

debt and charity care regional pools, primary health care services

regional pools, bad debt and charity care for financially distressed

hospitals statewide pools and bad debt and charity care and capital

statewide pools created in accordance with section twenty-eight hundred

seven-c of this article and the components of rates of payment or

charges related to the allowances provided in accordance with

subdivisions fourteen, fourteen-b and fourteen-c, the adjustment

provided in accordance with subdivision fourteen-a, the adjustment

provided in accordance with subdivision fourteen-d, the adjustment for

health maintenance organization reimbursement rates provided in

accordance with section twenty-eight hundred seven-f of this article,

the adjustment for commercial insurer reimbursement rates provided in

accordance with paragraph (i) of subdivision eleven of section

twenty-eight hundred seven-c of this article or, if effective, the

adjustment provided in accordance with subdivision fifteen of section

twenty-eight hundred seven-c of this article or the adjustment provided

in accordance with section eighteen of chapter two hundred sixty-six of

the laws of nineteen hundred eighty-six as amended and physician

practice or faculty practice plan revenue received by a general hospital

based on discrete billings for private practicing physician services,

revenue received by a general hospital from a public hospital pursuant

to an affiliation agreement contract for the delivery of health care

services to such public hospital, revenue received pursuant to paragraph

(i) of subdivision thirty-five of section twenty-eight hundred seven-c

of this article, revenue received pursuant to section twenty-eight

hundred seven-w of this article, all revenue received as

disproportionate share hospital payments, in accordance with title

nineteen of the federal Social Security Act, revenue received pursuant

to sections eleven, twelve, thirteen and fourteen of part A of chapter

one of the laws of two thousand two, revenue received pursuant to

sections thirteen and fourteen of part B of chapter one of the laws of

two thousand two, revenue from patient personal fund allowances, revenue

from income earned on patient funds, investment income from externally

restricted funds, revenue from investment sinking funds, revenue from

investment operating escrow accounts, investment income from funded

depreciation, investment income from mortgage repayment escrow accounts,

revenue derived from the operation of schools leading to licensure, and

revenue from the collection of sales and excise taxes;

(b) for residential health care facilities, all monies received for or

on account of hospital or health-related service, including adult day

services, excluding subject to the provisions of subdivision twelve of

this section the component of rates of payment related to the adjustment

provided in accordance with subdivision twelve of section twenty-eight

hundred eight of this article;

(c) for all other facilities issued an operating certificate pursuant

to section twenty-eight hundred five of this article, including

diagnostic and treatment centers, all monies received for or on account

of hospital or health-related services, however, subject to the

provisions of subdivision twelve of this section, excluding the

component of rates of payment related to the allowance provided in

accordance with paragraph (f) of subdivision two of section twenty-eight

hundred seven of this article, excluding for a diagnostic and treatment

center operated by a health maintenance organization operating in

accordance with the provisions of article forty-four of this chapter or

article forty-three of the insurance law monies received for or on

account of services provided to subscribers of such health maintenance

organization and excluding patient care services which if provided to

persons eligible for medical assistance pursuant to title eleven of

article five of the social services law would be eligible for ninety

percent federal funds as set forth in section nineteen hundred three of

the federal social security act; and

(d) for all hospitals, excluding diagnostic and treatment centers

operated by a health maintenance organization operating in accordance

with the provisions of article forty-four of this chapter or article

forty-three of the insurance law, shall include monies received for or

on account of such revenue sources as investment income, parking lots,

cafeterias, gift shops and rental income, provided, however, that

subject to the provisions of subdivision twelve of this section income

received from grants, charitable contributions, donations and bequests

and governmental deficit financing and the component of rates of payment

reflecting any cost of the assessment reimbursable pursuant to

subdivision ten of this section shall not be included.

4. For periods prior to January first, two thousand five, the

commissioner is authorized to contract with the article forty-three

insurance law plans, or if not available such other administrators as

the commissioner shall designate, to receive and distribute hospital

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 costs and expenses

of an administrator as approved by the commissioner, not to exceed for

personnel services on an annual basis four hundred thousand dollars for

all assessments established pursuant to this section, shall be paid from

the assessment funds.

5. Estimated payments by or on behalf of hospitals to the commissioner

or his designee 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

determines is due, based on evidence of prior period moneys received by

a hospital or evidence of moneys received by such hospital for that

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

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

determines is due, based on evidence of prior period moneys received by

a hospital or evidence of moneys received by such hospital 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, the commissioner may estimate the amount due from such

hospital and may collect the deficiency pursuant to paragraph (c) of

this subdivision.

(c) Upon receipt of notification from the commissioner of a hospital's

deficiency under this section, the comptroller or a fiscal intermediary

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

services, or a corporation organized and operating in accordance with

article forty-three of the insurance law, or an organization operating

in accordance with article forty-four of this chapter shall withhold

from the amount of any payment to be made by the state or by such

article forty-three corporation or article forty-four organization to

the hospital the amount of the deficiency determined under paragraph (a)

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

section. Upon withholding such amount, the comptroller or a designated

fiscal intermediary, or the commissioner of social services, or

corporation organized and operating in accordance with article

forty-three of the insurance law or organization operating in accordance

with article forty-four of this chapter shall pay the commissioner, or

his designee, such amount withheld on behalf of the hospital.

(d) The commissioner shall provide a hospital with notice of any

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

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

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

commissioner. Such notice shall contain the financial basis for the

commissioner's estimate.

(e) In the event a hospital objects to an estimate by the commissioner

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

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

the hospital, within sixty days of notice of an amount due, may request

a public hearing. If a hearing is requested, the commissioner shall

provide the hospital 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 may direct that a hearing be held without any

request by a hospital.

7. (a) Every hospital shall submit reports on a cash basis of actual

gross receipts received from all patient care services and operating

income for each month as follows:

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

January thirty-first, nineteen hundred ninety-one, the report shall be

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

(ii) for the quarter year ending March thirty-first, nineteen hundred

ninety-one and for each quarter thereafter, the report shall be filed on

or before the forty-fifth day after the end of such quarter.

(b) Every hospital shall submit a certified annual report on a cash

basis of gross receipts received in such calendar year from all patient

care services and operating income.

(c) The reports shall be in such form as may be prescribed by the

commissioner to accurately disclose information required to implement

this section, provided, however, that for periods on and after July

first, two thousand twelve, such reports and any associated

certifications shall be submitted electronically in a form as may be

required by the commissioner.

(d) Final payments shall be due for all hospitals for the assessments

pursuant to subdivision two of this section upon the due date for

submission of the applicable quarterly report.

(e) The commissioner may recoup deficiencies in final payments

pursuant to paragraph (c) of subdivision six of this section. Delinquent

amounts which have been referred for recoupment or offset pursuant to

paragraph (c) of subdivision six of this section, or which have been

referred to the office of the attorney general for collection, shall be

deemed final and not subject to further revision or reconciliation by

the commissioner based on any additional reports or other information

submitted by the hospital, provided, however, that such delinquencies

shall not be referred for such recoupment or for such collection based

on estimated amounts unless the hospital has received written

notification of such delinquencies and has been given no less than

thirty days in which to submit delinquent reports.

(f) Payments and reports submitted or required to be submitted to the

commissioner or to the commissioner's designee pursuant to this section

shall be subject to audit by the commissioner for a period of six years

following the close of the calendar year in which such payments and

reports are due, after which such payments shall be deemed final and not

subject to further adjustment or reconciliation, including through

offset adjustments or reconciliations made to subsequent payments made

pursuant to this section, provided, however, that nothing herein shall

be construed as precluding the commissioner from pursuing collection of

any such payments which are identified as delinquent within such six

year period, or which are identified as delinquent as a result of an

audit commenced within such six year period, or from conducting an audit

of any adjustment or reconciliation made by a hospital.

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 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 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 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 the 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 hospital of an estimated payment shall be applied

to any other payment due from the hospital pursuant to this section, or,

if no payment is due, at the election of the hospital shall be applied

to future estimated payments or refunded to the hospital. 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 and:

(a) credited to the general fund;

(b) provided, however, that funds accumulated, including income from

invested funds, from the assessments provided in accordance with

subparagraph (v) of paragraph (a) and subparagraphs (iii), (iv), (v) and

(vi) of paragraph (b) of subdivision two of this section, including

interest and penalties, shall be deposited by the commissioner and

credited to the special revenue fund-other, miscellaneous special

revenue fund (339), medical assistance account. To the extent of funds

appropriated therefor, funds shall be made available for payments under

the medical assistance program provided pursuant to title eleven of

article five of the social services law;

(c) and provided further, however, that funds accumulated, including

income from invested funds, for a period from the assessment and

additional assessment provided in accordance with subparagraphs (ii) and

(iii) of paragraph (a) of subdivision two of this section, including

interest and penalties, on voluntary nonprofit and private proprietary

general hospitals which qualified for distributions made in accordance

with paragraph (c) of subdivision nineteen of section twenty-eight

hundred seven-c of this article as of December thirty-first, nineteen

hundred ninety-five shall be transferred by the commissioner and

consolidated with funds accumulated from the allowance pursuant to

subdivision two of section twenty-eight hundred seven-j of this article

for such period and allocated in accordance with subdivision nine of

section twenty-eight hundred seven-j of this article.

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 residential health care facilities,

for the period January first, nineteen hundred ninety-two through March

thirty-first, nineteen hundred ninety-nine, the additional assessment of

one and two-tenths percent, and for the period July first, nineteen

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

ninety-six the further additional assessment of three and eight-tenths

percent, and for the period April first, nineteen hundred ninety-six

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

additional assessment of one and nine-tenths percent, and for the period

May first, nineteen hundred ninety-six through December thirty-first,

nineteen hundred ninety-six the further additional assessment of two and

three-tenths percent and for the period January first, nineteen hundred

ninety-seven through February twenty-eighth, nineteen hundred

ninety-seven the further additional assessment of one and nine-tenths

percent, and for the period April first, nineteen hundred ninety-seven

through March thirty-first, nineteen hundred ninety-nine the further

additional assessment of three and six-tenths percent, and for the

period April first, nineteen hundred ninety-nine through December

thirty-first, nineteen hundred ninety-nine the further additional

assessment of two and four-tenths percent, imposed pursuant to 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 regulations 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 the purposes of determining rates of

payment pursuant to this article for residential health care facilities,

the assessment imposed pursuant to subparagraph (vi) of paragraph (b) of

subdivision two of this section shall be a reimbursable cost to be

reflected as timely as practicable, and subsequently reconciled to

actual cost, in rates of payment applicable within the assessment

period, provided further, however, that insofar as such assessment is in

excess of six percent it shall not be deemed a reimbursable cost and

shall not be reflected in such rates of payment.

(d) provided, however, that the adjustment to rates of payment made

pursuant to paragraph (c) of this subdivision shall be calculated on a

per diem basis and based on total reported patient days of care minus

reported days attributable to title XVIII of the federal social security

act (medicare) units of service.

(e) the provisions of paragraphs (c) and (d) of this subdivision shall

each be contingent upon receipt of all federal approvals required by

federal law and regulations for federal financial participation in

payments made in accordance with paragraphs (c) and (d) of this

subdivision.

11. (a) (ii) The assessment shall not be collected in excess of one

hundred thirty-four million three hundred thousand dollars from general

hospitals 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 paragraph (a) of subdivision two of

this section in excess of one hundred thirty-four million three 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 general hospitals by the commissioner based on the

ratio which a general hospital's assessment for such period bears to the

total of the assessments for such period paid by general hospitals.

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

fourteen million nine hundred thousand dollars from general hospitals

for the period of April first, nineteen hundred ninety-seven through

November thirtieth, nineteen hundred ninety-seven. The amount of the

additional assessment collected pursuant to paragraph (a) of subdivision

two of this section in excess of fourteen million nine hundred thousand

dollars for the period of April first, nineteen hundred ninety-seven

through November thirtieth, nineteen hundred ninety-seven shall be

refunded to general hospitals by the commissioner based on the ratio

which a general hospital's additional assessment for such period bears

to the total of the additional assessments for such period paid by

general hospitals.

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

million dollars from residential health care facilities for the period

of April first, nineteen hundred ninety-eight through March

thirty-first, nineteen hundred ninety-nine. The amount of the assessment

collected pursuant to paragraph (b) of subdivision two of this section

in excess of fifteen million dollars for the period of April first,

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

hundred ninety-nine shall be refunded to residential health care

facilities by the commissioner based on the ratio which a residential

health care facility's assessment for such period bears to the total of

the assessments for such period paid by residential health care

facilities.

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

eighty-nine million nine hundred thousand dollars from residential

health care facilities for the period of April first, nineteen hundred

ninety-eight through March thirty-first, nineteen hundred ninety-nine.

The amount of the additional assessment collected pursuant to paragraph

(b) of subdivision two of this section in excess of eighty-nine million

nine hundred thousand dollars for the period of April first, nineteen

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

ninety-nine shall be refunded to residential health care facilities by

the commissioner based on the ratio which a residential health care

facility's additional assessment for such period bears to the total of

the additional assessments for such period paid by residential health

care facilities.

(iv) The further additional assessment shall not be collected in

excess of one hundred sixty-four million seven hundred thousand dollars

from residential health care facilities for the period July first,

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

hundred ninety-six. The amount of the further additional assessment

collected pursuant to paragraph (b) of subdivision two of this section

in excess of one hundred sixty-four million seven hundred thousand

dollars for the period of July first, nineteen hundred ninety-five

through March thirtyfirst, nineteen hundred ninety-six shall be refunded

to residential health care facilities by the commissioner based on the

ratio which a residential health care facility's further additional

assessment for such period bears to the total of the further additional

assessments for such period paid by residential health care facilities.

(v) The further additional assessment imposed pursuant to subparagraph

(iv) of paragraph (b) of subdivision two of this section shall not be

collected in excess of one hundred twelve million dollars from

residential health care facilities for the period April first, nineteen

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

ninety-seven. The amount of the further additional assessment collected

pursuant to subparagraph (iv) of paragraph (b) of subdivision two of

this section in excess of one hundred twelve million dollars for the

period of April first, nineteen hundred ninety-six through March

thirty-first, nineteen hundred ninety-seven shall be refunded to

residential health care facilities by the commissioner based on the

ratio which a residential health care facility's further additional

assessment for such period bears to the total of the further additional

assessments for such period paid by residential health care facilities.

(vi) The further additional assessment shall not be collected in

excess of one hundred ten million dollars from residential health care

facilities for the period May first, nineteen hundred ninety-six

through February twenty-eighth, nineteen hundred ninety-seven. The

amount of the further additional assessment collected pursuant to

subparagraph (v) of paragraph (b) of subdivision two of this section in

excess of one hundred ten million dollars for the period May first,

nineteen hundred ninety-six through February twenty-eighth, nineteen

hundred ninety-seven shall be refunded to residential health care

facilities by the commissioner based on the ratio which a residential

health care facility's further additional assessment for such period

bears to the total of the further additional assessments for such

period paid by residential health care facilities.

(vii) The further additional assessment shall not be collected in

excess of two hundred forty million dollars from residential health care

facilities for the period April first, nineteen hundred ninety-seven

through March thirty-first, nineteen hundred ninety-eight. The amount of

the further additional assessment collected pursuant to subparagraph (v)

of paragraph (b) of subdivision two of this section in excess of two

hundred forty million dollars for the period of April first, nineteen

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

ninety-eight shall be refunded to residential health care facilities by

the commissioner based on the ratio which a residential health care

facility's further additional assessments for such a period bears to the

total of the further additional assessments for such period paid by

residential health care facilities.

(viii) The further additional assessment shall not be collected in

excess of two hundred fifty-six million eight hundred thousand dollars

from residential health care facilities for the period April first,

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

hundred ninety-nine. The amount of the further additional assessment

collected pursuant to subparagraph (v) of paragraph (b) of subdivision

two of this section in excess of two hundred fifty-six million eight

hundred thousand dollars for the period April first, nineteen hundred

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

shall be refunded to residential health care facilities by the

commissioner based on the ratio which a residential health care

facility's further additional assessments for such period bears to the

total of the further additional assessments for such period paid by

residential health care facilities.

(c) (ii) The assessment shall not be collected in excess of seven

million four hundred thousand dollars from all other facilities issued

an operating certificate pursuant to section twenty-eight hundred five

of this article 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 paragraph (c) of

subdivision two of this section in excess of seven million four hundred

thousand dollars for the period of April first, nineteen hundred

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

shall be refunded by the commissioner based on the ratio which a

facility's assessment for such period bears to the total of the

assessments for such period paid by such facilities.

12. (a) Each exclusion of hospitals or sources of gross receipts

received from the assessments effective on or after April first,

nineteen hundred ninety-two, and prior to April first, two thousand two,

established pursuant to this section shall be contingent upon either:

(i) qualification of the assessments for waiver pursuant to federal law

and regulation; or (ii) 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 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 shall collect any retroactive amount

due as a result, without interest or penalty provided the hospital pays

the retroactive amount due within ninety days of notice from the

commissioner to the hospital 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 to the hospital.

(b) The exclusion of the hospitals described in paragraph (b) of

subdivision one of this section and the exclusion of revenue described

in subdivision two of this section from the assessments set forth in

subdivision two of this section for periods on and after April first,

two thousand two shall be contingent upon either: (i) qualification of

the assessments for waiver pursuant to federal law and regulation; or

(ii) 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 shall collect such

assessments relying on such exclusion, 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 such assessments do not so qualify based on such

exclusion, then the commissioner shall, to the extent necessary to

achieve such qualification for federal financial participation, deem

such exclusions null and void as of the first day of the period for

which such assessments apply, and the commissioner shall collect any

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

the hospital pays the retroactive amount due within ninety days of

notice from the commissioner to the hospital that such exclusion is null

and void.

(c) No hospital shall be obligated to pay assessments pursuant to

subparagraph (v) of paragraph (a) of subdivision two of this section

prior to December first, two thousand five. The commissioner shall

collect payment obligations incurred prior to December first, two

thousand five proportionally over the remaining months in the state

fiscal year.