N.Y. Public Health Law § 3614-a: Home care provider assessments

§ 3614-a. Home care provider assessments. 1. Certified home health

agencies and providers of long term home health care programs are

charged assessments on their gross receipts received from all patient

care services and other operating income 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

certified home health agencies or providers of long term home health

care programs to the commissioner or his designee.

2. (a) (i) For certified home health agencies the assessment shall be

six-tenths of one percent of each certified home health agency'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 home care 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.

(ii) For certified home health agencies there shall be an additional

assessment which shall be three-tenths of one percent of each certified

home health agency's gross receipts received from all patient care

services and other operating income on a cash basis. The assessment year

shall be April first, nineteen hundred ninety-two to March thirty-first,

nineteen hundred ninety-three. The agencies shall file the assessment

return with any balance due or any refund claimed by May first, nineteen

hundred ninety-three. The agencies shall make estimated payments on a

monthly basis starting August fifteenth, nineteen hundred ninety-two and

continuing on the fifteenth of each month through March fifteenth,

nineteen hundred ninety-three. Each estimated payment shall equal

one-eighth of the total estimated for the assessment year. If the total

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

payment due, the agency shall pay a penalty of fifteen percent of the

difference due for each month in addition to the amount due.

(iii) For certified home health agencies, an additional assessment

shall be three-tenths of one percent of each certified home health

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

other operating income on a cash basis during the period April first,

nineteen hundred ninety-three through June thirtieth, nineteen hundred

ninety-four for home care services.

(b) (i) For providers of long term home health care programs the

assessment shall be six-tenths of one percent of each provider'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 long term home health care 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.

(ii) For providers of long term home health programs there shall be an

additional assessment which shall be three-tenths of one percent of each

provider of long term home health care's gross receipts received from

all patient care services and other operating income on a cash basis.

The assessment year shall be April first, nineteen hundred ninety-two to

March thirty-first, nineteen hundred ninety-three. The providers shall

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

May first, nineteen hundred ninety-three. The providers shall make

estimated payments on a monthly basis starting August fifteenth,

nineteen hundred ninety-two and continuing on the fifteenth of each

month through March fifteenth, nineteen hundred ninety-three. Each

estimated payment shall equal one-eighth of the total estimated for the

assessment year. If the total of estimated payments is less than

ninety-five percent of the actual payment due, the provider shall pay a

penalty of fifteen percent of the difference due for each month in

addition to the amount due.

(iii) For providers of long term home health care programs, an

additional assessment shall be three tenths of one percent of each

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

other operating income on a cash basis during the period April first,

nineteen hundred ninety-three through June thirtieth nineteenth hundred

ninety-four for long term home health care services.

(c) Notwithstanding any contrary provisions of this section or any

other contrary provision of law or regulation, for certified home health

agencies and for providers of long term home health care programs the

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

agency's or provider's gross receipts received from all home health care

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

after April first, two thousand nine.

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

operating income for purposes of the assessments pursuant to this

section shall include, but not be limited to:

(a) for certified home health agencies, all monies received for or on

account of home care services, including personal care services,

excluding subject to the provisions of subdivision twelve of this

section the component of rates of payment related to the allowance

provided in accordance with subdivision five of section thirty-six

hundred fourteen of this article;

(b) for providers of long term home health care programs, all monies

received for or on account of long term home health care services,

including personal care services;

(c) 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

shall not be included.

4. 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 home care

provider assessment funds and personal care services provider assessment

funds assessed pursuant to section three hundred sixty-seven-i of the

social services law. 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 two hundred thousand dollars for

all assessments established pursuant to this section and the personal

care services provider assessment established pursuant to section three

hundred sixty-seven-i of the social services law, shall be paid from the

assessment funds.

5. Estimated payments by or on behalf of certified home health

agencies and providers of long term home health care programs 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 certified home health agency or provider of a long term home health

care program or evidence of moneys received by such entity for that

month, the commissioner may estimate the amount due from such entity 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 certified home health agency or provider of a long term home health

care program or evidence of moneys received by such certified home

health agency or provider of a long term home health care program 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 entity and may collect the deficiency pursuant to paragraph

(c) of this subdivision.

(c) Upon receipt of notification from the commissioner of an entity'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 entity 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 entity.

(d) The commissioner shall provide an entity 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 the certified home health agency or provider of a

long term home health care program 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 entity, within sixty days of notice of an amount due,

may request a public hearing. If a hearing is requested, the

commissioner shall provide the entity 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 the entity.

7. (a) Every certified home health agency or provider of a long term

home health care program 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 certified home health agency or provider of a long term home

health care program 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.

(d) Final payments shall be due for all certified home health agencies

or providers of long term home health care programs for 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.

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 certified home health agency or provider of a

long term home health care program of an estimated payment shall be

applied to any other payment due from the entity pursuant to this

section, or, if no payment is due, at the election of the entity shall

be applied to future estimated payments or refunded to the entity.

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 credited to the general fund.

10. Notwithstanding any inconsistent provision of law or regulation to

the contrary, the assessments pursuant to this section shall not be an

allowable cost in the determination of reimbursement rates pursuant to

this article.

11. (c) The assessment shall not be collected in excess of twenty

million four hundred thousand dollars from certified home health

agencies and long term home health care programs pursuant to subdivision

two of this section, licensed home care services agencies pursuant to

subdivision two of section thirty-six hundred fourteen-b of this article

and personal care services providers pursuant to subdivision two of

section three hundred sixty-seven-i of the social services law for the

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

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

assessment collected in excess of twenty million four hundred thousand

dollars for the period 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 certified home

health agency's, long term home health care program's, licensed home

care services agency's or personal care services provider's assessment

for such period bears to the total of the 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 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, 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

certified home health agency or provider of a long term home health care

program pays the retroactive amount due within ninety days of notice

from the commissioner of health 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

to the provider of services.