N.Y. Public Health Law § 3614-b: Licensed home care services agencies assessments

§ 3614-b. Licensed home care services agencies assessments. 1.

Licensed home care services agencies are charged assessments, subject to

the provisions of subdivision thirteen of this section, 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 licensed home care services agencies to the

commissioner or his designee.

2. (a) The assessment shall be six-tenths of one percent of such

licensed home care services agency's gross receipts received from all

patient care services and other operating income on a cash basis

beginning April first, nineteen hundred ninety-two; 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.

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

other contrary provision of law or regulation, the assessment shall be

thirty-five hundredths of one percent of each such licensed home care

services agency's gross receipts received from all personal 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 assessment pursuant to this section

shall include, but not be limited to, all moneys received for or on

account of home care services provided pursuant to a license issued by

the commissioner in accordance with the provisions of section thirty-six

hundred five of this article, provided, however, subject to the

provisions of subdivision twelve of this section that income received

from grants, charitable contributions, donations and bequests and

governmental deficit financing shall not be included, and further, that

moneys received on which an assessment is paid by a hospital pursuant to

section twenty-eight hundred seven-d of this chapter, home care provider

pursuant to section thirty-six hundred fourteen-a of this article,

personal care services provider pursuant to section three hundred

sixty-seven-i of the social services law or provider of services

pursuant to section 43.04 or 43.06 of the mental hygiene law shall not

be included.

4. 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 licensed home care services agency 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 two 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 licensed home care services

agencies to the commissioner or his or her 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 the 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 moneys received by a

licensed home care services agency or evidence of moneys received by

such agency for that month, the commissioner may estimate the amount due

from such agency and may collect the deficiency pursuant to paragraph

(c) of this subdivision.

(b) If an estimated payment made for the 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 licensed home care services agency or evidence of moneys received by

such agency 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 agency and may collect the deficiency pursuant to

paragraph (c) of this subdivision.

(c) Upon receipt of notification from the commissioner of a licensed

home care services agency'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 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 agency

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 article forty-four of this chapter shall pay the

commissioner, or his designee, such amount withheld on behalf of the

licensed home care services agency.

(d) The commissioner shall provide a licensed home care services

agency 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 licensed home care services agency 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 agency, within sixty days of notice of

an amount due, may request a public hearing. If a hearing is requested,

the commissioner shall provide the licensed home care services agency

with 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 an agency.

7. (a) Every licensed home care services agency shall submit reports

on a cash basis of actual gross receipts received from all patient care

services and other operating income for each month as follows: for the

quarter year ending June thirtieth, nineteen hundred ninety-two and for

each quarter thereafter, the report shall be filed on or before the

forty-fifth day after the end of such period.

(b) Every licensed home care services agency shall submit a certified

annual report on a cash basis of gross receipts received in such

calendar year from all patient care services and other 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 licensed home care services

agencies 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.

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

underpayment 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 for such 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 licensed home care services agency of an

estimated payment shall be applied to any other payment due from the

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

election of the agency shall be applied to future estimated payments or

refunded to the agency. 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 or fees

pursuant to this chapter or the social services law.

11. The aggregate limit on the assessment for certified home health

agencies, long term home health care programs, licensed home care

services agencies and personal care services providers established

pursuant to paragraph (c) of subdivision eleven of section thirty-six

hundred fourteen-a of this article for the period of April first,

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

hundred ninety-eight shall be deemed to reflect the amount of one

million three hundred thousand dollars for the assessment pursuant to

subdivision two of this section for such period. In the event, in

accordance with subdivision thirteen of this section, the assessments

pursuant to subdivision two of this section are not implemented, such

aggregate limit shall be reduced by one million three hundred thousand

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

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

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 that 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 licensed home care services agency pays the retroactive amount due

within ninety days of notice from the commissioner to the agency 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 agency.

13. This section shall be of no force and effect upon either: (a) a

waiver is granted pursuant to federal law and regulation; or (b)

consistent with federal law and regulation, a waiver is not required by

the secretary of the department of health and human services for the

exclusion of the home care services agencies assessed pursuant to this

section from such assessment; in order for the assessments pursuant to

section thirty-six hundred fourteen-a of this article and section three

hundred sixty-seven-i of the social services law to be qualified as a

broad-based health care related tax for purposes of the revenues

received by the state pursuant to section thirty-six hundred fourteen-a

of this article and section three hundred sixty-seven-i of the social

services law not reducing the amount expended by the state as medical

assistance for purposes of federal financial participation. The

commissioner shall not collect the assessments under this section,

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 pursuant to

section thirty-six hundred fourteen-a of this chapter or section three

hundred sixty-seven-i of the social services law do not so qualify based

on the exclusion of licensed home care services agencies from

assessments, 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 licensed home care services

agency pays the retroactive amount due within ninety days of notice from

the commissioner to the agency that the 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 agency.