N.Y. Social Services Law § 367-i: Personal care services provider assessments

§ 367-i. Personal care services provider assessments. 1. Providers of

personal care services, excepting those certified under article

thirty-six of the public health law, are charged assessments on their

gross receipts received from all personal 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 such personal care services

providers to the commissioner of health or his/her designee.

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

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

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

hundred ninety-one; 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 provider's gross

receipts 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 personal care services and other

operating income for purposes of the assessments pursuant to this

section shall include, but not be limited to, all monies received for or

on account of personal care services, provided, however, that subject to

the provisions of subdivision eleven of this section income received

from grants, charitable contributions, donations and bequests and

governmental deficit financing shall not be included, and provided

further, however, that moneys received from a certified home health

agency or a provider of a long term home health care program assessed on

such moneys pursuant to section thirty-six hundred fourteen-a of the

public health law shall not be included.

4. Estimated payments by or on behalf of such personal care services

providers to the commissioner of health or his/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 a calendar month to which an

assessment applies.

5. (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

health determines is due, based on evidence of prior period moneys

received by a personal care services provider or evidence of moneys

received by such personal care services provider for that month, the

commissioner of health may estimate the amount due from such personal

care services provider 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

health determines is due, based on evidence of prior period moneys

received by a personal care services provider or evidence of moneys

received by such personal care services provider 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 of health may estimate the amount due from

such personal care services provider and may collect the deficiency

pursuant to paragraph (c) of this subdivision.

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

provider'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

the public health law 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 provider the amount of the

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

paragraph (e) of subdivision six 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 the

public health law shall pay the commissioner of health, or his designee,

such amount withheld on behalf of the provider.

(d) The commissioner of health shall provide a provider 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 six of

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

the commissioner of health. Such notice shall contain the financial

basis for the commissioner of health's estimate.

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

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

paragraph (e) of subdivision six of this section of the amount due for

an assessment, the provider, within sixty days of notice of an amount

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

commissioner of health shall provide the provider 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 health may direct that a hearing be held

without any request by a personal care services provider.

6. (a) Every personal care services provider 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 personal care services provider 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 of health to accurately disclose information required to

implement this section.

(d) Final payments shall be due for all personal care services

providers for the assessments pursuant to subdivision two of this

section upon the due date for submission of the applicable quarterly

report.

(e) The commissioner of health may recoup deficiencies in final

payments pursuant to paragraph (c) of subdivision five of this section.

7. (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 health

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 health pursuant to paragraph (c) of subdivision five 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 health

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 of health pursuant to

paragraph (c) of subdivision five of this section in the same manner as

an assessment pursuant to subdivision two of this section.

(c) Overpayment by a personal care services provider of an estimated

payment shall be applied to any other payment due from the personal care

services provider pursuant to this section, or, if no payment is due, at

the election of the personal care services provider shall be applied to

future estimated payments or refunded to the personal care services

provider. 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 of health. Interest under this

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

dollar.

8. 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 health and credited to the

general fund.

9. 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.

10. The assessment shall not be collected in excess of twelve million

dollars from such providers for the period of January first, nineteen

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

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

subdivision two of this section in excess of twelve million dollars

shall be refunded to providers by the commissioner of health based on

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

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

11. 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 health 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 health shall

collect any retroactive amount due as a result, without interest or

penalty provided the personal care services provider pays the

retroactive amount due within ninety days of notice from the

commissioner of health to the provider 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 health to the

provider.