§ 63 — Assessment per non–Medicare reimbursed patient day

Section 63. (a) For the purposes of this section, the following words shall, unless the context clearly requires otherwise, have the following meanings:''Assessment'', the user fee imposed under this section; provided, that for all nursing homes, the user fee shall be imposed per non–Medicare reimbursed patient day; and provided, further that a Medicare-reimbursed patient day shall be a Medicare Part A patient day paid for under either an indemnity fee-for-service arrangement or a Medicare health maintenance organization contract.''Licensee'', any natural person, corporation, partnership, trust, estate or other legal entity holding a license to operate a nursing home; provided, however, that in the case of a licensee that is not a natural person, ''licensee'' shall also mean: (i) any shareholder owning not less than 5 per cent, any officer and any director of any corporate licensee; (ii) any limited partner owning not less than 5 per cent and any general partner of a partnership licensee; (iii) any trustee of any trust licensee; (iv) any sole proprietor of any licensee that is a sole proprietorship; or (v) any mortgagee in possession and any executor or administrator of any licensee that is an estate.''Nursing home'', a nursing home or a distinct part of a nursing unit of a hospital or other facility licensed by the department of public health under section 71 of chapter 111.''Patient day'', a day of care provided to an individual patient by a nursing home.(b) Each nursing home shall pay an assessment per non–Medicare reimbursed patient day. The assessment shall be sufficient in the aggregate to generate in each fiscal year the lesser of $240,000,000, or an amount equal to 6 per cent of the revenues received by the taxpayer, as the term ''revenues received by the taxpayer'' is defined in 42 C.F.R. § 433.68(f)(3)(i)(A). The assessment shall be implemented as a broad based health care-related fee as defined in 42 U.S.C. § 1396b(w)(3)(B). The assessment shall be paid to the executive office quarterly. The executive office may promulgate regulations that authorize the assessment of interest on any unpaid liability at a rate not to exceed an annual percentage rate of 18 per cent and late fees at a rate not to exceed 5 per cent per month. The receipts from the assessment, any federal financial participation received by the commonwealth as a result of expenditures funded by these assessments and interest thereon shall be credited to the General Fund.(c) The secretary of the executive office shall prepare a form on which each nursing home shall report quarterly its total patient days and shall calculate the assessment due. The secretary of the executive office shall distribute the forms to each nursing home at least annually. The failure to distribute the form or the failure to receive a copy of the form shall not stay the obligation to pay the assessment by the date specified in this section. The executive office may require additional reports, including but not limited to, monthly census data, as it considers necessary to monitor collections and compliance.(d) The executive office shall have the authority to inspect and copy the records of a nursing home to audit its calculation of the assessment. In the event that the executive office determines that a nursing home has either overpaid or underpaid the assessment, the executive office shall notify the nursing home of the amount due or refund the overpayment. The executive office may impose per diem penalties if a nursing home fails to produce documentation as requested by the executive office.(e) In the event that a nursing home is aggrieved by a decision of the executive office as to the amount due, the nursing home may file an appeal to the division of administrative law appeals within 60 days of the date of the notice of underpayment or the date the notice was received, whichever is later. The division of administrative law appeals shall conduct each appeal as an adjudicatory proceeding under chapter 30A and a nursing home aggrieved by a decision of the division of administrative law appeals shall be entitled to judicial review under section 14 of said chapter 30A.(f) The secretary of the executive office may enforce this section by notifying the department of public health of unpaid assessments. Not later than 45 days after notice to a nursing home of amounts due, the department shall revoke the license of, or impose a limitation on new admissions for, a nursing home that fails to remit delinquent fees as directed by the executive office. The secretary of health and human services may also enforce this section by: (i) offsetting payments from the office of Medicaid against the claims for payment by the delinquent nursing home, against other nursing homes with a common licensee as the delinquent nursing home or against any successor in interest to those nursing homes, in the amount of the delinquent fees owed, including any interest, penalties or reasonable attorneys' fees, and by transferring such funds into the General Fund; or (ii) creating, after demand for payment, a lien in favor of the commonwealth in an amount not to exceed the delinquent fees owed, including any interest, penalties or reasonable attorneys' fees, encumbering the building in which the facility is located, the real property upon which the facility is located, any fixtures, equipment or goods used in the operation of the facility or any real property in which the licensee holds an interest; provided, however, that such lien shall be prior to any mortgage or lien held by any person: (A) with an ownership interest in the facility; (B) who directly or indirectly controls, or has the ability to control to any significant degree, the management or policies of the licensee or the facility; or (C) who is related to the licensee or to the facility by any significant degree of common ownership or common control.(g) The executive office, in consultation with the office of Medicaid, shall promulgate regulations necessary to implement this section.