§ 68 — Surcharge assessed by acute hospitals and ambulatory surgical centers

[ Text of section effective until the later of one full calendar month following the calendar month in which the secretary receives all federal approvals deemed necessary to implement said sections or January 1, 2025. For text effective the later of one full calendar month following the calendar month in which the secretary receives all federal approvals deemed necessary to implement said sections or January 1, 2025, see below.]Section 68. (a) Acute hospitals and ambulatory surgical centers shall assess a surcharge on all payments subject to surcharge as defined in section 64. The surcharge shall be distinct from any other amount paid by a surcharge payor for the services of an acute hospital or ambulatory surgical center. The surcharge amount shall equal the product of: (i) the surcharge percentage; and (ii) amounts paid for these services by a surcharge payor. The office shall calculate the surcharge percentage by dividing the total surcharge amount by the projected annual aggregate payments subject to the surcharge, excluding projected annual aggregate payments based on payments made by managed care organizations. The office shall determine the surcharge percentage before the start of each fund fiscal year and may re-determine the surcharge percentage before April 1 of each fund fiscal year if the office projects that the initial surcharge percentage established the previous October will produce less than the total surcharge amount minus $10,000,000 or more than the total surcharge amount plus $10,000,000 excluding payments made by managed care organizations. Before each succeeding October 1, the office shall re-determine the surcharge percentage incorporating any adjustments from earlier years. In each determination or redetermination of the surcharge percentage, the office shall use the best data available as determined by the office of Medicaid and may consider the effect on projected surcharge payments of any modified or waived enforcement under subsection (e). The office shall incorporate all adjustments, including, but not limited to, updates or corrections or final settlement amounts, by prospective adjustment rather than by retrospective payments or assessments.(b) Each acute hospital and ambulatory surgical center shall bill a surcharge payor an amount equal to the surcharge described in subsection (a) as a separate and identifiable amount distinct from any amount paid by a surcharge payor for acute hospital or ambulatory surgical center services. Each surcharge payor shall pay the surcharge amount to the office for deposit in the Health Safety Net Trust Fund on behalf of said acute hospital or ambulatory surgical center. Upon the written request of a surcharge payor, the office may implement another billing or collection method for the surcharge payor; provided, however, that the office has received all information that it requests which is necessary to implement such billing or collection method; and provided further, that the office shall specify by regulation the criteria for reviewing and approving such requests and the elements of such alternative method or methods.(c) The office shall specify by regulation appropriate mechanisms that provide for determination and payment of a surcharge payor's liability, including requirements for data to be submitted by surcharge payors, acute hospitals and ambulatory surgical centers.(d) A surcharge payor's liability to the fund shall in the case of a transfer of ownership be assumed by the successor in interest to the surcharge payor.(e) The office shall establish by regulation an appropriate mechanism for enforcing a surcharge payor's liability to the fund if a surcharge payor does not make a scheduled payment to the fund; provided, however, that the office may, for the purpose of administrative simplicity, establish threshold liability amounts below which enforcement may be modified or waived. Such enforcement mechanism may include assessment of interest on the unpaid liability at a rate not to exceed an annual percentage rate of 18 per cent and late fees or penalties at a rate not to exceed 5 per cent per month. Such enforcement mechanism may also include notification to the office of Medicaid requiring an offset of payments on the claims of the surcharge payor, any entity under common ownership or any successor in interest to the surcharge payor, from the office of Medicaid in the amount of payment owed to the fund including any interest and penalties, and to transfer the withheld funds into said fund. If the office of Medicaid offsets claims payments as ordered by the office, the office of Medicaid shall be considered not to be in breach of contract or any other obligation for payment of non-contracted services, and a surcharge payor whose payment is offset under an order of the office shall serve all Title XIX recipients under the contract then in effect with the executive office of health and human services. In no event shall the office direct the office of Medicaid to offset claims unless the surcharge payor has maintained an outstanding liability to the fund for a period longer than 45 days and has received proper notice that the office intends to initiate enforcement actions under regulations promulgated by the office.(f) If a surcharge payor fails to file any data, statistics or schedules or other information required under this chapter or by any regulation promulgated by the office, the office shall provide written notice to the payor. If a surcharge payor fails to provide required information within 14 days after the receipt of written notice, or falsifies the same, the surcharge payor shall be subject to a civil penalty of not more than $5,000 for each day on which the violation occurs or continues, which penalty may be assessed in an action brought on behalf of the commonwealth in any court of competent jurisdiction. The attorney general shall bring any appropriate action, including injunctive relief, necessary for the enforcement of this chapter.Chapter 118E: Section 68. Managed care organization services assessment; calculation of liability; payment to health safety net trust fund[ Text of section as amended by 2024, 140, Sec. 130 effective the later of one full calendar month following the calendar month in which the secretary receives all federal approvals deemed necessary to implement said sections or January 1, 2025. See 2024, 140, Sec. 252. For text effective until the later of one full calendar month following the calendar month in which the secretary receives all federal approvals deemed necessary to implement said sections or January 1, 2025, see above.]Section 68. (a) Subject to all required federal approvals, including any required waivers under 42 CFR 433.68, a managed care organization's annual liability to the fund shall be calculated in accordance with this section. The annual aggregate liability of all managed care organizations to the fund shall equal the total managed care organization services assessment amount.(b) The assessment shall be paid to the Health Safety Net Trust Fund, established in section 66, by managed care organizations rendering managed care organization services subject to assessment on a monthly basis and shall be assessed on all managed care organization services subject to assessment.(c) All managed care organization services subject to assessment shall be divided into 1 of the following assessment groups; provided, however, that the secretary of health and human services may, by regulation, establish further sub-groups within each assessment group:(i) managed care organization services subject to assessment that are not Medicaid managed care organization services subject to assessment provided by a managed care organization;(ii) Medicaid managed care organization services subject to assessment provided by a managed care organization rendered below a threshold established by the secretary of health and human services in its regulations; and(iii) Medicaid managed care organization services subject to assessment provided by a managed care organization rendered at or above a threshold established by the secretary of health and human services in its regulations.(d) The assessment rates for each assessment group shall be multiplied by each managed care organization's managed care organization services subject to assessment, as determined by the secretary of health and human services. The total of the resulting products shall equal a managed care organization's annual assessment liability.(e) Subject to receipt of all required federal approvals, the secretary of health and human services shall implement the assessment structure described in this section and shall promulgate regulations necessary to support implementation of said assessment structure. In promulgating such regulations, the secretary of health and human services shall, at a minimum: (i) establish assessment groups, in accordance with subsection (c), into which all managed care organization services subject to assessment are divided; (ii) set assessment rates for each such assessment group, sufficient in the aggregate to generate in each fiscal year the total managed care organization services assessment amount; (iii) establish any necessary reporting requirements for managed care organizations; (iv) establish an appropriate mechanism for enforcing each managed care organization's liability to the Health Safety Net Trust Fund, established in section 66, if a managed care organization rendering managed care organization services subject to assessment does not make a scheduled payment to the Health Safety Net Trust Fund; (v) specify an appropriate mechanism for determination and payment of a managed care organization's liability to the Health Safety Net Trust Fund; (vi) identify the managed care organization services subject to assessment under each group established pursuant to subsection (c); (vii) specify an appropriate mechanism for the determination of a managed care organization's liability in cases of merger or transfer of ownership; and (viii) specify an appropriate mechanism by which any amounts paid by a managed care organization in excess of its total annual assessment liability may be refunded or otherwise credited to the managed care organization.