§ 2807-D — Hospital assessments

§ 2807-d. Hospital assessments. 1. (a) Hospitals, as defined in this\narticle, excluding hospitals specified in paragraph (b) of this\nsubdivision, are charged assessments on their gross receipts received\nfrom all patient care services and other operating income, less personal\nneeds allowances and refunds, on a cash basis in the percentage amounts\nand for the periods specified in subdivision two of this section. Such\nassessments shall be submitted by or on behalf of hospitals to the\ncommissioner or his designee.\n (b) Subject to the provisions of subdivision twelve of this section,\nthe following categories of hospitals shall not be charged assessments\npursuant to this section: (i) voluntary nonprofit and private\nproprietary general hospitals which qualify for distributions made in\naccordance with paragraph (c) of subdivision nineteen of section\ntwenty-eight hundred seven-c of this article, or for assessments during\nthe period January first, nineteen hundred ninety-seven through December\nthirty-first, nineteen hundred ninety-seven voluntary nonprofit and\nprivate proprietary general hospitals which qualified for distributions\nmade in accordance with paragraph (c) of subdivision nineteen of section\ntwenty-eight hundred seven-c of this article as of December\nthirty-first, nineteen hundred ninety-five; (ii) voluntary nonprofit\nhospitals totally financed by charitable contributions or by the income\nthereon dedicated to free care of low income patients; and (iii) any\nfacility dedicated solely to the care of police, firefighters,\nvolunteer firefighters, and emergency service personnel.\n (c) On and after December first, nineteen hundred ninety-seven, the\nterm "general hospital", as used in this section, includes specialty\nhospitals for persons who are developmentally disabled, licensed by the\noffice for people with developmental disabilities and which are also\nissued an operating certificate pursuant to section twenty-eight hundred\nfive of this article.\n 2. (a) (i) For general hospitals the overall assessment shall be\nsix-tenths of one percent and the assessment shall vary from 0.5% to\n0.675% of each general hospital's gross receipts received from all\npatient care services and other operating income on a cash basis during\nthe period January first, nineteen hundred ninety-one through March\nthirty-first, nineteen hundred ninety-two for hospital or health-related\nservices, including but not limited to inpatient service, outpatient\nservice, emergency service, referred ambulatory service and ambulatory\nsurgical service. The assessment shall vary according to the percentage\nof nineteen hundred eighty-nine medicaid inpatient revenues as a\npercentage of total nineteen hundred eighty-nine inpatient revenues as\nreported on the institutional cost report submitted to the department\nfor nineteen hundred eighty-nine according to the following: for\nhospitals with medicaid revenue up to and including 10%, the assessment\nshall be .5%, for hospitals with medicaid revenue greater than 10% up\nto and including 15%, the assessment shall be .525%, for hospitals with\nmedicaid revenue greater than 15% up to and including 20%, the\nassessment shall be .65%, and for hospitals with medicaid revenue over\n20%, the assessment shall be .675%. In the event that the provisions\nrelating to the additional supplementary low income patient adjustment\nestablished in accordance with subdivision fourteen-d of section\ntwenty-eight hundred seven-c of this article cannot be implemented,\nthen the general hospital assessment established in accordance with this\nparagraph shall be calculated without variation specified in this\nparagraph and the assessment for each general hospital whose assessment\nwas greater than six-tenths of one percent shall become six-tenths of\none percent.\n (ii) For general hospitals the assessment shall be six-tenths of one\npercent of each general hospital's gross receipts received from all\npatient care services and other operating income on a cash basis\nbeginning April first, nineteen hundred ninety-two for hospital or\nhealth-related services, including, but not limited to inpatient\nservice, outpatient service, emergency service, referred ambulatory\nservice and ambulatory surgical service; provided, however, that for all\nsuch gross receipts received on or after December first, nineteen\nhundred ninety-eight, such assessment shall be two-tenths of one\npercent, and further provided that for all such gross receipts received\non or after April first, nineteen hundred ninety-nine, such assessment\nshall be one-tenth of one percent, and further provided that such\nassessment shall expire and be of no further effect for all such gross\nreceipts received on or after January first, two thousand.\n (iii) For general hospitals an additional assessment shall be\none-tenth of one percent of each general hospital's gross receipts\nreceived from all patient care services and other operating income on a\ncash basis beginning April first, nineteen hundred ninety-two for\nhospital or health-related services, including, but not limited to\ninpatient service, outpatient service, emergency service, referred\nambulatory service and ambulatory surgical service; provided, however,\nthat such additional assessment shall expire and be of no further effect\nfor all such gross receipts received on or after December first,\nnineteen hundred ninety-seven.\n (iv) Subject to the provisions of subdivision twelve of this section,\nthe assessment and additional assessment pursuant to subparagraphs (ii)\nand (iii) of this paragraph during the period January first, nineteen\nhundred ninety-eight through December thirty-first, nineteen hundred\nninety-eight for voluntary nonprofit and private proprietary general\nhospitals which qualified for distributions made in accordance with\nparagraph (c) of subdivision nineteen of section twenty-eight hundred\nseven-c of this article as of December thirty-first, nineteen hundred\nninety-five shall be abated by seventy-five percent, and during the\nperiod January first, nineteen hundred ninety-nine through December\nthirty-first, nineteen hundred ninety-nine shall be abated by\ntwenty-five percent.\n (v) Notwithstanding any contrary provisions of this paragraph or any\nother provision of law or regulation, for general hospitals the\nassessment shall be thirty-five hundredths of one percent of each\ngeneral hospital's gross receipts received from all patient care\nservices and other operating income on a cash basis for the period April\nfirst, two thousand five through March thirty-first two thousand seven\nfor hospital or health-related services, including, but not limited to\ninpatient service, outpatient service, emergency service, referred\nambulatory service and ambulatory surgical services, but not including\nresidential health care facilities services or home health care\nservices.\n (vi) Notwithstanding any contrary provisions of this paragraph or any\nother provision of law or regulation, for general hospitals the\nassessment shall be thirty-five hundredths of one percent of each\ngeneral hospital's gross receipts received from all patient care\nservices and other operating income on a cash basis for periods on and\nafter April first, two thousand nine, for hospital or health-related\nservices, including, but not limited to inpatient services, outpatient\nservices, emergency services, referred ambulatory services and\nambulatory surgical services, but not including residential health care\nfacilities services or home health care services.\n (b) (i) For residential health care facilities the assessment shall be\nsix-tenths of one percent of each residential health care facility's\ngross receipts received from all patient care services and other\noperating income on a cash basis beginning April first, nineteen hundred\nninety-one for hospital or health-related services, including adult day\nservices; provided, however, that for all such gross receipts received\non or after September first, nineteen hundred ninety-seven such\nassessment shall be three-tenths of one percent, and further provided\nthat such assessment shall expire and be of no further effect for all\nsuch gross receipts received on or after December first, nineteen\nhundred ninety-eight.\n (ii) For residential health care facilities an additional assessment\nshall be one and two-tenths percent of each residential health care\nfacility's gross receipts received from all patient care services and\nother operating income on a cash basis beginning April first, nineteen\nhundred ninety-two for hospital or health-related services, including\nadult day services; provided, however, that such additional assessment\nshall expire and be of no further effect for all such gross receipts\nreceived on or after April first, nineteen hundred ninety-nine.\n (iii) For residential health care facilities a further additional\nassessment shall be three and eight tenths percent of each residential\nhealth care facility's gross receipts received from all patient care\nservices and other operating income on a cash basis for the period of\nJuly first, nineteen hundred ninety-five through March thirty-first,\nnineteen hundred ninety-six for hospital or health-related services,\nincluding adult day services. The residential health care facility shall\nfile the assessment return with any balance due or any refund claimed by\nMay first, nineteen hundred ninety-six. Notwithstanding any inconsistent\nprovision of this section, the residential health care facility shall\nmake estimated payments to the commissioner on a monthly basis starting\nAugust fifteenth, nineteen hundred ninety-five and continuing on the\nfifteenth of each month through March fifteenth, nineteen hundred\nninety-six equal to one-eighth of the total estimated for this further\nadditional assessment for the further additional assessment period. If\nthe total of estimated payments is less than ninety-five percent of the\nactual payment due, the residential health care facility shall pay to\nthe commissioner a penalty of fifteen percent of the difference due for\neach month in addition to the amount due. The commissioner may recoup\ndeficiencies and penalties pursuant to paragraph (c) of subdivision six\nof this section.\n * (iv) For residential health care facilities a further additional\nassessment shall be one and nine-tenths percent of each residential\nhealth care facility's gross receipts received from all patient care\nservices and other operating income on a cash basis for the period of\nApril first, nineteen hundred ninety-six through March thirty-first,\nnineteen hundred ninety-seven for hospital or health-related services,\nincluding adult day services. The residential health care facility shall\nfile the assessment return with any balance due or any refund claimed by\nMay first, nineteen hundred ninety-seven. Notwithstanding any\ninconsistent provision of this section, the residential health care\nfacility shall make estimated payments to the commissioner on a monthly\nbasis starting May fifteenth, and continuing on the fifteenth of each\nmonth through March fifteenth equal to one-eleventh of the total\nestimated for this further additional assessment for the period April\nfirst, nineteen hundred ninety-six through March thirty-first nineteen\nhundred ninety-seven. If the total of estimated payments is less than\nninety-five percent of the actual payment due, the residential health\ncare facility shall pay to the commissioner a penalty of fifteen percent\nof the difference due each month in addition to the amount due. The\ncommissioner may recoup deficiencies and penalties pursuant to paragraph\n(c) of subdivision six of this section.\n * NB There are 2 subpar (iv)'s\n * (iv) For residential health care facilities a further additional\nassessment shall be one and nine-tenths percent of each residential\nhealth care facility's gross receipts received from all patient care\nservices and other operating income on a cash basis for the period of\nApril first, nineteen hundred ninety-six through March thirty-first,\nnineteen hundred ninety-seven for hospital or health-related services,\nincluding adult day services. The residential health care facility shall\nfile the assessment return with any balance due or any refund claimed by\nMay first, nineteen hundred ninety-seven. Notwithstanding any\ninconsistent provision of this section, the residential health care\nfacility shall make estimated payments to the commissioner on a monthly\nbasis starting May fifteenth, and continuing on the fifteenth of each\nmonth through March fifteenth, equal to one-eleventh of the total\nestimated for this further additional assessment for the period\nbeginning April first of nineteen hundred ninety-six and ending March\nthirty-first, nineteen hundred ninety-seven. If the total of the eleven\nrequired estimated payments is less than ninety-five percent of the\nactual payment due, the residential health care facility shall pay to\nthe commissioner a penalty of fifteen percent of the difference due for\neach month in addition to the amount due. The commissioner may recoup\ndeficiencies and penalties pursuant to paragraph (c) of subdivision six\nof this section.\n * NB There are 2 subpar (iv)'s\n * (v) For residential health care facilities in addition a further\nadditional assessment shall be (a) two and three-tenths percent of each\nresidential care facility's gross receipts received from all patient\ncare services and other operating income on a cash basis beginning May\nfirst, nineteen hundred ninety-six through December thirty-first,\nnineteen hundred ninety-six for hospital or health-related services,\nincluding adult day services and (b) one and nine-tenths percent of each\nresidential care facility's gross receipts received from all patient\ncare services and other operating income on a cash basis beginning\nJanuary first, nineteen hundred ninety-seven and ending February\ntwenty-eighth, nineteen hundred ninety-seven for hospital or\nhealth-related services, including adult day services.\n * NB There are 2 subpar (v)'s\n * (v) For residential health care facilities in addition a further\nadditional assessment shall be (a) two and three-tenths percent of each\nresidential care facility's gross receipts received from all patient\ncare services and other operating income on a cash basis beginning May\nfirst, nineteen hundred ninety-six and ending December thirty-first,\nnineteen hundred ninety-six for hospital or health-related services,\nincluding adult day services and (b) one and nine-tenths percent of each\nresidential care facility's gross receipts received from all patient\ncare services and other operating income on a cash basis beginning\nJanuary first, nineteen hundred ninety-seven and ending February\ntwenty-eighth, nineteen hundred ninety-seven for hospital or\nhealth-related services, including adult day services; provided,\nhowever, that for all such gross receipts received on or after April\nfirst, nineteen hundred ninety-seven, such further additional assessment\nshall be three and six-tenths percent, and further provided that for all\nsuch gross receipts received on or after April first, nineteen hundred\nninety-nine, such further additional assessment shall be two and\nfour-tenths percent, and further provided that such further additional\nassessment shall expire and be of no further effect for all such gross\nreceipts received on or after January first, two thousand.\n * NB There are 2 subpar (v)'s\n (vi) Notwithstanding any contrary provision of this paragraph or any\nother provision of law or regulation to the contrary, for residential\nhealth care facilities the assessment shall be six percent of each\nresidential health care facility's gross receipts received from all\npatient care services and other operating income on a cash basis for the\nperiod April first, two thousand two through March thirty-first, two\nthousand three for hospital or health-related services, including adult\nday services; provided, however, that residential health care\nfacilities' gross receipts attributable to payments received pursuant to\ntitle XVIII of the federal social security act (medicare) shall be\nexcluded from the assessment; provided, however, that for all such gross\nreceipts received on or after April first, two thousand three through\nMarch thirty-first, two thousand five, such assessment shall be five\npercent, and further provided that for all such gross receipts received\non or after April first, two thousand five through March thirty-first,\ntwo thousand nine, and on or after April first, two thousand nine\nthrough March thirty-first, two thousand eleven such assessment shall be\nsix percent, and further provided that for all such gross receipts\nreceived on or after April first, two thousand eleven through March\nthirty-first, two thousand thirteen such assessment shall be six\npercent, and further provided that for all such gross receipts received\non or after April first, two thousand thirteen through March\nthirty-first, two thousand fifteen such assessment shall be six percent,\nand further provided that for all such gross receipts received on or\nafter April first, two thousand fifteen through March thirty-first, two\nthousand seventeen such assessment shall be six percent, and further\nprovided that for all such gross receipts received on or after April\nfirst, two thousand seventeen through March thirty-first, two thousand\nnineteen such assessment shall be six percent, and further provided that\nfor all such gross receipts received on or after April first, two\nthousand nineteen through March thirty-first, two thousand twenty-one\nsuch assessment shall be six percent, and further provided that for all\nsuch gross receipts received on or after April first, two thousand\ntwenty-one through March thirty-first, two thousand twenty-three such\nassessment shall be six percent, and further provided that for all such\ngross receipts received on or after April first, two thousand\ntwenty-three through March thirty-first, two thousand twenty-five such\nassessment shall be six percent, and further provided that for all such\ngross receipts received on or after April first, two thousand\ntwenty-five through March thirty-first, two thousand twenty-nine such\nassessment shall be six percent.\n (c) For all other facilities issued an operating certificate pursuant\nto section twenty-eight hundred five of this article, including\ndiagnostic and treatment centers, the assessment shall be six-tenths of\none percent of each facility's gross receipts received from all patient\ncare services and other operating income on a cash basis beginning\nJanuary first, nineteen hundred ninety-one for hospital or\nhealth-related services, including diagnostic and treatment center\nservices; provided, however, that for all such gross receipts received\non or after April first, nineteen hundred ninety-nine, such assessment\nshall be two-tenths of one percent, and further provided that such\nassessment shall expire and be of no further effect for all such gross\nreceipts received on or after January first, two thousand.\n 3. Gross receipts received from all patient care services and other\noperating income for purposes of the assessment pursuant to this section\nshall include, but not be limited to:\n (a) for general hospitals, all monies received for or on account of\ninpatient hospital service, outpatient service, emergency service,\nreferred ambulatory service and ambulatory surgical service, or other\nhospital or health-related services, excluding, subject to the\nprovisions of subdivision twelve of this section: distributions from bad\ndebt and charity care regional pools, primary health care services\nregional pools, bad debt and charity care for financially distressed\nhospitals statewide pools and bad debt and charity care and capital\nstatewide pools created in accordance with section twenty-eight hundred\nseven-c of this article and the components of rates of payment or\ncharges related to the allowances provided in accordance with\nsubdivisions fourteen, fourteen-b and fourteen-c, the adjustment\nprovided in accordance with subdivision fourteen-a, the adjustment\nprovided in accordance with subdivision fourteen-d, the adjustment for\nhealth maintenance organization reimbursement rates provided in\naccordance with section twenty-eight hundred seven-f of this article,\nthe adjustment for commercial insurer reimbursement rates provided in\naccordance with paragraph (i) of subdivision eleven of section\ntwenty-eight hundred seven-c of this article or, if effective, the\nadjustment provided in accordance with subdivision fifteen of section\ntwenty-eight hundred seven-c of this article or the adjustment provided\nin accordance with section eighteen of chapter two hundred sixty-six of\nthe laws of nineteen hundred eighty-six as amended and physician\npractice or faculty practice plan revenue received by a general hospital\nbased on discrete billings for private practicing physician services,\nrevenue received by a general hospital from a public hospital pursuant\nto an affiliation agreement contract for the delivery of health care\nservices to such public hospital, revenue received pursuant to paragraph\n(i) of subdivision thirty-five of section twenty-eight hundred seven-c\nof this article, revenue received pursuant to section twenty-eight\nhundred seven-w of this article, all revenue received as\ndisproportionate share hospital payments, in accordance with title\nnineteen of the federal Social Security Act, revenue received pursuant\nto sections eleven, twelve, thirteen and fourteen of part A of chapter\none of the laws of two thousand two, revenue received pursuant to\nsections thirteen and fourteen of part B of chapter one of the laws of\ntwo thousand two, revenue from patient personal fund allowances, revenue\nfrom income earned on patient funds, investment income from externally\nrestricted funds, revenue from investment sinking funds, revenue from\ninvestment operating escrow accounts, investment income from funded\ndepreciation, investment income from mortgage repayment escrow accounts,\nrevenue derived from the operation of schools leading to licensure, and\nrevenue from the collection of sales and excise taxes;\n (b) for residential health care facilities, all monies received for or\non account of hospital or health-related service, including adult day\nservices, excluding subject to the provisions of subdivision twelve of\nthis section the component of rates of payment related to the adjustment\nprovided in accordance with subdivision twelve of section twenty-eight\nhundred eight of this article;\n (c) for all other facilities issued an operating certificate pursuant\nto section twenty-eight hundred five of this article, including\ndiagnostic and treatment centers, all monies received for or on account\nof hospital or health-related services, however, subject to the\nprovisions of subdivision twelve of this section, excluding the\ncomponent of rates of payment related to the allowance provided in\naccordance with paragraph (f) of subdivision two of section twenty-eight\nhundred seven of this article, excluding for a diagnostic and treatment\ncenter operated by a health maintenance organization operating in\naccordance with the provisions of article forty-four of this chapter or\narticle forty-three of the insurance law monies received for or on\naccount of services provided to subscribers of such health maintenance\norganization and excluding patient care services which if provided to\npersons eligible for medical assistance pursuant to title eleven of\narticle five of the social services law would be eligible for ninety\npercent federal funds as set forth in section nineteen hundred three of\nthe federal social security act; and\n (d) for all hospitals, excluding diagnostic and treatment centers\noperated by a health maintenance organization operating in accordance\nwith the provisions of article forty-four of this chapter or article\nforty-three of the insurance law, shall include monies received for or\non account of such revenue sources as investment income, parking lots,\ncafeterias, gift shops and rental income, provided, however, that\nsubject to the provisions of subdivision twelve of this section income\nreceived from grants, charitable contributions, donations and bequests\nand governmental deficit financing and the component of rates of payment\nreflecting any cost of the assessment reimbursable pursuant to\nsubdivision ten of this section shall not be included.\n 4. For periods prior to January first, two thousand five, the\ncommissioner is authorized to contract with the article forty-three\ninsurance law plans, or if not available such other administrators as\nthe commissioner shall designate, to receive and distribute hospital\nassessment funds. In the event contracts with the article forty-three\ninsurance law plans or other commissioner's designees are effectuated,\nthe commissioner shall conduct annual audits of the receipt and\ndistribution of the assessment funds. The reasonable costs and expenses\nof an administrator as approved by the commissioner, not to exceed for\npersonnel services on an annual basis four hundred thousand dollars for\nall assessments established pursuant to this section, shall be paid from\nthe assessment funds.\n 5. Estimated payments by or on behalf of hospitals to the commissioner\nor his designee of funds due from the assessments pursuant to\nsubdivision two of this section shall be made on a monthly basis.\nEstimated payments shall be due on or before the fifteenth day following\nthe end of a calendar month to which an assessment applies.\n 6. (a) If an estimated payment made for a month to which an assessment\napplies is less than seventy percent of an amount the commissioner\ndetermines is due, based on evidence of prior period moneys received by\na hospital or evidence of moneys received by such hospital for that\nmonth, the commissioner may estimate the amount due from such hospital\nand may collect the deficiency pursuant to paragraph (c) of this\nsubdivision.\n (b) If an estimated payment made for a month to which an assessment\napplies is less than ninety percent of an amount the commissioner\ndetermines is due, based on evidence of prior period moneys received by\na hospital or evidence of moneys received by such hospital for that\nmonth, and at least two previous estimated payments within the preceding\nsix months were less than ninety percent of the amount due, based on\nsimilar evidence, the commissioner may estimate the amount due from such\nhospital and may collect the deficiency pursuant to paragraph (c) of\nthis subdivision.\n (c) Upon receipt of notification from the commissioner of a hospital's\ndeficiency under this section, the comptroller or a fiscal intermediary\ndesignated by the director of the budget, or the commissioner of social\nservices, or a corporation organized and operating in accordance with\narticle forty-three of the insurance law, or an organization operating\nin accordance with article forty-four of this chapter shall withhold\nfrom the amount of any payment to be made by the state or by such\narticle forty-three corporation or article forty-four organization to\nthe hospital the amount of the deficiency determined under paragraph (a)\nor (b) of this subdivision or paragraph (e) of subdivision seven of this\nsection. Upon withholding such amount, the comptroller or a designated\nfiscal intermediary, or the commissioner of social services, or\ncorporation organized and operating in accordance with article\nforty-three of the insurance law or organization operating in accordance\nwith article forty-four of this chapter shall pay the commissioner, or\nhis designee, such amount withheld on behalf of the hospital.\n (d) The commissioner shall provide a hospital with notice of any\nestimate of an amount due for an assessment pursuant to paragraph (a) or\n(b) of this subdivision or paragraph (e) of subdivision seven of this\nsection at least three days prior to collection of such amount by the\ncommissioner. Such notice shall contain the financial basis for the\ncommissioner's estimate.\n (e) In the event a hospital objects to an estimate by the commissioner\npursuant to paragraph (a) or (b) of this subdivision or paragraph (e) of\nsubdivision seven of this section of the amount due for an assessment,\nthe hospital, within sixty days of notice of an amount due, may request\na public hearing. If a hearing is requested, the commissioner shall\nprovide the hospital an opportunity to be heard and to present evidence\nbearing on the amount due for an assessment within thirty days after\ncollection of an amount due or receipt of a request for a hearing,\nwhichever is later. An administrative hearing is not a prerequisite to\nseeking judicial relief.\n (f) The commissioner may direct that a hearing be held without any\nrequest by a hospital.\n 7. (a) Every hospital shall submit reports on a cash basis of actual\ngross receipts received from all patient care services and operating\nincome for each month as follows:\n (i) for the period January first, nineteen hundred ninety-one through\nJanuary thirty-first, nineteen hundred ninety-one, the report shall be\nfiled on or before March fifteenth, nineteen hundred ninety-one; and\n (ii) for the quarter year ending March thirty-first, nineteen hundred\nninety-one and for each quarter thereafter, the report shall be filed on\nor before the forty-fifth day after the end of such quarter.\n (b) Every hospital shall submit a certified annual report on a cash\nbasis of gross receipts received in such calendar year from all patient\ncare services and operating income.\n (c) The reports shall be in such form as may be prescribed by the\ncommissioner to accurately disclose information required to implement\nthis section, provided, however, that for periods on and after July\nfirst, two thousand twelve, such reports and any associated\ncertifications shall be submitted electronically in a form as may be\nrequired by the commissioner.\n (d) Final payments shall be due for all hospitals for the assessments\npursuant to subdivision two of this section upon the due date for\nsubmission of the applicable quarterly report.\n (e) The commissioner may recoup deficiencies in final payments\npursuant to paragraph (c) of subdivision six of this section. Delinquent\namounts which have been referred for recoupment or offset pursuant to\nparagraph (c) of subdivision six of this section, or which have been\nreferred to the office of the attorney general for collection, shall be\ndeemed final and not subject to further revision or reconciliation by\nthe commissioner based on any additional reports or other information\nsubmitted by the hospital, provided, however, that such delinquencies\nshall not be referred for such recoupment or for such collection based\non estimated amounts unless the hospital has received written\nnotification of such delinquencies and has been given no less than\nthirty days in which to submit delinquent reports.\n (f) Payments and reports submitted or required to be submitted to the\ncommissioner or to the commissioner's designee pursuant to this section\nshall be subject to audit by the commissioner for a period of six years\nfollowing the close of the calendar year in which such payments and\nreports are due, after which such payments shall be deemed final and not\nsubject to further adjustment or reconciliation, including through\noffset adjustments or reconciliations made to subsequent payments made\npursuant to this section, provided, however, that nothing herein shall\nbe construed as precluding the commissioner from pursuing collection of\nany such payments which are identified as delinquent within such six\nyear period, or which are identified as delinquent as a result of an\naudit commenced within such six year period, or from conducting an audit\nof any adjustment or reconciliation made by a hospital.\n 8. (a) If an estimated payment made for a month to which an assessment\napplies is less than ninety percent of the actual amount due for such\nmonth, interest shall be due and payable to the commissioner on the\ndifference between the amount paid and the amount due from the day of\nthe month the estimated payment was due until the date of payment. The\nrate of interest shall be twelve percent per annum or at the rate of\ninterest set by the commissioner of taxation and finance with respect to\nunderpayments of tax pursuant to subsection (e) of section one thousand\nninety-six of the tax law minus four percentage points. Interest under\nthis paragraph shall not be paid if the amount thereof is less than one\ndollar. Interest, if not paid by the due date of the following month's\nestimated payment, may be collected by the commissioner pursuant to\nparagraph (c) of subdivision six of this section in the same manner as\nan assessment pursuant to subdivision two of this section.\n (b) If an estimated payment made for a month to which an assessment\napplies is less than seventy percent of the actual amount due for such\nmonth, a penalty shall be due and payable to the commissioner of five\npercent of the difference between the amount paid and the amount due\nfor such month when the failure to pay is for a duration of not more\nthan one month after the due date of the payment with an additional\nfive percent for each additional month or fraction thereof during which\nsuch failure continues, not exceeding twenty-five percent in the\naggregate. A penalty may be collected by the commissioner pursuant to\nparagraph (c) of subdivision six of this section in the same manner as\nan assessment pursuant to subdivision two of this section.\n (c) Overpayment by a hospital of an estimated payment shall be applied\nto any other payment due from the hospital pursuant to this section, or,\nif no payment is due, at the election of the hospital shall be applied\nto future estimated payments or refunded to the hospital. Interest shall\nbe paid on overpayments from the date of overpayment to the date of\ncrediting or refund at the rate determined in accordance with paragraph\n(a) of this subdivision if the overpayment was made at the direction of\nthe commissioner. Interest under this paragraph shall not be paid if the\namount thereof is less than one dollar.\n 9. Funds accumulated, including income from invested funds, from the\nassessments specified in this section, including interest and penalties,\nshall be deposited by the commissioner and:\n (a) credited to the general fund;\n (b) provided, however, that funds accumulated, including income from\ninvested funds, from the assessments provided in accordance with\nsubparagraph (v) of paragraph (a) and subparagraphs (iii), (iv), (v) and\n(vi) of paragraph (b) of subdivision two of this section, including\ninterest and penalties, shall be deposited by the commissioner and\ncredited to the special revenue fund-other, miscellaneous special\nrevenue fund (339), medical assistance account. To the extent of funds\nappropriated therefor, funds shall be made available for payments under\nthe medical assistance program provided pursuant to title eleven of\narticle five of the social services law;\n (c) and provided further, however, that funds accumulated, including\nincome from invested funds, for a period from the assessment and\nadditional assessment provided in accordance with subparagraphs (ii) and\n(iii) of paragraph (a) of subdivision two of this section, including\ninterest and penalties, on voluntary nonprofit and private proprietary\ngeneral hospitals which qualified for distributions made in accordance\nwith paragraph (c) of subdivision nineteen of section twenty-eight\nhundred seven-c of this article as of December thirty-first, nineteen\nhundred ninety-five shall be transferred by the commissioner and\nconsolidated with funds accumulated from the allowance pursuant to\nsubdivision two of section twenty-eight hundred seven-j of this article\nfor such period and allocated in accordance with subdivision nine of\nsection twenty-eight hundred seven-j of this article.\n 10. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary:\n (a) the assessments pursuant to this section shall not be an allowable\ncost in the determination of reimbursement rates pursuant to this\narticle;\n (b) provided, however, that for purposes of determining rates of\npayment pursuant to this article for residential health care facilities,\nfor the period January first, nineteen hundred ninety-two through March\nthirty-first, nineteen hundred ninety-nine, the additional assessment of\none and two-tenths percent, and for the period July first, nineteen\nhundred ninety-five through March thirty-first, nineteen hundred\nninety-six the further additional assessment of three and eight-tenths\npercent, and for the period April first, nineteen hundred ninety-six\nthrough March thirty-first, nineteen hundred ninety-seven the further\nadditional assessment of one and nine-tenths percent, and for the period\nMay first, nineteen hundred ninety-six through December thirty-first,\nnineteen hundred ninety-six the further additional assessment of two and\nthree-tenths percent and for the period January first, nineteen hundred\nninety-seven through February twenty-eighth, nineteen hundred\nninety-seven the further additional assessment of one and nine-tenths\npercent, and for the period April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-nine the further\nadditional assessment of three and six-tenths percent, and for the\nperiod April first, nineteen hundred ninety-nine through December\nthirty-first, nineteen hundred ninety-nine the further additional\nassessment of two and four-tenths percent, imposed pursuant to this\nsection shall be a reimbursable cost to be reflected as timely as\npracticable in rates of payment applicable within the assessment period,\ncontingent, for payments by governmental agencies, on all federal\napprovals necessary by federal law and regulations for federal financial\nparticipation in payments made for beneficiaries eligible for medical\nassistance under title XIX of the federal social security act.\n (c) provided, however, that for the purposes of determining rates of\npayment pursuant to this article for residential health care facilities,\nthe assessment imposed pursuant to subparagraph (vi) of paragraph (b) of\nsubdivision two of this section shall be a reimbursable cost to be\nreflected as timely as practicable, and subsequently reconciled to\nactual cost, in rates of payment applicable within the assessment\nperiod, provided further, however, that insofar as such assessment is in\nexcess of six percent it shall not be deemed a reimbursable cost and\nshall not be reflected in such rates of payment.\n (d) provided, however, that the adjustment to rates of payment made\npursuant to paragraph (c) of this subdivision shall be calculated on a\nper diem basis and based on total reported patient days of care minus\nreported days attributable to title XVIII of the federal social security\nact (medicare) units of service.\n (e) the provisions of paragraphs (c) and (d) of this subdivision shall\neach be contingent upon receipt of all federal approvals required by\nfederal law and regulations for federal financial participation in\npayments made in accordance with paragraphs (c) and (d) of this\nsubdivision.\n 11. (a) (ii) The assessment shall not be collected in excess of one\nhundred thirty-four million three hundred thousand dollars from general\nhospitals for the period of April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-eight. The amount of\nthe assessment collected pursuant to paragraph (a) of subdivision two of\nthis section in excess of one hundred thirty-four million three hundred\nthousand dollars for the period of April first, nineteen hundred\nninety-seven through March thirty-first, nineteen hundred ninety-eight\nshall be refunded to general hospitals by the commissioner based on the\nratio which a general hospital's assessment for such period bears to the\ntotal of the assessments for such period paid by general hospitals.\n (iii) The additional assessment shall not be collected in excess of\nfourteen million nine hundred thousand dollars from general hospitals\nfor the period of April first, nineteen hundred ninety-seven through\nNovember thirtieth, nineteen hundred ninety-seven. The amount of the\nadditional assessment collected pursuant to paragraph (a) of subdivision\ntwo of this section in excess of fourteen million nine hundred thousand\ndollars for the period of April first, nineteen hundred ninety-seven\nthrough November thirtieth, nineteen hundred ninety-seven shall be\nrefunded to general hospitals by the commissioner based on the ratio\nwhich a general hospital's additional assessment for such period bears\nto the total of the additional assessments for such period paid by\ngeneral hospitals.\n (b) (ii) The assessment shall not be collected in excess of fifteen\nmillion dollars from residential health care facilities for the period\nof April first, nineteen hundred ninety-eight through March\nthirty-first, nineteen hundred ninety-nine. The amount of the assessment\ncollected pursuant to paragraph (b) of subdivision two of this section\nin excess of fifteen million dollars for the period of April first,\nnineteen hundred ninety-eight through March thirty-first, nineteen\nhundred ninety-nine shall be refunded to residential health care\nfacilities by the commissioner based on the ratio which a residential\nhealth care facility's assessment for such period bears to the total of\nthe assessments for such period paid by residential health care\nfacilities.\n (iii) The additional assessment shall not be collected in excess of\neighty-nine million nine hundred thousand dollars from residential\nhealth care facilities for the period of April first, nineteen hundred\nninety-eight through March thirty-first, nineteen hundred ninety-nine.\nThe amount of the additional assessment collected pursuant to paragraph\n(b) of subdivision two of this section in excess of eighty-nine million\nnine hundred thousand dollars for the period of April first, nineteen\nhundred ninety-eight through March thirty-first, nineteen hundred\nninety-nine shall be refunded to residential health care facilities by\nthe commissioner based on the ratio which a residential health care\nfacility's additional assessment for such period bears to the total of\nthe additional assessments for such period paid by residential health\ncare facilities.\n (iv) The further additional assessment shall not be collected in\nexcess of one hundred sixty-four million seven hundred thousand dollars\nfrom residential health care facilities for the period July first,\nnineteen hundred ninety-five through March thirty-first, nineteen\nhundred ninety-six. The amount of the further additional assessment\ncollected pursuant to paragraph (b) of subdivision two of this section\nin excess of one hundred sixty-four million seven hundred thousand\ndollars for the period of July first, nineteen hundred ninety-five\nthrough March thirtyfirst, nineteen hundred ninety-six shall be refunded\nto residential health care facilities by the commissioner based on the\nratio which a residential health care facility's further additional\nassessment for such period bears to the total of the further additional\nassessments for such period paid by residential health care facilities.\n (v) The further additional assessment imposed pursuant to subparagraph\n(iv) of paragraph (b) of subdivision two of this section shall not be\ncollected in excess of one hundred twelve million dollars from\nresidential health care facilities for the period April first, nineteen\nhundred ninety-six through March thirty-first, nineteen hundred\nninety-seven. The amount of the further additional assessment collected\npursuant to subparagraph (iv) of paragraph (b) of subdivision two of\nthis section in excess of one hundred twelve million dollars for the\nperiod of April first, nineteen hundred ninety-six through March\nthirty-first, nineteen hundred ninety-seven shall be refunded to\nresidential health care facilities by the commissioner based on the\nratio which a residential health care facility's further additional\nassessment for such period bears to the total of the further additional\nassessments for such period paid by residential health care facilities.\n (vi) The further additional assessment shall not be collected in\nexcess of one hundred ten million dollars from residential health care\nfacilities for the period May first, nineteen hundred ninety-six\nthrough February twenty-eighth, nineteen hundred ninety-seven. The\namount of the further additional assessment collected pursuant to\nsubparagraph (v) of paragraph (b) of subdivision two of this section in\nexcess of one hundred ten million dollars for the period May first,\nnineteen hundred ninety-six through February twenty-eighth, nineteen\nhundred ninety-seven shall be refunded to residential health care\nfacilities by the commissioner based on the ratio which a residential\nhealth care facility's further additional assessment for such period\nbears to the total of the further additional assessments for such\nperiod paid by residential health care facilities.\n (vii) The further additional assessment shall not be collected in\nexcess of two hundred forty million dollars from residential health care\nfacilities for the period April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-eight. The amount of\nthe further additional assessment collected pursuant to subparagraph (v)\nof paragraph (b) of subdivision two of this section in excess of two\nhundred forty million dollars for the period of April first, nineteen\nhundred ninety-seven through March thirty-first, nineteen hundred\nninety-eight shall be refunded to residential health care facilities by\nthe commissioner based on the ratio which a residential health care\nfacility's further additional assessments for such a period bears to the\ntotal of the further additional assessments for such period paid by\nresidential health care facilities.\n (viii) The further additional assessment shall not be collected in\nexcess of two hundred fifty-six million eight hundred thousand dollars\nfrom residential health care facilities for the period April first,\nnineteen hundred ninety-eight through March thirty-first, nineteen\nhundred ninety-nine. The amount of the further additional assessment\ncollected pursuant to subparagraph (v) of paragraph (b) of subdivision\ntwo of this section in excess of two hundred fifty-six million eight\nhundred thousand dollars for the period April first, nineteen hundred\nninety-eight through March thirty-first, nineteen hundred ninety-nine\nshall be refunded to residential health care facilities by the\ncommissioner based on the ratio which a residential health care\nfacility's further additional assessments for such period bears to the\ntotal of the further additional assessments for such period paid by\nresidential health care facilities.\n (c) (ii) The assessment shall not be collected in excess of seven\nmillion four hundred thousand dollars from all other facilities issued\nan operating certificate pursuant to section twenty-eight hundred five\nof this article for the period of April first, nineteen hundred\nninety-seven through March thirty-first, nineteen hundred ninety-eight.\nThe amount of the assessment collected pursuant to paragraph (c) of\nsubdivision two of this section in excess of seven million four hundred\nthousand dollars for the period of April first, nineteen hundred\nninety-seven through March thirty-first, nineteen hundred ninety-eight\nshall be refunded by the commissioner based on the ratio which a\nfacility's assessment for such period bears to the total of the\nassessments for such period paid by such facilities.\n 12. (a) Each exclusion of hospitals or sources of gross receipts\nreceived from the assessments effective on or after April first,\nnineteen hundred ninety-two, and prior to April first, two thousand two,\nestablished pursuant to this section shall be contingent upon either:\n(i) qualification of the assessments for waiver pursuant to federal law\nand regulation; or (ii) consistent with federal law and regulation, not\nrequiring a waiver by the secretary of the department of health and\nhuman services related to such exclusion; in order for the assessments\nunder this section to be qualified as a broad-based health care related\ntax for purposes of the revenues received by the state pursuant to the\nassessments not reducing the amount expended by the state as medical\nassistance for purposes of federal financial participation. The\ncommissioner shall collect the assessments relying on such exclusions,\npending any contrary action by the secretary of the department of health\nand human services. In the event the secretary of the department of\nhealth and human services determines that the assessments do not so\nqualify based on any such exclusion, then the exclusion shall be deemed\nto have been null and void as of April first, nineteen hundred\nninety-two, and the commissioner shall collect any retroactive amount\ndue as a result, without interest or penalty provided the hospital pays\nthe retroactive amount due within ninety days of notice from the\ncommissioner to the hospital that an exclusion is null and void.\nInterest and penalties shall be measured from the due date of ninety\ndays following notice from the commissioner to the hospital.\n (b) The exclusion of the hospitals described in paragraph (b) of\nsubdivision one of this section and the exclusion of revenue described\nin subdivision two of this section from the assessments set forth in\nsubdivision two of this section for periods on and after April first,\ntwo thousand two shall be contingent upon either: (i) qualification of\nthe assessments for waiver pursuant to federal law and regulation; or\n(ii) consistent with federal law and regulation, not requiring a waiver\nby the secretary of the department of health and human services related\nto such exclusion; in order for the assessments under this section to be\nqualified as a broad-based health care related tax for purposes of the\nrevenues received by the state pursuant to the assessments not reducing\nthe amount expended by the state as medical assistance for purposes of\nfederal financial participation. The commissioner shall collect such\nassessments relying on such exclusion, pending any contrary action by\nthe secretary of the department of health and human services. In the\nevent the secretary of the department of health and human services\ndetermines that such assessments do not so qualify based on such\nexclusion, then the commissioner shall, to the extent necessary to\nachieve such qualification for federal financial participation, deem\nsuch exclusions null and void as of the first day of the period for\nwhich such assessments apply, and the commissioner shall collect any\nretroactive amount due as a result, without interest or penalty provided\nthe hospital pays the retroactive amount due within ninety days of\nnotice from the commissioner to the hospital that such exclusion is null\nand void.\n (c) No hospital shall be obligated to pay assessments pursuant to\nsubparagraph (v) of paragraph (a) of subdivision two of this section\nprior to December first, two thousand five. The commissioner shall\ncollect payment obligations incurred prior to December first, two\nthousand five proportionally over the remaining months in the state\nfiscal year.\n