§ 2807-T — Assessments on covered lives

* § 2807-t. Assessments on covered lives. 1. Definitions. (a)\n"Individual" means a person for whom the specified third-party payor has\nagreed to provide reimbursement for inpatient hospital services in the\nperiod other than:\n (i) any person who is eligible for payments as a beneficiary of title\nXVIII of the federal social security act (medicare);\n (ii) any person for whom the specified third-party payor has agreed to\nprovide reimbursement for inpatient hospital services contingent upon\nsuch person's relationship to an "individual" as a spouse, child,\nstepchild, adopted child, family member, or dependent, as defined by the\nspecified third-party payor, or as contingent upon any other similar\nrelationship to an "individual" as such relationship is defined by the\nspecified third-party payor;\n (iii) any person for whom the specified third-party payor has agreed\nto provide coverage for hospital confinement on other than an expense\nincurred basis;\n (iv) any person for whom the specified third-party payor has agreed to\nprovide reimbursement for inpatient hospital services pursuant to the\nworkers' compensation law, the volunteer firefighters' benefit law, or\nthe volunteer ambulance workers' benefit law;\n (v) any person for whom the specified third-party payor has agreed to\nprovide reimbursement for inpatient hospital services pursuant to the\ncomprehensive motor vehicle insurance reparations act;\n (vi) any person (hereinafter referred to as the "primary insured")\notherwise meeting the definition of an "individual" as set forth under\nthis section if the specified third-party payor has agreed to provide\nreimbursement for such person as part of a "family unit"; and\n (vii) effective on and after April first, two thousand five, any\nperson covered under a student policy issued pursuant to article\nforty-three of the insurance law, or a blanket student accident, blanket\nstudent health, or blanket student accident and health insurance policy.\n (b) "Family unit" means any person for whom the specified third-party\npayor has agreed to provide reimbursement for inpatient hospital\nservices in the period, together with one or more additional persons for\nwhom the specified third-party payor has agreed to provide reimbursement\nfor inpatient hospital services in the period contingent upon such\nperson's relationship to said person as a spouse, child, stepchild,\nadopted child, family member, or dependent, as defined by the specified\nthird-party payor, or as contingent upon any other similar relationship,\nas such relationship is defined by the specified third-party payor.\nExcluded from the definition is any family unit where the specified\nthird-party payor has agreed to provide: coverage for hospital\nconfinement on other than an expense incurred basis; reimbursement for\ninpatient hospital services pursuant to the worker's compensation law,\nthe volunteer firefighters' benefit law, or the volunteer ambulance\nworkers' benefit law; and reimbursement for inpatient hospital services\npursuant to the comprehensive motor vehicle insurance reparations act.\nIf a family unit of two persons includes one person who is eligible for\npayments as a beneficiary of title XVIII of the social security act\n(medicare), that family unit shall be deemed an individual for purposes\nof this section. If a family unit of three or more persons includes one\nperson who is not eligible for medicare and the remaining two or more\npersons are eligible for medicare, that family unit shall be deemed an\nindividual for purposes of this section. A family unit of two or more\npersons, all of whom are eligible for medicare, shall not be considered\na family unit or an individual for purposes of this section.\n (c) "Specified third-party payor", for purposes of this section, shall\nhave the same meaning as set forth in section twenty-eight hundred\nseven-s of this article.\n (d) "Region", for purposes of this section, shall have the same\nmeaning as set forth in section twenty-eight hundred seven-s of this\narticle.\n 2. Determination of annual regional payment amount. The sum total to\nbe generated each year for each region shall be referred to as the\nannual regional payment amount, as determined in accordance with\nsubdivision six of section twenty-eight hundred seven-s of this article.\n 3. Election. Any specified third-party payor may make an election to\nmake payments for the assessments required by this section, on behalf of\nthe liable persons or entities pursuant to subdivision eight of this\nsection, directly to the commissioner or the commissioner's designee.\nThe election pursuant to this subdivision must be in writing, filed with\nthe commissioner or the commissioner's designee on such forms and in\nsuch manner as the commissioner shall require. An election by a\nspecified third-party payor shall take effect for nineteen hundred\nninety-seven on the next following January first, April first, July\nfirst, or October first not less than thirty days after the election is\nfiled. Beginning December first, nineteen hundred ninety-seven, an\nelection pursuant to this section must be made no later than December\nfirst of the year prior to the assessment year. However, any specified\nthird-party payor licensed pursuant to the insurance law or certified\npursuant to article forty-four of this chapter between December first of\nthe year prior to the assessment year and December thirty-first of the\nassessment year may make an election subsequent to such licensure or\ncertification and during said time period, to take effect on the next\nfollowing January first, April first, July first or October first not\nless than thirty days after such election is filed. Specified\nthird-party payors other than those licensed pursuant to the insurance\nlaw or certified pursuant to this chapter which have not provided\ncoverage prior to December first of the year prior to the assessment\nyear may make an election at any time from December first of the year\nprior to said assessment year to December thirty-first of said\nassessment year, to take effect on the next following January first,\nApril first, July first or October first not less than thirty days after\nthe election is filed. An election shall remain in effect unless revoked\nin writing by a specified third-party payor, which revocation shall be\neffective on the first day of the next calendar year quarter, provided\nthat such payor has provided notice of its intention to so revoke at\nleast thirty days prior to the beginning of such calendar quarter.\n (a) A specified third-party payor filing an election pursuant to this\nsubdivision must agree: to provide the data and information required by\nsubdivision four of this section; to provide such certification of data\nand access to individual and family unit data for audit verification\npurposes as the commissioner shall require for purposes of this section;\nand to the jurisdiction of the state to maintain an action in the courts\nof the state of New York to enforce any provision of this section\nrelated to payment of the assessments.\n (b) If a specified third-party payor is acting in an administrative\nservices capacity on behalf of an organization, such as a self-insured\nfund, the consent of the organization to the election and the conditions\npursuant to paragraph (a) of this subdivision must be submitted with the\nelection. Such consent may be set forth in writing in the agreement\nbetween the specified third-party payor and the organization.\n (c) If a specified third-party payor, including a payor operating in\naccordance with the insurance law or article forty-four of this chapter,\nmaking an election pursuant to this subdivision is acting in an\nadministrative services capacity on behalf of an organization or\norganizations, such specified third-party payor must specify (i) whether\nsuch election applies to payments on behalf of all such organizations,\nand (ii) identify any organizations for which such specified third-party\npayor is acting to which the election does not apply and establish, in\naccordance with guidelines established by the superintendent of\nfinancial services, a system through which general hospitals and the\ncommissioner can identify the status of a patient as a patient for whom\nthe election does not apply.\n (d) The commissioner may deny a specified third-party payor the\nopportunity to make an election pursuant to this subdivision based on\nrepeated late payments, failure to remit correct amounts, or failure to\nprovide adequate verification of the accuracy of payments.\n (e) The commissioner or the commissioner's designee shall make\navailable to all general hospitals a list of the specified third-party\npayors which have elected pursuant to this subdivision to remit payments\npursuant to this section.\n 4. Assessments shall be calculated as follows: (a) Every specified\nthird-party payor that has made an election pursuant to this section\nshall report to the commissioner or the commissioner's designee the\nnumber of individuals for a period as determined by the commissioner\nduring the calendar year prior to the assessment year residing within\neach region ("individual member months"). Every such specified\nthird-party payor shall also report to the commissioner or the\ncommissioner's designee the number of family units for a period as\ndetermined by the commissioner during the calendar year prior to the\nassessment year residing within each region ("family member months").\nFor purposes of this section, the family unit is considered to reside in\nthe region in which the primary insured resides.\n (b) The superintendent of financial services shall advise the\ncommissioner of the average number of persons covered under family\ninsurance contracts providing health care coverage approved by the\nsuperintendent for the year two years prior to the assessment year.\n (c) The commissioner shall calculate the total number of "individual\nmember months" for each region for all specified third-party payors to\ndetermine "aggregate individual member months" for each region.\n (d) The commissioner shall calculate the total number of "family\nmember months" for each region for all specified third-party payors to\ndetermine "aggregate family member months" for each region. The\ncommissioner shall multiply the average number of persons covered under\nfamily insurance contracts, as reported to the commissioner by the\nsuperintendent of financial services, by the "aggregate family member\nmonths" to determine "adjusted aggregate family member months" for each\nregion. The commissioner shall add the number of "adjusted aggregate\nfamily member months" for each region to the total number of "aggregate\nindividual member months" for each region. This amount shall be known as\n"total covered member months" for each region.\n (e) The annual regional payment amount for nineteen hundred\nninety-seven, nineteen hundred ninety-eight, nineteen hundred\nninety-nine, two thousand and each year thereafter, respectively for\neach region determined pursuant to subdivision two of this section shall\nbe divided by an estimate derived from population based data sources of\nthe total covered member months determined consistent with the\nprovisions of paragraphs (a), (b), (c) and (d) of this subdivision in\nthat region to establish the individual annual assessment for nineteen\nhundred ninety-seven, nineteen hundred ninety-eight, nineteen hundred\nninety-nine, two thousand and each year thereafter, respectively. The\nindividual annual assessment shall be multiplied by the average family\nsize reported to the commissioner by the superintendent of financial\nservices to establish the family unit annual assessment in that region\nfor nineteen hundred ninety-seven, nineteen hundred ninety-eight,\nnineteen hundred ninety-nine, two thousand and each year thereafter,\nrespectively.\n (f) Effective January first, two thousand nine, a specified\nthird-party payor that has made an election pursuant to this section may\nreport to the commissioner or the commissioner's designee the number of\nindividuals and family units enrolled as of the last day of each month\nin fulfillment of the monthly reporting requirement set forth in\nparagraph (a) of this subdivision. A specified third-party payor\nchoosing to report monthly enrollment counts on this basis shall\nindicate its choice at the beginning of a calendar year in a form and\nmanner specified by the commissioner and such reporting method shall\nremain in effect the entire calendar year.\n 5. Monthly payments. (a) Within thirty days after the end of each\nmonth, a specified third-party payor which made an election pursuant to\nthis section shall remit to the commissioner or the commissioner's\ndesignee one-twelfth of the individual annual assessment for each of the\nindividuals residing in this state which were included on the membership\nrolls of that specified third-party payor during all or any portion of\nthe prior month. Within thirty days after the end of each month, a\nspecified third-party payor which made an election pursuant to this\nsection shall also remit to the commissioner or the commissioner's\ndesignee one-twelfth of the family unit annual assessment for each\nfamily unit for which the primary insured resided in this state which\nwere included on the membership rolls of that specified third-party\npayor during all or any portion of the prior month. Provided, however,\nfor assessment obligations arising out of individual and family\nassessments established pursuant to this section on or after January\nfirst, two thousand, the commissioner may permit certain specified\nthird-party payors which have at least one full year of pool payment\nexperience to submit such payments on an annual basis, based on an\nannual demonstration by a payor through its prior year's pool payment\nexperience that total pool obligations under this section and sections\ntwenty-eight hundred seven-j and twenty-eight hundred seven-s of this\narticle are not expected to exceed ten thousand dollars in the current\npool year. If a specified third-party payor fails to make such payments\nwithin sixty days of notification of a delinquency, the commissioner may\nassess a civil penalty of up to ten thousand dollars for each failure,\nprovided, however, that such civil penalty shall not be imposed if the\npayor demonstrates good cause for such failure to timely make such\npayments, and further provided that the amount of such penalty shall not\nexceed the amount of the delinquent liability.\n (b) The specified third party-payor shall be entitled to rely on the\nresidence location information provided to the payor by an employer,\ngroup or other party providing enrollment information to the specified\nthird-party payor, provided the specified third-party payor has no\nreason to doubt the accuracy of the information.\n (c) Specified third-party payors shall not be responsible for\nremitting the monthly assessment for any individual or for any family\nunit for any month in which it is subsequently determined that the\nspecified third-party payor had no liability to provide coverage for\ninpatient hospital services for such individual or family unit.\n 6. Prospective adjustments. (a) The commissioner shall annually\nreconcile the sum of the actual payments made to the commissioner or the\ncommissioner's designee for each region pursuant to section twenty-eight\nhundred seven-s of this article and pursuant to this section for the\nprior year with the regional allocation of the gross annual statewide\namount specified in subdivision six of section twenty-eight hundred\nseven-s of this article for such prior year. The difference between the\nactual amount raised for a region and the regional allocation of the\nspecified gross annual amount for such prior year shall be applied as a\nprospective adjustment to the regional allocation of the specified gross\nannual payment amount for such region for the year next following the\ncalculation of the reconciliation. The authorized dollar value of the\nadjustments shall be the same as if calculated retrospectively.\n (b) Notwithstanding the provisions of paragraph (a) of this\nsubdivision, for covered lives assessment rate periods on and after\nJanuary first, two thousand fifteen through December thirty-first, two\nthousand twenty-one, for amounts collected in the aggregate in excess of\none billion forty-five million dollars on an annual basis, and for the\nperiod January first, two thousand twenty-two to December thirty-first,\ntwo thousand twenty-six for amounts collected in the aggregate in excess\nof one billion eighty-five million dollars on an annual basis,\nprospective adjustments shall be suspended if the annual reconciliation\ncalculation from the prior year would otherwise result in a decrease to\nthe regional allocation of the specified gross annual payment amount for\nthat region, provided, however, that such suspension shall be lifted\nupon a determination by the commissioner, in consultation with the\ndirector of the budget, that sixty-five million dollars in aggregate\ncollections on an annual basis over and above one billion forty-five\nmillion dollars on an annual basis for the period on and after January\nfirst, two thousand fifteen through December thirty-first, two thousand\ntwenty-one and for the period January first, two thousand twenty-two to\nDecember thirty-first, two thousand twenty-six for amounts collected in\nthe aggregate in excess of one billion eighty-five million dollars on an\nannual basis have been reserved and set aside for deposit in the HCRA\nresources fund. Any amounts collected in the aggregate at or below one\nbillion forty-five million dollars on an annual basis for the period on\nand after January first, two thousand fifteen through December\nthirty-first, two thousand twenty-two, and for the period January first,\ntwo thousand twenty-three to December thirty-first, two thousand\ntwenty-six for amounts collected in the aggregate in excess of one\nbillion eighty-five million dollars on an annual basis, shall be subject\nto regional adjustments reconciling any decreases or increases to the\nregional allocation in accordance with paragraph (a) of this\nsubdivision.\n 7. (a) In the case two or more specified third-party payors covering a\nsingle contract holder where both specified third-party payors cover\nseparate components of the inpatient care benefits otherwise subject to\nthe assessment, the assessment shall be apportioned between the\ninsurers.\n (b) With regard to assessment obligations arising out of individual\nand family assessments established pursuant to this section, where a\nsingle contract holder has separate components of the inpatient care\nbenefits otherwise subject to the assessment covered by two or more\nentities, the assessment may be apportioned between the entities,\nprovided that:\n (i) Apportionment agreements or arrangements may only be entered into\nbetween or among specified third-party payers which have elected to make\ndirect payments to the commissioner or the commissioner's designee\npursuant to this subdivision; and\n (ii) The aggregate of apportioned covered lives assessment payments\nmust result in the payment of one hundred percent of the applicable\ncovered lives assessment; and\n (iii) Apportionment agreements between or among apportioning payers\nand any modifications, amendments or termination of such agreements must\nbe in writing and signed by all such payers, provided, however, that\nwhere one apportioning payor agrees to pay one hundred percent of the\napplicable covered lives assessment, no written agreement shall be\nrequired, provided there is other written evidence of the arrangement\nand any modifications, amendments and/or terminations thereof, emanating\nfrom the apportioning payor paying one hundred percent of the applicable\ncovered lives assessment to the other apportioning payor or payors or to\nthe particular group to which the arrangement relates, and further\nprovided that such written evidence contains the name of the particular\ngroup to which the arrangement relates; and\n (iv) Copies of apportionment agreements, and any modifications,\namendments and/or terminations thereof, and written evidence of\narrangements by which one apportioning payor agrees to pay one hundred\npercent of the applicable covered lives assessment, and any\nmodifications, amendments and/or terminations thereof, must be\nmaintained in the files of each apportioning payor while the\napportionment is in effect and for a period of not less than six years\nafter termination thereof and shall be made available to the department\nupon request for audit verification purposes.\n 8. Liability for assessments. (a) The assessments determined in\naccordance with this section shall, for individuals who have paid\npremiums directly to an insurer or to a health maintenance organization\ncertified pursuant to article forty-four of this chapter or article\nforty-three of the insurance law for health care coverage which includes\ncoverage of inpatient hospital services, be the liability of said\nindividuals. The assessments determined in accordance with this section\nshall, for groups and entities who have paid premiums to an insurer or\nto a health maintenance organization certified pursuant to article\nforty-four of this chapter or article forty-three of the insurance law\nfor health care coverage which includes coverage of inpatient hospital\nservices, be the liability of said groups and entities. The assessments\ndetermined in accordance with this section shall, for individuals,\ngroups and entities who have contributed to a self-insured fund for\nhealth care coverage which includes coverage of inpatient hospital\nservices, be the liability of said individuals, groups or entities.\n (b) Specified third-party payors shall make payments to the\ncommissioner or the commissioner's designee of the full amount of the\nassessments determined in accordance with this section. Specified\nthird-party payors may recover amounts due or paid to the commissioner\nor the commissioner's designee from the parties liable in accordance\nwith paragraph (a) of this subdivision.\n 9. A specified third-party payor must either:\n (a) jointly elect to pay the assessment pursuant to this section and\nthe allowance pursuant to paragraph (c) of subdivision two and\nsubdivision five of section twenty-eight hundred seven-j of this\narticle; or\n (b) pay the surcharge for an allowance determined in accordance with\nparagraph (b) of subdivision two of section twenty-eight hundred seven-j\nof this article, including the allowance determined in accordance with\nsection twenty-eight hundred seven-s of this article.\n 10. (a) Payments and reports submitted or required to be submitted to\nthe commissioner or to the commissioner's designee pursuant to this\nsection by specified third-party payors shall be subject to audit by the\ncommissioner for a period of six years following the close of the\ncalendar year in which such payments and reports are due, after which\nsuch payments shall be deemed final and not subject to further\nadjustment or reconciliation, including through offset adjustments or\nreconciliations made by such specified third-party payors with regard to\nsubsequent payments, provided, however, that nothing herein shall be\nconstrued as precluding the commissioner from pursuing collection of any\nsuch payments which are identified as delinquent within such six year\nperiod, or which are identified as delinquent as a result of an audit\ncommenced within such six year period, or from conducting an audit of\nany adjustments and reconciliation made by a specified third party payor\nwithin such six year period, or from conducting an audit of payments\nmade prior to such six year period which are found to be commingled with\npayments which are otherwise subject to timely audit pursuant to this\nsection.\n (b) Specified third-party payors which, in the course of an audit\npursuant to this section fail to produce data or documentation requested\nin furtherance of such an audit, within thirty days of such request, may\nbe assessed a civil penalty of up to ten thousand dollars for each such\nfailure, provided, however, that such civil penalty shall not be imposed\nif such specified third-party payor demonstrates good cause for such\nfailure. The imposition of civil penalties pursuant to this section\nshall be subject to the provisions of section twelve-a of this chapter.\n (c) Records required to be retained for audit verification purposes by\nspecified third-party payors in accordance with this section shall\ninclude, but not be limited to, on a monthly basis, the source records\ngenerated by supporting information systems, financial accounting\nrecords, relevant correspondence and the addresses and dates of coverage\nfor all individuals and family units, as defined by paragraphs (a) and\n(b) of subdivision one of this section, and such other records as may be\nrequired to prove compliance with, and to support reports submitted in\naccordance with, this section.\n (d) If a specified third-party payor fails to produce data or\ndocumentation requested in furtherance of an audit pursuant to this\nsection for a month to which an assessment applies, the commissioner may\nestimate, based on available financial and statistical data as\ndetermined by the commissioner, the amount due for such month. If the\nimpact of the enrollment exemptions permitted pursuant to this section\ncannot be determined from such available financial and statistical data,\nthe estimated amount due may be calculated on the basis of aggregate\ndata derived from such available data for the year subject to audit. The\ncommissioner shall take all necessary steps to collect amounts due as\ndetermined pursuant to this paragraph, including directing the state\ncomptroller to offset such amounts due from any payments made by the\nstate to the third party payor pursuant to this article. Interest and\npenalties shall be applied to such amounts due in accordance with the\nprovisions of subdivision eight of section twenty-eight hundred seven-j\nof this article.\n (e) The commissioner may, as part of a final resolution of an audit\nconducted pursuant to this subdivision, waive payment of interest and\npenalties otherwise applicable pursuant to subdivision eight of section\ntwenty-eight hundred seven-j of this article, when amounts due as a\nresult of such audit, other than such waived penalties and interest, are\npaid in full to the commissioner or the commissioner's designee within\nsixty days of the issuance of a final audit report that is mutually\nagreed to by the commissioner and auditee, provided, however, that if\nsuch final audit report is not so mutually agreed upon, then neither the\ncommissioner nor the auditee shall have any obligations pursuant to this\nparagraph.\n (f) The commissioner may enter into agreements with specified\nthird-party payors in regard to which audit findings or prior\nsettlements have been made pursuant to this section, extending and\napplying such audit findings or prior settlements, or a portion thereof,\nin settlement and satisfaction of potential audit liabilities for\nsubsequent un-audited periods. The commissioner may reduce or waive\npayment of interest and penalties otherwise applicable to such\nsubsequent unaudited periods when such amounts due as a result of such\nagreement, other than reduced or waived interest and penalties, are paid\nin full to the commissioner or the commissioner's designee within sixty\ndays of execution of such agreement by all parties to the agreement. Any\npayments made pursuant to agreements entered into in accordance with\nthis paragraph shall be deemed to be in full satisfaction of any\nliability arising under this section, as referenced in such agreements\nand for the time periods covered by such agreements, provided, however,\nthat the commissioner may audit future retroactive adjustments to\npayments made for such periods based on reports filed by payors\nsubsequent to such agreements.\n * NB Expires December 31, 2026\n