§ 3614-B — Licensed home care services agencies assessments

§ 3614-b. Licensed home care services agencies assessments. 1.\nLicensed home care services agencies are charged assessments, subject to\nthe provisions of subdivision thirteen of this section, on their gross\nreceipts received from all patient care services and other operating\nincome on a cash basis in the percentage amounts and for the periods\nspecified in subdivision two of this section. Such assessments shall be\nsubmitted by or on behalf of licensed home care services agencies to the\ncommissioner or his designee.\n 2. (a) The assessment shall be six-tenths of one percent of such\nlicensed home care services agency's gross receipts received from all\npatient care services and other operating income on a cash basis\nbeginning April first, nineteen hundred ninety-two; provided, however,\nthat for all such gross receipts received on or after April first,\nnineteen hundred ninety-nine, such assessment shall be two-tenths of one\npercent, and further provided that such assessment shall expire and be\nof no further effect for all such gross receipts received on or after\nJanuary first, two thousand.\n (b) Notwithstanding any contrary provisions of this section or any\nother contrary provision of law or regulation, the assessment shall be\nthirty-five hundredths of one percent of each such licensed home care\nservices agency's gross receipts received from all personal care\nservices and other operating income on a cash basis for periods on and\nafter April first, two thousand nine.\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, all moneys received for or on\naccount of home care services provided pursuant to a license issued by\nthe commissioner in accordance with the provisions of section thirty-six\nhundred five of this article, provided, however, subject to the\nprovisions of subdivision twelve of this section that income received\nfrom grants, charitable contributions, donations and bequests and\ngovernmental deficit financing shall not be included, and further, that\nmoneys received on which an assessment is paid by a hospital pursuant to\nsection twenty-eight hundred seven-d of this chapter, home care provider\npursuant to section thirty-six hundred fourteen-a of this article,\npersonal care services provider pursuant to section three hundred\nsixty-seven-i of the social services law or provider of services\npursuant to section 43.04 or 43.06 of the mental hygiene law shall not\nbe included.\n 4. The commissioner is authorized to contract with the article\nforty-three insurance law plans, or if not available such other\nadministrators as the commissioner shall designate, to receive and\ndistribute licensed home care services agency assessment funds. In the\nevent contracts with the article forty-three insurance law plans or\nother commissioner's designees are effectuated, the commissioner shall\nconduct annual audits of the receipt and distribution of the assessment\nfunds. The reasonable costs and expenses of an administrator as approved\nby the commissioner, not to exceed for personnel services on an annual\nbasis two hundred thousand dollars for all assessments established\npursuant to this section, shall be paid from the assessment funds.\n 5. Estimated payments by or on behalf of licensed home care services\nagencies to the commissioner or his or her designee of funds due from\nthe assessments pursuant to subdivision two of this section shall be\nmade on a monthly basis. Estimated payments shall be due on or before\nthe fifteenth day following the end of the calendar month to which an\nassessment 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 moneys received by a\nlicensed home care services agency or evidence of moneys received by\nsuch agency for that month, the commissioner may estimate the amount due\nfrom such agency and may collect the deficiency pursuant to paragraph\n(c) of this subdivision.\n (b) If an estimated payment made for the 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 licensed home care services agency or evidence of moneys received by\nsuch agency for that month, and at least two previous estimated payments\nwithin the preceding six months were less than ninety percent of the\namount due, based on similar evidence, the commissioner may estimate the\namount due from such agency and may collect the deficiency pursuant to\nparagraph (c) of this subdivision.\n (c) Upon receipt of notification from the commissioner of a licensed\nhome care services agency's deficiency under this section, the\ncomptroller or a fiscal intermediary designated by the director of the\nbudget, or the commissioner of social services, or a corporation\norganized and operating in accordance with article forty-three of the\ninsurance law or article forty-four of this chapter shall withhold from\nthe amount of any payment to be made by the state or by such article\nforty-three corporation or article forty-four organization to the agency\nthe amount of the deficiency determined under paragraph (a) or (b) of\nthis subdivision or paragraph (e) of subdivision seven of this section.\nUpon withholding such amount, the comptroller or a designated fiscal\nintermediary, or the commissioner of social services, or corporation\norganized and operating in accordance with article forty-three of the\ninsurance law or article forty-four of this chapter shall pay the\ncommissioner, or his designee, such amount withheld on behalf of the\nlicensed home care services agency.\n (d) The commissioner shall provide a licensed home care services\nagency with notice of any estimate of an amount due for an assessment\npursuant to paragraph (a) or (b) of this subdivision or paragraph (e) of\nsubdivision seven of this section at least three days prior to\ncollection of such amount by the commissioner. Such notice shall contain\nthe financial basis for the commissioner's estimate.\n (e) In the event a licensed home care services agency objects to an\nestimate by the commissioner pursuant to paragraph (a) or (b) of this\nsubdivision or paragraph (e) of subdivision seven of this section of the\namount due for an assessment, the agency, within sixty days of notice of\nan amount due, may request a public hearing. If a hearing is requested,\nthe commissioner shall provide the licensed home care services agency\nwith an opportunity to be heard and to present evidence bearing on the\namount due for an assessment within thirty days after collection of an\namount due or receipt of a request for a hearing, whichever is later. An\nadministrative hearing is not a prerequisite to seeking judicial relief.\n (f) The commissioner may direct that a hearing be held without any\nrequest by an agency.\n 7. (a) Every licensed home care services agency shall submit reports\non a cash basis of actual gross receipts received from all patient care\nservices and other operating income for each month as follows: for the\nquarter year ending June thirtieth, nineteen hundred ninety-two and for\neach quarter thereafter, the report shall be filed on or before the\nforty-fifth day after the end of such period.\n (b) Every licensed home care services agency shall submit a certified\nannual report on a cash basis of gross receipts received in such\ncalendar year from all patient care services and other 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.\n (d) Final payments shall be due for all licensed home care services\nagencies for the assessments pursuant to subdivision two of this section\nupon the due date for submission 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.\n 8. (a) If an estimated payment made for a month to which 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 the payment.\nThe rate 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\nunderpayment 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 for such 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 for\nsuch month when the failure to pay is for a duration of not more than\none month after the due date of the payment with an additional five\npercent for each additional month or fraction thereof during which such\nfailure continues, not exceeding twenty-five percent in the aggregate. A\npenalty may be collected by the commissioner pursuant to paragraph (c)\nof subdivision six of this section in the same manner as an assessment\npursuant to subdivision two of this section.\n (c) Overpayment by a licensed home care services agency of an\nestimated payment shall be applied to any other payment due from the\nagency pursuant to this section, or, if no payment is due, at the\nelection of the agency shall be applied to future estimated payments or\nrefunded to the agency. Interest shall be paid on overpayments from the\ndate of overpayment to the date of crediting or refund at the rate\ndetermined in accordance with paragraph (a) of this subdivision if the\noverpayment was made at the direction of the commissioner. Interest\nunder this paragraph shall not be paid if the amount thereof is less\nthan 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 credited to the general fund.\n 10. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, the assessments pursuant to this section shall not be an\nallowable cost in the determination of reimbursement rates or fees\npursuant to this chapter or the social services law.\n 11. The aggregate limit on the assessment for certified home health\nagencies, long term home health care programs, licensed home care\nservices agencies and personal care services providers established\npursuant to paragraph (c) of subdivision eleven of section thirty-six\nhundred fourteen-a of this article for the period of April first,\nnineteen hundred ninety-seven through March thirty-first, nineteen\nhundred ninety-eight shall be deemed to reflect the amount of one\nmillion three hundred thousand dollars for the assessment pursuant to\nsubdivision two of this section for such period. In the event, in\naccordance with subdivision thirteen of this section, the assessments\npursuant to subdivision two of this section are not implemented, such\naggregate limit shall be reduced by one million three hundred thousand\ndollars for the period of April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-eight.\n 12. Each exclusion of sources of gross receipts received from the\nassessments effective on or after April first, nineteen hundred\nninety-two established pursuant to this section shall be contingent upon\neither: (a) qualification of the assessments for waiver pursuant to\nfederal law and regulation; or (b) consistent with federal law and\nregulation, not requiring a waiver by the secretary of the department of\nhealth and human services related to such exclusion; in order for the\nassessments under this section to be qualified as a broad-based health\ncare related tax for purposes of the revenues received by the state\npursuant to the assessments not reducing the amount expended by the\nstate as medical assistance for purposes of federal financial\nparticipation. The commissioner shall collect the assessments relying on\nsuch exclusions, pending any contrary action by the secretary of the\ndepartment of health and human services. In the event that the secretary\nof the department of health and human services determines that the\nassessments do not so qualify based on any such exclusion, then the\nexclusion shall be deemed to have been null and void as of April first,\nnineteen hundred ninety-two, and the commissioner shall collect any\nretroactive amount due as a result, without interest or penalty provided\nthe licensed home care services agency pays the retroactive amount due\nwithin ninety days of notice from the commissioner to the agency that an\nexclusion is null and void. Interest and penalties shall be measured\nfrom the due date of ninety days following notice from the commissioner\nto the agency.\n 13. This section shall be of no force and effect upon either: (a) a\nwaiver is granted pursuant to federal law and regulation; or (b)\nconsistent with federal law and regulation, a waiver is not required by\nthe secretary of the department of health and human services for the\nexclusion of the home care services agencies assessed pursuant to this\nsection from such assessment; in order for the assessments pursuant to\nsection thirty-six hundred fourteen-a of this article and section three\nhundred sixty-seven-i of the social services law to be qualified as a\nbroad-based health care related tax for purposes of the revenues\nreceived by the state pursuant to section thirty-six hundred fourteen-a\nof this article and section three hundred sixty-seven-i of the social\nservices law not reducing the amount expended by the state as medical\nassistance for purposes of federal financial participation. The\ncommissioner shall not collect the assessments under this section,\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 pursuant to\nsection thirty-six hundred fourteen-a of this chapter or section three\nhundred sixty-seven-i of the social services law do not so qualify based\non the exclusion of licensed home care services agencies from\nassessments, then the exclusion shall be deemed to have been null and\nvoid as of April first, nineteen hundred ninety-two, and the\ncommissioner shall collect any retroactive amount due as a result,\nwithout interest or penalty provided the licensed home care services\nagency pays the retroactive amount due within ninety days of notice from\nthe commissioner to the agency that the 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 agency.\n