§ 367-I — Personal care services provider assessments

§ 367-i. Personal care services provider assessments. 1. Providers of\npersonal care services, excepting those certified under article\nthirty-six of the public health law, are charged assessments on their\ngross receipts received from all personal care services and other\noperating income on a cash basis in the percentage amounts and for the\nperiods specified in subdivision two of this section. Such assessments\nshall be submitted by or on behalf of such personal care services\nproviders to the commissioner of health or his/her designee.\n 2. (a) The assessment shall be six-tenths of one percent of each such\nprovider's gross receipts received from all personal care services and\nother operating income on a cash basis beginning January first, nineteen\nhundred ninety-one; provided, however, that for all such gross receipts\nreceived on or after April first, nineteen hundred ninety-nine, such\nassessment shall be two-tenths of one percent, and further provided that\nsuch assessment shall expire and be of no further effect for all such\ngross receipts received on or after January 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 provider's gross\nreceipts from all personal care services and other operating income on a\ncash basis for periods on and after April first, two thousand nine.\n 3. Gross receipts received from all personal care services and other\noperating income for purposes of the assessments pursuant to this\nsection shall include, but not be limited to, all monies received for or\non account of personal care services, provided, however, that subject to\nthe provisions of subdivision eleven of this section income received\nfrom grants, charitable contributions, donations and bequests and\ngovernmental deficit financing shall not be included, and provided\nfurther, however, that moneys received from a certified home health\nagency or a provider of a long term home health care program assessed on\nsuch moneys pursuant to section thirty-six hundred fourteen-a of the\npublic health law shall not be included.\n 4. Estimated payments by or on behalf of such personal care services\nproviders to the commissioner of health or his/her designee of funds due\nfrom the assessments pursuant to subdivision two of this section shall\nbe made on a monthly basis. Estimated payments shall be due on or before\nthe fifteenth day following the end of a calendar month to which an\nassessment applies.\n 5. (a) If an estimated payment made for a month to which an assessment\napplies is less than seventy percent of an amount the commissioner of\nhealth determines is due, based on evidence of prior period moneys\nreceived by a personal care services provider or evidence of moneys\nreceived by such personal care services provider for that month, the\ncommissioner of health may estimate the amount due from such personal\ncare services provider and may collect the deficiency pursuant to\nparagraph (c) of this subdivision.\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 of\nhealth determines is due, based on evidence of prior period moneys\nreceived by a personal care services provider or evidence of moneys\nreceived by such personal care services provider for that month, and at\nleast two previous estimated payments within the preceding six months\nwere less than ninety percent of the amount due, based on similar\nevidence, the commissioner of health may estimate the amount due from\nsuch personal care services provider and may collect the deficiency\npursuant to paragraph (c) of this subdivision.\n (c) Upon receipt of notification from the commissioner of health of a\nprovider's deficiency under this section, the comptroller or a fiscal\nintermediary designated by the director of the budget, or the\ncommissioner of social services, or a corporation organized and\noperating in accordance with article forty-three of the insurance law,\nor an organization operating in accordance with article forty-four of\nthe public health law shall withhold from the amount of any payment to\nbe made by the state or by such article forty-three corporation or\narticle forty-four organization to the provider the amount of the\ndeficiency determined under paragraph (a) or (b) of this subdivision or\nparagraph (e) of subdivision six of this section. Upon withholding such\namount, the comptroller or a designated fiscal intermediary, or the\ncommissioner of social services, or corporation organized and operating\nin accordance with article forty-three of the insurance law or\norganization operating in accordance with article forty-four of the\npublic health law shall pay the commissioner of health, or his designee,\nsuch amount withheld on behalf of the provider.\n (d) The commissioner of health shall provide a provider with notice of\nany estimate of an amount due for an assessment pursuant to paragraph\n(a) or (b) of this subdivision or paragraph (e) of subdivision six of\nthis section at least three days prior to collection of such amount by\nthe commissioner of health. Such notice shall contain the financial\nbasis for the commissioner of health's estimate.\n (e) In the event a provider objects to an estimate by the commissioner\nof health pursuant to paragraph (a) or (b) of this subdivision or\nparagraph (e) of subdivision six of this section of the amount due for\nan assessment, the provider, within sixty days of notice of an amount\ndue, may request a public hearing. If a hearing is requested, the\ncommissioner of health shall provide the provider an opportunity to be\nheard and to present evidence bearing on the amount due for an\nassessment within thirty days after collection of an amount due or\nreceipt of a request for a hearing, whichever is later. An\nadministrative hearing is not a prerequisite to seeking judicial relief.\n (f) The commissioner of health may direct that a hearing be held\nwithout any request by a personal care services provider.\n 6. (a) Every personal care services provider shall submit reports on a\ncash basis of actual gross receipts received from all patient care\nservices and operating income 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 personal care services provider shall submit a certified\nannual report on a cash basis of gross receipts received in such\ncalendar year from all patient care services and operating income.\n (c) The reports shall be in such form as may be prescribed by the\ncommissioner of health to accurately disclose information required to\nimplement this section.\n (d) Final payments shall be due for all personal care services\nproviders for the assessments pursuant to subdivision two of this\nsection upon the due date for submission of the applicable quarterly\nreport.\n (e) The commissioner of health may recoup deficiencies in final\npayments pursuant to paragraph (c) of subdivision five of this section.\n 7. (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 of health\non the difference between the amount paid and the amount due from the\nday of the month the estimated payment was due until the date of\npayment. The rate of interest shall be twelve percent per annum or at\nthe rate of interest set by the commissioner of taxation and finance\nwith respect to underpayments of tax pursuant to subsection (e) of\nsection one thousand ninety-six of the tax law minus four percentage\npoints. Interest under this paragraph shall not be paid if the amount\nthereof is less than one dollar. Interest, if not paid by the due date\nof the following month's estimated payment, may be collected by the\ncommissioner of health pursuant to paragraph (c) of subdivision five of\nthis section in the same manner as an assessment pursuant to subdivision\ntwo 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 health\nof five percent of the difference between the amount paid and the amount\ndue for 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 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 of health pursuant to\nparagraph (c) of subdivision five of this section in the same manner as\nan assessment pursuant to subdivision two of this section.\n (c) Overpayment by a personal care services provider of an estimated\npayment shall be applied to any other payment due from the personal care\nservices provider pursuant to this section, or, if no payment is due, at\nthe election of the personal care services provider shall be applied to\nfuture estimated payments or refunded to the personal care services\nprovider. Interest shall be paid on overpayments from the date of\noverpayment to the date of crediting or refund at the rate determined in\naccordance with paragraph (a) of this subdivision if the overpayment was\nmade at the direction of the commissioner of health. Interest under this\nparagraph shall not be paid if the amount thereof is less than one\ndollar.\n 8. Funds accumulated, including income from invested funds, from the\nassessments specified in this section, including interest and penalties,\nshall be deposited by the commissioner of health and credited to the\ngeneral fund.\n 9. 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 pursuant to\nthis article.\n 10. The assessment shall not be collected in excess of twelve million\ndollars from such providers for the period of January first, nineteen\nhundred ninety-one through March thirty-first, nineteen hundred\nninety-two. The amount of the assessment collected pursuant to\nsubdivision two of this section in excess of twelve million dollars\nshall be refunded to providers by the commissioner of health based on\nthe ratio which a provider's assessment for such period bears to the\ntotal of the assessments for such period paid by such providers.\n 11. 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 of health shall collect the assessments\nrelying on such exclusions, pending any contrary action by the secretary\nof the department of health and human services. In the event the\nsecretary of the department of health and human services determines that\nthe assessments 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 of health shall\ncollect any retroactive amount due as a result, without interest or\npenalty provided the personal care services provider pays the\nretroactive amount due within ninety days of notice from the\ncommissioner of health to the provider that an exclusion is null and\nvoid. Interest and penalties shall be measured from the due date of\nninety days following notice from the commissioner of health to the\nprovider.\n