43.04 - Provider of services assessments.

§ 43.04 Provider of services assessments.    1.  For  purposes of this section, provider of services shall refer to  (i) those providers as defined by subdivision five of  section  1.03  of  this   chapter  which  are  licensed  by  the  office  for  people  with  developmental disabilities pursuant to article sixteen of  this  chapter  as  intermediate  care  facilities  for  individuals  with developmental  disabilities,  providers  of  day  treatment   services   or   specialty  hospitals,  except  that  on  and after December first, nineteen hundred  ninety-seven,  provider  of  services  shall   not   include   specialty  hospitals, and (ii), for purposes of paragraph (c) of subdivision two of  this  section  only,  the term provider of services, shall mean, and for  purposes of this subdivision shall include, the office for  people  with  developmental   disabilities   as  the  operator  of  intermediate  care  facilities for individuals with developmental disabilities. Providers of  services are charged assessments on their gross receipts  received  from  services and care related to intermediate care facilities, day treatment  services,  or  specialty  hospitals  until  November thirtieth, nineteen  hundred ninety-seven, for individuals  with  developmental  disabilities  and  other operating income, less personal needs allowances and refunds,  on a cash basis in the percentage amounts and for the periods  specified  in  subdivision two of this section. Such assessments shall be submitted  by or on behalf of such providers of services to the commissioner of the  office  for  people  with  developmental  disabilities  or  his  or  her  designee.    2. (a) (i) For each provider of services in the categories of services  set  forth  in subdivision one of this section located in Regions II and  III, as defined in the methodology  established  pursuant  to  paragraph  (ii) of subdivision (c) of section 43.02 of this article, the assessment  shall  be  six-tenths  of one percent of each such provider of services'  gross receipts received for all services rendered  within  such  service  categories  on  a  cash  basis beginning January first, nineteen hundred  ninety-one.    (ii) For each provider of services in the categories of  services  set  forth  in subdivision one of this section, excluding, on and after April  first,  nineteen  hundred  ninety-four,  providers  of   day   treatment  services,  located  in Regions II and III, as defined in the methodology  established pursuant to paragraph (ii) of  subdivision  (c)  of  section  43.02  of  this  article,  an  additional  assessment  shall  be two and  four-tenths percent of each such provider of  services'  gross  receipts  received  for  all services rendered within such service categories on a  cash basis beginning April first, nineteen hundred ninety-two; provided,  however, such  additional  assessment  shall  be  five  and  four-tenths  percent  of  each such provider of services' gross receipts received for  all services rendered within such service categories  on  a  cash  basis  beginning  April  first,  nineteen  hundred  ninety-six and ending March  thirty-first, nineteen hundred ninety-seven.    (iii) For each provider of services in the categories of services  set  forth  in subdivision one of this section, excluding, on and after April  first,  nineteen  hundred  ninety-four,  providers  of   day   treatment  services,  located  in Regions II and III, as defined in the methodology  established pursuant to paragraph (ii) of  subdivision  (c)  of  section  43.02  of  this  article,  notwithstanding  any  other provision of this  paragraph, the total assessment  shall  be  six  percent  of  each  such  provider's  gross  receipts  received  on  a cash basis for all services  rendered, beginning April first, nineteen hundred ninety-seven, and five  and five-tenths percent of each such provider's gross receipts  received  on  a cash basis for all services rendered, beginning January first, two  thousand eight.(b) (i) For each provider of services in the  categories  of  services  set  forth  in  subdivision  one of this section located in Region I, as  defined in the methodology established pursuant  to  paragraph  (ii)  of  subdivision  (c)  of section 43.02 of this article, the assessment shall  be  six-tenths  of  one percent of each such provider of services' gross  receipts  received  for  all  services  rendered  within  such   service  categories  on  a  cash  basis  beginning  July  first, nineteen hundred  ninety-one.    (ii) For each provider of services in the categories of  services  set  forth  in subdivision one of this section, excluding, on and after April  first,  nineteen  hundred  ninety-four,  providers  of   day   treatment  services, located in Region I, as defined in the methodology established  pursuant  to  paragraph (ii) of subdivision (c) of section 43.02 of this  article, an additional assessment shall be two and  four-tenths  percent  of  each  such  provider  of  services'  gross receipts received for all  services rendered  within  such  service  categories  on  a  cash  basis  beginning  April  first, nineteen hundred ninety-two; provided, however,  such additional assessment shall be five and four-tenths percent of each  such provider of services' gross  receipts  received  for  all  services  rendered  within such service categories on a cash basis beginning April  first,  nineteen  hundred  ninety-six  and  ending  March  thirty-first,  nineteen hundred ninety-seven.    (iii)  For each provider of services in the categories of services set  forth in subdivision one of this section, excluding, on and after  April  first,   nineteen   hundred  ninety-four,  providers  of  day  treatment  services, located in Region I, as defined in the methodology established  pursuant to paragraph (ii) of subdivision (c) of section 43.02  of  this  article,  notwithstanding  any  other  provision  of this paragraph, the  total assessment shall be six percent  of  each  such  provider's  gross  receipts  received  on a cash basis for all services rendered, beginning  April first, nineteen hundred ninety-seven,  and  five  and  five-tenths  percent  of each such provider's gross receipts received on a cash basis  for all services rendered, beginning January first, two thousand eight.    (c) (i) For the provider of services as set forth in  clause  (ii)  of  subdivision  one  of  this  section in the category of intermediate care  facilities for individuals with developmental disabilities  operated  by  the  office  for  people with developmental disabilities, the assessment  shall be six-tenths of one percent of the gross  receipts  received  for  all  services  rendered  within  such  service  category on a cash basis  beginning April first, nineteen hundred  ninety-five  and  ending  March  thirty-first, two thousand one.    (ii)  For  the  provider  of  services  as set forth in clause (ii) of  subdivision one of this section in the  category  of  intermediate  care  facilities  for  individuals with developmental disabilities operated by  the office for people with  developmental  disabilities,  an  additional  assessment  shall  be  two and four-tenths percent of the gross receipts  for all services rendered within such service category on a  cash  basis  beginning  April first, nineteen hundred ninety-five; provided, however,  such additional assessment shall be five and four-tenths percent of  the  gross  receipts  received  for all services rendered within such service  category on  a  cash  basis  beginning  April  first,  nineteen  hundred  ninety-six and ending March thirty-first, two thousand one.    (iii)  For  each  provider  of services as set forth in clause (ii) of  subdivision one of this section in the  category  of  intermediate  care  facilities  for  individuals with developmental disabilities operated by  the office for people with developmental  disabilities,  notwithstanding  any other provision of this paragraph, the total assessment shall be six  percent  of  the  provider's gross receipts received on a cash basis forall services rendered, beginning April first, two thousand one, and five  and five-tenths percent of the provider's gross receipts received  on  a  cash  basis  for  all  services  rendered,  beginning January first, two  thousand eight.    (d)  Notwithstanding  any other provisions of law to the contrary, for  each provider of day treatment services, the  assessment  on  each  such  provider's  gross  receipts  for  all  services rendered on a cash basis  shall be as follows: (i) for all such  gross  receipts  received  on  or  after  April  first, nineteen hundred ninety-nine, such assessment shall  be two-tenths of one percent; (ii) for all gross receipts received on or  after April first, two thousand, such assessment shall expire and be  of  no further effect.    3.  The  commissioner  is  authorized  to  contract  with  the article  forty-three insurance law plans, or such  other  administrators  as  the  commissioner  shall  designate,  to  receive  and distribute provider of  services assessment funds. In  the  event  contracts  with  the  article  forty-three  insurance  law  plans or other commissioner's designees are  effectuated, the commissioner shall conduct annual audits of the receipt  and distribution of  the  assessment  funds.  The  reasonable  cost  and  expenses  of such administrators as approved by the commissioner, not to  exceed for personnel services on an annual basis  one  hundred  thousand  dollars  for all assessments established pursuant to this section, shall  be paid from the assessment funds.    4. Gross receipts received  from  all  services  rendered  within  the  service  categories  set  forth in subdivision one of this section shall  include, without limitation, all monies  received  on  account  of  such  services pursuant to rates of reimbursement established by the office of  mental retardation and developmental disabilities and paid by the state,  and  shall  not include, subject to the provisions of subdivision twelve  of this section, charitable contributions, grants,  donations,  bequests  and   income  from  non-service  related  fund  raising  activities  and  governmental deficit financing.    5. Estimated payments by or on behalf of providers of services to  the  commissioner  of  the  office  of  mental  retardation and developmental  disabilities of funds due from the assessments pursuant  to  subdivision  two of this section shall be made on a monthly basis. Estimated payments  shall  be  due  on  or  before  the fifteenth day following the end of a  calendar month to which an assessment applies.    6. (a) If an estimated payment made for a month to which an assessment  applies is less than seventy percent of an amount  the  commissioner  of  the   office   of  mental  retardation  and  developmental  disabilities  determines is due, based on evidence of prior period moneys received  by  a  provider  of services or evidence of moneys received by such provider  of services for that month, such commissioner may  estimate  the  amount  due  from  such  provider  of  services  and  may collect the deficiency  pursuant to paragraph (c) of this subdivision.    (b) If an estimated payment made for a month to  which  an  assessment  applies is less than ninety percent of an amount the commissioner of the  office  of  mental retardation and developmental disabilities determines  is due, based on evidence of prior period moneys received by a  provider  of  service  or evidence of monies received by such provider of services  for that month, and at least two previous estimated payments within  the  preceding  six  months  were less than ninety percent of the amount due,  based on similar evidence, such commissioner may estimate the amount due  from such provider of services and may collect the  deficiency  pursuant  to paragraph (c) of this subdivision.    (c)  Upon  receipt of notification from the commissioner of the office  of mental retardation and developmental disabilities of  a  provider  ofservice's  delinquency  under  this section, the comptroller or a fiscal  intermediary  designated  by  the  director  of  the  budget,   or   the  commissioner  of  social services, shall withhold from the amount of any  payment  to be made by the state to a provider of services the amount of  the deficiency determined under paragraph (a) or (b) of this subdivision  or paragraph (d) of subdivision seven of this section. Upon  withholding  such amount, the comptroller or a designated fiscal intermediary, or the  commissioner  of  social  services,  shall  pay  the commissioner of the  office of mental retardation  and  developmental  disabilities,  or  his  designee, such amount withheld on behalf of the provider of services.    (d)   The  commissioner  of  the  office  of  mental  retardation  and  developmental disabilities shall provide a  provider  of  services  with  notice  of  any  estimate of an amount due for an assessment pursuant to  paragraph (a) or (b) of this subdivision or paragraph (d) of subdivision  seven of this section at least three days prior to  collection  of  such  amount  by  such  commissioner.  Such notice shall contain the financial  basis for such commissioner's estimate.    (e) In the event a provider of services objects to an estimate by  the  commissioner  of  the  office  of  mental  retardation and developmental  disabilities pursuant to paragraph (a) or (b)  of  this  subdivision  or  paragraph (d) of subdivision seven of this section of the amount due for  an  assessment, the provider of services, within sixty days of notice of  an amount due, may request a hearing. If a hearing  is  requested,  such  commissioner shall provide the provider of services an opportunity to be  heard  and  to  present  evidence  bearing  on  the  amount  due  for an  assessment within thirty days after  collection  of  an  amount  due  or  receipt   of   a   request   for  a  hearing,  whichever  is  later.  An  administrative hearing is not a prerequisite to seeking judicial relief.    (f)  The  commissioner  of  the  office  of  mental  retardation   and  developmental disabilities may direct that a hearing be held without any  request by a provider of services.    7. (a) Every provider of services shall submit reports on a cash basis  of  actual gross receipts received from all services rendered within the  services categories set forth in subdivision  one  of  this  section  to  persons  with  developmental  disabilities and operating income for each  month as follows:    (i) for the period January first, nineteen hundred ninety-one  through  January  thirtieth,  nineteen  hundred  ninety-one,  the report shall be  filed on or before March fifteenth, nineteen hundred ninety-one.    (ii) for the period January first, nineteen hundred ninety-one through  March  thirty-first,  nineteen  hundred  ninety-one  and  each   quarter  thereafter,  the  report shall be filed on or before the forty-fifth day  after the end of the quarter.    (b) Every provider of services shall submit a certified annual  report  on  a  cash  basis of gross receipts received in such calendar year from  all services to persons with developmental  disabilities  and  operating  income.  The  reports  shall be in such form as may be prescribed by the  commissioner of the  office  of  mental  retardation  and  developmental  disabilities  to  accurately  disclose information required to implement  this section.    (c) Final payments shall be due for all providers of services for  the  assessments  pursuant  to  subdivision  two of this section upon the due  date for submission of the applicable quarterly report.    (d)  The  commissioner  of  the  office  of  mental  retardation   and  developmental  disabilities  may  recoup  deficiencies in final payments  pursuant to paragraph (c) of subdivision six of this section.    8. (a) If an estimated payment made for a month to which an assessment  applies is less than ninety percent of the actual amount  due  for  suchmonth,  interest  shall  be  due  and payable to the commissioner of the  office of mental  retardation  and  developmental  disabilities  on  the  difference  between  the  amount paid and the amount due from the day of  the  month  the estimated payment was due until the date of payment. The  rate of interest shall be twelve percent per annum or  at  the  rate  of  interest set by the commissioner of taxation and finance with respect to  underpayments  of tax pursuant to subsection (e) of section one thousand  ninety-six of the tax law minus four percentage points.  Interest  under  this  paragraph shall not be paid if the amount thereof is less than one  dollar. Interest, if not paid by the due date of the  following  month's  estimated payment, may be collected by the commissioner of the office of  mental  retardation and developmental disabilities pursuant to paragraph  (c) of subdivision six  of  this  section  in  the  same  manner  as  an  assessment pursuant to subdivision two of this section.    (b)  If  an  estimated payment made for a month to which an assessment  applies is less than seventy percent of the actual amount due  for  such  month,  a  penalty  shall  be due and payable to the commissioner of the  office of mental retardation  and  developmental  disabilities  of  five  percent of the difference between the amount paid and the amount due for  such  month  when  the failure to pay is for a duration of not more than  one month after the due date of the  payment  with  an  additional  five  percent  for each additional month or fraction thereof during which such  failure continues, not exceeding twenty-five percent in the aggregate. A  penalty may be collected by such commissioner pursuant to paragraph  (c)  of  subdivision  six of this section in the same manner as an assessment  pursuant to subdivision two of this section.    (c) Overpayment by a provider of  services  of  an  estimated  payment  shall  be applied to any other payment due from the provider of services  pursuant to this section, or, if no payment is due, at the  election  of  the  provider  of services shall be applied to future estimated payments  or refunded to the provider of  services.  Interest  shall  be  paid  on  overpayments  from  the  date of overpayment to the date of crediting or  refund at the rate determined in accordance with paragraph (a)  of  this  subdivision  if  the  overpayment  was  made  at  the  direction  of the  commissioner. Interest under this paragraph shall not  be  paid  if  the  amount thereof is less than one dollar.    9.  Funds  accumulated, including income from invested funds, from the  assessments specified in this section, including interest and penalties,  shall  be  deposited  by  the  commissioner  of  the  office  of  mental  retardation  and  developmental disabilities and credited to the general  fund.    10. Notwithstanding any inconsistent provision of law or regulation to  the contrary:    (a) the assessments pursuant to this section shall not be an allowable  cost in the  determination  of  reimbursement  rates  pursuant  to  this  article:    (b)  provided,  however,  that  for  purposes  of determining rates of  payment  pursuant  to  this  article  for  providers,   the   additional  assessment  imposed  pursuant  to the provisions of subparagraph (ii) of  paragraph (a), subparagraph (ii) of paragraph (b) and subparagraph  (ii)  of  paragraph  (c)  of  subdivision  two  of  this  section  shall  be a  reimbursable cost to be reflected as timely as practicable in  rates  of  payment   applicable  within  the  assessment  period,  contingent,  for  payments by governmental agencies, on all federal approvals necessary by  federal law  and  regulation  for  federal  financial  participation  in  payments  made  for  beneficiaries eligible for medical assistance under  title XIX of the federal social security act.(c) provided, however, that  for  purposes  of  determining  rates  of  payment  pursuant  to  this  article  for providers, three-tenths of one  percent of the assessment imposed pursuant to this section on the  gross  receipts  of  intermediate  care  facilities  received on or after April  first,  nineteen  hundred ninety-nine shall be a reimbursable cost to be  reflected as timely as practicable in rates of payment applicable within  the  assessment  period,  contingent,  for  payments   by   governmental  agencies,  on  all  federal  approvals  necessary  by  federal  law  and  regulation for federal financial  participation  in  payments  made  for  beneficiaries  eligible  for  medical  assistance under title XIX of the  federal social security act.    (d) provided, however, that  for  purposes  of  determining  rates  of  payment  pursuant  to this article for providers, the assessment imposed  pursuant to this section on the  gross  receipts  of  intermediate  care  facilities  received  on  or  after April first, two thousand shall be a  reimbursable cost to be reflected as timely as practicable in  rates  of  payment   applicable  within  the  assessment  period,  contingent,  for  payments by governmental agencies, on all federal approvals necessary by  federal law  and  regulation  for  federal  financial  participation  in  payments  made  for  beneficiaries eligible for medical assistance under  title XIX of the federal social security act.    11.    (b) The assessment shall not be collected in excess of six million two  hundred  thousand  dollars  from  providers  of  services  specified  in  subdivision  two of this section for the period of April first, nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen   hundred  ninety-eight.  The  amount  of  the  assessment  collected  pursuant  to  subdivision two of this section in excess of  six  million  two  hundred  thousand  dollars  for  the  period  of  April  first,  nineteen hundred  ninety-seven through March thirty-first, nineteen  hundred  ninety-eight  shall  be  refunded  to providers of services by the commissioner of the  office of mental retardation and developmental disabilities based on the  ratio which a provider of services' assessment for such period bears  to  the  total  of the assessments for such period paid by such providers of  services.    (c) The additional assessment shall not  be  collected  in  excess  of  thirty-six  million  one  hundred  thousand  dollars  from  providers of  services specified in subdivision two of this section for the period  of  April  first,  nineteen hundred ninety-seven through March thirty-first,  nineteen hundred ninety-eight. The amount of the  additional  assessment  collected  pursuant  to  subdivision  two  of  this section in excess of  thirty-six million one hundred thousand dollars for the period of  April  first,   nineteen   hundred  ninety-seven  through  March  thirty-first,  nineteen hundred ninety-eight shall be refunded to providers of services  by  the  commissioner  of  the  office   of   mental   retardation   and  developmental  disabilities  based  on  the  ratio  which  a provider of  services' additional assessment for such period bears to  the  total  of  the  additional  assessments  for  such period paid by such providers of  services.    12. Each exclusion of sources of  gross  receipts  received  from  the  assessments   effective  on  or  after  April  first,  nineteen  hundred  ninety-two established pursuant to this section shall be contingent upon  either: (a) qualification of the  assessments  for  waiver  pursuant  to  federal  law  and  regulation;  or  (b)  consistent with federal law and  regulation, not requiring a waiver by the secretary of the department of  health and human services related to such exclusion; in  order  for  the  assessments  under  this section to be qualified as a broad-based health  care related tax for purposes of the  revenues  received  by  the  statepursuant  to  the  assessments  not  reducing the amount expended by the  state  as  medical  assistance  for  purposes   of   federal   financial  participation.  The commissioner of the office of mental retardation and  developmental disabilities shall collect the assessments relying on such  exclusions,  pending  any  contrary  action  by  the  secretary  of  the  department of health and human services. In the event the  secretary  of  the  department  of  health  and  human  services  determines  that  the  assessments do not so qualify based on  any  such  exclusion,  then  the  exclusion  shall be deemed to have been null and void as of April first,  nineteen hundred ninety-two, and  the  commissioner  of  the  office  of  mental  retardation  and  developmental  disabilities  shall collect any  retroactive amount due as a result, without interest or penalty provided  the provider of services pays the retroactive amount due  within  ninety  days of notice from the commissioner of the office of mental retardation  and  developmental  disabilities  to  the  provider  of services that an  exclusion is null and void. Interest and  penalties  shall  be  measured  from  the due date of ninety days following notice from the commissioner  of the office of mental retardation and  developmental  disabilities  to  the provider of services.