N.Y. Mental Hyg. Law § 43.04

§ 43.04 Provider of services assessments.\n 1. For purposes of this section, provider of services shall refer to\n(i) those providers as defined by subdivision five of section 1.03 of\nthis chapter which are licensed by the office for people with\ndevelopmental disabilities pursuant to article sixteen of this chapter\nas intermediate care facilities for individuals with developmental\ndisabilities, providers of day treatment services or specialty\nhospitals, except that on and after December first, nineteen hundred\nninety-seven, provider of services shall not include specialty\nhospitals, and (ii), for purposes of paragraph (c) of subdivision two of\nthis section only, the term provider of services, shall mean, and for\npurposes of this subdivision shall include, the office for people with\ndevelopmental disabilities as the operator of intermediate care\nfacilities for individuals with developmental disabilities. Providers of\nservices are charged assessments on their gross receipts received from\nservices and care related to intermediate care facilities, day treatment\nservices, or specialty hospitals until November thirtieth, nineteen\nhundred ninety-seven, for individuals with developmental disabilities\nand other operating income, less personal needs allowances and refunds,\non a cash basis in the percentage amounts and for the periods specified\nin subdivision two of this section. Such assessments shall be submitted\nby or on behalf of such providers of services to the commissioner of the\noffice for people with developmental disabilities or his or her\ndesignee.\n 2. (a) (i) For each provider of services in the categories of services\nset forth in subdivision one of this section located in Regions II and\nIII, as defined in the methodology established pursuant to paragraph\n(ii) of subdivision (c) of section 43.02 of this article, the assessment\nshall be six-tenths of one percent of each such provider of services'\ngross receipts received for all services rendered within such service\ncategories on a cash basis beginning January first, nineteen hundred\nninety-one.\n (ii) For each provider of services in the categories of services set\nforth in subdivision one of this section, excluding, on and after April\nfirst, nineteen hundred ninety-four, providers of day treatment\nservices, located in Regions II and III, as defined in the methodology\nestablished pursuant to paragraph (ii) of subdivision (c) of section\n43.02 of this article, an additional assessment shall be two and\nfour-tenths percent of each such provider of services' gross receipts\nreceived for all services rendered within such service categories on a\ncash basis beginning April first, nineteen hundred ninety-two; provided,\nhowever, such additional assessment shall be five and four-tenths\npercent of each such provider of services' gross receipts received for\nall services rendered within such service categories on a cash basis\nbeginning April first, nineteen hundred ninety-six and ending March\nthirty-first, nineteen hundred ninety-seven.\n (iii) For each provider of services in the categories of services set\nforth in subdivision one of this section, excluding, on and after April\nfirst, nineteen hundred ninety-four, providers of day treatment\nservices, located in Regions II and III, as defined in the methodology\nestablished pursuant to paragraph (ii) of subdivision (c) of section\n43.02 of this article, notwithstanding any other provision of this\nparagraph, the total assessment shall be six percent of each such\nprovider's gross receipts received on a cash basis for all services\nrendered, beginning April first, nineteen hundred ninety-seven, and five\nand five-tenths percent of each such provider's gross receipts received\non a cash basis for all services rendered, beginning January first, two\nthousand eight.\n (b) (i) For each provider of services in the categories of services\nset forth in subdivision one of this section located in Region I, as\ndefined in the methodology established pursuant to paragraph (ii) of\nsubdivision (c) of section 43.02 of this article, the assessment shall\nbe six-tenths of one percent of each such provider of services' gross\nreceipts received for all services rendered within such service\ncategories on a cash basis beginning July first, nineteen hundred\nninety-one.\n (ii) For each provider of services in the categories of services set\nforth in subdivision one of this section, excluding, on and after April\nfirst, nineteen hundred ninety-four, providers of day treatment\nservices, located in Region I, as defined in the methodology established\npursuant to paragraph (ii) of subdivision (c) of section 43.02 of this\narticle, an additional assessment shall be two and four-tenths percent\nof each such provider of services' gross receipts received for all\nservices rendered within such service categories on a cash basis\nbeginning April first, nineteen hundred ninety-two; provided, however,\nsuch additional assessment shall be five and four-tenths percent of each\nsuch provider of services' gross receipts received for all services\nrendered within such service categories on a cash basis beginning April\nfirst, nineteen hundred ninety-six and ending March thirty-first,\nnineteen hundred ninety-seven.\n (iii) For each provider of services in the categories of services set\nforth in subdivision one of this section, excluding, on and after April\nfirst, nineteen hundred ninety-four, providers of day treatment\nservices, located in Region I, as defined in the methodology established\npursuant to paragraph (ii) of subdivision (c) of section 43.02 of this\narticle, notwithstanding any other provision of this paragraph, the\ntotal assessment shall be six percent of each such provider's gross\nreceipts received on a cash basis for all services rendered, beginning\nApril first, nineteen hundred ninety-seven, and five and five-tenths\npercent of each such provider's gross receipts received on a cash basis\nfor all services rendered, beginning January first, two thousand eight.\n (c) (i) For the provider of services as set forth in clause (ii) of\nsubdivision one of this section in the category of intermediate care\nfacilities for individuals with developmental disabilities operated by\nthe office for people with developmental disabilities, the assessment\nshall be six-tenths of one percent of the gross receipts received for\nall services rendered within such service category on a cash basis\nbeginning April first, nineteen hundred ninety-five and ending March\nthirty-first, two thousand one.\n (ii) For the provider of services as set forth in clause (ii) of\nsubdivision one of this section in the category of intermediate care\nfacilities for individuals with developmental disabilities operated by\nthe office for people with developmental disabilities, an additional\nassessment shall be two and four-tenths percent of the gross receipts\nfor all services rendered within such service category on a cash basis\nbeginning April first, nineteen hundred ninety-five; provided, however,\nsuch additional assessment shall be five and four-tenths percent of the\ngross receipts received for all services rendered within such service\ncategory on a cash basis beginning April first, nineteen hundred\nninety-six and ending March thirty-first, two thousand one.\n (iii) For each provider of services as set forth in clause (ii) of\nsubdivision one of this section in the category of intermediate care\nfacilities for individuals with developmental disabilities operated by\nthe office for people with developmental disabilities, notwithstanding\nany other provision of this paragraph, the total assessment shall be six\npercent of the provider's gross receipts received on a cash basis for\nall services rendered, beginning April first, two thousand one, and five\nand five-tenths percent of the provider's gross receipts received on a\ncash basis for all services rendered, beginning January first, two\nthousand eight.\n (d) Notwithstanding any other provisions of law to the contrary, for\neach provider of day treatment services, the assessment on each such\nprovider's gross receipts for all services rendered on a cash basis\nshall be as follows: (i) for all such gross receipts received on or\nafter April first, nineteen hundred ninety-nine, such assessment shall\nbe two-tenths of one percent; (ii) for all gross receipts received on or\nafter April first, two thousand, such assessment shall expire and be of\nno further effect.\n 3. The commissioner is authorized to contract with the article\nforty-three insurance law plans, or such other administrators as the\ncommissioner shall designate, to receive and distribute provider of\nservices assessment funds. In the event contracts with the article\nforty-three insurance law plans or other commissioner's designees are\neffectuated, the commissioner shall conduct annual audits of the receipt\nand distribution of the assessment funds. The reasonable cost and\nexpenses of such administrators as approved by the commissioner, not to\nexceed for personnel services on an annual basis one hundred thousand\ndollars for all assessments established pursuant to this section, shall\nbe paid from the assessment funds.\n 4. Gross receipts received from all services rendered within the\nservice categories set forth in subdivision one of this section shall\ninclude, without limitation, all monies received on account of such\nservices pursuant to rates of reimbursement established by the office\nfor people with developmental disabilities and paid by the state, and\nshall not include, subject to the provisions of subdivision twelve of\nthis section, charitable contributions, grants, donations, bequests and\nincome from non-service related fund raising activities and governmental\ndeficit financing.\n 5. Estimated payments by or on behalf of providers of services to the\ncommissioner of the office for people with developmental disabilities of\nfunds due from the assessments pursuant to subdivision two of this\nsection shall be made on a monthly basis. Estimated payments shall be\ndue on or before the fifteenth day following the end of a calendar month\nto 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 of\nthe office for people with developmental disabilities determines is due,\nbased on evidence of prior period moneys received by a provider of\nservices or evidence of moneys received by such provider of services for\nthat month, such commissioner may estimate the amount due from such\nprovider of services 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 the\noffice for people with developmental disabilities determines is due,\nbased on evidence of prior period moneys received by a provider of\nservice or evidence of monies received by such provider of services for\nthat month, and at least two previous estimated payments within the\npreceding six months were less than ninety percent of the amount due,\nbased on similar evidence, such commissioner may estimate the amount due\nfrom such provider of services and may collect the deficiency pursuant\nto paragraph (c) of this subdivision.\n (c) Upon receipt of notification from the commissioner of the office\nfor people with developmental disabilities of a provider of service's\ndelinquency under this section, the comptroller or a fiscal intermediary\ndesignated by the director of the budget, or the commissioner of social\nservices, shall withhold from the amount of any payment to be made by\nthe state to a provider of services the amount of the deficiency\ndetermined under paragraph (a) or (b) of this subdivision or paragraph\n(d) of subdivision seven of this section. Upon withholding such amount,\nthe comptroller or a designated fiscal intermediary, or the commissioner\nof social services, shall pay the commissioner of the office for people\nwith developmental disabilities, or his designee, such amount withheld\non behalf of the provider of services.\n (d) The commissioner of the office for people with developmental\ndisabilities shall provide a provider of services with notice of any\nestimate of an amount due for an assessment pursuant to paragraph (a) or\n(b) of this subdivision or paragraph (d) of subdivision seven of this\nsection at least three days prior to collection of such amount by such\ncommissioner. Such notice shall contain the financial basis for such\ncommissioner's estimate.\n (e) In the event a provider of services objects to an estimate by the\ncommissioner of the office for people with developmental disabilities\npursuant to paragraph (a) or (b) of this subdivision or paragraph (d) of\nsubdivision seven of this section of the amount due for an assessment,\nthe provider of services, within sixty days of notice of an amount due,\nmay request a hearing. If a hearing is requested, such commissioner\nshall provide the provider of services an opportunity to be heard and to\npresent evidence bearing on the amount due for an assessment within\nthirty days after collection of an amount due or receipt of a request\nfor a hearing, whichever is later. An administrative hearing is not a\nprerequisite to seeking judicial relief.\n (f) The commissioner of the office for people with developmental\ndisabilities may direct that a hearing be held without any request by a\nprovider of services.\n 7. (a) Every provider of services shall submit reports on a cash basis\nof actual gross receipts received from all services rendered within the\nservices categories set forth in subdivision one of this section to\npersons with developmental disabilities and operating income for each\nmonth as follows:\n (i) for the period January first, nineteen hundred ninety-one through\nJanuary thirtieth, nineteen hundred ninety-one, the report shall be\nfiled on or before March fifteenth, nineteen hundred ninety-one.\n (ii) for the period January first, nineteen hundred ninety-one through\nMarch thirty-first, nineteen hundred ninety-one and each quarter\nthereafter, the report shall be filed on or before the forty-fifth day\nafter the end of the quarter.\n (b) Every provider of services shall submit a certified annual report\non a cash basis of gross receipts received in such calendar year from\nall services to persons with developmental disabilities and operating\nincome. The reports shall be in such form as may be prescribed by the\ncommissioner of the office for people with developmental disabilities to\naccurately disclose information required to implement this section.\n (c) Final payments shall be due for all providers of services for the\nassessments pursuant to subdivision two of this section upon the due\ndate for submission of the applicable quarterly report.\n (d) The commissioner of the office for people with developmental\ndisabilities may recoup deficiencies in final payments pursuant to\nparagraph (c) of subdivision six of this section.\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 of the\noffice for people with developmental disabilities on the difference\nbetween the amount paid and the amount due from the day of the month the\nestimated payment was due until the date of payment. The rate of\ninterest shall be twelve percent per annum or at the rate of interest\nset 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 of the office\nfor people with developmental disabilities pursuant to paragraph (c) of\nsubdivision six of this section in the same manner as an assessment\npursuant 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 the\noffice for people with developmental disabilities of five percent of the\ndifference between the amount paid and the amount due for such month\nwhen the failure to pay is for a duration of not more than one month\nafter the due date of the payment with an additional five percent for\neach additional month or fraction thereof during which such failure\ncontinues, not exceeding twenty-five percent in the aggregate. A penalty\nmay be collected by such commissioner pursuant to paragraph (c) of\nsubdivision six of this section in the same manner as an assessment\npursuant to subdivision two of this section.\n (c) Overpayment by a provider of services of an estimated payment\nshall be applied to any other payment due from the provider of services\npursuant to this section, or, if no payment is due, at the election of\nthe provider of services shall be applied to future estimated payments\nor refunded to the provider of services. Interest shall be paid on\noverpayments from the date of overpayment to the date of crediting or\nrefund at the rate determined in accordance with paragraph (a) of this\nsubdivision if the overpayment was made at the direction of the\ncommissioner. 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 of the office for people with\ndevelopmental disabilities and credited to the general fund.\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 providers, the additional\nassessment imposed pursuant to the provisions of subparagraph (ii) of\nparagraph (a), subparagraph (ii) of paragraph (b) and subparagraph (ii)\nof paragraph (c) of subdivision two of this section shall be a\nreimbursable cost to be reflected as timely as practicable in rates of\npayment applicable within the assessment period, contingent, for\npayments by governmental agencies, on all federal approvals necessary by\nfederal law and regulation for federal financial participation in\npayments made for beneficiaries eligible for medical assistance under\ntitle XIX of the federal social security act.\n (c) provided, however, that for purposes of determining rates of\npayment pursuant to this article for providers, three-tenths of one\npercent of the assessment imposed pursuant to this section on the gross\nreceipts of intermediate care facilities received on or after April\nfirst, nineteen hundred ninety-nine shall be a reimbursable cost to be\nreflected as timely as practicable in rates of payment applicable within\nthe assessment period, contingent, for payments by governmental\nagencies, on all federal approvals necessary by federal law and\nregulation for federal financial participation in payments made for\nbeneficiaries eligible for medical assistance under title XIX of the\nfederal social security act.\n (d) provided, however, that for purposes of determining rates of\npayment pursuant to this article for providers, the assessment imposed\npursuant to this section on the gross receipts of intermediate care\nfacilities received on or after April first, two thousand shall be a\nreimbursable cost to be reflected as timely as practicable in rates of\npayment applicable within the assessment period, contingent, for\npayments by governmental agencies, on all federal approvals necessary by\nfederal law and regulation for federal financial participation in\npayments made for beneficiaries eligible for medical assistance under\ntitle XIX of the federal social security act.\n 11. (a) The assessment shall not be collected in excess of six million\ntwo hundred thousand dollars from providers of services specified in\nsubdivision two of this section for the period of April first, nineteen\nhundred ninety-seven through March thirty-first, nineteen hundred\nninety-eight. The amount of the assessment collected pursuant to\nsubdivision two of this section in excess of six million two 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 providers of services by the commissioner of the\noffice for people with developmental disabilities based on the ratio\nwhich a provider of services' assessment for such period bears to the\ntotal of the assessments for such period paid by such providers of\nservices.\n (b) The additional assessment shall not be collected in excess of\nthirty-six million one hundred thousand dollars from providers of\nservices specified in subdivision two of this section for the period of\nApril first, nineteen hundred ninety-seven through March thirty-first,\nnineteen hundred ninety-eight. The amount of the additional assessment\ncollected pursuant to subdivision two of this section in excess of\nthirty-six million one hundred thousand dollars for the period of April\nfirst, nineteen hundred ninety-seven through March thirty-first,\nnineteen hundred ninety-eight shall be refunded to providers of services\nby the commissioner of the office for people with developmental\ndisabilities based on the ratio which a provider of services' additional\nassessment for such period bears to the total of the additional\nassessments for such period paid by such providers of services.\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 of the office for people with\ndevelopmental disabilities shall collect the assessments relying on such\nexclusions, pending any contrary action by the secretary of the\ndepartment of health and human services. In the event the secretary of\nthe 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 of the office for\npeople with developmental disabilities shall collect any retroactive\namount due as a result, without interest or penalty provided the\nprovider of services pays the retroactive amount due within ninety days\nof notice from the commissioner of the office for people with\ndevelopmental disabilities to the provider of services that an exclusion\nis null and void. Interest and penalties shall be measured from the due\ndate of ninety days following notice from the commissioner of the office\nfor people with developmental disabilities to the provider of services.\n