N.Y. Mental Hyg. Law § 43.06

§ 43.06 Assessments.\n 1. Providers of services, as defined in this section, are charged\nassessments on their gross receipts received from all patient care\nservices and other operating income less personal needs allowances and\nrefunds 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 providers of services to the commissioner\nof mental health or his or her designee.\n 2. (a) Providers of services, for the purposes of this section, shall\nbe hospitals licensed pursuant to article thirty-one of this chapter\n(which shall not include wards, wings, units or other parts of a\nhospital, as defined in article twenty-eight of the public health law,)\nand residential treatment facilities for children and youth, as defined\nin section 1.03 of this chapter.\n (b)(i) For such hospitals which are providers of services, the\nassessment shall be six-tenths of one percent of each provider's gross\nreceipts received from all patient care services and other operating\nincome on a cash basis beginning January first, nineteen hundred\nninety-one for hospital or mental health-related services including but\nnot limited to inpatient service, outpatient service and emergency\nservice; provided, however, that for all such gross receipts received on\nor after December first, nineteen hundred ninety-eight, such assessment\nshall be two-tenths of one percent, and further provided that for all\nsuch gross receipts received on or after April first, nineteen hundred\nninety-nine, such assessment shall be one-tenth of one percent, and\nfurther provided that such assessment shall expire and be of no further\neffect for all such gross receipts received on or after January first,\ntwo thousand.\n (ii) If required pursuant to the provisions of subdivision thirteen of\nthis section, for such hospitals which are providers of services, an\nadditional assessment shall be one-tenth of one percent of each\nprovider's gross receipts received from all patient care services and\nother operating income on a cash basis beginning April first, nineteen\nhundred ninety-two for hospital or mental health-related services\nincluding but not limited to inpatient service, outpatient service and\nemergency service; provided, however, that such additional assessment\nshall expire and be of no further effect for all such gross receipts\nreceived on or after December first, nineteen hundred ninety-seven.\n (c)(i) For residential treatment facilities for children and youth,\nthe assessment shall be six-tenths of one percent of each provider's\ngross receipts received from all patient care services and other\noperating income on a cash basis beginning July first, nineteen hundred\nninety-one for hospital or mental health-related service including but\nnot limited to inpatient service, outpatient service and emergency\nservice; provided, however, that for all such gross receipts received on\nor after December first, nineteen hundred ninety-eight, such assessment\nshall be two-tenths of one percent, and further provided that for all\nsuch gross receipts received on or after April first, nineteen hundred\nninety-nine, such assessment shall be one-tenth of one percent, and\nfurther provided that such assessment shall expire and be of no further\neffect for all such gross receipts received on or after January first,\ntwo thousand.\n (ii) If required pursuant to the provisions of subdivision thirteen of\nthis section, for residential treatment facilities for children and\nyouth, an additional assessment, shall be one-tenth of one percent of\neach provider's gross receipts received from all patient care services\nand other operating income on a cash basis beginning April first,\nnineteen hundred ninety-two for hospital or mental health-related\nservice including but not limited to inpatient service, outpatient\nservice and emergency service; provided, however, that such additional\nassessment shall expire and be of no further effect for all such gross\nreceipts received on or after December first, nineteen hundred\nninety-seven.\n 3. For all providers of services, gross receipts from patient care\nservices and other operating income shall include, but not be limited\nto: (a) all moneys received for or on account of inpatient service,\noutpatient service, emergency service, or other hospital, mental health\nor mental health related service; and (b) all moneys received for or on\naccount of such revenue sources as investment income, parking lots,\ncafeterias, gift shops, and rental income, provided, however, that\nsubject to the provisions of subdivision twelve of this section income\nreceived from grants, charitable contributions, donations and bequests\nand governmental deficit financing shall not be included.\n 4. 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 5. Estimated payments by or on behalf of providers of services to the\ncommissioner or his or her designee of funds due from the assessments\npursuant to subdivision two of this section shall be made on a monthly\nbasis. Estimated payments shall be due on or before the fifteenth day\nfollowing the end of a calendar month to 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\ndetermines is due, based on evidence of prior period moneys received by\na provider of services or evidence of moneys received by such provider\nof services for that month, the commissioner may estimate the amount due\nfrom such provider of services and may collect the deficiency pursuant\nto paragraph (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\ndetermines is due, based on evidence of prior period moneys received by\na provider of service or evidence of moneys received by such provider of\nservices 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 provider of services and may collect the deficiency\npursuant to paragraph (c) of this subdivision.\n (c) Upon receipt of notification from the commissioner of a provider\nof services' 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 of services the amount\nof the deficiency determined under paragraph (a) or (b) of this\nsubdivision or paragraph (e) of subdivision seven of this section. Upon\nwithholding 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 organization operating in accordance with article\nforty-four of the public health law shall pay the commissioner, or his\ndesignee, such amount withheld on behalf of the provider of services.\n (d) The commissioner shall provide a provider of services with notice\nof any estimate of an amount due for an assessment pursuant to paragraph\n(a) or (b) of this subdivision or paragraph (e) of subdivision seven of\nthis section at least three days prior to collection of such amount by\nthe commissioner. Such notice shall contain the financial basis for the\ncommissioner's estimate.\n (e) In the event a provider of services objects to an estimate by the\ncommissioner pursuant to paragraph (a) or (b) of this subdivision or\nparagraph (e) of subdivision seven of this section of the amount due for\nan assessment, the provider of services, within sixty days of notice of\nan amount due, may request a public hearing. If a hearing is requested,\nthe commissioner shall provide the provider of services an opportunity\nto be heard 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 may direct that a hearing be held without any\nrequest by a provider of services.\n 7. (a) Every provider of services shall submit reports on a cash basis\nof actual gross receipts received from all patient care services and\noperating income for each month as follows:\n (i) for hospitals which are providers of services, for the period\nJanuary first, nineteen hundred ninety-one through January thirty-first,\nnineteen hundred ninety-one, the report shall be filed on or before\nMarch 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; and\n (iii) for residential treatment facilities for children and youth, for\nthe period July first, nineteen hundred ninety-one through September\nthirtieth, nineteen hundred ninety-one and each quarter thereafter, the\nreport shall be filed on or before the forty-fifth day after the end of\nthe 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 patient care services and 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 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 (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 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 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 payment. The\nrate 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\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 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 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 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 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 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 pursuant to\nthis article.\n 11. (a) (ii) The assessment shall not be collected in excess of one\nmillion three hundred thousand dollars from providers of services\npursuant to paragraph (b) of subdivision two of this section for the\nperiod of April first, nineteen hundred ninety-seven through March\nthirty-first, nineteen hundred ninety-eight. The amount of the\nassessment collected pursuant to paragraph (b) of subdivision two of\nthis section in excess of one million three hundred thousand dollars for\nthe period of April first, nineteen hundred ninety-seven through March\nthirty-first, nineteen hundred ninety-eight shall be refunded to\nproviders of services by the commissioner of mental health based on the\nratio which a hospital's assessment for such period bears to the total\nof the assessments for such period paid by such hospitals.\n (iii) The additional assessment shall not be collected in excess of\nthree hundred thousand dollars from providers of services pursuant to\nparagraph (b) of subdivision two of this section for the period of April\nfirst, nineteen hundred ninety-seven through March thirty-first,\nnineteen hundred ninety-eight. The amount of the additional assessment\ncollected pursuant to paragraph (b) of subdivision two of this section\nin excess of three 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 mental health based on the ratio which a\nhospital's additional assessment for such period bears to the total of\nthe additional assessments for such period paid by such hospitals.\n (b) (ii) The assessment shall not be collected in excess of two\nhundred thousand dollars from residential treatment facilities for\nchildren and youth pursuant to paragraph (c) of subdivision two of this\nsection for the period of April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-eight. The amount of\nthe assessment collected pursuant to paragraph (c) of subdivision two of\nthis section in excess of two hundred thousand dollars for the period of\nApril first, nineteen hundred ninety-seven through March thirty-first,\nnineteen hundred ninety-eight shall be refunded to providers of services\nby the commissioner of mental health based on the ratio which a\nresidential treatment facility for children and youth's assessment for\nsuch period bears to the total of the assessments for such period paid\nby such residential treatment facilities for children and youth.\n (iii) The additional assessment shall not be collected in excess of\nfifty thousand dollars from residential treatment facilities for\nchildren and youth pursuant to paragraph (c) of subdivision two of this\nsection for the period of April first, nineteen hundred ninety-seven\nthrough March thirty-first, nineteen hundred ninety-eight. The amount of\nthe additional assessment collected pursuant to paragraph (c) of\nsubdivision two of this section in excess of fifty thousand dollars for\nthe period of April first, nineteen hundred ninety-seven through March\nthirty-first, nineteen hundred ninety-eight shall be refunded to\nproviders of services by the commissioner of mental health based on the\nratio which a residential treatment facility for children and youth's\nadditional assessment for such period bears to the total of the\nadditional assessments for such period paid by such residential\ntreatment facilities for children and youth.\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 revenues received by the state pursuant\nto the assessments not reducing the amount expended by the state as\nmedical assistance for purposes of federal financial participation. The\ncommissioner of mental health 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 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 mental health shall\ncollect any retroactive amount due as a result, without interest or\npenalty provided the provider of services pays the retroactive amount\ndue within ninety days of notice from the commissioner of mental health\nto the provider of services that an exclusion is null and void. Interest\nand penalties shall be measured from the due date of ninety days\nfollowing notice from the commissioner of mental health to the provider\nof services.\n 13. Subparagraph (ii) of paragraph (b) of subdivision two and\nsubparagraph (ii) of paragraph (c) of subdivision two of this section\nshall be of no force and effect upon either: (a) a waiver is granted\npursuant to federal law and regulation; or (b) consistent with federal\nlaw and regulation, a waiver is not required by the secretary of the\ndepartment of health and human services for a difference between the\nrate of assessment on hospitals and residential treatment facilities for\nchildren and youth assessed pursuant to this section and the rate of\nassessment including the additional assessment on general hospitals\nassessed pursuant to section twenty-eight hundred seven-d of the public\nhealth law; in order for the assessments pursuant to this section and\nthe assessments including the additional assessment on general hospitals\npursuant to section twenty-eight hundred seven-d of the public health\nlaw to be qualified as broad-based health care related taxes for\npurposes of the revenues received by the state pursuant to this section\nand section twenty-eight hundred seven-d of the public health law not\nreducing the amount expended by the state as medical assistance for\npurposes of federal financial participation. The commissioner of mental\nhealth shall not collect the additional 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\nthis section or the assessments including the additional assessment on\ngeneral hospitals pursuant to section twenty-eight hundred seven-d of\nthe public health law do not so qualify based on the difference between\nthe rate of assessment on hospitals or residential treatment facilities\nfor children and youth assessed pursuant to this section and the rate of\nassessment including the additional assessment on general hospitals\npursuant to section twenty-eight hundred seven-d of the public health\nlaw then the provisions of subparagraph (ii) of paragraph (b) of\nsubdivision two and subparagraph (ii) of paragraph (c) of subdivision\ntwo of this section shall be deemed to have been in full force and\neffect as of April first, nineteen hundred ninety-two, and the\ncommissioner of mental health shall collect any retroactive amount due\nas a result, without interest or penalty provided the provider of\nservices pays the retroactive amount due within ninety days of notice\nfrom the commissioner of mental health to the provider of services that\nthe exclusion is null and void. Interest and penalties shall be measured\nfrom the due date of ninety days following notice from the commissioner\nof mental health to the provider of services.\n