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SECTION 43.04
Provider of services assessments
Mental Hygiene (MHY) CHAPTER 27, TITLE E, ARTICLE 43
§ 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 for
all 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
for people with 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 for people with 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 for people with 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 for people with 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
for people with developmental disabilities of a provider of service'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 for people
with developmental disabilities, or his designee, such amount withheld
on behalf of the provider of services.

(d) The commissioner of the office for people with 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 for people with 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 for people with 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 for people with 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 for people with 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 such
month, interest shall be due and payable to the commissioner of the
office for people with 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
for people with 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 for people with 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 for people with
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. (a) 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 for people with 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.

(b) 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 for people with 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 state
pursuant 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 for people with
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 for
people with 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 for people with
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
for people with developmental disabilities to the provider of services.