§ 43.06 Assessments.

1. Providers of services, as defined in this section, are charged
assessments on their gross receipts received from all patient care
services 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 providers of services to the commissioner
of mental health or his or her designee.

2. (a) Providers of services, for the purposes of this section, shall
be hospitals licensed pursuant to article thirty-one of this chapter
(which shall not include wards, wings, units or other parts of a
hospital, as defined in article twenty-eight of the public health law,)
and residential treatment facilities for children and youth, as defined
in section 1.03 of this chapter.

(b)(i) For such hospitals which are providers of services, the
assessment shall be six-tenths of one percent of each provider's gross
receipts received from all patient care services and other operating
income on a cash basis beginning January first, nineteen hundred
ninety-one for hospital or mental health-related services including but
not limited to inpatient service, outpatient service and emergency
service; provided, however, that for all such gross receipts received on
or after December first, nineteen hundred ninety-eight, such assessment
shall be two-tenths of one percent, and further provided that for all
such gross receipts received on or after April first, nineteen hundred
ninety-nine, such assessment shall be one-tenth of one percent, and
further provided that such assessment shall expire and be of no further
effect for all such gross receipts received on or after January first,
two thousand.

(ii) If required pursuant to the provisions of subdivision thirteen of
this section, for such hospitals which are providers of services, an
additional assessment shall be one-tenth of one percent of each
provider's gross receipts received from all patient care services and
other operating income on a cash basis beginning April first, nineteen
hundred ninety-two for hospital or mental health-related services
including but not limited to inpatient service, outpatient service and
emergency service; provided, however, that such additional assessment
shall expire and be of no further effect for all such gross receipts
received on or after December first, nineteen hundred ninety-seven.

(c)(i) For residential treatment facilities for children and youth,
the assessment shall be six-tenths of one percent of each provider's
gross receipts received from all patient care services and other
operating income on a cash basis beginning July first, nineteen hundred
ninety-one for hospital or mental health-related service including but
not limited to inpatient service, outpatient service and emergency
service; provided, however, that for all such gross receipts received on
or after December first, nineteen hundred ninety-eight, such assessment
shall be two-tenths of one percent, and further provided that for all
such gross receipts received on or after April first, nineteen hundred
ninety-nine, such assessment shall be one-tenth of one percent, and
further provided that such assessment shall expire and be of no further
effect for all such gross receipts received on or after January first,
two thousand.

(ii) If required pursuant to the provisions of subdivision thirteen of
this section, for residential treatment facilities for children and
youth, an additional assessment, shall be one-tenth of one percent of
each provider's gross receipts received from all patient care services
and other operating income on a cash basis beginning April first,
nineteen hundred ninety-two for hospital or mental health-related
service including but not limited to inpatient service, outpatient
service and emergency service; provided, however, that such additional
assessment shall expire and be of no further effect for all such gross
receipts received on or after December first, nineteen hundred
ninety-seven.

3. For all providers of services, gross receipts from patient care
services and other operating income shall include, but not be limited
to: (a) all moneys received for or on account of inpatient service,
outpatient service, emergency service, or other hospital, mental health
or mental health related service; and (b) all moneys received for or on
account of such revenue sources as investment income, parking lots,
cafeterias, gift shops, and rental income, provided, however, that
subject to the provisions of subdivision twelve of this section income
received from grants, charitable contributions, donations and bequests
and governmental deficit financing shall not be included.

4. 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.

5. Estimated payments by or on behalf of providers of services to the
commissioner or his or her designee 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
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, the 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
determines is due, based on evidence of prior period moneys received by
a provider of service or evidence of moneys 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, the 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 a provider
of services' deficiency under this section, the comptroller or a fiscal
intermediary designated by the director of the budget, or the
commissioner of social services, or a corporation organized and
operating in accordance with article forty-three of the insurance law,
or an organization operating in accordance with article forty-four of
the public health law shall withhold from the amount of any payment to
be made by the state or by such article forty-three corporation or
article forty-four organization to the provider of services the amount
of the deficiency determined under paragraph (a) or (b) of this
subdivision or paragraph (e) of subdivision seven of this section. Upon
withholding such amount, the comptroller or a designated fiscal
intermediary, or the commissioner of social services, or corporation
organized and operating in accordance with article forty-three of the
insurance law or organization operating in accordance with article
forty-four of the public health law shall pay the commissioner, or his
designee, such amount withheld on behalf of the provider of services.

(d) The commissioner 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 (e) of subdivision seven of
this section at least three days prior to collection of such amount by
the commissioner. Such notice shall contain the financial basis for the
commissioner's estimate.

(e) In the event a provider of services objects to an estimate by the
commissioner pursuant to paragraph (a) or (b) of this subdivision or
paragraph (e) 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 public hearing. If a hearing is requested,
the 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 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 patient care services and
operating income for each month as follows:

(i) for hospitals which are providers of services, for the period
January first, nineteen hundred ninety-one through January thirty-first,
nineteen hundred ninety-one, the report shall be filed on or before
March fifteenth, nineteen hundred ninety-one; and

(ii) for the quarter year ending March thirty-first, nineteen hundred
ninety-one and for each quarter thereafter, the report shall be filed on
or before the forty-fifth day after the end of such quarter; and

(iii) for residential treatment facilities for children and youth, for
the period July first, nineteen hundred ninety-one through September
thirtieth, 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 patient care services and operating income.

(c) The reports shall be in such form as may be prescribed by the
commissioner to accurately disclose information required to implement
this section.

(d) 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.

(e) The commissioner 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 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 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 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 the 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 and credited to the general fund.

10. Notwithstanding any inconsistent provision of law or regulation to
the contrary, the assessments pursuant to this section shall not be an
allowable cost in the determination of reimbursement rates pursuant to
this article.

11. (a) (ii) The assessment shall not be collected in excess of one
million three hundred thousand dollars from providers of services
pursuant to paragraph (b) of 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 paragraph (b) of subdivision two of
this section in excess of one million three 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 mental health based on the
ratio which a hospital's assessment for such period bears to the total
of the assessments for such period paid by such hospitals.

(iii) The additional assessment shall not be collected in excess of
three hundred thousand dollars from providers of services pursuant to
paragraph (b) of 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 paragraph (b) of subdivision two of this section
in excess of three 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 mental health based on the ratio which a
hospital's additional assessment for such period bears to the total of
the additional assessments for such period paid by such hospitals.

(b) (ii) The assessment shall not be collected in excess of two
hundred thousand dollars from residential treatment facilities for
children and youth pursuant to paragraph (c) of 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 paragraph (c) of subdivision two of
this section in excess of 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 mental health based on the ratio which a
residential treatment facility for children and youth's assessment for
such period bears to the total of the assessments for such period paid
by such residential treatment facilities for children and youth.

(iii) The additional assessment shall not be collected in excess of
fifty thousand dollars from residential treatment facilities for
children and youth pursuant to paragraph (c) of 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 paragraph (c) of
subdivision two of this section in excess of fifty 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 mental health based on the
ratio which a residential treatment facility for children and youth's
additional assessment for such period bears to the total of the
additional assessments for such period paid by such residential
treatment facilities for children and youth.

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 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 mental health 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 mental health 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 mental health
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 mental health to the provider
of services.

13. Subparagraph (ii) of paragraph (b) of subdivision two and
subparagraph (ii) of paragraph (c) of subdivision two of this section
shall be of no force and effect upon either: (a) a waiver is granted
pursuant to federal law and regulation; or (b) consistent with federal
law and regulation, a waiver is not required by the secretary of the
department of health and human services for a difference between the
rate of assessment on hospitals and residential treatment facilities for
children and youth assessed pursuant to this section and the rate of
assessment including the additional assessment on general hospitals
assessed pursuant to section twenty-eight hundred seven-d of the public
health law; in order for the assessments pursuant to this section and
the assessments including the additional assessment on general hospitals
pursuant to section twenty-eight hundred seven-d of the public health
law to be qualified as broad-based health care related taxes for
purposes of the revenues received by the state pursuant to this section
and section twenty-eight hundred seven-d of the public health law not
reducing the amount expended by the state as medical assistance for
purposes of federal financial participation. The commissioner of mental
health shall not collect the additional assessments under this section,
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 pursuant to
this section or the assessments including the additional assessment on
general hospitals pursuant to section twenty-eight hundred seven-d of
the public health law do not so qualify based on the difference between
the rate of assessment on hospitals or residential treatment facilities
for children and youth assessed pursuant to this section and the rate of
assessment including the additional assessment on general hospitals
pursuant to section twenty-eight hundred seven-d of the public health
law then the provisions of subparagraph (ii) of paragraph (b) of
subdivision two and subparagraph (ii) of paragraph (c) of subdivision
two of this section shall be deemed to have been in full force and
effect as of April first, nineteen hundred ninety-two, and the
commissioner of mental health 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 mental health to the provider of services that
the exclusion is null and void. Interest and penalties shall be measured
from the due date of ninety days following notice from the commissioner
of mental health to the provider of services.