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SECTION 3614-A
Home care provider assessments
Public Health (PBH) CHAPTER 45, ARTICLE 36
§ 3614-a. Home care provider assessments. 1. Certified home health
agencies and providers of long term home health care programs are
charged assessments on their gross receipts received from all patient
care services and other operating income 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
certified home health agencies or providers of long term home health
care programs to the commissioner or his designee.

2. (a) (i) For certified home health agencies the assessment shall be
six-tenths of one percent of each certified home health agency'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 home care services; provided, however, that for all such
gross receipts received on or after April first, nineteen hundred
ninety-nine, such assessment shall be two-tenths 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) For certified home health agencies there shall be an additional
assessment which shall be three-tenths of one percent of each certified
home health agency's gross receipts received from all patient care
services and other operating income on a cash basis. The assessment year
shall be April first, nineteen hundred ninety-two to March thirty-first,
nineteen hundred ninety-three. The agencies shall file the assessment
return with any balance due or any refund claimed by May first, nineteen
hundred ninety-three. The agencies shall make estimated payments on a
monthly basis starting August fifteenth, nineteen hundred ninety-two and
continuing on the fifteenth of each month through March fifteenth,
nineteen hundred ninety-three. Each estimated payment shall equal
one-eighth of the total estimated for the assessment year. If the total
of estimated payments is less than ninety-five percent of the actual
payment due, the agency shall pay a penalty of fifteen percent of the
difference due for each month in addition to the amount due.

(iii) For certified home health agencies, an additional assessment
shall be three-tenths of one percent of each certified home health
agency's gross receipts received from all patient care services and
other operating income on a cash basis during the period April first,
nineteen hundred ninety-three through June thirtieth, nineteen hundred
ninety-four for home care services.

(b) (i) For providers of long term home health care programs 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 long term home health care services; provided, however,
that for all such gross receipts received on or after April first,
nineteen hundred ninety-nine, such assessment shall be two-tenths 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) For providers of long term home health programs there shall be an
additional assessment which shall be three-tenths of one percent of each
provider of long term home health care's gross receipts received from
all patient care services and other operating income on a cash basis.
The assessment year shall be April first, nineteen hundred ninety-two to
March thirty-first, nineteen hundred ninety-three. The providers shall
file the assessment return with any balance due or any refund claimed by
May first, nineteen hundred ninety-three. The providers shall make
estimated payments on a monthly basis starting August fifteenth,
nineteen hundred ninety-two and continuing on the fifteenth of each
month through March fifteenth, nineteen hundred ninety-three. Each
estimated payment shall equal one-eighth of the total estimated for the
assessment year. If the total of estimated payments is less than
ninety-five percent of the actual payment due, the provider shall pay a
penalty of fifteen percent of the difference due for each month in
addition to the amount due.

(iii) For providers of long term home health care programs, an
additional assessment shall be three tenths of one percent of each
provider's gross receipts received from all patient care services and
other operating income on a cash basis during the period April first,
nineteen hundred ninety-three through June thirtieth nineteenth hundred
ninety-four for long term home health care services.

(c) Notwithstanding any contrary provisions of this section or any
other contrary provision of law or regulation, for certified home health
agencies and for providers of long term home health care programs the
assessment shall be thirty-five hundredths of one percent of each
agency's or provider's gross receipts received from all home health care
services and other operating income on a cash basis for periods on and
after April first, two thousand nine.

3. Gross receipts received from all patient care services and other
operating income for purposes of the assessments pursuant to this
section shall include, but not be limited to:

(a) for certified home health agencies, all monies received for or on
account of home care services, including personal care services,
excluding subject to the provisions of subdivision twelve of this
section the component of rates of payment related to the allowance
provided in accordance with subdivision five of section thirty-six
hundred fourteen of this article;

(b) for providers of long term home health care programs, all monies
received for or on account of long term home health care services,
including personal care services;

(c) 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 home care
provider assessment funds and personal care services provider assessment
funds assessed pursuant to section three hundred sixty-seven-i of the
social services law. 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 costs and expenses
of an administrator as approved by the commissioner, not to exceed for
personnel services on an annual basis two hundred thousand dollars for
all assessments established pursuant to this section and the personal
care services provider assessment established pursuant to section three
hundred sixty-seven-i of the social services law, shall be paid from the
assessment funds.

5. Estimated payments by or on behalf of certified home health
agencies and providers of long term home health care programs to the
commissioner or his 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 certified home health agency or provider of a long term home health
care program or evidence of moneys received by such entity for that
month, the commissioner may estimate the amount due from such entity 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 certified home health agency or provider of a long term home health
care program or evidence of moneys received by such certified home
health agency or provider of a long term home health care program 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 entity and may collect the deficiency pursuant to paragraph
(c) of this subdivision.

(c) Upon receipt of notification from the commissioner of an entity's
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 this chapter 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 entity 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 this chapter shall pay the commissioner, or
his designee, such amount withheld on behalf of the entity.

(d) The commissioner shall provide an entity 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 the certified home health agency or provider of a
long term home health care program 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 entity, within sixty days of notice of an amount due,
may request a public hearing. If a hearing is requested, the
commissioner shall provide the entity 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 the entity.

7. (a) Every certified home health agency or provider of a long term
home health care program 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 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.

(b) Every certified home health agency or provider of a long term home
health care program 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 certified home health agencies
or providers of long term home health care programs for 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 certified home health agency or provider of a
long term home health care program of an estimated payment shall be
applied to any other payment due from the entity pursuant to this
section, or, if no payment is due, at the election of the entity shall
be applied to future estimated payments or refunded to the entity.
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. (c) The assessment shall not be collected in excess of twenty
million four hundred thousand dollars from certified home health
agencies and long term home health care programs pursuant to subdivision
two of this section, licensed home care services agencies pursuant to
subdivision two of section thirty-six hundred fourteen-b of this article
and personal care services providers pursuant to subdivision two of
section three hundred sixty-seven-i of the social services law for the
period of April first, nineteen hundred ninety-seven through March
thirty-first, nineteen hundred ninety-eight. The amount of the
assessment collected in excess of twenty million four hundred thousand
dollars for the period April first, nineteen hundred ninety-seven
through March thirty-first, nineteen hundred ninety-eight shall be
refunded by the commissioner based on the ratio which a certified home
health agency's, long term home health care program's, licensed home
care services agency's or personal care services provider's assessment
for such period bears to the total of the 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 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, the exclusion
shall be deemed to have been null and void as of April first, nineteen
hundred ninety-two, and the commissioner shall collect any retroactive
amount due as a result, without interest or penalty provided the
certified home health agency or provider of a long term home health care
program pays the retroactive amount due within ninety days of notice
from the commissioner of 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
to the provider of services.