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SECTION 151
Assessments for annual expenses
Workers' Compensation (WKC) CHAPTER 67, ARTICLE 8
§ 151. Assessments for annual expenses. 1. The annual expenses
necessary for the board to administer the provisions of this chapter,
the volunteer ambulance workers' benefit law, the volunteer
firefighters' benefit law, the disability benefits law, and the
workmen's compensation act for civil defense volunteers shall be borne
by affected employers securing compensation for their employees pursuant
to section fifty of this chapter. The board shall collect such annual
expenses from affected employers through assessments as provided by the
provisions of this section, including for purposes of this subdivision:
(a) the aggregate assessment amount described in subparagraph four of
paragraph (h) of subdivision eight of section fifteen of this chapter
for the special disability fund in accordance with each financing
agreement described in such subparagraph, (b) the aggregate assessment
amount described in section fifty-c of this chapter for the self-insurer
offset fund in accordance with each financing agreement described in
such section, (c) the assessment amount described in subdivision three
of section twenty-five-a of this chapter for the fund for reopened cases
and (d) the assessment amount described in section two hundred fourteen
of this chapter for the special fund for disability benefits; provided,
that the foregoing and any other provision of this chapter to the
contrary notwithstanding, assessment receipts shall be applied first to
fully fund the amount described in subparagraph four of paragraph (h) of
subdivision eight of section fifteen of this chapter and then to fully
fund the amount described in section fifty-c of this chapter in
accordance with each then applicable financing agreement pursuant to
such provisions prior to application to any other purpose other than to
pay any actual costs of collecting such assessment that are not
otherwise funded. For purposes of this section, affected employer means
all employers required to obtain workers' compensation coverage pursuant
to this chapter.

2. On the first day of November, two thousand thirteen, and annually
thereafter, the chair shall establish an assessment rate for all
affected employers in the state of New York in an amount expected to be
sufficient to produce assessment receipts at least sufficient to fund
all estimated annual expenses pursuant to subdivision one of this
section except those expenses for which an assessment is authorized for
self-insurance pursuant to subdivision five of section fifty of this
chapter. Such rate shall be assessed effective the first of January of
the succeeding year and shall be based upon a single methodology
determined by the chair. The chair may also establish an additional
assessment rate, not to exceed thirty percent of annual premiums, for
those affected employers who are in default in the payment of their
compensation pursuant to subparagraph (b) of paragraph seven of
subdivision three-a of section 50 of this chapter. Such additional
assessment shall be collected and remitted to the chair consistent with
subdivisions four and five of this section. The chair shall make
available for public inspection an itemized statement of the estimated
annual expenses in the office of the board for thirty days immediately
after the rate is established.

3. The chair and department of audit and control annually as soon as
practicable after the first of April of each year shall ascertain the
actual total amount of expenses, including in addition to the direct
costs of personal service, the cost of maintenance and operation, the
cost of retirement contributions made and workers' compensation premiums
paid by the state for or on account of personnel, rentals for space
occupied in state owned or state leased buildings, such additional sum
as may be certified to the chair and the department of audit and control
as a reasonable compensation for services rendered by the department of
law and expenses incurred by such department, for transfer into the
training and educational program on occupational safety and health fund
created pursuant to chapter eight hundred eighty-six of the laws of
nineteen hundred eighty-five and section ninety-seven-c of the state
finance law, for the New York state occupational health clinics network,
for the department of labor occupational safety and health program and
for transfer into the uninsured employers' fund pursuant to subdivision
two of section twenty-six-a of this chapter, and all other direct or
indirect costs, incurred by the board in connection with the
administration of this chapter, except those expenses for which an
assessment is authorized for self-insurance pursuant to subdivision five
of section fifty of this chapter. Assessments pursuant to subparagraph
four of paragraph (h) of subdivision eight of section fifteen of this
chapter for the special disability fund, pursuant to section fifty-c of
this chapter for the self insurer offset fund, pursuant to subdivision
three of section twenty-five-a of this chapter for the fund for reopened
cases, and pursuant to section two hundred fourteen of this chapter for
the special fund for disability benefits shall be included in the total
amount of expenses for the purposes of this subdivision. Any overpayment
of annual assessments resulting from the requirements of this
subdivision shall be applied as a credit against the future assessment
rate provided the fund balance shall not be reduced below five percent
of the total amount assessed.

4. For those affected employers obtaining coverage:

(a) by insuring with the state fund pursuant to subdivision one of
section fifty of this chapter; or (b) through a policy pursuant to
subdivision two of section fifty of this chapter; or (c) through a
county self-insurance plan under article five of this chapter; or (d)
through a group private or public self-insurer pursuant to subdivision
three-a of section fifty of this chapter, such assessment amounts shall
be collected and remitted to the chair by the carrier or the state
insurance fund, or county plan, or group private or public self-insurer,
on behalf of the employer(s) until such time as the board establishes a
direct employer payment process. Affected private or public employers
providing compensation through self insurance pursuant to subdivision
three of section fifty of this chapter shall pay assessment amounts
directly to the chair.

5. Insurance carriers as defined in section two of this chapter
including the state insurance fund and self-insurers, shall collect from
affected employers and periodically remit to the board such assessments
and shall be responsible for ensuring their employers/policyholders are
current on their assessments. (a) Failure to ensure policyholders or
employers are current on their assessments will result in the insurance
carrier; or self-insurer; being liable for such assessments.

(b) In the event the employer; insurance carrier; or self-insurer;
knew or should have known that the employer misreported any data related
to the assessment process, they may be subject to any applicable
penalties or sanctions provided by this chapter.

6. (a) Effective the first day of January, two thousand fourteen, all
assessment cycles in progress will be replaced with the assessment rate
determined herein. However, such new assessment rate shall not relieve
any carrier or self-insurer for outstanding amounts due as of the first
day of January two thousand fourteen.

(b) All assessment amounts collected by insurance carriers, except the
state fund, and not yet remitted to the board prior to the first day of
January, two thousand fourteen must be remitted to the chair no later
than the first day of February, two thousand fourteen.

(c) Effective immediately, notwithstanding any law to the contrary,
pursuant to the provisions of this chapter, the assessment reserves
remitted to the chair pursuant to this paragraph shall, at the request
of the director of the budget, be distributed as follows:

(i) As soon as practicable on or after April first, two thousand
sixteen, the chair of the workers' compensation board shall transfer one
hundred forty million dollars to the state insurance fund, for partial
payment and partial satisfaction of the state's obligations to the state
insurance fund under workers' compensation law section eighty-eight-c
for two thousand sixteen.

(ii) Effective immediately, the chair of the workers' compensation
board shall authorize the board to expend up to sixty million dollars to
implement infrastructure and system upgrades consistent with
recommendations of the workers' compensation board redesign and
reengineering project.

(iii) Effective immediately, the chair of the workers' compensation
board shall authorize the board to expend up to forty million dollars
for: (A) transfer into the training and educational program on
occupational safety and health fund created pursuant to chapter eight
hundred eighty-six of the laws of nineteen hundred eighty-five and
section ninety-seven-c of the state finance law; (B) the department of
labor occupational safety and health program; (C) transfer into the
uninsured employers' fund pursuant to subdivision two of section
twenty-six-a of this chapter in connection with payment of claims made
pursuant to article eight-A of this chapter; (D) a reduction in
liabilities of the special disability fund pursuant to subdivision eight
of section fifteen of this chapter and/or the fund for reopened cases
pursuant to section twenty-five-a of this chapter; and/or (E) transfer
to or payment of up to ten million dollars of such amount on behalf of
the superintendent of financial services for costs associated with the
implementation of the paid family leave act of article nine of this
chapter.

Any and all funds remaining after accounting for the transfers and
expenditures set forth above may, at the discretion of the director of
the budget, either remain with the workers' compensation board or be
transferred to the general fund for the purpose of reducing budget gaps.

Annually, the workers' compensation board will provide to the director
of the budget, the chair of the senate finance committee, and the chair
of the assembly ways and means committee, an accounting of such funds
and all associated income received. Such accounting will continue until
March thirty-first, two thousand twenty.

7. Assessments for the expenses of the board including assessments
pursuant to paragraph (h) of subdivision eight of section fifteen of
this chapter for the special disability fund and pursuant to subdivision
three of section twenty-five-a of this chapter for the fund for reopened
cases shall not constitute elements of loss.

7-a. Notwithstanding any law to the contrary, when there is a default
on the payment of premium, including any assessments payable under
subdivision seven of this section, any action by the carrier, including
the state insurance fund, to collect any unpaid premium shall include an
action seeking recovery of such assessments on behalf of the board. The
carrier shall remit the amount of any such unpaid assessments collected
either pursuant to a judgment or by settlement to the board.

8. The foregoing and every other prevision of law to the contrary
notwithstanding, all moneys received on account of the assessment
authorized by this section shall be deposited upon receipt into the
administrative clearing account held by the commissioner of taxation and
finance and applied, as pledged assessments for purposes of sections
sixteen hundred eighty-l and sixteen hundred eighty-q of the public
authorities law and prior to any other application: first, in accordance
with any other provision of any special disability fund financing
agreement entered into prior to March thirty-first, two thousand
thirteen, to the extent required to fully fund the then current payment
and reserve requirements under such financing agreement; and second, in
accordance with each special disability fund financing agreement and
each self-insured bond financing agreement, to the extent required to
fully fund the then current payment and reserve requirements under each
such financing agreement entered into after March thirty-first, two
thousand thirteen with respect to bonds issued by the dormitory
authority pursuant to either section sixteen hundred eighty-l or section
sixteen hundred eighty-q of the public authorities law, on a pari passu
basis without preference or priority among all such other bonds. Such
monies shall not be commingled with any other monies in the
commissioner's custody prior to the completion of such application and
shall not be deemed to be part of the state treasury or of any funds
under management of the state. This section shall not be deemed to
authorize any infringement upon the rights of holders of such bonds
issued or to be issued under such sections of the public authorities
law. The provisions of this section may be included by the dormitory
authority in any contract with the holders of any such bonds. The
operation of this section and the application of the receipts of the
assessment authorized by this section shall be subject to the provisions
of each financing agreement authorized pursuant to subparagraph four of
paragraph (h) of subdivision eight of section fifteen or to section
fifty-c of this chapter and this section shall not be deemed to
authorize any infringement upon the rights of holders of bonds issued or
to be issued pursuant to either such provision.

9. The provisions of this section shall not apply with respect to
policies containing coverage pursuant to paragraph one of subsection (j)
of section three thousand four hundred twenty of the insurance law
relating to every policy providing comprehensive personal liability
insurance on a one, two, three or four family owner-occupied dwelling.

10. If the assessments collected pursuant to this section are
insufficient to meet the obligations financed by the assessments, the
chair, for a period of three years, may borrow any shortfall from the
state insurance fund with any borrowing to be added to the assessments
under this section and repaid the following year to the state insurance
fund with interest at the state insurance fund's then current rate of
return.

11. Effective immediately, notwithstanding any law to the contrary,
pursuant to the provisions of this chapter, the assessment reserves held
by the state insurance fund for the payment of future assessments are no
longer required and all funds and investments held by the state
insurance fund related to the assessment reserves shall be transferred
to the chair of the workers' compensation board as soon as practicable.
The commissioner of taxation and finance shall be custodian of such
funds, which shall not be commingled with other funds of the workers'
compensation board, and may invest such funds in the same manner as
surplus funds held by the state insurance fund pursuant to subdivision
two of section eighty-seven of this chapter. Disbursements of such funds
shall be made by such commissioner upon written warrant of the chair of
the workers' compensation board or the chair's designee.

At the request of the director of the budget, such moneys transferred
to the chair of the workers' compensation board shall be distributed as
follows:

(a) As soon as practicable after April first, two thousand thirteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for debt management or fiscal
uncertainties.

(b) As soon as practicable after April first, two thousand fourteen,
the chair of the workers' compensation board shall transfer one billion
dollars to the general fund for the purpose of reducing budget gaps.

(c) As soon as practicable after April first, two thousand fifteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for the purpose of reducing
budget gaps.

(d) As soon as practicable after April first, two thousand sixteen,
the chair of the workers' compensation board shall transfer two hundred
fifty million dollars to the general fund for the purpose of reducing
budget gaps.

(e) Any and all funds remaining after accounting for the transfers set
forth above may, at the discretion of the director of the budget, either
remain with the workers' compensation board or be transferred to the
general fund for the purpose of reducing budget gaps or to the state
insurance fund. The budget director, acting in consultation with the
chair of the workers' compensation board, shall determine whether any
money returned to the state insurance fund is a loan or a transfer and
the terms and conditions therein. Any funds transferred or loaned to the
state insurance fund upon the budget director's request may be invested
in a manner consistent with investment guidelines pursuant to
subdivision two of section eighty-seven of the workers' compensation
law.

Annually, the state insurance fund and the workers' compensation board
will provide to the director of the budget, the chair of the senate
finance committee, and the chair of the assembly ways and means
committee, an accounting of such funds and all associated income
received. Such accounting will continue until March thirty-first, two
thousand seventeen.

12. The chair shall promulgate regulations to carry out the provisions
of this section.

13. To effectuate an efficient assessment process and the proper
management of the workers' compensation system all data in possession of
the compensation insurance rating board shall be made available to the
board and the department of financial services upon request.

14. The chair may conduct periodic audits of any employer,
self-insurer, insurance carrier and the state insurance fund concerning
any information or payment required under this section, including any
information relevant to the payment or calculation of any assessments.
The employer, self-insurer, insurance carrier and the state insurance
fund shall provide all necessary documents and information in relation
to an audit in a manner prescribed by the chair. Upon the determination
of the chair that an employer, self-insurer, insurance carrier or the
state insurance fund has underpaid an assessment as a result of its
inaccurate reporting, the employer, self-insurer, insurance carrier or
the state insurance fund upon notice from the chair, shall pay the full
amount of the underpaid assessment, along with interest at the rate of
nine per cent per annum on the unpaid assessment due not later than
thirty days after such notice. An insurance carrier or employer that
knowingly makes a material misrepresentation of information required for
the purpose of effectuating this section shall be guilty of a class E
felony.