NY Soc Serv L § 367-I (2021)
2021 New York Laws SOS - Social Services Article 5 - Assistance and Care Title 11 - Medical Assistance for Needy Persons 367-I - Personal Care Services Provider Assessments.

§  367-i. Personal care services provider assessments. 1. Providers of personal  care  services,  excepting  those  certified   under   article thirty-six  of  the  public health law, are charged assessments on their gross receipts received  from  all  personal  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 such personal care services providers to the commissioner of health or his/her designee.   2. (a) The assessment shall be six-tenths of one percent of each  such provider's  gross  receipts received from all personal care services and other operating income on a cash basis beginning January first, nineteen hundred ninety-one; 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.  (b)  Notwithstanding  any  contrary  provisions of this section or any other contrary provision of law or regulation, the assessment  shall  be thirty-five  hundredths  of  one  percent  of each such provider's gross receipts from all personal 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 personal care services  and  other operating  income  for  purposes  of  the  assessments  pursuant to this section shall include, but not be limited to, all monies received for or on account of personal care services, provided, however, that subject to the provisions of subdivision eleven of  this  section  income  received from  grants,  charitable  contributions,  donations  and  bequests  and governmental deficit financing  shall  not  be  included,  and  provided further,  however,  that  moneys  received  from a certified home health agency or a provider of a long term home health care program assessed on such moneys pursuant to section thirty-six  hundred  fourteen-a  of  the public health law shall not be included.   4.  Estimated  payments by or on behalf of such personal care services providers to the commissioner of health or his/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.   5. (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 health  determines  is  due,  based  on  evidence of prior period moneys received by a personal care services  provider  or  evidence  of  moneys received  by  such  personal  care services provider for that month, the commissioner of health may estimate the amount due  from  such  personal care  services  provider  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 health determines is due, based  on  evidence  of  prior  period  moneys received  by  a  personal  care  services provider or evidence of moneys received by such personal care services provider 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  of health may estimate the amount due from such personal care services provider  and  may  collect  the  deficiency pursuant to paragraph (c) of this subdivision.  (c)  Upon receipt of notification from the commissioner of health of a provider'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 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  the  amount  of  the deficiency  determined under paragraph (a) or (b) of this subdivision or paragraph (e) of subdivision six 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 of health, or his designee, such amount withheld on behalf of the provider.  (d) The commissioner of health shall provide a provider 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  six  of this  section  at least three days prior to collection of such amount by the commissioner of health. Such  notice  shall  contain  the  financial basis for the commissioner of health's estimate.  (e) In the event a provider objects to an estimate by the commissioner of  health  pursuant  to  paragraph  (a)  or  (b) of this subdivision or paragraph (e) of subdivision six of this section of the amount  due  for an  assessment,  the  provider, within sixty days of notice of an amount due, may request a public  hearing.  If  a  hearing  is  requested,  the commissioner  of  health shall provide the provider 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  health  may  direct that a hearing be held without any request by a personal care services provider.   6. (a) Every personal care services provider 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 personal care services provider  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  of  health  to accurately disclose information required to implement this section.  (d) Final payments  shall  be  due  for  all  personal  care  services providers  for  the  assessments  pursuant  to  subdivision  two of this section upon the due date for submission  of  the  applicable  quarterly report.  (e)  The  commissioner  of  health  may  recoup  deficiencies in final payments pursuant to paragraph (c) of subdivision five of this section.   7. (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 health 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 health pursuant to paragraph (c) of subdivision five  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 health 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 of health pursuant to paragraph (c) of subdivision five of this section in the same manner  as an assessment pursuant to subdivision two of this section.  (c)  Overpayment  by a personal care services provider of an estimated payment shall be applied to any other payment due from the personal care services provider pursuant to this section, or, if no payment is due, at the election of the personal care services provider shall be applied  to future  estimated  payments  or  refunded  to the personal care services provider. 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 of health. Interest under this paragraph  shall  not  be  paid  if  the amount thereof is less than one dollar.   8. 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 health and credited to the general fund.   9. 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.   10.  The assessment shall not be collected in excess of twelve million dollars from such providers for the period of  January  first,  nineteen hundred   ninety-one   through   March  thirty-first,  nineteen  hundred ninety-two.  The  amount  of  the  assessment  collected   pursuant   to subdivision  two  of  this  section  in excess of twelve million dollars shall be refunded to providers by the commissioner of  health  based  on the  ratio  which  a  provider's assessment for such period bears to the total of the assessments for such period paid by such providers.   11. 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 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  health  shall collect  any  retroactive  amount  due  as a result, without interest or penalty  provided  the  personal  care  services   provider   pays   the retroactive   amount   due   within  ninety  days  of  notice  from  the commissioner of health to the provider 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  health  to  the provider.