NY Pub Health L § 2807-D (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2807-D - Hospital Assessments.

§  2807-d.  Hospital assessments. 1. (a) Hospitals, as defined in this article,  excluding  hospitals  specified  in  paragraph  (b)  of   this subdivision,  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  hospitals  to  the commissioner or his designee.  (b)  Subject  to the provisions of subdivision twelve of this section, the following categories of hospitals shall not be  charged  assessments pursuant   to   this   section:  (i)  voluntary  nonprofit  and  private proprietary general hospitals which qualify for  distributions  made  in accordance  with  paragraph  (c)  of  subdivision  nineteen  of  section twenty-eight hundred seven-c of this article, or for assessments  during the period January first, nineteen hundred ninety-seven through December thirty-first,  nineteen  hundred  ninety-seven  voluntary  nonprofit and private proprietary general hospitals which qualified for  distributions made in accordance with paragraph (c) of subdivision nineteen of section twenty-eight   hundred   seven-c   of   this   article  as  of  December thirty-first, nineteen hundred  ninety-five;  (ii)  voluntary  nonprofit hospitals  totally financed by charitable contributions or by the income thereon dedicated to free care of low income  patients;  and  (iii)  any facility   dedicated  solely  to  the  care  of  police,   firefighters, volunteer firefighters, and emergency service personnel.  (c) On and after December first, nineteen  hundred  ninety-seven,  the term  "general  hospital",  as  used in this section, includes specialty hospitals for persons who are developmentally disabled, licensed by  the office  for  people  with  developmental disabilities and which are also issued an operating certificate pursuant to section twenty-eight hundred five of this article.   2. (a) (i) For general  hospitals  the  overall  assessment  shall  be six-tenths  of  one  percent  and the assessment shall vary from 0.5% to 0.675% of each general  hospital's  gross  receipts  received  from  all patient  care services and other operating income on a cash basis during the period January first,  nineteen  hundred  ninety-one  through  March thirty-first, nineteen hundred ninety-two for hospital or health-related services,  including  but  not  limited to inpatient service, outpatient service, emergency service, referred ambulatory service  and  ambulatory surgical  service. The assessment shall vary according to the percentage of  nineteen  hundred  eighty-nine  medicaid  inpatient  revenues  as  a percentage  of total  nineteen hundred eighty-nine inpatient revenues as reported on the institutional cost report submitted  to  the  department for   nineteen  hundred  eighty-nine  according  to  the  following: for hospitals with medicaid revenue up to and including 10%, the  assessment shall  be .5%,   for hospitals with medicaid revenue greater than 10% up to and including 15%, the assessment shall be .525%, for hospitals  with medicaid  revenue  greater  than  15%  up  to  and  including  20%,  the assessment shall be .65%, and for hospitals with medicaid  revenue  over 20%,  the  assessment  shall  be .675%. In the event that the provisions relating to the additional supplementary low income  patient  adjustment established   in  accordance  with  subdivision  fourteen-d  of  section twenty-eight hundred seven-c of this   article  cannot  be  implemented, then the general hospital assessment established in accordance with this paragraph  shall  be  calculated  without  variation  specified  in this paragraph and the assessment for each general hospital whose  assessment was  greater  than  six-tenths of one percent shall become six-tenths of one percent.  (ii) For general hospitals the assessment shall be six-tenths  of  one percent  of  each  general  hospital'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 health-related   services,  including,  but  not  limited  to  inpatient service, outpatient  service,  emergency  service,  referred  ambulatory service and ambulatory surgical 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.  (iii)   For  general  hospitals  an  additional  assessment  shall  be one-tenth of one percent  of  each  general  hospital'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  health-related  services,  including,  but  not limited to inpatient  service,  outpatient  service,  emergency  service,  referred ambulatory  service  and ambulatory surgical 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.  (iv)  Subject to the provisions of subdivision twelve of this section, the assessment and additional assessment pursuant to subparagraphs  (ii) and  (iii)  of  this paragraph during the period January first, nineteen hundred ninety-eight through  December  thirty-first,  nineteen  hundred ninety-eight  for  voluntary  nonprofit  and private proprietary general hospitals which qualified for  distributions  made  in  accordance  with paragraph  (c)  of  subdivision nineteen of section twenty-eight hundred seven-c of this article as of December  thirty-first,  nineteen  hundred ninety-five  shall  be  abated  by  seventy-five percent, and during the period January first,  nineteen  hundred  ninety-nine  through  December thirty-first,   nineteen   hundred   ninety-nine   shall  be  abated  by twenty-five percent.  (v) Notwithstanding any contrary provisions of this paragraph  or  any other  provision  of  law  or  regulation,  for  general  hospitals  the assessment shall be  thirty-five  hundredths  of  one  percent  of  each general  hospital's  gross  receipts  received  from  all  patient  care services and other operating income on a cash basis for the period April first, two thousand five through March thirty-first two  thousand  seven for  hospital  or health-related services, including, but not limited to inpatient  service,  outpatient  service,  emergency  service,  referred ambulatory  service  and ambulatory surgical services, but not including residential  health  care  facilities  services  or  home  health   care services.  (vi)  Notwithstanding any contrary provisions of this paragraph or any other  provision  of  law  or  regulation,  for  general  hospitals  the assessment  shall  be  thirty-five  hundredths  of  one  percent of each general  hospital's  gross  receipts  received  from  all  patient  care services  and  other operating income on a cash basis for periods on and after April first, two thousand nine,  for  hospital  or  health-related services,  including,  but not limited to inpatient services, outpatient services,  emergency  services,   referred   ambulatory   services   and ambulatory  surgical services, but not including residential health care facilities services or home health care services.  (b) (i) For residential health care facilities the assessment shall be six-tenths of one percent of each  residential  health  care  facility's gross  receipts  received  from  all  patient  care  services  and other operating income on a cash basis beginning April first, nineteen hundred ninety-one  for hospital or health-related services, including adult day services; provided, however, that for all such gross  receipts  received on   or  after  September  first,  nineteen  hundred  ninety-seven  such assessment shall be three-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  December  first,  nineteen hundred ninety-eight.  (ii)  For  residential health care facilities an additional assessment shall be one and two-tenths percent  of  each  residential  health  care facility'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 health-related services, including adult day services; provided, however, that such  additional  assessment shall  expire  and  be  of no further effect for all such gross receipts received on or after April first, nineteen hundred ninety-nine.  (iii) For residential health  care  facilities  a  further  additional assessment  shall  be three and eight tenths percent of each residential health care facility's gross receipts received  from  all  patient  care services  and  other  operating income on a cash basis for the period of July first, nineteen hundred  ninety-five  through  March  thirty-first, nineteen  hundred  ninety-six  for  hospital or health-related services, including adult day services. The residential health care facility shall file the assessment return with any balance due or any refund claimed by May first, nineteen hundred ninety-six. Notwithstanding any inconsistent provision of this section, the residential health  care  facility  shall make  estimated payments to the commissioner on a monthly basis starting August fifteenth, nineteen hundred ninety-five  and  continuing  on  the fifteenth  of  each  month  through  March  fifteenth,  nineteen hundred ninety-six equal to one-eighth of the total estimated for  this  further additional  assessment  for the further additional assessment period. If the total of estimated payments is less than ninety-five percent of  the actual  payment  due,  the residential health care facility shall pay to the commissioner a penalty of fifteen percent of the difference due  for each  month  in  addition to the amount due. The commissioner may recoup deficiencies and penalties pursuant to paragraph (c) of subdivision  six of this section.   * (iv)  For  residential  health  care facilities a further additional assessment shall be one and  nine-tenths  percent  of  each  residential health  care  facility's  gross  receipts received from all patient care services and other operating income on a cash basis for  the  period  of April  first,  nineteen  hundred  ninety-six through March thirty-first, nineteen hundred ninety-seven for hospital or  health-related  services, including adult day services. The residential health care facility shall file the assessment return with any balance due or any refund claimed by May   first,   nineteen   hundred   ninety-seven.   Notwithstanding  any inconsistent provision of this  section,  the  residential  health  care facility  shall make estimated payments to the commissioner on a monthly basis starting May fifteenth, and continuing on the  fifteenth  of  each month  through  March  fifteenth  equal  to  one-eleventh  of  the total estimated for this further additional assessment for  the  period  April first,  nineteen  hundred ninety-six through March thirty-first nineteen hundred ninety-seven. If the total of estimated payments  is  less  than ninety-five  percent  of  the actual payment due, the residential health care facility shall pay to the commissioner a penalty of fifteen percent  of the difference due each month in addition  to  the  amount  due.  The commissioner may recoup deficiencies and penalties pursuant to paragraph (c) of subdivision six of this section.   * NB There are 2 subpar (iv)'s   * (iv)  For  residential  health  care facilities a further additional assessment shall be one and  nine-tenths  percent  of  each  residential health  care  facility's  gross  receipts received from all patient care services and other operating income on a cash basis for  the  period  of April  first,  nineteen  hundred ninety-six through  March thirty-first, nineteen hundred ninety-seven for hospital or  health-related  services, including adult day services. The residential health care facility shall file the assessment return with any balance due or any refund claimed by May   first,   nineteen   hundred   ninety-seven.   Notwithstanding  any inconsistent provision of this  section,  the  residential  health  care facility  shall make estimated payments to the commissioner on a monthly basis starting May fifteenth, and continuing on the  fifteenth  of  each month  through  March  fifteenth,  equal  to  one-eleventh of the  total estimated  for  this  further  additional  assessment  for  the   period beginning  April  first  of nineteen hundred ninety-six and ending March thirty-first, nineteen hundred ninety-seven. If the total of the  eleven required  estimated  payments  is  less  than ninety-five percent of the actual payment due, the residential health care facility  shall  pay  to the commissioner a penalty of fifteen  percent of the difference due for each  month  in  addition to the amount due. The commissioner may recoup deficiencies and penalties pursuant  to paragraph (c) of subdivision six of this section.   * NB There are 2 subpar (iv)'s   * (v) For residential health care facilities  in  addition  a  further additional  assessment shall be (a) two and three-tenths percent of each residential care facility's gross receipts  received  from  all  patient care  services  and other operating income on a cash basis beginning May first,  nineteen  hundred  ninety-six  through   December  thirty-first, nineteen  hundred  ninety-six  for  hospital or health-related services, including adult day services and (b) one and nine-tenths percent of each residential care facility's gross receipts  received  from  all  patient care  services  and  other  operating  income on a cash basis  beginning January  first,  nineteen  hundred  ninety-seven  and  ending  February twenty-eighth,   nineteen   hundred   ninety-seven   for   hospital   or health-related services, including adult day services.   * NB There are 2 subpar (v)'s   * (v) For residential health care facilities  in  addition  a  further additional  assessment shall be (a) two and three-tenths percent of each residential care facility's gross receipts  received  from  all  patient care  services  and other operating income on a cash basis beginning May first, nineteen hundred ninety-six  and  ending  December  thirty-first, nineteen  hundred  ninety-six  for  hospital or health-related services, including adult day services and (b) one and nine-tenths percent of each residential care facility's gross receipts  received  from  all  patient care  services  and  other  operating  income  on a cash basis beginning January  first,  nineteen  hundred  ninety-seven  and  ending   February twenty-eighth,   nineteen   hundred   ninety-seven   for   hospital   or health-related  services,  including  adult  day   services;   provided, however,  that  for  all  such gross receipts received on or after April first, nineteen hundred ninety-seven, such further additional assessment shall be three and six-tenths percent, and further provided that for all such gross receipts received on or after April first,  nineteen  hundred ninety-nine,  such  further  additional  assessment  shall  be  two  and four-tenths percent, and further provided that such  further  additional  assessment  shall  expire and be of no further effect for all such gross receipts received on or after January first, two thousand.   * NB There are 2 subpar (v)'s  (vi)  Notwithstanding  any contrary provision of this paragraph or any other provision of law or regulation to the  contrary,  for  residential health  care  facilities  the  assessment  shall  be six percent of each residential health care facility's  gross  receipts  received  from  all patient care services and other operating income on a cash basis for the period  April  first,  two  thousand two through March thirty-first, two thousand three for hospital or health-related services, including  adult day   services;   provided,   however,   that  residential  health  care facilities' gross receipts attributable to payments received pursuant to title XVIII of the federal  social  security  act  (medicare)  shall  be excluded from the assessment; provided, however, that for all such gross receipts  received  on  or after April first, two thousand three through March thirty-first, two thousand five, such  assessment  shall  be  five percent,  and further provided that for all such gross receipts received on or after April first, two thousand five through  March  thirty-first, two  thousand  nine,  and  on  or  after  April first, two thousand nine through March thirty-first, two thousand eleven such assessment shall be six percent, and further provided  that  for  all  such  gross  receipts received  on  or  after  April  first, two thousand eleven through March thirty-first,  two  thousand  thirteen  such  assessment  shall  be  six percent,  and further provided that for all such gross receipts received on  or  after  April  first,  two  thousand   thirteen   through   March thirty-first, two thousand fifteen such assessment shall be six percent, and  further  provided  that  for all such gross receipts received on or after April first, two thousand fifteen through March thirty-first,  two thousand  seventeen  such  assessment  shall be six percent, and further provided that for all such gross receipts received  on  or  after  April first,  two  thousand seventeen through March thirty-first, two thousand nineteen such assessment shall be six percent, and further provided that for all such gross receipts  received  on  or  after  April  first,  two thousand  nineteen  through  March thirty-first, two thousand twenty-one such assessment shall be six percent, and further provided that for  all such  gross  receipts  received  on  or  after April first, two thousand twenty-one through March thirty-first, two  thousand  twenty-three  such assessment shall be six percent.  (c)  For all other facilities issued an operating certificate pursuant to  section  twenty-eight  hundred  five  of  this  article,   including diagnostic  and treatment centers, the assessment shall be six-tenths of one percent of each facility'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 health-related  services,  including  diagnostic  and  treatment  center 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.   3. Gross receipts received from all patient care  services  and  other operating income for purposes of the assessment pursuant to this section shall include, but not be limited to:  (a)  for  general  hospitals, all monies received for or on account of inpatient  hospital  service,  outpatient  service,  emergency  service, referred  ambulatory  service  and ambulatory surgical service, or other hospital  or  health-related  services,  excluding,   subject   to   the provisions of subdivision twelve of this section: distributions from bad  debt  and  charity  care  regional  pools,  primary health care services regional pools, bad debt and charity  care  for  financially  distressed hospitals  statewide  pools  and  bad  debt and charity care and capital statewide  pools created in accordance with section twenty-eight hundred seven-c of this article and  the  components  of  rates  of  payment  or charges   related   to   the  allowances  provided  in  accordance  with subdivisions  fourteen,  fourteen-b  and  fourteen-c,   the   adjustment provided  in  accordance  with  subdivision  fourteen-a,  the adjustment provided in accordance with subdivision fourteen-d, the  adjustment  for health   maintenance   organization   reimbursement  rates  provided  in accordance with section twenty-eight hundred seven-f  of  this  article, the  adjustment  for  commercial insurer reimbursement rates provided in accordance  with  paragraph  (i)  of  subdivision  eleven   of   section twenty-eight  hundred  seven-c  of  this  article  or, if effective, the adjustment provided in accordance with subdivision  fifteen  of  section twenty-eight  hundred seven-c of this article or the adjustment provided in accordance with section eighteen of chapter two hundred sixty-six  of the  laws  of  nineteen  hundred  eighty-six  as  amended  and physician practice or faculty practice plan revenue received by a general hospital based on discrete billings for private  practicing  physician  services, revenue  received  by a general hospital from a public hospital pursuant to an affiliation agreement contract for the  delivery  of  health  care services to such public hospital, revenue received pursuant to paragraph (i)  of  subdivision thirty-five of section twenty-eight hundred seven-c of this article,  revenue  received  pursuant  to  section  twenty-eight hundred   seven-w   of   this   article,   all   revenue   received   as disproportionate share  hospital  payments,  in  accordance  with  title nineteen  of  the federal Social Security Act, revenue received pursuant to sections eleven, twelve, thirteen and fourteen of part A  of  chapter one  of  the  laws  of  two  thousand  two, revenue received pursuant to sections thirteen and fourteen of part B of chapter one of the  laws  of two thousand two, revenue from patient personal fund allowances, revenue from  income  earned on patient funds, investment income from externally restricted funds, revenue from investment sinking  funds,  revenue  from investment  operating  escrow  accounts,  investment  income from funded depreciation, investment income from mortgage repayment escrow accounts, revenue derived from the operation of schools leading to licensure,  and revenue from the collection of sales and excise taxes;  (b) for residential health care facilities, all monies received for or on  account  of  hospital or health-related service, including adult day services, excluding subject to the provisions of subdivision  twelve  of this section the component of rates of payment related to the adjustment provided  in  accordance with subdivision twelve of section twenty-eight hundred eight of this article;  (c) for all other facilities issued an operating certificate  pursuant to   section  twenty-eight  hundred  five  of  this  article,  including diagnostic and treatment centers, all monies received for or on  account of   hospital  or  health-related  services,  however,  subject  to  the provisions  of  subdivision  twelve  of  this  section,  excluding   the component  of  rates  of  payment  related  to the allowance provided in accordance with paragraph (f) of subdivision two of section twenty-eight hundred seven of this article, excluding for a diagnostic and  treatment center  operated  by  a  health  maintenance  organization  operating in accordance with the provisions of article forty-four of this chapter  or article  forty-three  of  the  insurance  law  monies received for or on account of services provided to subscribers of such  health  maintenance organization  and  excluding  patient care services which if provided to persons eligible for medical assistance  pursuant  to  title  eleven  of  article  five  of  the  social services law would be eligible for ninety percent federal funds as set forth in section nineteen hundred three  of the federal social security act; and  (d)  for  all  hospitals,  excluding  diagnostic and treatment centers operated by a health maintenance organization  operating  in  accordance with  the  provisions  of  article forty-four of this chapter or article forty-three of the insurance law, shall include monies 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 and the component of rates of payment reflecting   any   cost  of  the  assessment  reimbursable  pursuant  to subdivision  ten of this section shall not be included.   4. For  periods  prior  to  January  first,  two  thousand  five,  the commissioner  is  authorized  to  contract  with the article forty-three insurance law plans, or if not available such  other  administrators  as the  commissioner  shall  designate,  to receive and distribute hospital 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 costs and expenses of an administrator as approved by the commissioner, not to  exceed  for personnel  services on an annual basis four 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 hospitals 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 hospital or evidence of moneys received  by  such  hospital  for  that month,  the  commissioner may estimate the amount due from such hospital 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 hospital or evidence of moneys received  by  such  hospital  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 hospital and may collect the deficiency pursuant  to  paragraph  (c)  of this subdivision.  (c) Upon receipt of notification from the commissioner of a hospital'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 hospital 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 hospital.  (d) The commissioner shall provide  a  hospital  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 hospital 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  hospital, within sixty days of notice of an amount due, may request a public hearing. If a hearing  is  requested,  the  commissioner  shall provide  the hospital 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 hospital.   7. (a) Every hospital 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  hospital  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,  provided,  however,  that  for periods on and after July first,  two  thousand  twelve,   such   reports   and   any   associated certifications  shall  be  submitted  electronically in a form as may be required by the commissioner.  (d) Final payments shall be due for all hospitals 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. Delinquent amounts  which  have  been referred for recoupment or offset pursuant to paragraph (c) of subdivision six of this section,  or  which  have  been referred  to the office of the attorney general for collection, shall be deemed final and not subject to further revision  or  reconciliation  by the  commissioner  based  on any additional reports or other information submitted by the hospital, provided, however,  that  such  delinquencies shall  not  be referred for such recoupment or for such collection based on  estimated  amounts  unless  the  hospital   has   received   written notification  of  such  delinquencies  and  has  been given no less than thirty days in which to submit delinquent reports.  (f) Payments and reports submitted or required to be submitted to  the commissioner  or to the commissioner's designee pursuant to this section  shall be subject to audit by the commissioner for a period of six  years following  the  close  of  the  calendar year in which such payments and reports are due, after which such payments shall be deemed final and not subject  to  further  adjustment  or  reconciliation,  including through offset adjustments or reconciliations made to subsequent  payments  made pursuant  to  this section, provided, however, that nothing herein shall be construed as precluding the commissioner from pursuing collection  of any  such  payments  which  are identified as delinquent within such six year period, or which are identified as delinquent as  a  result  of  an audit commenced within such six year period, or from conducting an audit of any adjustment or reconciliation made by a hospital.   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 hospital of an estimated payment shall be applied to any other payment due from the hospital pursuant to this section, or, if  no  payment is due, at the election of the hospital shall be applied to future estimated payments or refunded to the hospital. 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:  (a) credited to the general fund;  (b) provided, however, that funds accumulated, including  income  from invested  funds,  from  the  assessments  provided  in  accordance  with subparagraph (v) of paragraph (a) and subparagraphs (iii), (iv), (v) and (vi) of paragraph (b) of subdivision  two  of  this  section,  including interest  and  penalties,  shall  be  deposited  by the commissioner and credited  to  the  special  revenue  fund-other,  miscellaneous  special revenue  fund  (339), medical assistance account. To the extent of funds appropriated therefor, funds shall be made available for payments  under  the  medical  assistance  program  provided  pursuant to title eleven of article five of the social services law;  (c)  and  provided further, however, that funds accumulated, including income from invested  funds,  for  a  period  from  the  assessment  and additional assessment provided in accordance with subparagraphs (ii) and (iii)  of  paragraph  (a)  of subdivision two of this section, including interest and penalties, on voluntary nonprofit and  private  proprietary general  hospitals  which qualified for distributions made in accordance with paragraph (c)  of  subdivision  nineteen  of  section  twenty-eight hundred  seven-c  of  this article as of December thirty-first, nineteen hundred  ninety-five  shall  be  transferred  by  the  commissioner  and consolidated  with  funds  accumulated  from  the  allowance pursuant to subdivision two of section twenty-eight hundred seven-j of this  article for  such  period  and  allocated in accordance with subdivision nine of section twenty-eight hundred seven-j of this article.   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 residential health care facilities, for the period January first, nineteen hundred ninety-two through  March thirty-first, nineteen hundred ninety-nine, the additional assessment of one  and  two-tenths  percent,  and  for the period July first, nineteen hundred  ninety-five  through  March  thirty-first,   nineteen   hundred ninety-six  the  further additional assessment of three and eight-tenths percent, and for the period April  first,  nineteen  hundred  ninety-six through  March  thirty-first,  nineteen hundred ninety-seven the further additional assessment of one and nine-tenths percent, and for the period May first, nineteen hundred ninety-six  through  December  thirty-first, nineteen hundred ninety-six the further additional assessment of two and three-tenths  percent and for the period January first, nineteen hundred ninety-seven   through   February   twenty-eighth,   nineteen    hundred ninety-seven  the  further  additional assessment of one and nine-tenths percent, and for the period April first, nineteen  hundred  ninety-seven through  March  thirty-first,  nineteen  hundred ninety-nine the further additional assessment of three  and  six-tenths  percent,  and  for  the period  April  first,  nineteen  hundred  ninety-nine  through  December thirty-first,  nineteen  hundred  ninety-nine  the  further   additional assessment  of  two  and  four-tenths  percent, imposed pursuant to 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 regulations 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 the purposes of determining rates of payment pursuant to this article for residential health care facilities, the assessment imposed pursuant to subparagraph (vi) of paragraph (b) of subdivision two of this section shall  be  a  reimbursable  cost  to  be reflected  as  timely  as  practicable,  and  subsequently reconciled to actual cost, in  rates  of  payment  applicable  within  the  assessment period, provided further, however, that insofar as such assessment is in excess  of  six  percent  it shall not be deemed a reimbursable cost and shall not be reflected in such rates of payment.  (d) provided, however, that the adjustment to rates  of  payment  made pursuant  to  paragraph (c) of this subdivision shall be calculated on a  per diem basis and based on total reported patient days  of  care  minus reported days attributable to title XVIII of the federal social security act (medicare) units of service.  (e) the provisions of paragraphs (c) and (d) of this subdivision shall each  be  contingent  upon  receipt of all federal approvals required by federal law and  regulations  for  federal  financial  participation  in payments  made  in  accordance  with  paragraphs  (c)  and  (d)  of this subdivision.   11. (a) (ii) The assessment shall not be collected in  excess  of  one hundred  thirty-four million three hundred thousand dollars from general hospitals 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 (a) of subdivision two of this  section in excess of one hundred thirty-four 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 general hospitals by the commissioner based on  the ratio which a general hospital's assessment for such period bears to the total of the assessments for such period paid by general hospitals.  (iii)  The  additional  assessment shall not be collected in excess of fourteen million nine hundred thousand dollars  from  general  hospitals for  the  period  of  April first, nineteen hundred ninety-seven through November thirtieth, nineteen hundred ninety-seven.  The  amount  of  the additional assessment collected pursuant to paragraph (a) of subdivision two  of this section in excess of fourteen million nine hundred thousand dollars for the period of April  first,  nineteen  hundred  ninety-seven through  November  thirtieth,  nineteen  hundred  ninety-seven  shall be refunded to general hospitals by the commissioner  based  on  the  ratio which  a  general hospital's additional assessment for such period bears to the total of the additional  assessments  for  such  period  paid  by general hospitals.  (b)  (ii)  The  assessment shall not be collected in excess of fifteen million dollars from residential health care facilities for  the  period of   April   first,   nineteen   hundred   ninety-eight   through  March thirty-first, nineteen hundred ninety-nine. The amount of the assessment collected pursuant to paragraph (b) of subdivision two of  this  section in  excess  of  fifteen  million  dollars for the period of April first, nineteen  hundred  ninety-eight  through  March  thirty-first,  nineteen hundred  ninety-nine  shall  be  refunded  to  residential  health  care facilities by the commissioner based on the ratio  which  a  residential health  care facility's assessment for such period bears to the total of the  assessments  for  such  period  paid  by  residential  health  care facilities.  (iii)  The  additional  assessment shall not be collected in excess of eighty-nine million  nine  hundred  thousand  dollars  from  residential health  care  facilities for the period of April first, nineteen hundred ninety-eight through March thirty-first, nineteen  hundred  ninety-nine. The  amount of the additional assessment collected pursuant to paragraph (b) of subdivision two of this section in excess of eighty-nine  million nine  hundred  thousand  dollars for the period of April first, nineteen hundred  ninety-eight  through  March  thirty-first,  nineteen   hundred ninety-nine  shall  be refunded to residential health care facilities by the commissioner based on the ratio  which  a  residential  health  care facility's  additional  assessment for such period bears to the total of the additional assessments for such period paid  by  residential  health care facilities.  (iv)  The  further  additional  assessment  shall  not be collected in excess of one hundred sixty-four million seven hundred thousand  dollars  from  residential  health  care  facilities  for  the period July first, nineteen  hundred  ninety-five  through  March  thirty-first,   nineteen hundred  ninety-six.  The  amount  of  the further additional assessment collected  pursuant  to paragraph (b) of subdivision two of this section in excess of one  hundred  sixty-four  million  seven  hundred  thousand dollars  for  the  period  of  July  first, nineteen hundred ninety-five through March thirtyfirst, nineteen hundred ninety-six shall be refunded to residential health care facilities by the commissioner based  on  the ratio  which  a  residential  health  care facility's further additional assessment for such period bears to the total of the further  additional assessments for such period paid by residential health care facilities.  (v) The further additional assessment imposed pursuant to subparagraph (iv)  of  paragraph  (b) of subdivision two of this section shall not be collected  in  excess  of  one  hundred  twelve  million  dollars   from residential  health care facilities for the period April first, nineteen hundred  ninety-six  through  March   thirty-first,   nineteen   hundred ninety-seven.  The amount of the further additional assessment collected pursuant to subparagraph (iv) of paragraph (b)  of  subdivision  two  of this  section  in  excess  of one hundred twelve million dollars for the period  of  April  first,  nineteen  hundred  ninety-six  through  March thirty-first,   nineteen  hundred  ninety-seven  shall  be  refunded  to residential health care facilities by  the  commissioner  based  on  the ratio  which  a  residential  health  care facility's further additional assessment for such period bears to the total of the further  additional assessments for such period paid by residential health care facilities.  (vi)  The  further  additional  assessment  shall  not be collected in excess of one hundred ten million dollars from residential  health  care facilities  for  the  period  May  first,   nineteen  hundred ninety-six through  February  twenty-eighth,  nineteen  hundred  ninety-seven.  The amount  of  the  further  additional  assessment  collected  pursuant to subparagraph  (v) of paragraph (b) of subdivision two of this section in excess of one hundred ten million dollars  for  the  period  May  first, nineteen  hundred  ninety-six  through  February twenty-eighth, nineteen hundred ninety-seven  shall  be  refunded  to  residential  health  care facilities  by  the  commissioner based on the ratio which a residential health care facility's further additional  assessment  for  such  period bears  to  the  total  of  the  further additional  assessments for such period paid by residential health care facilities.  (vii) The further additional assessment  shall  not  be  collected  in excess of two hundred forty million dollars from residential health care facilities  for  the  period  April first, nineteen hundred ninety-seven through March thirty-first, nineteen hundred ninety-eight. The amount of the further additional assessment collected pursuant to subparagraph (v) of paragraph (b) of subdivision two of this section  in  excess  of  two hundred  forty  million  dollars for the period of April first, nineteen hundred  ninety-seven  through  March  thirty-first,  nineteen   hundred ninety-eight  shall be refunded to residential health care facilities by the commissioner based on the ratio  which  a  residential  health  care facility's further additional assessments for such a period bears to the total  of  the  further  additional  assessments for such period paid by residential health care facilities.  (viii) The further additional assessment shall  not  be  collected  in excess  of  two hundred fifty-six million eight hundred thousand dollars from residential health care facilities  for  the  period  April  first, nineteen  hundred  ninety-eight  through  March  thirty-first,  nineteen hundred ninety-nine. The amount of  the  further  additional  assessment collected  pursuant  to subparagraph (v) of paragraph (b) of subdivision two of this section in excess of two  hundred  fifty-six  million  eight  hundred  thousand  dollars  for the period April first, nineteen hundred ninety-eight through March thirty-first,  nineteen  hundred  ninety-nine shall   be  refunded  to  residential  health  care  facilities  by  the commissioner  based  on  the  ratio  which  a  residential  health  care facility's further additional assessments for such period bears  to  the total  of  the  further  additional  assessments for such period paid by residential health care facilities.  (c) (ii) The assessment shall not be  collected  in  excess  of  seven million  four  hundred thousand dollars from all other facilities issued an operating certificate pursuant to section twenty-eight  hundred  five of  this  article  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 seven million four  hundred thousand  dollars  for  the  period  of  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 facility's assessment  for  such  period  bears  to  the  total  of  the assessments for such period paid by such facilities.   12.  (a)  Each  exclusion  of  hospitals  or sources of gross receipts received from  the  assessments  effective  on  or  after  April  first, nineteen hundred ninety-two, and prior to April first, two thousand two, established  pursuant  to  this section shall be contingent upon either: (i) qualification of the assessments for waiver pursuant to federal  law and  regulation; or (ii) 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, then 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 hospital  pays the  retroactive   amount  due  within  ninety  days  of notice from the commissioner  to the hospital  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 hospital.  (b) The exclusion of the  hospitals  described  in  paragraph  (b)  of subdivision  one  of this section and the exclusion of revenue described in subdivision two of this section from the  assessments  set  forth  in subdivision  two  of  this section for periods on and after April first, two thousand two shall be contingent upon either: (i)  qualification  of the  assessments  for  waiver pursuant to federal law and regulation; or (ii) 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 such assessments relying on such exclusion, 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  such  assessments  do  not  so  qualify  based on such exclusion, then the commissioner  shall,  to  the  extent  necessary  to achieve  such  qualification  for  federal financial participation, deem such exclusions null and void as of the first  day  of  the  period  for which  such  assessments  apply,  and the commissioner shall collect any retroactive amount due as a result, without interest or penalty provided the hospital pays the retroactive  amount  due  within  ninety  days  of notice from the commissioner to the hospital that such exclusion is null and void.  (c)  No  hospital  shall  be  obligated to pay assessments pursuant to subparagraph (v) of paragraph (a) of subdivision  two  of  this  section prior  to  December  first,  two  thousand  five. The commissioner shall collect payment  obligations  incurred  prior  to  December  first,  two thousand  five  proportionally  over  the  remaining months in the state fiscal year.