NY Pub Health L § 3614-B (2021)
2021 New York Laws PBH - Public Health Article 36 - Home Care Services 3614-B - Licensed Home Care Services Agencies Assessments.

§  3614-b.  Licensed  home  care  services  agencies  assessments.  1. Licensed home care services agencies are charged assessments, subject to the provisions of subdivision thirteen of this section, 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 licensed home care services agencies to the commissioner or his designee.   2. (a) The assessment shall be  six-tenths  of  one  percent  of  such licensed  home  care  services agency's gross receipts received from all patient care services  and  other  operating  income  on  a  cash  basis beginning  April  first, nineteen hundred ninety-two; 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 licensed home care services  agency's  gross  receipts  received  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 patient care  services  and  other operating income for purposes of the assessment pursuant to this section shall  include,  but  not  be  limited to, all moneys received for or on account of home care services provided pursuant to a license  issued  by the commissioner in accordance with the provisions of section thirty-six hundred  five  of  this  article,  provided,  however,  subject  to  the provisions of subdivision twelve of this section  that  income  received from  grants,  charitable  contributions,  donations  and  bequests  and governmental deficit financing shall not be included, and further,  that moneys received on which an assessment is paid by a hospital pursuant to section twenty-eight hundred seven-d of this chapter, home care provider pursuant  to  section  thirty-six  hundred  fourteen-a  of this article, personal care  services  provider  pursuant  to  section  three  hundred sixty-seven-i  of  the  social  services  law  or  provider  of services pursuant to section 43.04 or 43.06 of the mental hygiene law  shall  not be included.   4.  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 licensed home care services agency 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  two  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 licensed home  care  services agencies  to  the  commissioner or his or her designee of funds due from the assessments pursuant to subdivision two of  this  section  shall  be made  on  a  monthly basis. Estimated payments shall be due on or before the fifteenth day following the end of the 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  moneys  received  by  a licensed  home  care  services  agency or evidence of moneys received by such agency for that month, the commissioner may estimate the amount due from  such  agency  and may collect the deficiency pursuant to paragraph (c) of this subdivision.  (b) If an estimated payment made for the 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  licensed  home care services agency or evidence of moneys received by such agency 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 agency and may collect the deficiency pursuant to paragraph (c) of this subdivision.  (c) Upon receipt of notification from the commissioner of  a  licensed home   care   services  agency'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 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 agency 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 article  forty-four  of  this  chapter  shall  pay  the commissioner,  or  his  designee,  such amount withheld on behalf of the licensed home care services agency.  (d) The commissioner shall  provide  a  licensed  home  care  services agency  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 licensed home care services agency 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 agency, within sixty days of notice of an  amount due, may request a public hearing. If a hearing is requested, the commissioner shall provide the licensed home  care  services  agency with  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 an agency.   7. (a) Every licensed home care services agency shall  submit  reports on  a cash basis of actual gross receipts received from all patient care services and other operating income for each month as follows:  for  the quarter  year ending June thirtieth, nineteen hundred ninety-two and for each quarter thereafter, the report shall be  filed  on  or  before  the forty-fifth day after the end of such period.  (b)  Every licensed home care services agency shall submit a certified annual report on a  cash  basis  of  gross  receipts  received  in  such calendar year from all patient care services and other 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 licensed home care services agencies for the assessments pursuant to subdivision two of this section upon the due date for submission of the applicable quarterly report.  (e)  The  commissioner  may  recoup  deficiencies  in  final  payments pursuant to paragraph (c) of subdivision six of this section.   8.  (a)  If  an estimated payment made for a month to which 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 the 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 underpayment 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 for such  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  licensed  home  care  services  agency  of  an estimated  payment  shall  be  applied to any other payment due from the agency pursuant to this section, or,  if  no  payment  is  due,  at  the election  of the agency shall be applied to future estimated payments or refunded to the agency. 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 or fees pursuant to this chapter or the social services law.   11. The aggregate limit on the assessment for  certified  home  health agencies,  long  term  home  health  care  programs,  licensed home care services agencies  and  personal  care  services  providers  established pursuant  to  paragraph  (c) of subdivision eleven of section thirty-six hundred fourteen-a of this  article  for  the  period  of  April  first, nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen hundred ninety-eight shall be  deemed  to  reflect  the  amount  of  one million  three  hundred  thousand dollars for the assessment pursuant to  subdivision two of this section  for  such  period.  In  the  event,  in accordance  with  subdivision  thirteen of this section, the assessments pursuant to subdivision two of this section are  not  implemented,  such aggregate  limit  shall be reduced by one million three hundred thousand dollars for the period of April  first,  nineteen  hundred  ninety-seven through March thirty-first, nineteen hundred ninety-eight.   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 that 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  licensed  home care services agency pays the retroactive amount due within ninety days of notice from the commissioner to the agency 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 agency.   13. This section shall be of no force and effect upon  either:  (a)  a waiver  is  granted  pursuant  to  federal  law  and  regulation; or (b) consistent with federal law and regulation, a waiver is not required  by the  secretary  of  the  department of health and human services for the exclusion of the home care services agencies assessed pursuant  to  this section  from  such assessment; in order for the assessments pursuant to section thirty-six hundred fourteen-a of this article and section  three hundred  sixty-seven-i  of  the social services law to be qualified as a broad-based health  care  related  tax  for  purposes  of  the  revenues received  by the state pursuant to section thirty-six hundred fourteen-a of this article and section three hundred sixty-seven-i  of  the  social services  law  not  reducing the amount expended by the state as medical assistance  for  purposes  of  federal  financial   participation.   The commissioner  shall  not  collect  the  assessments  under this section, pending any contrary action by the secretary of the department of health and human services. In the event the  secretary  of  the  department  of health  and  human  services determines that the assessments pursuant to section thirty-six hundred fourteen-a of this chapter or  section  three hundred sixty-seven-i of the social services law do not so qualify based on   the   exclusion  of  licensed  home  care  services  agencies  from assessments, 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 licensed home care services agency pays the retroactive amount due within ninety days of notice from the commissioner to the agency that the  exclusion  is  null  and  void. Interest  and  penalties  shall  be measured from the due date of ninety days following notice from the commissioner to the agency.