NY Ment Hygiene L § 43.06 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 43 - Fees for Services 43.06 - Assessments.

§ 43.06 Assessments.   1.  Providers  of  services,  as  defined in this section, 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 providers of services to  the  commissioner of mental health or his or her designee.   2.  (a) Providers of services, for the purposes of this section, shall be hospitals licensed pursuant to article  thirty-one  of  this  chapter (which  shall  not  include  wards,  wings,  units  or  other parts of a hospital, as defined in article twenty-eight of the public health  law,) and  residential treatment facilities for children and youth, as defined in section 1.03 of this chapter.  (b)(i) For  such  hospitals  which  are  providers  of  services,  the assessment  shall  be six-tenths of one percent of each provider's gross receipts received from all patient care  services  and  other  operating income  on  a  cash  basis  beginning  January  first,  nineteen hundred ninety-one for hospital or mental health-related services including  but not  limited  to  inpatient  service,  outpatient  service and emergency 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.  (ii) If required pursuant to the provisions of subdivision thirteen of this section, for such hospitals which are  providers  of  services,  an additional  assessment  shall  be  one-tenth  of  one  percent  of  each provider'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  mental  health-related  services including  but  not limited to inpatient service, outpatient service and emergency 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.  (c)(i) For residential treatment facilities for  children  and  youth, the  assessment  shall  be  six-tenths of one percent of each provider's gross receipts  received  from  all  patient  care  services  and  other operating  income on a cash basis beginning July first, nineteen hundred ninety-one for hospital or mental health-related service  including  but not  limited  to  inpatient  service,  outpatient  service and emergency 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.  (ii) If required pursuant to the provisions of subdivision thirteen of this section, for residential  treatment  facilities  for  children  and youth,  an  additional  assessment, shall be one-tenth of one percent of each provider'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  mental  health-related  service  including  but  not  limited  to  inpatient service, outpatient service and emergency 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.   3. For all providers of services, gross  receipts  from  patient  care services  and  other  operating income shall include, but not be limited to: (a) all moneys received for or  on  account  of  inpatient  service, outpatient  service, emergency service, or other hospital, mental health or mental health related service; and (b) all moneys 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 shall not be included.   4.  The  commissioner  is  authorized  to  contract  with  the article forty-three insurance law plans, or such  other  administrators  as  the commissioner  shall  designate,  to  receive  and distribute provider of services 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  cost  and expenses  of such administrators as approved by the commissioner, not to exceed for personnel services on an annual basis  one  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 providers of services 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 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 provider of services or evidence of moneys received by  such  provider of services for that month, the commissioner may estimate the amount due from  such  provider of services 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 provider of service or evidence of moneys received by such provider of services  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 provider of services and may collect the deficiency pursuant to paragraph (c) of this subdivision.  (c)  Upon  receipt of notification from the commissioner of a provider of services' 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 of services 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 the public health law shall pay the commissioner,  or  his designee, such amount withheld on behalf of the provider of services.  (d)  The commissioner shall provide a provider of services 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 provider of services 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 provider of services, within sixty days of notice of an amount due, may request a public hearing. If a hearing is  requested, the  commissioner  shall provide the provider of services 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 provider of services.   7. (a) Every provider of services 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  hospitals  which  are  providers of services, 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; and  (iii) for residential treatment facilities for children and youth, for the period July first, nineteen  hundred  ninety-one  through  September thirtieth,  nineteen hundred ninety-one and each quarter thereafter, the report shall be filed on or before the forty-fifth day after the end  of the quarter.  (b)  Every provider of services shall submit a certified annual report on a cash basis of gross receipts received in such  calendar  year  from all patient care services and operating income.  (c)  The  reports  shall  be  in such form as may be prescribed by the commissioner to accurately disclose information  required  to  implement this section.  (d)  Final payments shall be due for all providers of services 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 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  provider  of services of an estimated payment shall be applied to any other payment due from the provider of  services pursuant  to  this section, or, if no payment is due, at the election of the provider of services shall be applied to future  estimated  payments or  refunded  to  the  provider  of  services. Interest shall be paid on overpayments from the date of overpayment to the date  of  crediting  or refund  at  the rate determined in accordance with paragraph (a) of this subdivision if  the  overpayment  was  made  at  the  direction  of  the commissioner.  Interest  under  this  paragraph shall not be paid if the amount thereof is less than one dollar.   9. Funds accumulated, including income from invested funds,  from  the assessments specified in this section, including interest and penalties, shall be deposited by the commissioner and credited to the general fund.   10. Notwithstanding any inconsistent provision of law or regulation to the  contrary,  the assessments pursuant to this section shall not be an allowable cost in the determination of reimbursement rates  pursuant  to this article.   11.  (a)  (ii)  The assessment shall not be collected in excess of one million three  hundred  thousand  dollars  from  providers  of  services pursuant  to  paragraph  (b)  of subdivision two of this section 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 (b)  of  subdivision  two  of this section in excess of one 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 providers  of services by the commissioner of mental health based on the ratio which a hospital's assessment for such period bears to  the  total of the assessments for such period paid by such hospitals.  (iii)  The  additional  assessment shall not be collected in excess of three hundred thousand dollars from providers of  services  pursuant  to paragraph (b) of subdivision two of this section for the period of April first,   nineteen   hundred  ninety-seven  through  March  thirty-first, nineteen hundred ninety-eight. The amount of the  additional  assessment collected  pursuant  to paragraph (b) of subdivision two of this section in excess of 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 providers of services by the commissioner  of  mental  health  based  on  the  ratio  which  a hospital's  additional  assessment for such period bears to the total of the additional assessments for such period paid by such hospitals.  (b) (ii) The assessment shall  not  be  collected  in  excess  of  two hundred  thousand  dollars  from  residential  treatment  facilities for children and youth pursuant to paragraph (c) of subdivision two of  this section  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 two 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 providers of services by the commissioner  of  mental  health  based  on  the  ratio  which  a residential  treatment  facility for children and youth's assessment for such period bears to the total of the assessments for such  period  paid by such residential treatment facilities for children and youth.  (iii)  The  additional  assessment shall not be collected in excess of fifty  thousand  dollars  from  residential  treatment  facilities   for children  and youth pursuant to paragraph (c) of subdivision two of this section for the period of April  first,  nineteen  hundred  ninety-seven through March thirty-first, nineteen hundred ninety-eight. The amount of the  additional  assessment  collected  pursuant  to  paragraph  (c)  of subdivision two of this section in excess of fifty thousand dollars  for the  period  of April first, nineteen hundred ninety-seven through March thirty-first,  nineteen  hundred  ninety-eight  shall  be  refunded   to providers  of services by the commissioner of mental health based on the ratio which a residential treatment facility for  children  and  youth's additional  assessment  for  such  period  bears  to  the  total  of the additional  assessments  for  such  period  paid  by  such   residential treatment facilities for children and youth.   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 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  mental 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 mental health shall collect  any  retroactive  amount  due  as a result, without interest or penalty provided the provider of services pays  the  retroactive  amount due  within ninety days of notice from the commissioner of mental health to the provider of services that an exclusion is null and void. Interest and penalties shall be  measured  from  the  due  date  of  ninety  days following  notice from the commissioner of mental health to the provider of services.   13.  Subparagraph  (ii)  of  paragraph  (b)  of  subdivision  two  and subparagraph  (ii)  of  paragraph (c) of subdivision two of 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 a difference between the  rate of assessment on hospitals and residential treatment facilities for children and youth assessed pursuant to this section  and  the  rate  of assessment  including  the  additional  assessment  on general hospitals assessed  pursuant to section twenty-eight hundred seven-d of the public health law; in order for the assessments pursuant to  this  section  and the assessments including the additional assessment on general hospitals pursuant  to  section  twenty-eight hundred seven-d of the public health law to be  qualified  as  broad-based  health  care  related  taxes  for purposes  of the revenues received by the state pursuant to this section and section twenty-eight hundred seven-d of the public  health  law  not reducing  the  amount  expended  by  the state as medical assistance for purposes of federal financial participation. The commissioner of  mental health  shall not collect the additional 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 this section or the assessments including the additional  assessment  on general  hospitals  pursuant  to section twenty-eight hundred seven-d of the public health law do not so qualify based on the difference  between the  rate of assessment on hospitals or residential treatment facilities for children and youth assessed pursuant to this section and the rate of assessment including the  additional  assessment  on  general  hospitals pursuant  to  section  twenty-eight hundred seven-d of the public health law then the  provisions  of  subparagraph  (ii)  of  paragraph  (b)  of subdivision  two  and  subparagraph (ii) of paragraph (c) of subdivision two of this section shall be deemed to  have  been  in  full  force  and effect   as  of  April  first,  nineteen  hundred  ninety-two,  and  the commissioner of mental health shall collect any retroactive  amount  due as  a  result,  without  interest  or  penalty  provided the provider of services pays the retroactive amount due within ninety  days  of  notice from  the commissioner of mental health to the provider of services 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 of mental health to the provider of services.