NY Pub Health L § 2807-J (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2807-J - Patient Services Payments.

* §  2807-j.  Patient  services  payments.  1.  Payments to designated providers of services, as defined in paragraph (a) of subdivision  one-a of  this  section,  by  all  payors,  including  the  state governmental agencies,  corporations  organized  and  operating  in  accordance  with article  forty-three  of  the  insurance law, organizations operating in accordance with the provisions of article forty-four  of  this  chapter, local  governmental  agencies,  self-insured funds, commercial insurers, payors pursuant to the comprehensive motor vehicle insurance reparations act, the workers' compensation law, the volunteer firefighters'  benefit law  and  the  volunteer  ambulance  workers' benefit law, and any other rate, charge, or negotiated payment payor, for patient services provided to persons who are not eligible for payments as beneficiaries  of  title XVIII  of  the  federal  social  security act (medicare) shall include a surcharge for an allowance  on  net  patient  service  revenues  in  the percentage  amount  and  for the periods specified in subdivision two of this section. Any such allowance shall be submitted by or on  behalf  of designated   providers   of   services   to   the  commissioner  or  the commissioner's designee in accordance  with  subdivision  five  of  this section.   1-a. Definitions. (a) "Designated providers of services", for purposes of  this  section,  shall  mean  providers  of services in the following classes:  (i) general hospitals;  (ii) diagnostic and treatment centers that provide:  (A) a comprehensive range of primary health care services; or  (B) ambulatory surgical services; and  (iii) for periods prior to October first, two thousand, subject to the provisions of paragraph  (d)  of  subdivision  three  of  this  section, free-standing  clinical  laboratories  issued a permit pursuant to title five of article five of this chapter.  (b) "Third-party  coverage",  for  purposes  of  this  section,  shall include,  but  not  be  limited  to:  payments by a governmental agency, insurer, health maintenance organization, self-insured  fund,  or  other third-party  entity making payments on behalf of a patient; whether made directly to a designated provider of services or indirectly as indemnity or similar payments made to the  patient  (or  patient's  representative such  as  parent or family member) for services provided by a designated provider of services, or through the use of  payments  made  payable  to both  the  designated  provider of services and the patient or patient's representative, or similar devices.  (c) "Third-party payors", for purposes of this section, shall include, but not be limited to: governmental agencies; corporations organized and operating in accordance with article forty-three of the  insurance  law; organizations  operating  in  accordance  with the provisions of article forty-four of this  chapter;  providers  of  coverage  pursuant  to  the comprehensive  motor  vehicle  insurance  reparations  act, the workers' compensation law, the  volunteer  firefighters'  benefit  law,  and  the volunteer   ambulance  workers'  benefit  law;  self-insured  funds  and administrators acting on behalf of self-insured  funds;  and  commercial insurers  licensed  to do business in this state and authorized to write accident and health insurance and whose policy provides coverage  on  an expense incurred basis.   2. (a) The total percentage allowance for any period during the period January   first,   nineteen   hundred   ninety-seven   through  December thirty-first, nineteen hundred ninety-nine  and  on  and  after  January first, two thousand, for a designated provider of services applicable to a  payor  shall  be  determined  in accordance with this subdivision and applied to net patient service revenues.  (b)  The  total  percentage  allowance  for  each  payor,  other  than governmental  agencies, or health maintenance organizations for services provided to subscribers eligible  for  medical  assistance  pursuant  to title  eleven  of  article  five of the social services law, or approved organizations  for  services  provided  to  subscribers eligible for the family health plus program pursuant to title eleven-D of article five of the social services law, and other than payments for a patient that  has no  third-party  coverage in whole or in part for services provided by a designated provider of services, shall be:  (i) the sum of (A) eight and  eighteen-hundredths  percent,  provided, however,  that  for  services  provided  on  and  after  July first, two thousand three, the percentage shall be eight and eighty-five hundredths percent, and further provided that for services provided  on  and  after January  first,  two  thousand  six,  the  percentage shall be eight and ninety-five hundredths percent, and further provided that  for  services provided  on  and  after  April first, two thousand nine, the percentage shall be nine and sixty-three hundredths percent, plus  (B)  twenty-four percent, provided, however, that for services provided on and after July first,  two  thousand  three,  the  percentage  shall be twenty-five and ninety-seven hundredths percent, and further provided that for  services provided  on  and  after January first, two thousand six, the percentage shall be twenty-six  and  twenty-six  hundredths  percent,  and  further provided  that  for  services  provided  on  and  after April first, two thousand nine, the percentage shall  be  twenty-eight  and  twenty-seven hundredths  percent,  and  plus (C) for a specified third-party payor as defined in subdivision one-a of section twenty-eight hundred seven-s  of this  article the percentage allowance applicable for a general hospital for inpatient hospital services pursuant to subdivision two  of  section twenty-eight hundred seven-s of this article;  (ii)  unless  (A)  an  election  in  accordance  with paragraph (a) of subdivision five of this section to pay the allowance  directly  to  the commissioner   or  the  commissioner's  designee  is  in  effect  for  a third-party payor, and in addition (B) for a specified third-party payor an  election  to  pay  the  assessment  in   accordance   with   section twenty-eight hundred seven-t of this article is in effect.  (c) If an election in accordance with subdivision five of this section is  in effect for a third-party payor and in addition in accordance with section twenty-eight hundred seven-t of this  article  for  a  specified third-party  payor,  the  total  percentage  allowance  factor  shall be reduced to eight and  eighteen-hundredths  percent,  provided,  however, that  for  services provided on and after July first, two thousand three the total percentage allowance factor shall  be  reduced  to  eight  and eighty-five  hundredths  percent, and further provided that for services provided on and  after  January  first,  two  thousand  six,  the  total percentage  allowance  factor  shall be reduced to eight and ninety-five hundredths percent, and further provided that for services  provided  on and after April first, two thousand nine, the total percentage allowance factor shall be reduced to nine and sixty-three hundredths percent.  (d)  The  total  percentage  allowance  for  payments  by governmental agencies, as determined in accordance with paragraphs (a) and  (a-1)  of subdivision  one of section twenty-eight hundred seven-c of this article as in effect on December thirty-first, nineteen hundred  ninety-six,  or health  maintenance  organizations  for services provided to subscribers eligible for medical assistance pursuant to title eleven of article five of the social services  law,  or  approved  organizations  for  services provided  to  subscribers  eligible  for  the family health plus program pursuant to title eleven-D of article five of the social  services  law, shall  be  five  and ninety-eight-hundredths percent, provided, however,  that for services provided on and after July first, two  thousand  three the  total  percentage allowance shall be six and forty-seven hundredths percent, and further provided that for services provided  on  and  after January first, two thousand six, the total percentage allowance shall be six  and  fifty-four  hundredths  percent, and further provided that for services provided on and after April first, two thousand nine, the total percentage allowance shall be seven and four hundredths percent.  (e) The total percentage allowance for payments for services  provided by  designated  providers  of services for which there is no third-party coverage in whole or in part  shall  be  eight  and  eighteen-hundredths percent, provided, however, that for services provided on and after July first,  two thousand three the total percentage allowance shall be eight and eighty-five  hundredths  percent,  and  further  provided  that  for services  provided  on  and  after  January first, two thousand six, the total percentage allowance shall be  eight  and  ninety-five  hundredths percent,  and  further  provided that for services provided on and after April first, two thousand nine, the total percentage allowance shall  be nine  and sixty-three hundredths percent. This paragraph shall not apply to patient deductibles and coinsurance amounts.  (f)  The  total  percentage  allowance  for  patient  deductibles  and coinsurance amounts shall be the same percentage allowance applicable to payments  by  the primary third-party payor covering the patient in each case determined in accordance with paragraphs (a), (b) and (c)  of  this subdivision.  (g)  The  total  percentage allowance for secondary third-party payors under coordination of benefits principles shall be the  same  percentage allowance applicable to payments by the primary third-party payor in the case  determined  in accordance with paragraphs (a), (b) and (c) of this subdivision.   3. Net patient service revenues, for purposes of this  section,  shall mean:  (a)  for  general  hospitals  all moneys received for or on account of inpatient hospital services,  outpatient  services  (including  referred ambulatory  services), emergency services, ambulatory surgical services, and other hospital  or  health-related  services,  including  capitation payments  allocable to inpatient hospital services,  outpatient services (including referred ambulatory services), emergency services, ambulatory surgical  services  and  other  hospital  or   health-related   services excluding  services listed below, less refunds, for discharges occurring or for visits made or services performed  on  or  after  January  first, nineteen  hundred  ninety-seven,  or  contracted service obligations for periods  on  or  after  January  first,  nineteen  hundred  ninety-seven excluding  the following subject to the provisions of subdivision eleven of this section:  (i) revenue received for services provided to beneficiaries  of  title XVIII of the federal social security act (medicare);  (ii)  revenue  received  by  a general hospital for residential health care facility services, adult day care services, hospice  services,  and home care services;  (iii)  revenue  received  from the allowances pursuant to this section and section twenty-eight hundred seven-s of this article;  (iv) revenue received from bad debt and charity care and indigent care rate adjustments and pool distributions pursuant to section twenty-eight hundred seven-c of this article, general  hospital  indigent  care  pool distributions  pursuant  to section twenty-eight hundred seven-k of this article, health care services pool  distributions  pursuant  to  section twenty-eight  hundred  seven-c  of this article, health care initiatives pool distributions pursuant to section twenty-eight hundred  seven-l  of  this  article,  professional  education  pool  distributions pursuant to section twenty-eight hundred seven-m of this  article,  tobacco  control and   insurance  initiatives  pool  distributions  pursuant  to  section twenty-eight  hundred  seven-v  of  this article, and high need indigent care adjustment pool  distributions  pursuant  to  section  twenty-eight hundred  seven-w of this article, provided, however, that funds received as  medical  assistance  payments  which  include  state  share  amounts authorized  pursuant  to  section  twenty-eight  hundred seven-v of this article that are not disproportionate share hospital payments  shall  be included  within  the  meaning  of  net  patient service revenue for the purposes of this section;  (v) revenue received from physician practice or faculty practice  plan discrete billings for physician services;  (vi)  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;  (vii) revenue received from governmental deficit financing;  (viii) subject to the provisions of paragraph (d) of this subdivision, revenue received for or  on  account  of  referred  ambulatory  clinical laboratory visits made or services performed on and after October first, two thousand.  (b) for diagnostic and treatment centers providing services designated in  subparagraph  (ii)  of  paragraph  (a)  of subdivision one-a of this section all moneys received, including capitation payments allocable  to diagnostic  and  treatment  center  services  otherwise  covered  by the assessment, less refunds, for or on account of visits made  or  services performed  on  or  after January first, nineteen hundred ninety-seven or contracted service obligations for periods on or  after  January  first, nineteen hundred ninety-seven:  (i) for the following services:  (A)  for  diagnostic  and  treatment centers providing a comprehensive range of primary health care services, for all services;  (B) for diagnostic and treatment centers providing ambulatory surgical services, for all ambulatory surgical services;  (ii) excluding the following subject to the provisions of  subdivision eleven of this section:  (A)  revenue  received for services provided to beneficiaries of title XVIII of the federal social security act (medicare);  (B) revenue received from the allowances pursuant to this section;  (C) revenue received from bad debt and charity care  rate  adjustments pursuant  to  paragraph  (f)  of subdivision two of section twenty-eight hundred seven of this article, health care services  pool  distributions pursuant to section twenty-eight hundred seven-c of this article, health care  initiatives  pool  distributions  pursuant to section twenty-eight hundred  seven-l  of   this   article,   professional   education   pool distributions  pursuant  to section twenty-eight hundred seven-m of this article, tobacco control and insurance  initiatives  pool  distributions pursuant  to  section  twenty-eight hundred seven-v of this article, and high need  indigent  care  adjustment  pool  distributions  pursuant  to section twenty-eight hundred seven-w of this article;  (D)  revenue received from physician practice or faculty practice plan discrete billings for physician services;  (E) 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,  revenue received for or on account of services provided to subscribers of such health maintenance organization;  (F) revenue received from governmental deficit financing; and  (G) subject to the provisions of paragraph (d)  of  this  subdivision, revenue  received  for  or  on  account  of referred clinical laboratory visits made or services  performed  on  and  after  October  first,  two thousand.  (c)  for  free-standing  clinical  laboratories,  all moneys received, including capitation payments, less refunds, for or on account of visits made or services performed on or after January first,  nineteen  hundred ninety-seven  and  prior  to October first, two thousand, subject to the provisions of paragraph (d) of this subdivision, or  contracted  service obligations  for  periods  on  or  after January first, nineteen hundred ninety-seven and prior to October first, two thousand,  subject  to  the provisions of paragraph (d) of this subdivision, for clinical laboratory services,  excluding, subject to the provisions of subdivision eleven of this section:  (i) revenue received for services provided to beneficiaries  of  title XVIII of the federal social security act (medicare);  (ii) revenue received from the allowances pursuant to this section;  (iii)  for  a  clinical  laboratory  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, revenue received for or on account of services provided  to  subscribers of such health maintenance organization; and  (iv) revenue received from governmental deficit financing.  (d)  Provided, however, that if either the provisions of clause (G) of subparagraph (ii) of paragraph (b) of this subdivision  or  subparagraph (viii)  of  paragraph  (a)  of  this  subdivision  which exclude certain revenues from the definition of net patient  service  revenues  for  the purpose  of  imposing  surcharges  pursuant to this section, result in a determination of an impermissible provider tax by the secretary  of  the U.S.  department  of  health  and human services under the provisions of section 1903(w) of the federal social security act, then clause  (G)  of subparagraph  (ii)  of  paragraph  (b) of this subdivision, subparagraph (viii) of paragraph (a) of this subdivision,  and  sections  forty-eight and   forty-nine  of  chapter  one  of  the  laws  of  nineteen  hundred ninety-nine are  rendered  null  and  void  as  of  October  first,  two thousand. The commissioner will collect any retroactive amounts due as a result  of  surcharges  imposed  on  such  services on and after October first, two thousand, without interest or penalty.   4. (a) For periods prior to January  first,  two  thousand  five,  the commissioner  is  authorized  to  contract  with the article forty-three insurance law plans, or such other contractors as the commissioner shall designate,  to  receive  and  distribute  funds  from   the   allowances established  pursuant  to  this  section, and funds from the assessments established pursuant to subdivision  eighteen  of  section  twenty-eight hundred seven-c of this article. 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 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 million two  hundred  thousand dollars  for  collection  and distribution of allowances and assessments established pursuant to this section and subdivision eighteen of section twenty-eight hundred seven-c of this article, shall  be  paid  from  the allowance and assessment funds.  (b)  Notwithstanding any inconsistent provision of section one hundred twelve or one hundred sixty-three of the state finance law or any  other law,  at the discretion of the commissioner without a competitive bid or request for proposal process, contracts in effect for administration  of  bad  debt  and charity care pools for the period January first, nineteen hundred  ninety-six  through  December  thirty-first,  nineteen  hundred ninety-six  pursuant  to  section  twenty-eight  hundred seven-c of this article  may  be extended to provide for administration pursuant to this section and distributions of allowance and assessment funds pursuant  to this article and may be amended as may be necessary.  (c)  The  commissioner  shall  contract  with an independent certified public accountant to conduct an annual independent audit, in conformance with  generally  accepted   auditing   standards,   of   the   receipts, disbursements,  revenues, expenditures and cash flows of funds, for each calendar year beginning with nineteen hundred eighty-three, through  the most recent calendar year. As used in this section, "funds" shall mean:  (i)  Funds  accumulated and pooled pursuant to this section, paragraph (a) of subdivision eighteen of section twenty-eight hundred  seven-c  of this article, and sections twenty-eight hundred seven-s and twenty-eight hundred seven-t of this article; and  (ii)  Funds  accumulated  and pooled pursuant to chapters five hundred thirty-six, five hundred thirty-seven and five hundred  thirty-eight  of the  laws  of  nineteen hundred eighty-two, chapters eight hundred seven and nine hundred six  of  the  laws  of  nineteen  hundred  eighty-five, chapters  two  and  six  hundred  five  of  the laws of nineteen hundred eighty-eight,  chapters  nine  hundred  twenty-two  and   nine   hundred twenty-three  of  the  laws  of  nineteen  hundred ninety, chapter seven hundred thirty-one of the laws  of  nineteen  hundred  ninety-three  and chapter eighty-one of the laws of nineteen hundred ninety-five.   Such  annual  independent  audit shall be submitted to the director of the budget, the temporary president of the senate and the speaker of the assembly no later than April fifteenth of each year.   5. (a) Any third-party payor for services  provided  by  a  designated provider  of  services  may  make  an  election  to  make payments on an aggregated basis of funds due from the allowance determined pursuant  to subdivision  two  of  this  section  directly to the commissioner or the commissioner's designee on behalf of designated providers of services.  (i) The election pursuant to this paragraph to be effective must be in writing, filed with the commissioner or the commissioner's  designee  on such  forms  and  in  such  manner as the commissioner shall require. An election must apply to all classes of designated  providers  of  service and  to  all  providers  within each class. An election by a payor shall take effect for nineteen hundred ninety-seven,  on  the  next  following January  first,  April first, July first, or October first, and for each calendar year thereafter on the next following January first,  not  less than  thirty days after the election is filed. Beginning December first, nineteen hundred ninety-seven, an election pursuant  to  this  paragraph must  be  made  no  later  than  December first of the year prior to the assessment year. However, any payor licensed pursuant to  the  insurance law  or certified pursuant to article forty-four of this chapter between December first of the year prior to the  assessment  year  and  December thirty-first  of  the assessment year may make an election subsequent to such licensure, and during said time period, to take effect on the  next following  January  first,  April first, July first or October first not less than thirty days after such election is filed.  Payors  other  than those  licensed  pursuant  to the insurance law or certified pursuant to this chapter which have  not  provided  third-party  coverage  prior  to December  first  of  the  year  prior to the assessment year may make an election at any time from December first  of  the  year  prior  to  said assessment year to December thirty-first of the assessment year, to take effect  on  the next following January first, April first, July first or October first not less than thirty days after  the  election  is  filed.  Beginning  June  first,  two  thousand three an election by any payor or organization shall begin on the first day of  the  month  following  the date it was received by the commissioner.  (ii) An election shall remain in effect unless revoked in writing by a specified  third-party payor, which revocation shall be effective on the first day of the next month,  provided  that  such  payor  has  provided notice  of  its intention to so revoke at least twenty days prior to the beginning of such month.  (iii) A payor filing an  election  pursuant  to  this  paragraph  must agree:  (A)  to provide reports in accordance with the provisions of paragraph (b) of subdivision seven of this section;  (B) to provide such certification of  data  and  access  to  allowance expenditure  data  for  audit  verification purposes as the commissioner shall require for purposes of this section; and  (C) to the jurisdiction of the state to  maintain  an  action  in  the courts of the state of New York to enforce any provision of this section related to payment of the allowances.  (D)  for  periods  on  and  after January first, two thousand nine, to provide the commissioner or  the  commissioner's  designee  the  payor's federal  tax  identification  number  and  agree  to  the  use  of  such identification  number  in  connection  with  identifying  the   payor's election  status  to  designated  providers  of  services, including the posting of such identification numbers on secure websites maintained  by the  commissioner  or  the commissioner's designee in furtherance of the purposes of this section. The commissioner shall include for periods  on and  after January first, two thousand nine on such secure websites, the date such payor was first posted.  (iv) If a payor is acting in an administrative  services  capacity  on behalf  of  an organization, such as a self-insured fund, the consent of the  organization  to  the  election  and  the  conditions  pursuant  to subparagraph  (iii)  of  this  paragraph  must  be  submitted  with  the election. Such consent may be set forth  in  writing  in  the  agreement between  the  payor and the organization and a photocopy of that portion of the agreement submitted by the payor, together with  a  photocopy  of the signatures of the organization and the payor on the agreement, shall be  accepted  in lieu of a separate election form from the organization. On and after January first, two thousand four,  the  commissioner  shall have discretion to accept payments made on a timely basis if the reports and  information  reports  are  routinely submitted, notwithstanding the fact that the full and complete election form by  or  on  behalf  of  an organization  was  not  filed  on  a  timely  basis.  In  the  event the commissioner accepts payments pursuant to this section where an election form is missing or incomplete but the payments and  information  reports were  routinely  submitted  as if the election forms had been filed, the election form from the payor and organization shall be  deemed  to  have been filed (and the organization and the payor shall be as legally bound by  the  terms  of  the  election form as if it had signed and filed the election) and neither the payor nor the organization shall  subsequently refuse  to abide by the terms of the election form for any year in which payments were submitted and accepted pursuant to this section.  (v) If a payor, including a payor operating  in  accordance  with  the insurance  law or article forty-four of this chapter, making an election pursuant to this paragraph  is  acting  in  an  administrative  services capacity  on behalf of an organization or organizations, such payor must specify whether such election applies to payments on behalf of all  such organizations  and  establish, in accordance with guidelines established by the superintendent of financial  services,  a  system  through  which  designated  providers  of services and the commissioner can identify the status of a patient as a patient for whom the election does not apply.  (b)  The  commissioner  may  deny  a  payor  the  opportunity to remit directly to the commissioner or the  commissioner's  designee  based  on repeated  late payments, failure to remit correct amounts, or failure to provide  adequate  verification  of  the  accuracy  of   payments.   The percentage  allowance  for  any  such  payor  shall  be  the  percentage determined in accordance with paragraph (b) of subdivision two  of  this section.  (c)  The  commissioner  or  the  commissioner's  designee  shall  make available to all designated providers of services a list of  the  payors which  have  elected  pursuant  to  this  paragraph  to  remit  payments directly.   5-a. (a) Payments by or on behalf of designated providers of  services to the commissioner or the commissioner's designee of funds due from the allowances  pursuant  to  subdivision two of this section or pursuant to payment obligations incurred pursuant to  section  twenty-eight  hundred seven-s  of this article or section twenty-eight hundred seven-t of this article shall be made on a monthly basis, provided,  however,  that  for reporting periods relating to payments for services provided or dates of inpatient  discharge  or  contracted service obligations occurring on or after January first, two  thousand  one,  the  commissioner  may  permit certain  third-party  payors  which  have at least one full year of pool payment experience to submit such payments on an annual basis, based  on an annual demonstration by a payor through its prior year's pool payment experience  that  total pool obligations under this section and sections twenty-eight hundred seven-s and twenty-eight hundred  seven-t  of  this article  are  not  expected  to  exceed  ten thousand dollars for annual periods prior to January  first,  two  thousand  four,  and  twenty-five thousand  dollars  for  annual  periods  on and after January first, two thousand four. Payments due  by  designated  providers  of  services  on account of payors in accordance with paragraph (b) of subdivision two of this  section  shall  be  two percentage points less than the percentage specified in such paragraph. The designated provider of  services  shall retain    for    compensation   for   such   provider's   administrative responsibilities the amount that represents the difference. Payments due by designated providers of services on account of all other payors shall be calculated on the basis of the  percentage  allowance  applicable  to such  payor  pursuant to paragraphs (d), (e), (f) and (g) of subdivision two of this section. Payments shall be due on or  before  the  thirtieth day following the end of a calendar month to which an allowance applies.  (b)  Notwithstanding  any  inconsistent  provision of this section, as shall be necessary to obtain federal financial participation in  medical assistance  expenditures  in  accordance  with  title XIX of the federal social security  act,  the  allowances  included  in  rates  of  payment pursuant  to  this  section  on  behalf of patients eligible for medical assistance pursuant to title  eleven  of  article  five  of  the  social services  law  shall  be  withheld  from  medical assistance payments to designated providers of services and paid to  pools  on  behalf  of  the designated provider of services where a designated  provider of services elects  such  withholding  in  such  time and manner as specified by the commissioner, and in the event a designated provider  of  services  does not  elect  such  withholding,  payments  by such designated provider of services to a pool based on an allowance received for medical assistance patients shall be due within five days of receipt of such  funds.  Funds withheld  by  a  payor  and  paid  to  a  pool on behalf of a designated provider of services shall be considered  received  by  such  designated  provider of services and paid to the pool by such designated provider of services for all purposes.   6.  (a)  If  a payment made by a designated provider of services for a month to which an allowance applies is less than seventy percent of  the amount  due  or  which  the  commissioner  estimates  is  due,  based on available financial and statistical data, the commissioner  may  collect the deficiency pursuant to paragraph (c) of this subdivision.  (b) If a payment made by a designated provider of services for a month to  which an allowance applies is less than ninety percent of the amount due or which the commissioner  estimates  is  due,  based  on  available financial  and  statistical  data,  and  at  least two previous payments within the preceding six months were less than  ninety  percent  of  the amount  due, based on similar evidence, the commissioner may collect the deficiency pursuant to paragraph (c) of this subdivision.  (c) Upon receipt of notification from the commissioner of a designated provider of services' deficiency under this section, the comptroller  or a  fiscal  intermediary designated by the director of the budget, or the commissioner of the office of temporary and disability assistance, 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 designated provider of services the amount of the deficiency  determined under  paragraph (a), (b) or (e) of this subdivision or paragraph (d) of subdivision eight-a of this section. Upon withholding such  amount,  the comptroller  or a designated fiscal intermediary, or the commissioner of the office  of  temporary  and  disability  assistance,  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  the commissioner's  designee,  such  amount  withheld  on  behalf   of   the designated  provider  of services. Such amount shall represent, in whole or in part, the amounts due from the designated provider of services.  (d) The commissioner shall provide a designated provider  of  services with  notice  of any estimate of an amount due for an allowance pursuant to paragraph (a)  or  (b)  of  this  subdivision  or  paragraph  (d)  of subdivision  eight-a  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 designated  provider  of  services  objects  to  an estimate  by  the  commissioner pursuant to paragraph (a) or (b) of this subdivision or paragraph (d) of subdivision eight-a of this  section  of the  amount  due  for an allowance, the designated 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 designated provider of services  an  opportunity  to  be  heard  and  to present  evidence  bearing  on  the  amount  due for an allowance 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 designated provider of services.  (g)  In  the  event  a  hearing  pursuant  to  paragraph  (e)  of this subdivision is not requested and the delinquent amounts in question have been referred for recoupment or offset pursuant to paragraph (c) of this subdivision, or have been referred to the office of the attorney general for collection, the amount of such delinquencies 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  designated  provider of services, 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.   7.  (a) (i) Every designated provider of services shall submit reports of net patient service revenues received for or on  account  of  patient services for each month which shall be in such form as may be prescribed by  the  commissioner  to  accurately  disclose  information required to implement this section. For periods on  and  after  January  first,  two thousand  five,  reports  by  designated  providers of services shall be submitted  electronically  in  a  form  as  may  be  required   by   the commissioner;  provided, however, any designated provider of services is not prohibited from submitting reports  electronically  on  a  voluntary basis  prior  to such date, and provided further, however, that all such electronic submissions submitted on and after July first,  two  thousand twelve  shall  be verified with an electronic signature as prescribed by the commissioner.  (ii) For periods on and after January first, two thousand nine,  every designated  provider  of  services  shall  provide  the  commissioner or commissioner's designee with its federal tax identification  number  and such  identification number shall be used in connection with identifying such providers for purposes pursuant  to  this  section,  including  the posting  of such identification numbers on secure websites maintained by the commissioner or the commissioner's designee in  furtherance  of  the purposes  of this section. The commissioner shall include for periods on and after January first, two thousand nine on such secure websites,  the date such designated provider of services was first posted. In addition, the  commissioner  shall,  as  a  part of a final resolution of an audit conducted pursuant to subdivision eight-a of this section, waive payment of interest and penalties otherwise applicable pursuant  to  subdivision eight  of  this  section,  when the audit findings conclusively indicate that the liability for such interest and penalties are the result  of  a delay  in  the  listing  of a new designated provider of services on the secure website maintained by the department.  (b) (i) Every third-party payor making an election in accordance  with paragraph  (a)  of subdivision five of this section shall submit reports of patient service expenditures  for  services  provided  by  designated providers  of services for each month which 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 reporting periods relating to payments for services provided or dates of inpatient discharge or contracted service obligations  occurring  on  or after  January  first,  two  thousand  one,  the commissioner may permit certain third-party payors which have at least one  full  year  of  pool payment  experience  to submit such reports on an annual basis, based on an annual demonstration by a payor through its prior year's pool payment experience that total pool obligations under this section  and  sections twenty-eight  hundred  seven-s  and twenty-eight hundred seven-t of this article are not expected to  exceed  ten  thousand  dollars  for  annual periods  prior  to  January  first,  two  thousand four, and twenty-five thousand dollars for annual periods on  and  after  January  first,  two thousand four.  (ii)  For  periods on and after July first, two thousand four, reports submitted on a monthly basis by third-party payors  in  accordance  with subparagraph (i) of this paragraph and reports submitted on a monthly or  annual  basis by payors acting in an administrative services capacity on behalf of electing third-party payors in  accordance  with  subparagraph (i)  of  this paragraph shall be made electronically in a form as may be required  by the commissioner; provided, however, any third-party payor, except payors acting in an administrative services capacity on behalf of electing third-party payors, which,  on  or  after  January  first,  two thousand  four,  elects to make payments directly to the commissioner or the  commissioner's  designee  pursuant  to  subdivision  five  of  this section,  shall be subject to this subparagraph only after one full year of pool payment experience which results in reports being submitted on a monthly basis, and provided further, however, that all  such  electronic submissions submitted on and after July first, two thousand twelve shall be   verified   with  an  electronic  signature  as  prescribed  by  the commissioner. This subparagraph shall not be interpreted to prohibit any third-party payor from submitting reports electronically on a  voluntary basis.  (c)  If a designated provider of services or a third-party payor fails to file reports required pursuant  to  paragraph  (a)  or  (b)  of  this subdivision  and which are due on and after January first, two thousand, within  sixty  days  of  the  date  such  reports  are  due  and   after notification  of such reporting delinquency, the commissioner may assess a civil penalty of up to ten thousand dollars  for  each  such  failure, provided,  however,  that such civil penalty shall not be imposed if the payor or provider demonstrates good cause for the failure to timely file such reports. Such penalties shall  be  subject  to  the  provisions  of section twelve-a of this chapter.   8.  (a)  If  a  payment  made  pursuant  to this section or to section twenty-eight hundred seven-s or twenty-eight  hundred  seven-t  of  this article  for  a  month to which an allowance applies is less than ninety percent of the amount due or which the commissioner estimates, based  on available  financial  and  statistical  data,  is  due  for  such month, interest shall be due and payable to the commissioner  by  a  designated provider  of  services,  or  by  a third-party payor, other than a state governmental agency, that has elected to pay an allowance  directly,  on the  difference  between the amount paid and the amount due or estimated to be due from the day of the month the payment was due until  the  date of  payment.  The rate of interest shall be twelve percent per annum or, if greater, 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  due  from  a designated  provider  of  services,  if  not paid by the due date of the following month's payment, may be collected by the commissioner pursuant to paragraph (c) of subdivision six of this section in the  same  manner as an allowance pursuant to subdivision two of this section.  (b)  If  a  payment  made for a month to which an allowance applies is less than seventy percent of the amount due or  which  the  commissioner estimates, based on available financial and statistical data, is due for such  month, a penalty shall be due and payable to the commissioner by a designated provider of services, or by a third-party payor, other than a state  governmental  agency,  that  has  elected  to  pay  an  allowance directly,  of five percent of the difference between the amount paid and the amount due or estimated to be 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 due  from  a  designated  provider  of  services  may be collected by the commissioner pursuant to paragraph (c) of subdivision six of this section in the same  manner  as an allowance pursuant to subdivision two of this section.  (c)  Overpayment  by or on behalf of a designated provider of services of a payment shall  be  applied  to  any  other  payment  due  from  the designated  provider  of  services  pursuant  to this section, or, if no payment is due, at the election of the designated provider  of  services shall  be  applied  to  future  payments  or  refunded to the designated 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 only  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.   8-a.  (a) Payments and reports submitted or required to be submitted to the commissioner or to the commissioner's designee pursuant  to  this section  and  section  twenty-eight  hundred  seven-s of this article by designated providers of services and by third-party  payors  which  have elected  to  make  payments  directly  to  the  commissioner  or  to the commissioner's designee in accordance with subdivision  five-a  of  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  by   designated providers of services or by third-party payors with regard to subsequent payments,  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 designated provider of services or by a third party payor  which  has  elected  to  make  such  payments directly  to  the  commissioner  or the commissioner's designee, or from conducting an audit of payments made prior to such six year period which are found to be commingled with payments which are otherwise subject  to timely audit pursuant to this section.  (b)  Designated  providers of services or third-party payors which, in the course of an audit pursuant to this section or section  twenty-eight hundred  seven-s  of this article, fail to produce data or documentation requested in furtherance of such an audit, within thirty  days  of  such request,  may  be assessed a civil penalty of up to ten thousand dollars for each such failure, provided, however, that such civil penalty  shall not  be  imposed  if the audited entity demonstrates good cause for such failure. The imposition of civil  penalties  pursuant  to  this  section shall be subject to the provisions of section twelve-a of this chapter.  (c) Records required to be retained for audit verification purposes by designated  providers  of  services and third-party payors in accordance with this section and  section  twenty-eight  hundred  seven-s  of  this article  shall  include,  but not be limited to, on a monthly basis, the source records generated by  supporting  information  systems,  detailed claims  information,  detailed  patient  revenue information, capitation arrangements, financial accounting records, relevant correspondence  and such  other  records as may be required to prove compliance with, and to support the reports submitted  in  accordance  with,  this  section  and section twenty-eight hundred seven-s of this article.  (d)  If a designated provider of services or a third party payor fails to produce data or documentation requested in furtherance  of  an  audit  pursuant  to  this  section  or pursuant to section twenty-eight hundred seven-s of this article, for a month to which an allowance applies,  the commissioner  may estimate, based on available financial and statistical data  as  determined by the commissioner, the amount due for such month. If the impact of  the  patient  services  revenue  exemptions  specified pursuant  to  this  section, or pursuant to section twenty-eight hundred seven-s of this  article,  cannot  be  determined  from  such  available financial  and statistical data, the amount due may be calculated on the basis of the aggregate total of patient services  revenue  derived  from such data for the year subject to audit. The commissioner shall take all necessary  steps  to  collect amounts due as determined pursuant to this paragraph, including directing the  state  comptroller  to  offset  such amounts due from any payments made by the state pursuant to this article to  a  designated  provider of services or a third party payor. Interest and penalties shall be applied to such amounts due  in  accordance  with the provisions of subdivision eight of this section.  (e)  The  commissioner  may, as part of a final resolution of an audit conducted pursuant to this subdivision, waive payment  of  interest  and penalties  otherwise  applicable  pursuant  to subdivision eight of this section when amounts due as a result of  such  audit,  other  than  such waived  penalties  and interest, are paid in full to the commissioner or the commissioner's designee within sixty days of the issuance of a final audit report that is mutually agreed to by the commissioner and auditee, provided, however, that if such final audit report is  not  so  mutually agreed  upon,  then  neither the commissioner nor the auditee shall have any obligations pursuant to this paragraph.  (f)  The  commissioner  may  enter  into  agreements  with  designated providers  of  services, and with third-party payors, in regard to which audit findings or prior settlements have  been  made  pursuant  to  this section  or  section  twenty-eight  hundred  seven-s  of  this  article, extending and applying such audit findings or prior  settlements,  or  a portion  thereof,  in  settlement  and  satisfaction  of potential audit liabilities for subsequent  un-audited  periods.  The  commissioner  may reduce  or  waive payment of interest and penalties otherwise applicable to such subsequent unaudited periods when such amounts due as  a  result of  such agreement, other than reduced or waived penalties and interest, are paid in full to the  commissioner  or  the  commissioner's  designee within  sixty  days of execution of such agreement by all parties to the agreement. Any payments made pursuant  to  agreements  entered  into  in accordance   with   this  paragraph  shall  be  deemed  to  be  in  full satisfaction of any liability arising under  this  section  and  section twenty-eight  hundred  seven-s  of  this  article, as referenced in such agreements  and  for  the  time  periods  covered  by  such  agreements, provided,  however,  that  the commissioner may audit future retroactive adjustments to payments made for such periods based on reports filed  by providers and payors subsequent to such agreements.   9.  Funds  accumulated, including income from invested funds, from the allowances specified in this section, and the  assessments  pursuant  to subdivision  eighteen  of  section  twenty-eight hundred seven-c of this article, and the assessments pursuant to paragraph  (c)  of  subdivision nine  of section twenty-eight hundred seven-d of this article, plus such funds as may  be  allocated  in  accordance  with  section  twenty-eight hundred seven-s of this article, including interest and penalties, shall be  deposited  by  the  commissioner  or  the commissioner's designee as follows:  (a) funds shall be deposited and credited to a  special  revenue-other fund  to  be established by the comptroller or to the health care reform act (HCRA) resources fund established pursuant to section  ninety-two-dd  of  the  state  finance  law,  whichever is applicable. To the extent of funds appropriated therefore, the commissioner shall  make  payments  to general  hospitals  related  to  bad  debt  and charity care pursuant to section  twenty-eight  hundred  seven-k  of this article. Funds shall be deposited in the following amounts:  (i) fifty-seven  and  thirty-three-hundredths  percent  of  the  funds accumulated  for the period January first, nineteen hundred ninety-seven through December thirty-first, nineteen hundred ninety-seven,  (ii) fifty-seven and one-hundredths percent of the  funds  accumulated for  the  period  January  first,  nineteen hundred ninety-eight through December thirty-first, nineteen hundred ninety-eight,  (iii)  fifty-five  and  thirty-two-hundredths  percent  of  the  funds accumulated  for  the period January first, nineteen hundred ninety-nine through December thirty-first, nineteen hundred ninety-nine, and  (iv) seven hundred sixty-five million dollars annually  of  the  funds accumulated for the periods January first, two thousand through December thirty-first, two thousand twenty-two, and  (v)  one hundred ninety-one million two hundred fifty thousand dollars of the funds accumulated for the  period  January  first,  two  thousand twenty-three through March thirty-first, two thousand twenty-three.  (b)  funds  shall  be  accumulated  in  a health care initiatives pool established by the commissioner, for  distribution  in  accordance  with section  twenty-eight  hundred seven-l of this article, in the following amounts:  (i)  forty-two  and  sixty-seven-hundredths  percent  of   the   funds accumulated  for the period January first, nineteen hundred ninety-seven through December thirty-first, nineteen hundred ninety-seven,  (ii)  forty-two  and  ninety-nine-hundredths  percent  of  the   funds accumulated  for the period January first, nineteen hundred ninety-eight through December thirty-first, nineteen hundred ninety-eight,  (iii) forty-four  and  sixty-eight-hundredths  percent  of  the  funds accumulated  for  the period January first, nineteen hundred ninety-nine through December thirty-first, nineteen hundred ninety-nine, and  (iv) the remaining balance of the funds accumulated for each period on and after January first, two thousand.   10. Notwithstanding any inconsistent provision of law or regulation to the  contrary,  the  allowances  applicable   to   payments   by   state governmental  agencies pursuant to subdivision two of this section shall be reflected in the determination of  reimbursement  rates  pursuant  to sections  twenty-eight hundred seven and twenty-eight hundred seven-c of this article and fees for clinical laboratory services under the medical assistance program.   11. Each exclusion from the allowances effective on or  after  January first,  nineteen  hundred  ninety-seven  established  pursuant  to  this section shall be  contingent  upon  either:  (a)  qualification  of  the allowances  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 allowances 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 allowances  not  reducing the  amount  expended by the state as medical assistance for purposes of federal financial participation.  The  commissioner  shall  collect  the allowances  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 allowances do not  so  qualify  based  on  any  such exclusion, then the exclusion shall be deemed to have been null and void  as of January first, nineteen hundred ninety-seven, and the commissioner shall  collect  any retroactive amount due as a result, without interest or penalty provided the designated provider of services  or  third-party payor  that  has elected to pay directly pays the retroactive amount due within ninety days of notice from the  commissioner  to  the  designated provider  of  services  or  third-party  payor  that  has elected to pay directly 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  or  the  commissioner's  designee  to  the designated provider of services or  third-party  payor  that  has  elected  to  pay directly.   12.  Revenue from the allowances pursuant to this section shall not be included in gross revenue  received  for  purposes  of  the  assessments pursuant to subdivision eighteen of section twenty-eight hundred seven-c of  this  article,  subject  to  the  provisions  of  paragraph  (e)  of subdivision eighteen of section twenty-eight  hundred  seven-c  of  this article,  and  shall  not  be  included  in  gross  revenue received for purposes of the assessments pursuant  to  section  twenty-eight  hundred seven-d of this article, subject to the provisions of subdivision twelve of section twenty-eight hundred seven-d of this article.   * NB Expires December 31, 2023