NY Work Comp L § 151 (2021)
2021 New York Laws WKC - Workers' Compensation Article 8 - Administration 151 - Assessments for Annual Expenses.

§  151.  Assessments  for  annual  expenses.  1.  The  annual expenses necessary for the board to administer the provisions  of  this  chapter, the   volunteer   ambulance   workers'   benefit   law,   the  volunteer firefighters'  benefit  law,  the  disability  benefits  law,  and   the workmen's  compensation  act for civil defense volunteers shall be borne by affected employers securing compensation for their employees pursuant to section fifty of this chapter. The board shall  collect  such  annual expenses  from affected employers through assessments as provided by the provisions of this section, including for purposes of this  subdivision: (a)  the  aggregate  assessment amount described in subparagraph four of paragraph (h) of subdivision eight of section fifteen  of  this  chapter for  the  special  disability  fund  in  accordance  with each financing agreement described in such subparagraph, (b) the  aggregate  assessment amount described in section fifty-c of this chapter for the self-insurer offset  fund  in  accordance  with each financing agreement described in such section, (c) the assessment amount described in  subdivision  three of section twenty-five-a of this chapter for the fund for reopened cases and  (d) the assessment amount described in section two hundred fourteen of this chapter for the special fund for disability benefits;  provided, that  the  foregoing  and  any  other  provision  of this chapter to the contrary notwithstanding, assessment receipts shall be applied first  to fully fund the amount described in subparagraph four of paragraph (h) of subdivision  eight  of section fifteen of this chapter and then to fully fund the  amount  described  in  section  fifty-c  of  this  chapter  in accordance  with  each  then  applicable financing agreement pursuant to such provisions prior to application to any other purpose other than  to pay  any  actual  costs  of  collecting  such  assessment  that  are not otherwise funded. For purposes of this section, affected employer  means all employers required to obtain workers' compensation coverage pursuant to this chapter.   2.  On  the first day of November, two thousand thirteen, and annually thereafter, the  chair  shall  establish  an  assessment  rate  for  all affected  employers in the state of New York in an amount expected to be sufficient to produce assessment receipts at least  sufficient  to  fund all  estimated  annual  expenses  pursuant  to  subdivision  one of this section except those expenses for which an assessment is authorized  for self-insurance  pursuant  to  subdivision  five of section fifty of this chapter. Such rate shall be assessed effective the first of  January  of the  succeeding  year  and  shall  be  based  upon  a single methodology determined by the chair. The chair  may  also  establish  an  additional assessment  rate,  not  to exceed thirty percent of annual premiums, for those affected employers who are in default  in  the  payment  of  their compensation   pursuant  to  subparagraph  (b)  of  paragraph  seven  of subdivision three-a of section  50  of  this  chapter.  Such  additional assessment  shall be collected and remitted to the chair consistent with subdivisions four and  five  of  this  section.  The  chair  shall  make available  for  public inspection an itemized statement of the estimated annual expenses in the office of the board for thirty  days  immediately after the rate is established.   3.  The  chair and department of audit and control annually as soon as practicable after the first of April of each year  shall  ascertain  the actual  total  amount  of  expenses, including in addition to the direct costs of personal service, the cost of maintenance  and  operation,  the cost of retirement contributions made and workers' compensation premiums paid  by  the  state  for  or on account of personnel, rentals for space occupied in state owned or state leased buildings, such  additional  sum as may be certified to the chair and the department of audit and control as  a reasonable compensation for services rendered by the department of  law and expenses incurred by such  department,  for  transfer  into  the training  and educational program on occupational safety and health fund created pursuant to chapter eight hundred  eighty-six  of  the  laws  of nineteen  hundred  eighty-five  and  section ninety-seven-c of the state finance law, for the New York state occupational health clinics network, for the department of labor occupational safety and health  program  and for  transfer into the uninsured employers' fund pursuant to subdivision two of section twenty-six-a of this chapter, and  all  other  direct  or indirect   costs,   incurred   by  the  board  in  connection  with  the administration of this chapter,  except  those  expenses  for  which  an assessment is authorized for self-insurance pursuant to subdivision five of  section  fifty of this chapter. Assessments pursuant to subparagraph four of paragraph (h) of subdivision eight of section  fifteen  of  this chapter  for the special disability fund, pursuant to section fifty-c of this chapter for the self insurer offset fund, pursuant  to  subdivision three of section twenty-five-a of this chapter for the fund for reopened cases,  and pursuant to section two hundred fourteen of this chapter for the special fund for disability benefits shall be included in the  total amount of expenses for the purposes of this subdivision. Any overpayment of   annual   assessments   resulting  from  the  requirements  of  this subdivision shall be applied as a credit against the  future  assessment rate  provided  the fund balance shall not be reduced below five percent of the total amount assessed.   4. For those affected employers obtaining coverage:  (a) by insuring with the state fund pursuant  to  subdivision  one  of section  fifty  of  this  chapter;  or  (b) through a policy pursuant to subdivision two of section fifty of  this  chapter;  or  (c)  through  a county  self-insurance  plan  under article five of this chapter; or (d) through a group private or public self-insurer pursuant  to  subdivision three-a  of section fifty of this chapter, such assessment amounts shall be collected and remitted to the chair  by  the  carrier  or  the  state insurance fund, or county plan, or group private or public self-insurer, on  behalf of the employer(s) until such time as the board establishes a direct employer payment process. Affected private  or  public  employers providing  compensation  through  self insurance pursuant to subdivision three of section fifty of this  chapter  shall  pay  assessment  amounts directly to the chair.   5.  Insurance  carriers  as  defined  in  section  two of this chapter including the state insurance fund and self-insurers, shall collect from affected employers and periodically remit to the board such  assessments and  shall be responsible for ensuring their employers/policyholders are current on their assessments. (a) Failure  to  ensure  policyholders  or employers  are current on their assessments will result in the insurance carrier; or self-insurer; being liable for such assessments.  (b) In the event the employer;  insurance  carrier;  or  self-insurer; knew or should have known that the employer misreported any data related to  the  assessment  process,  they  may  be  subject  to any applicable penalties or sanctions provided by this chapter.   6. (a) Effective the first day of January, two thousand fourteen,  all assessment  cycles in progress will be replaced with the assessment rate determined herein. However, such new assessment rate shall  not  relieve any  carrier or self-insurer for outstanding amounts due as of the first day of January two thousand fourteen.  (b) All assessment amounts collected by insurance carriers, except the state fund, and not yet remitted to the board prior to the first day  of January,  two  thousand  fourteen must be remitted to the chair no later than the first day of February, two thousand fourteen.  (c) Effective immediately, notwithstanding any law  to  the  contrary, pursuant  to  the  provisions  of  this chapter, the assessment reserves remitted to the chair pursuant to this paragraph shall, at  the  request of the director of the budget, be distributed as follows:  (i)  As  soon  as  practicable  on  or after April first, two thousand sixteen, the chair of the workers' compensation board shall transfer one hundred forty million dollars to the state insurance fund,  for  partial payment and partial satisfaction of the state's obligations to the state insurance  fund  under  workers' compensation law section eighty-eight-c for two thousand sixteen.  (ii) Effective immediately, the chair  of  the  workers'  compensation board shall authorize the board to expend up to sixty million dollars to implement   infrastructure   and   system   upgrades   consistent   with recommendations  of  the  workers'  compensation  board   redesign   and reengineering project.  (iii)  Effective  immediately,  the chair of the workers' compensation board shall authorize the board to expend up to  forty  million  dollars for:   (A)  transfer  into  the  training  and  educational  program  on occupational safety and health fund created pursuant  to  chapter  eight hundred  eighty-six  of  the  laws  of  nineteen hundred eighty-five and section ninety-seven-c of the state finance law; (B) the  department  of labor  occupational  safety  and  health  program; (C) transfer into the uninsured  employers'  fund  pursuant  to  subdivision  two  of  section twenty-six-a  of  this chapter in connection with payment of claims made pursuant to  article  eight-A  of  this  chapter;  (D)  a  reduction  in liabilities of the special disability fund pursuant to subdivision eight of  section  fifteen  of this chapter and/or the fund for reopened cases pursuant to section twenty-five-a of this chapter; and/or  (E)  transfer to  or  payment of up to ten million dollars of such amount on behalf of the superintendent of financial services for costs associated  with  the implementation  of  the  paid  family  leave act of article nine of this chapter.   Any and all funds remaining after accounting  for  the  transfers  and expenditures  set  forth above may, at the discretion of the director of the budget, either remain with the workers'  compensation  board  or  be transferred to the general fund for the purpose of reducing budget gaps.   Annually, the workers' compensation board will provide to the director of  the budget, the chair of the senate finance committee, and the chair of the assembly ways and means committee, an accounting  of  such  funds and  all associated income received. Such accounting will continue until March thirty-first, two thousand twenty.   7. Assessments for the expenses of  the  board  including  assessments pursuant  to  paragraph  (h)  of subdivision eight of section fifteen of this chapter for the special disability fund and pursuant to subdivision three of section twenty-five-a of this chapter for the fund for reopened cases shall not constitute elements of loss.   7-a. Notwithstanding any law to the contrary, when there is a  default on  the  payment  of  premium,  including  any assessments payable under subdivision seven of this section, any action by the carrier,  including the state insurance fund, to collect any unpaid premium shall include an action  seeking recovery of such assessments on behalf of the board. The carrier shall remit the amount of any such unpaid assessments  collected either pursuant to a judgment or by settlement to the board.   8.  The  foregoing  and  every  other prevision of law to the contrary notwithstanding, all  moneys  received  on  account  of  the  assessment authorized  by  this  section  shall  be deposited upon receipt into the administrative clearing account held by the commissioner of taxation and finance and applied, as pledged assessments  for  purposes  of  sections  sixteen  hundred  eighty-l  and  sixteen  hundred eighty-q of the public authorities law and prior to any other application: first, in accordance with any other  provision  of  any  special  disability  fund  financing agreement  entered  into  prior  to  March  thirty-first,  two  thousand thirteen, to the extent required to fully fund the then current  payment and  reserve requirements under such financing agreement; and second, in accordance with each special disability  fund  financing  agreement  and each  self-insured  bond  financing agreement, to the extent required to fully fund the then current payment and reserve requirements under  each such  financing  agreement  entered  into  after March thirty-first, two thousand  thirteen  with  respect  to  bonds  issued  by  the  dormitory authority pursuant to either section sixteen hundred eighty-l or section sixteen  hundred eighty-q of the public authorities law, on a pari passu basis without preference or priority among all such  other  bonds.  Such monies   shall   not   be  commingled  with  any  other  monies  in  the commissioner's custody prior to the completion of such  application  and shall  not  be  deemed  to be part of the state treasury or of any funds under management of the state. This  section  shall  not  be  deemed  to authorize  any  infringement  upon  the  rights of holders of such bonds issued or to be issued under such sections  of  the  public  authorities law.  The  provisions  of  this section may be included by the dormitory authority in any contract with  the  holders  of  any  such  bonds.  The operation  of  this  section  and the application of the receipts of the assessment authorized by this section shall be subject to the provisions of each financing agreement authorized pursuant to subparagraph four  of paragraph  (h)  of  subdivision  eight  of section fifteen or to section fifty-c of this  chapter  and  this  section  shall  not  be  deemed  to authorize any infringement upon the rights of holders of bonds issued or to be issued pursuant to either such provision.   9.  The  provisions  of  this  section shall not apply with respect to policies containing coverage pursuant to paragraph one of subsection (j) of section three thousand four  hundred  twenty  of  the  insurance  law relating  to  every  policy  providing  comprehensive personal liability insurance on a one, two, three or four family owner-occupied dwelling.   10.  If  the  assessments  collected  pursuant  to  this  section  are insufficient  to  meet  the obligations financed by the assessments, the chair, for a period of three years, may borrow any  shortfall  from  the state  insurance  fund with any borrowing to be added to the assessments under this section and repaid the following year to the state  insurance fund  with  interest  at the state insurance fund's then current rate of return.   11. Effective immediately, notwithstanding any law  to  the  contrary, pursuant to the provisions of this chapter, the assessment reserves held by the state insurance fund for the payment of future assessments are no longer  required  and  all  funds  and  investments  held  by  the state insurance fund related to the assessment reserves shall  be  transferred to  the chair of the workers' compensation board as soon as practicable. The commissioner of taxation and finance  shall  be  custodian  of  such funds,  which  shall  not be commingled with other funds of the workers' compensation board, and may invest such funds  in  the  same  manner  as surplus  funds  held by the state insurance fund pursuant to subdivision two of section eighty-seven of this chapter. Disbursements of such funds shall be made by such commissioner upon written warrant of the chair  of the workers' compensation board or the chair's designee.   At  the request of the director of the budget, such moneys transferred to the chair of the workers' compensation board shall be distributed  as follows:  (a)  As  soon as practicable after April first, two thousand thirteen, the chair of the workers' compensation board shall transfer two  hundred fifty  million dollars to the general fund for debt management or fiscal uncertainties.  (b)  As  soon as practicable after April first, two thousand fourteen, the chair of the workers' compensation board shall transfer one  billion dollars to the general fund for the purpose of reducing budget gaps.  (c)  As  soon  as practicable after April first, two thousand fifteen, the chair of the workers' compensation board shall transfer two  hundred fifty  million  dollars  to the general fund for the purpose of reducing budget gaps.  (d) As soon as practicable after April first,  two  thousand  sixteen, the  chair of the workers' compensation board shall transfer two hundred fifty million dollars to the general fund for the  purpose  of  reducing budget gaps.  (e) Any and all funds remaining after accounting for the transfers set forth above may, at the discretion of the director of the budget, either remain  with  the  workers'  compensation board or be transferred to the general fund for the purpose of reducing budget gaps  or  to  the  state insurance  fund.  The  budget  director, acting in consultation with the chair of the workers' compensation board, shall  determine  whether  any money  returned  to the state insurance fund is a loan or a transfer and the terms and conditions therein. Any funds transferred or loaned to the state insurance fund upon the budget director's request may be  invested in   a   manner   consistent  with  investment  guidelines  pursuant  to subdivision two of section eighty-seven  of  the  workers'  compensation law.   Annually, the state insurance fund and the workers' compensation board will  provide  to  the  director  of the budget, the chair of the senate finance committee,  and  the  chair  of  the  assembly  ways  and  means committee,  an  accounting  of  such  funds  and  all  associated income received. Such accounting will continue until  March  thirty-first,  two thousand seventeen.   12. The chair shall promulgate regulations to carry out the provisions of this section.   13.  To  effectuate  an  efficient  assessment  process and the proper management of the workers' compensation system all data in possession of the compensation insurance rating board shall be made available  to  the board and the department of financial services upon request.   14.   The   chair   may  conduct  periodic  audits  of  any  employer, self-insurer, insurance carrier and the state insurance fund  concerning any  information  or  payment required under this section, including any information relevant to the payment or calculation of  any  assessments. The  employer,  self-insurer,  insurance carrier and the state insurance fund shall provide all necessary documents and information  in  relation to  an audit in a manner prescribed by the chair. Upon the determination of the chair that an employer, self-insurer, insurance  carrier  or  the state  insurance  fund  has  underpaid  an assessment as a result of its inaccurate reporting, the employer, self-insurer, insurance  carrier  or the  state insurance fund upon notice from the chair, shall pay the full amount of the underpaid assessment, along with interest at the  rate  of nine  per  cent  per  annum  on the unpaid assessment due not later than thirty days after such notice. An insurance  carrier  or  employer  that knowingly makes a material misrepresentation of information required for the  purpose  of  effectuating this section shall be guilty of a class E felony.