NY Ment Hygiene L § 43.04 (2021)
2021 New York Laws MHY - Mental Hygiene Title E - General Provisions Article 43 - Fees for Services 43.04 - Provider of Services Assessments.

§ 43.04 Provider of services assessments.   1.  For  purposes of this section, provider of services shall refer to (i) those providers as defined by subdivision five of  section  1.03  of this   chapter  which  are  licensed  by  the  office  for  people  with developmental disabilities pursuant to article sixteen of  this  chapter as  intermediate  care  facilities  for  individuals  with developmental disabilities,  providers  of  day  treatment   services   or   specialty hospitals,  except  that  on  and after December first, nineteen hundred ninety-seven,  provider  of  services  shall   not   include   specialty hospitals, and (ii), for purposes of paragraph (c) of subdivision two of this  section  only,  the term provider of services, shall mean, and for purposes of this subdivision shall include, the office for  people  with developmental   disabilities   as  the  operator  of  intermediate  care facilities for individuals with developmental disabilities. Providers of services are charged assessments on their gross receipts  received  from services and care related to intermediate care facilities, day treatment services,  or  specialty  hospitals  until  November thirtieth, nineteen hundred ninety-seven, for individuals  with  developmental  disabilities 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 such providers of services to the commissioner of the office  for  people  with  developmental  disabilities  or  his  or  her designee.   2. (a) (i) For each provider of services in the categories of services set  forth  in subdivision one of this section located in Regions II and III, as defined in the methodology  established  pursuant  to  paragraph (ii) of subdivision (c) of section 43.02 of this article, the assessment shall  be  six-tenths  of one percent of each such provider of services' gross receipts received for all services rendered  within  such  service categories  on  a  cash  basis beginning January first, nineteen hundred ninety-one.  (ii) For each provider of services in the categories of  services  set forth  in subdivision one of this section, excluding, on and after April first,  nineteen  hundred  ninety-four,  providers  of   day   treatment services,  located  in Regions II and III, as defined in the methodology established pursuant to paragraph (ii) of  subdivision  (c)  of  section 43.02  of  this  article,  an  additional  assessment  shall  be two and four-tenths percent of each such provider of  services'  gross  receipts received  for  all services rendered within such service categories on a cash basis beginning April first, nineteen hundred ninety-two; provided, however, such  additional  assessment  shall  be  five  and  four-tenths percent  of  each such provider of services' gross receipts received for all services rendered within such service categories  on  a  cash  basis beginning  April  first,  nineteen  hundred  ninety-six and ending March thirty-first, nineteen hundred ninety-seven.  (iii) For each provider of services in the categories of services  set forth  in subdivision one of this section, excluding, on and after April first,  nineteen  hundred  ninety-four,  providers  of   day   treatment services,  located  in Regions II and III, as defined in the methodology established pursuant to paragraph (ii) of  subdivision  (c)  of  section 43.02  of  this  article,  notwithstanding  any  other provision of this paragraph, the total assessment  shall  be  six  percent  of  each  such provider's  gross  receipts  received  on  a cash basis for all services rendered, beginning April first, nineteen hundred ninety-seven, and five and five-tenths percent of each such provider's gross receipts  received on  a cash basis for all services rendered, beginning January first, two thousand eight.  (b) (i) For each provider of services in the  categories  of  services set  forth  in  subdivision  one of this section located in Region I, as defined in the methodology established pursuant  to  paragraph  (ii)  of subdivision  (c)  of section 43.02 of this article, the assessment shall be  six-tenths  of  one percent of each such provider of services' gross receipts  received  for  all  services  rendered  within  such   service categories  on  a  cash  basis  beginning  July  first, nineteen hundred ninety-one.  (ii) For each provider of services in the categories of  services  set forth  in subdivision one of this section, excluding, on and after April first,  nineteen  hundred  ninety-four,  providers  of   day   treatment services, located in Region I, as defined in the methodology established pursuant  to  paragraph (ii) of subdivision (c) of section 43.02 of this article, an additional assessment shall be two and  four-tenths  percent of  each  such  provider  of  services'  gross receipts received for all services rendered  within  such  service  categories  on  a  cash  basis beginning  April  first, nineteen hundred ninety-two; provided, however, such additional assessment shall be five and four-tenths percent of each such provider of services' gross  receipts  received  for  all  services rendered  within such service categories on a cash basis beginning April first,  nineteen  hundred  ninety-six  and  ending  March  thirty-first, nineteen hundred ninety-seven.  (iii)  For each provider of services in the categories of services set forth in subdivision one of this section, excluding, on and after  April first,   nineteen   hundred  ninety-four,  providers  of  day  treatment services, located in Region I, as defined in the methodology established pursuant to paragraph (ii) of subdivision (c) of section 43.02  of  this article,  notwithstanding  any  other  provision  of this paragraph, the total assessment shall be six percent  of  each  such  provider's  gross receipts  received  on a cash basis for all services rendered, beginning April first, nineteen hundred ninety-seven,  and  five  and  five-tenths percent  of each such provider's gross receipts received on a cash basis for all services rendered, beginning January first, two thousand eight.  (c) (i) For the provider of services as set forth in  clause  (ii)  of subdivision  one  of  this  section in the category of intermediate care facilities for individuals with developmental disabilities  operated  by the  office  for  people with developmental disabilities, the assessment shall be six-tenths of one percent of the gross  receipts  received  for all  services  rendered  within  such  service  category on a cash basis beginning April first, nineteen hundred  ninety-five  and  ending  March thirty-first, two thousand one.  (ii)  For  the  provider  of  services  as set forth in clause (ii) of subdivision one of this section in the  category  of  intermediate  care facilities  for  individuals with developmental disabilities operated by the office for people with  developmental  disabilities,  an  additional assessment  shall  be  two and four-tenths percent of the gross receipts for all services rendered within such service category on a  cash  basis beginning  April first, nineteen hundred ninety-five; provided, however, such additional assessment shall be five and four-tenths percent of  the gross  receipts  received  for all services rendered within such service category on  a  cash  basis  beginning  April  first,  nineteen  hundred ninety-six and ending March thirty-first, two thousand one.  (iii)  For  each  provider  of services as set forth in clause (ii) of subdivision one of this section in the  category  of  intermediate  care facilities  for  individuals with developmental disabilities operated by the office for people with developmental  disabilities,  notwithstanding any other provision of this paragraph, the total assessment shall be six percent  of  the  provider's gross receipts received on a cash basis for  all services rendered, beginning April first, two thousand one, and five and five-tenths percent of the provider's gross receipts received  on  a cash  basis  for  all  services  rendered,  beginning January first, two thousand eight.  (d)  Notwithstanding  any other provisions of law to the contrary, for each provider of day treatment services, the  assessment  on  each  such provider's  gross  receipts  for  all  services rendered on a cash basis shall be as follows: (i) for all such  gross  receipts  received  on  or after  April  first, nineteen hundred ninety-nine, such assessment shall be two-tenths of one percent; (ii) for all gross receipts received on or after April first, two thousand, such assessment shall expire and be  of no further effect.   3.  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.   4. Gross receipts received  from  all  services  rendered  within  the service  categories  set  forth in subdivision one of this section shall include, without limitation, all monies  received  on  account  of  such services  pursuant  to  rates of reimbursement established by the office for people with developmental disabilities and paid by  the  state,  and shall  not  include,  subject to the provisions of subdivision twelve of this section, charitable contributions, grants, donations, bequests  and income from non-service related fund raising activities and governmental deficit financing.   5.  Estimated payments by or on behalf of providers of services to the commissioner of the office for people with developmental disabilities 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  of the office for people with developmental disabilities 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, such 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 of the office  for  people  with  developmental disabilities determines is due, based on evidence of prior period  moneys  received  by  a  provider  of service  or evidence of monies 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, such 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 the office for people with developmental disabilities of a  provider  of  service's  delinquency under this section, the comptroller or a fiscal intermediary designated  by the director of the budget, or the commissioner of social services, shall withhold from the amount of any payment to  be  made  by the  state  to  a  provider  of  services  the  amount of the deficiency determined under paragraph (a) or (b) of this subdivision  or  paragraph (d)  of subdivision seven of this section. Upon withholding such amount, the comptroller or a designated fiscal intermediary, or the commissioner of social services, shall pay the commissioner of the office for  people with  developmental  disabilities, or his designee, such amount withheld on behalf of the provider of services.  (d) The commissioner of  the  office  for  people  with  developmental disabilities  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 (d) of subdivision  seven  of  this section  at  least three days prior to collection of such amount by such commissioner. Such notice shall contain the  financial  basis  for  such commissioner's estimate.  (e)  In the event a provider of services objects to an estimate by the commissioner of the office for people  with  developmental  disabilities pursuant to paragraph (a) or (b) of this subdivision or paragraph (d) 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  hearing.  If  a hearing is requested, such 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  of  the  office  for people with developmental disabilities 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 services rendered within the services categories set forth in subdivision  one  of  this  section  to persons  with  developmental  disabilities and operating income for each month as follows:  (i) for the period January first, nineteen hundred ninety-one  through January  thirtieth,  nineteen  hundred  ninety-one,  the report shall be filed on or before March fifteenth, nineteen hundred ninety-one.  (ii) for the period January first, nineteen hundred ninety-one through March  thirty-first,  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 services to persons with developmental  disabilities  and  operating income.  The  reports  shall be in such form as may be prescribed by the commissioner of the office for people with developmental disabilities to accurately disclose information required to implement this section.  (c) 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.  (d) The commissioner of  the  office  for  people  with  developmental disabilities  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 of the  office for people with  developmental  disabilities  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 of the office for people with developmental disabilities 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  the office for people with developmental disabilities 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  such  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 of the office for people with developmental disabilities and credited to the general fund.   10. Notwithstanding any inconsistent provision of law or regulation to the contrary:  (a) the assessments pursuant to this section shall not be an allowable cost in the  determination  of  reimbursement  rates  pursuant  to  this article:  (b)  provided,  however,  that  for  purposes  of determining rates of payment  pursuant  to  this  article  for  providers,   the   additional assessment  imposed  pursuant  to the provisions of subparagraph (ii) of paragraph (a), subparagraph (ii) of paragraph (b) and subparagraph  (ii) of  paragraph  (c)  of  subdivision  two  of  this  section  shall  be a reimbursable cost to be reflected as timely as practicable in  rates  of payment   applicable  within  the  assessment  period,  contingent,  for payments by governmental agencies, on all federal approvals necessary by federal law  and  regulation  for  federal  financial  participation  in payments  made  for  beneficiaries eligible for medical assistance under title XIX of the federal social security act.  (c) provided, however, that  for  purposes  of  determining  rates  of payment  pursuant  to  this  article  for providers, three-tenths of one percent of the assessment imposed pursuant to this section on the  gross  receipts  of  intermediate  care  facilities  received on or after April first, nineteen hundred ninety-nine shall be a reimbursable cost  to  be reflected as timely as practicable in rates of payment applicable within the   assessment   period,  contingent,  for  payments  by  governmental agencies,  on  all  federal  approvals  necessary  by  federal  law  and regulation  for  federal  financial  participation  in payments made for beneficiaries eligible for medical assistance under  title  XIX  of  the federal social security act.  (d)  provided,  however,  that  for  purposes  of determining rates of payment pursuant to this article for providers, the  assessment  imposed pursuant  to  this  section  on  the gross receipts of intermediate care facilities received on or after April first, two  thousand  shall  be  a reimbursable  cost  to be reflected as timely as practicable in rates of payment  applicable  within  the  assessment  period,  contingent,   for payments by governmental agencies, on all federal approvals necessary by federal  law  and  regulation  for  federal  financial  participation in payments made for beneficiaries eligible for  medical  assistance  under title XIX of the federal social security act.   11. (a) The assessment shall not be collected in excess of six million two  hundred  thousand  dollars  from providers of services specified in 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 subdivision  two  of  this  section in excess of six million 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  the office  for  people  with  developmental disabilities based on the ratio which a provider of services' assessment for such period  bears  to  the total  of  the  assessments  for  such  period paid by such providers of services.  (b) The additional assessment shall not  be  collected  in  excess  of thirty-six  million  one  hundred  thousand  dollars  from  providers of services specified in 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  subdivision  two  of  this section in excess of thirty-six million one 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  the  office  for  people  with  developmental disabilities based on the ratio which a provider of services' additional assessment  for  such  period  bears  to  the  total  of  the additional assessments for such period paid by such providers of services.   12. Each exclusion of sources of  gross  receipts  received  from  the assessments   effective  on  or  after  April  first,  nineteen  hundred ninety-two established pursuant to this section shall be contingent upon either: (a) qualification of the  assessments  for  waiver  pursuant  to federal  law  and  regulation;  or  (b)  consistent with federal law and regulation, not requiring a waiver by the secretary of the department of health and human services related to such exclusion; in  order  for  the assessments  under  this section to be qualified as a broad-based health care related tax for purposes of the  revenues  received  by  the  state pursuant  to  the  assessments  not  reducing the amount expended by the state  as  medical  assistance  for  purposes   of   federal   financial participation.   The   commissioner   of  the  office  for  people  with developmental disabilities 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  the  office  for people  with  developmental  disabilities  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  the  office  for  people   with developmental disabilities 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 the office for people with developmental disabilities to the provider of services.