2023 New York Laws › MHY - Mental Hygiene › Title E - General Provisions › Article 43 - Fees for Services › 43.06 - Assessments.

§ 43.06 Assessments.
1.  Providers  of  services,  as  defined in this section, are charged
assessments on their gross  receipts  received  from  all  patient  care
services  and  other operating income less personal needs allowances and
refunds on a cash basis in the percentage amounts and  for  the  periods
specified  in subdivision two of this section. Such assessments shall be
submitted by or on behalf of providers of services to  the  commissioner
of mental health or his or her designee.
2.  (a) Providers of services, for the purposes of this section, shall
be hospitals licensed pursuant to article  thirty-one  of  this  chapter
(which  shall  not  include  wards,  wings,  units  or  other parts of a
hospital, as defined in article twenty-eight of the public health  law,)
and  residential treatment facilities for children and youth, as defined
in section 1.03 of this chapter.
(b)(i) For  such  hospitals  which  are  providers  of  services,  the
assessment  shall  be six-tenths of one percent of each provider's gross
receipts received from all patient care  services  and  other  operating
income  on  a  cash  basis  beginning  January  first,  nineteen hundred
ninety-one for hospital or mental health-related services including  but
not  limited  to  inpatient  service,  outpatient  service and emergency
service; provided, however, that for all such gross receipts received on
or after December first, nineteen hundred ninety-eight, such  assessment
shall  be  two-tenths  of one percent, and further provided that for all
such gross receipts received on or after April first,  nineteen  hundred
ninety-nine,  such  assessment  shall  be  one-tenth of one percent, and
further provided that such assessment shall expire and be of no  further
effect  for  all such gross receipts received on or after January first,
two thousand.
(ii) If required pursuant to the provisions of subdivision thirteen of
this section, for such hospitals which are  providers  of  services,  an
additional  assessment  shall  be  one-tenth  of  one  percent  of  each
provider's gross receipts received from all patient  care  services  and
other  operating  income on a cash basis beginning April first, nineteen
hundred  ninety-two  for  hospital  or  mental  health-related  services
including  but  not limited to inpatient service, outpatient service and
emergency service; provided, however, that  such  additional  assessment
shall  expire  and  be  of no further effect for all such gross receipts
received on or after December first, nineteen hundred ninety-seven.
(c)(i) For residential treatment facilities for  children  and  youth,
the  assessment  shall  be  six-tenths of one percent of each provider's
gross receipts  received  from  all  patient  care  services  and  other
operating  income on a cash basis beginning July first, nineteen hundred
ninety-one for hospital or mental health-related service  including  but
not  limited  to  inpatient  service,  outpatient  service and emergency
service; provided, however, that for all such gross receipts received on
or after December first, nineteen hundred ninety-eight, such  assessment
shall  be  two-tenths  of one percent, and further provided that for all
such gross receipts received on or after April first,  nineteen  hundred
ninety-nine,  such  assessment  shall  be  one-tenth of one percent, and
further provided that such assessment shall expire and be of no  further
effect  for  all such gross receipts received on or after January first,
two thousand.
(ii) If required pursuant to the provisions of subdivision thirteen of
this section, for residential  treatment  facilities  for  children  and
youth,  an  additional  assessment, shall be one-tenth of one percent of
each provider's gross receipts received from all patient  care  services
and  other  operating  income  on  a  cash  basis beginning April first,
nineteen  hundred  ninety-two  for  hospital  or  mental  health-related

service  including  but  not  limited  to  inpatient service, outpatient
service and emergency service; provided, however, that  such  additional
assessment  shall  expire and be of no further effect for all such gross
receipts   received   on  or  after  December  first,  nineteen  hundred
ninety-seven.
3. For all providers of services, gross  receipts  from  patient  care
services  and  other  operating income shall include, but not be limited
to: (a) all moneys received for or  on  account  of  inpatient  service,
outpatient  service, emergency service, or other hospital, mental health
or mental health related service; and (b) all moneys received for or  on
account  of  such  revenue  sources  as investment income, parking lots,
cafeterias, gift shops,  and  rental  income,  provided,  however,  that
subject  to  the provisions of subdivision twelve of this section income
received from grants, charitable contributions, donations  and  bequests
and governmental deficit financing shall not be included.
4.  The  commissioner  is  authorized  to  contract  with  the article
forty-three insurance law plans, or such  other  administrators  as  the
commissioner  shall  designate,  to  receive  and distribute provider of
services assessment funds. In  the  event  contracts  with  the  article
forty-three  insurance  law  plans or other commissioner's designees are
effectuated, the commissioner shall conduct annual audits of the receipt
and distribution of  the  assessment  funds.  The  reasonable  cost  and
expenses  of such administrators as approved by the commissioner, not to
exceed for personnel services on an annual basis  one  hundred  thousand
dollars  for all assessments established pursuant to this section, shall
be paid from the assessment funds.
5. Estimated payments by or on behalf of providers of services to  the
commissioner  or  his  or her designee of funds due from the assessments
pursuant to subdivision two of this section shall be made on  a  monthly
basis.  Estimated  payments  shall be due on or before the fifteenth day
following the end of a calendar month to which an assessment applies.
6. (a) If an estimated payment made for a month to which an assessment
applies is less than seventy  percent  of  an  amount  the  commissioner
determines  is due, based on evidence of prior period moneys received by
a provider of services or evidence of moneys received by  such  provider
of services for that month, the commissioner may estimate the amount due
from  such  provider of services and may collect the deficiency pursuant
to paragraph (c) of this subdivision.
(b) If an estimated payment made for a month to  which  an  assessment
applies  is  less  than  ninety  percent  of  an amount the commissioner
determines is due, based on evidence of prior period moneys received  by
a provider of service or evidence of moneys received by such provider of
services  for  that  month, and at least two previous estimated payments
within the preceding six months were less than  ninety  percent  of  the
amount due, based on similar evidence, the commissioner may estimate the
amount due from such provider of services and may collect the deficiency
pursuant to paragraph (c) of this subdivision.
(c)  Upon  receipt of notification from the commissioner of a provider
of services' deficiency under this section, the comptroller or a  fiscal
intermediary   designated   by  the  director  of  the  budget,  or  the
commissioner  of  social  services,  or  a  corporation  organized   and
operating  in  accordance with article forty-three of the insurance law,
or an organization operating in accordance with  article  forty-four  of
the  public  health law shall withhold from the amount of any payment to
be made by the state or  by  such  article  forty-three  corporation  or
article  forty-four  organization to the provider of services the amount
of the  deficiency  determined  under  paragraph  (a)  or  (b)  of  this
subdivision  or paragraph (e) of subdivision seven of this section. Upon

withholding  such  amount,  the  comptroller  or  a  designated   fiscal
intermediary,  or  the  commissioner  of social services, or corporation
organized and operating in accordance with article  forty-three  of  the
insurance  law  or  organization  operating  in  accordance with article
forty-four of the public health law shall pay the commissioner,  or  his
designee, such amount withheld on behalf of the provider of services.
(d)  The commissioner shall provide a provider of services with notice
of any estimate of an amount due for an assessment pursuant to paragraph
(a) or (b) of this subdivision or paragraph (e) of subdivision seven  of
this  section  at least three days prior to collection of such amount by
the commissioner. Such notice shall contain the financial basis for  the
commissioner's estimate.
(e)  In the event a provider of services objects to an estimate by the
commissioner pursuant to paragraph (a) or (b)  of  this  subdivision  or
paragraph (e) of subdivision seven of this section of the amount due for
an  assessment, the provider of services, within sixty days of notice of
an amount due, may request a public hearing. If a hearing is  requested,
the  commissioner  shall provide the provider of services an opportunity
to be heard and to present evidence bearing on the  amount  due  for  an
assessment  within  thirty  days  after  collection  of an amount due or
receipt  of  a  request  for  a  hearing,   whichever   is   later.   An
administrative hearing is not a prerequisite to seeking judicial relief.
(f)  The  commissioner  may  direct that a hearing be held without any
request by a provider of services.
7. (a) Every provider of services shall submit reports on a cash basis
of actual gross receipts received from all  patient  care  services  and
operating income for each month as follows:
(i)  for  hospitals  which  are  providers of services, for the period
January first, nineteen hundred ninety-one through January thirty-first,
nineteen hundred ninety-one, the report shall  be  filed  on  or  before
March fifteenth, nineteen hundred ninety-one; and
(ii)  for the quarter year ending March thirty-first, nineteen hundred
ninety-one and for each quarter thereafter, the report shall be filed on
or before the forty-fifth day after the end of such quarter; and
(iii) for residential treatment facilities for children and youth, for
the period July first, nineteen  hundred  ninety-one  through  September
thirtieth,  nineteen hundred ninety-one and each quarter thereafter, the
report shall be filed on or before the forty-fifth day after the end  of
the quarter.
(b)  Every provider of services shall submit a certified annual report
on a cash basis of gross receipts received in such  calendar  year  from
all patient care services and operating income.
(c)  The  reports  shall  be  in such form as may be prescribed by the
commissioner to accurately disclose information  required  to  implement
this section.
(d)  Final payments shall be due for all providers of services for the
assessments pursuant to subdivision two of this  section  upon  the  due
date for submission of the applicable quarterly report.
(e)  The  commissioner  may  recoup  deficiencies  in  final  payments
pursuant to paragraph (c) of subdivision six of this section.
8. (a) If an estimated payment made for a month to which an assessment
applies is less than ninety percent of the actual amount  due  for  such
month,  interest  shall  be  due  and payable to the commissioner on the
difference between the amount paid and the amount due from  the  day  of
the  month  the estimated payment was due until the date of payment. The
rate of interest shall be twelve percent per annum or  at  the  rate  of
interest set by the commissioner of taxation and finance with respect to
underpayments  of tax pursuant to subsection (e) of section one thousand

ninety-six of the tax law minus four percentage points.  Interest  under
this  paragraph shall not be paid if the amount thereof is less than one
dollar. Interest, if not paid by the due date of the  following  month's
estimated  payment,  may  be  collected  by the commissioner pursuant to
paragraph (c) of subdivision six of this section in the same  manner  as
an assessment pursuant to subdivision two of this section.
(b)  If  an  estimated payment made for a month to which an assessment
applies is less than seventy percent of the actual amount due  for  such
month,  a  penalty  shall be due and payable to the commissioner of five
percent of the difference between the amount paid and the amount due for
such month when the failure to pay is for a duration of  not  more  than
one  month  after  the  due  date of the payment with an additional five
percent for each additional month or fraction thereof during which  such
failure continues, not exceeding twenty-five percent in the aggregate. A
penalty  may  be collected by the commissioner pursuant to paragraph (c)
of subdivision six of this section in the same manner as  an  assessment
pursuant to subdivision two of this section.
(c)  Overpayment  by  a  provider  of services of an estimated payment
shall be applied to any other payment due from the provider of  services
pursuant  to  this section, or, if no payment is due, at the election of
the provider of services shall be applied to future  estimated  payments
or  refunded  to  the  provider  of  services. Interest shall be paid on
overpayments from the date of overpayment to the date  of  crediting  or
refund  at  the rate determined in accordance with paragraph (a) of this
subdivision if  the  overpayment  was  made  at  the  direction  of  the
commissioner.  Interest  under  this  paragraph shall not be paid if the
amount thereof is less than one dollar.
9. Funds accumulated, including income from invested funds,  from  the
assessments specified in this section, including interest and penalties,
shall be deposited by the commissioner and credited to the general fund.
10. Notwithstanding any inconsistent provision of law or regulation to
the  contrary,  the assessments pursuant to this section shall not be an
allowable cost in the determination of reimbursement rates  pursuant  to
this article.
11.  (a)  (ii)  The assessment shall not be collected in excess of one
million three  hundred  thousand  dollars  from  providers  of  services
pursuant  to  paragraph  (b)  of subdivision two of this section for the
period of April  first,  nineteen  hundred  ninety-seven  through  March
thirty-first,   nineteen   hundred   ninety-eight.  The  amount  of  the
assessment collected pursuant to paragraph (b)  of  subdivision  two  of
this section in excess of one million three hundred thousand dollars for
the  period  of April first, nineteen hundred ninety-seven through March
thirty-first,  nineteen  hundred  ninety-eight  shall  be  refunded   to
providers  of services by the commissioner of mental health based on the
ratio which a hospital's assessment for such period bears to  the  total
of the assessments for such period paid by such hospitals.
(iii)  The  additional  assessment shall not be collected in excess of
three hundred thousand dollars from providers of  services  pursuant  to
paragraph (b) of subdivision two of this section for the period of April
first,   nineteen   hundred  ninety-seven  through  March  thirty-first,
nineteen hundred ninety-eight. The amount of the  additional  assessment
collected  pursuant  to paragraph (b) of subdivision two of this section
in excess of three hundred thousand dollars  for  the  period  of  April
first,   nineteen   hundred  ninety-seven  through  March  thirty-first,
nineteen hundred ninety-eight shall be refunded to providers of services
by the commissioner  of  mental  health  based  on  the  ratio  which  a
hospital's  additional  assessment for such period bears to the total of
the additional assessments for such period paid by such hospitals.
(b) (ii) The assessment shall  not  be  collected  in  excess  of  two
hundred  thousand  dollars  from  residential  treatment  facilities for
children and youth pursuant to paragraph (c) of subdivision two of  this
section  for  the  period  of April first, nineteen hundred ninety-seven
through March thirty-first, nineteen hundred ninety-eight. The amount of
the assessment collected pursuant to paragraph (c) of subdivision two of
this section in excess of two hundred thousand dollars for the period of
April  first,  nineteen hundred ninety-seven through March thirty-first,
nineteen hundred ninety-eight shall be refunded to providers of services
by the commissioner  of  mental  health  based  on  the  ratio  which  a
residential  treatment  facility for children and youth's assessment for
such period bears to the total of the assessments for such  period  paid
by such residential treatment facilities for children and youth.
(iii)  The  additional  assessment shall not be collected in excess of
fifty  thousand  dollars  from  residential  treatment  facilities   for
children  and youth pursuant to paragraph (c) of subdivision two of this
section for the period of April  first,  nineteen  hundred  ninety-seven
through March thirty-first, nineteen hundred ninety-eight. The amount of
the  additional  assessment  collected  pursuant  to  paragraph  (c)  of
subdivision two of this section in excess of fifty thousand dollars  for
the  period  of April first, nineteen hundred ninety-seven through March
thirty-first,  nineteen  hundred  ninety-eight  shall  be  refunded   to
providers  of services by the commissioner of mental health based on the
ratio which a residential treatment facility for  children  and  youth's
additional  assessment  for  such  period  bears  to  the  total  of the
additional  assessments  for  such  period  paid  by  such   residential
treatment facilities for children and youth.
12.  Each  exclusion  of  sources  of gross receipts received from the
assessments  effective  on  or  after  April  first,  nineteen   hundred
ninety-two established pursuant to this section shall be contingent upon
either:  (a)  qualification  of  the  assessments for waiver pursuant to
federal law and regulation; or  (b)  consistent  with  federal  law  and
regulation, not requiring a waiver by the secretary of the department of
health  and  human  services related to such exclusion; in order for the
assessments under this section to be qualified as a  broad-based  health
care related tax for purposes of revenues received by the state pursuant
to  the  assessments  not  reducing  the amount expended by the state as
medical assistance for purposes of federal financial participation.  The
commissioner  of  mental health shall collect the assessments relying on
such exclusions, pending any contrary action by  the  secretary  of  the
department  of  health and human services. In the event the secretary of
the  department  of  health  and  human  services  determines  that  the
assessments  do  not  so  qualify  based on any such exclusion, then the
exclusion shall be deemed to have been null and void as of April  first,
nineteen hundred ninety-two, and the commissioner of mental health shall
collect  any  retroactive  amount  due  as a result, without interest or
penalty provided the provider of services pays  the  retroactive  amount
due  within ninety days of notice from the commissioner of mental health
to the provider of services that an exclusion is null and void. Interest
and penalties shall be  measured  from  the  due  date  of  ninety  days
following  notice from the commissioner of mental health to the provider
of services.
13.  Subparagraph  (ii)  of  paragraph  (b)  of  subdivision  two  and
subparagraph  (ii)  of  paragraph (c) of subdivision two of this section
shall be of no force and effect upon either: (a)  a  waiver  is  granted
pursuant  to  federal law and regulation; or (b) consistent with federal
law and regulation, a waiver is not required by  the  secretary  of  the
department  of  health  and  human services for a difference between the

rate of assessment on hospitals and residential treatment facilities for
children and youth assessed pursuant to this section  and  the  rate  of
assessment  including  the  additional  assessment  on general hospitals
assessed  pursuant to section twenty-eight hundred seven-d of the public
health law; in order for the assessments pursuant to  this  section  and
the assessments including the additional assessment on general hospitals
pursuant  to  section  twenty-eight hundred seven-d of the public health
law to be  qualified  as  broad-based  health  care  related  taxes  for
purposes  of the revenues received by the state pursuant to this section
and section twenty-eight hundred seven-d of the public  health  law  not
reducing  the  amount  expended  by  the state as medical assistance for
purposes of federal financial participation. The commissioner of  mental
health  shall not collect the additional assessments under this section,
pending any contrary action by the secretary of the department of health
and human services. In the event the  secretary  of  the  department  of
health  and  human  services determines that the assessments pursuant to
this section or the assessments including the additional  assessment  on
general  hospitals  pursuant  to section twenty-eight hundred seven-d of
the public health law do not so qualify based on the difference  between
the  rate of assessment on hospitals or residential treatment facilities
for children and youth assessed pursuant to this section and the rate of
assessment including the  additional  assessment  on  general  hospitals
pursuant  to  section  twenty-eight hundred seven-d of the public health
law then the  provisions  of  subparagraph  (ii)  of  paragraph  (b)  of
subdivision  two  and  subparagraph (ii) of paragraph (c) of subdivision
two of this section shall be deemed to  have  been  in  full  force  and
effect   as  of  April  first,  nineteen  hundred  ninety-two,  and  the
commissioner of mental health shall collect any retroactive  amount  due
as  a  result,  without  interest  or  penalty  provided the provider of
services pays the retroactive amount due within ninety  days  of  notice
from  the commissioner of mental health to the provider of services that
the exclusion is null and void. Interest and penalties shall be measured
from the due date of ninety days following notice from the  commissioner
of mental health to the provider of services.