2023 New York Laws › SOS - Social Services › Article 5 - Assistance and Care › Title 11 - Medical Assistance for Needy Persons › 367-I - Personal Care Services Provider Assessments.

§  367-i. Personal care services provider assessments. 1. Providers of
personal  care  services,  excepting  those  certified   under   article
thirty-six  of  the  public health law, are charged assessments on their
gross receipts received  from  all  personal  care  services  and  other
operating  income  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 personal care services
providers to the commissioner of health or his/her designee.
2. (a) The assessment shall be six-tenths of one percent of each  such
provider's  gross  receipts received from all personal care services and
other operating income on a cash basis beginning January first, nineteen
hundred ninety-one; provided, however, that for all such gross  receipts
received  on  or  after  April first, nineteen hundred ninety-nine, such
assessment shall be two-tenths 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.
(b)  Notwithstanding  any  contrary  provisions of this section or any
other contrary provision of law or regulation, the assessment  shall  be
thirty-five  hundredths  of  one  percent  of each such provider's gross
receipts from all personal care services and other operating income on a
cash basis for periods on and after April first, two thousand nine.
3. Gross receipts received from all personal care services  and  other
operating  income  for  purposes  of  the  assessments  pursuant to this
section shall include, but not be limited to, all monies received for or
on account of personal care services, provided, however, that subject to
the provisions of subdivision eleven of  this  section  income  received
from  grants,  charitable  contributions,  donations  and  bequests  and
governmental deficit financing  shall  not  be  included,  and  provided
further,  however,  that  moneys  received  from a certified home health
agency or a provider of a long term home health care program assessed on
such moneys pursuant to section thirty-six  hundred  fourteen-a  of  the
public health law shall not be included.
4.  Estimated  payments by or on behalf of such personal care services
providers to the commissioner of health or his/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.
5. (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
health  determines  is  due,  based  on  evidence of prior period moneys
received by a personal care services  provider  or  evidence  of  moneys
received  by  such  personal  care services provider for that month, the
commissioner of health may estimate the amount due  from  such  personal
care  services  provider  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
health determines is due, based  on  evidence  of  prior  period  moneys
received  by  a  personal  care  services provider or evidence of moneys
received by such personal care services provider 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  of health may estimate the amount due from
such personal care services provider  and  may  collect  the  deficiency
pursuant to paragraph (c) of this subdivision.
(c)  Upon receipt of notification from the commissioner of health of a
provider's 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  the  amount  of  the
deficiency  determined under paragraph (a) or (b) of this subdivision or
paragraph (e) of subdivision six 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 of health, or his designee,
such amount withheld on behalf of the provider.
(d) The commissioner of health shall provide a provider 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  six  of
this  section  at least three days prior to collection of such amount by
the commissioner of health. Such  notice  shall  contain  the  financial
basis for the commissioner of health's estimate.
(e) In the event a provider objects to an estimate by the commissioner
of  health  pursuant  to  paragraph  (a)  or  (b) of this subdivision or
paragraph (e) of subdivision six of this section of the amount  due  for
an  assessment,  the  provider, within sixty days of notice of an amount
due, may request a public  hearing.  If  a  hearing  is  requested,  the
commissioner  of  health shall provide the provider 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  health  may  direct that a hearing be held
without any request by a personal care services provider.
6. (a) Every personal care services provider 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 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.
(b) Every personal care services provider  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  of  health  to accurately disclose information required to
implement this section.
(d) Final payments  shall  be  due  for  all  personal  care  services
providers  for  the  assessments  pursuant  to  subdivision  two of this
section upon the due date for submission  of  the  applicable  quarterly
report.
(e)  The  commissioner  of  health  may  recoup  deficiencies in final
payments pursuant to paragraph (c) of subdivision five of this section.
7. (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 health
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 health pursuant to paragraph (c) of subdivision five  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 health
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 of health pursuant to
paragraph (c) of subdivision five of this section in the same manner  as
an assessment pursuant to subdivision two of this section.
(c)  Overpayment  by a personal care services provider of an estimated
payment shall be applied to any other payment due from the personal care
services provider pursuant to this section, or, if no payment is due, at
the election of the personal care services provider shall be applied  to
future  estimated  payments  or  refunded  to the personal care services
provider. 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 of health. Interest under this
paragraph  shall  not  be  paid  if  the amount thereof is less than one
dollar.
8. 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 health and credited to the
general fund.
9. 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.
10.  The assessment shall not be collected in excess of twelve million
dollars from such providers for the period of  January  first,  nineteen
hundred   ninety-one   through   March  thirty-first,  nineteen  hundred
ninety-two.  The  amount  of  the  assessment  collected   pursuant   to
subdivision  two  of  this  section  in excess of twelve million dollars
shall be refunded to providers by the commissioner of  health  based  on
the  ratio  which  a  provider's assessment for such period bears to the
total of the assessments for such period paid by such providers.
11. 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 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  health  shall
collect  any  retroactive  amount  due  as a result, without interest or
penalty  provided  the  personal  care  services   provider   pays   the
retroactive   amount   due   within  ninety  days  of  notice  from  the
commissioner of health to the provider 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  health  to  the
provider.