2023 New York Laws › PBH - Public Health › Article 36 - Home Care Services › 3614-B - Licensed Home Care Services Agencies Assessments.

§  3614-b.  Licensed  home  care  services  agencies  assessments.  1.
Licensed home care services agencies are charged assessments, subject to
the provisions of subdivision thirteen of this section, on  their  gross
receipts  received  from  all  patient 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 licensed home care services agencies to the
commissioner or his designee.
2. (a) The assessment shall be  six-tenths  of  one  percent  of  such
licensed  home  care  services agency's gross receipts received from all
patient care services  and  other  operating  income  on  a  cash  basis
beginning  April  first, nineteen hundred ninety-two; 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 licensed home care
services  agency's  gross  receipts  received  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 patient care  services  and  other
operating income for purposes of the assessment pursuant to this section
shall  include,  but  not  be  limited to, all moneys received for or on
account of home care services provided pursuant to a license  issued  by
the commissioner in accordance with the provisions of section thirty-six
hundred  five  of  this  article,  provided,  however,  subject  to  the
provisions of subdivision twelve of this section  that  income  received
from  grants,  charitable  contributions,  donations  and  bequests  and
governmental deficit financing shall not be included, and further,  that
moneys received on which an assessment is paid by a hospital pursuant to
section twenty-eight hundred seven-d of this chapter, home care provider
pursuant  to  section  thirty-six  hundred  fourteen-a  of this article,
personal care  services  provider  pursuant  to  section  three  hundred
sixty-seven-i  of  the  social  services  law  or  provider  of services
pursuant to section 43.04 or 43.06 of the mental hygiene law  shall  not
be included.
4.  The  commissioner  is  authorized  to  contract  with  the article
forty-three  insurance  law  plans,  or  if  not  available  such  other
administrators  as  the  commissioner  shall  designate,  to receive and
distribute licensed home care services agency 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 costs and expenses of an administrator as approved
by the commissioner, not to exceed for personnel services on  an  annual
basis  two  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 licensed home  care  services
agencies  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 the 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  moneys  received  by  a
licensed  home  care  services  agency or evidence of moneys received by
such agency for that month, the commissioner may estimate the amount due
from  such  agency  and may collect the deficiency pursuant to paragraph
(c) of this subdivision.
(b) If an estimated payment made for the 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  licensed  home care services agency or evidence of moneys received by
such agency 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 agency and may collect the deficiency pursuant to
paragraph (c) of this subdivision.
(c) Upon receipt of notification from the commissioner of  a  licensed
home   care   services  agency'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 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 agency
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 article  forty-four  of  this  chapter  shall  pay  the
commissioner,  or  his  designee,  such amount withheld on behalf of the
licensed home care services agency.
(d) The commissioner shall  provide  a  licensed  home  care  services
agency  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 licensed home care services agency 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 agency, within sixty days of notice of
an  amount due, may request a public hearing. If a hearing is requested,
the commissioner shall provide the licensed home  care  services  agency
with  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 an agency.
7. (a) Every licensed home care services agency shall  submit  reports
on  a cash basis of actual gross receipts received from all patient care
services and other operating income for each month as follows:  for  the
quarter  year ending June thirtieth, nineteen hundred ninety-two and for
each quarter thereafter, the report shall be  filed  on  or  before  the
forty-fifth day after the end of such period.
(b)  Every licensed home care services agency shall submit a certified
annual report on a  cash  basis  of  gross  receipts  received  in  such
calendar year from all patient care services and other 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 licensed home care services
agencies 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 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 the 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
underpayment 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 for such  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  licensed  home  care  services  agency  of  an
estimated  payment  shall  be  applied to any other payment due from the
agency pursuant to this section, or,  if  no  payment  is  due,  at  the
election  of the agency shall be applied to future estimated payments or
refunded to the agency. 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 or fees
pursuant to this chapter or the social services law.
11. The aggregate limit on the assessment for  certified  home  health
agencies,  long  term  home  health  care  programs,  licensed home care
services agencies  and  personal  care  services  providers  established
pursuant  to  paragraph  (c) of subdivision eleven of section thirty-six
hundred fourteen-a of this  article  for  the  period  of  April  first,
nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen
hundred ninety-eight shall be  deemed  to  reflect  the  amount  of  one
million  three  hundred  thousand dollars for the assessment pursuant to

subdivision two of this section  for  such  period.  In  the  event,  in
accordance  with  subdivision  thirteen of this section, the assessments
pursuant to subdivision two of this section are  not  implemented,  such
aggregate  limit  shall be reduced by one million three hundred thousand
dollars for the period of April  first,  nineteen  hundred  ninety-seven
through March thirty-first, nineteen hundred ninety-eight.
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 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 that 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  shall  collect  any
retroactive amount due as a result, without interest or penalty provided
the  licensed  home care services agency pays the retroactive amount due
within ninety days of notice from the commissioner to the agency 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
to the agency.
13. 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 the
exclusion of the home care services agencies assessed pursuant  to  this
section  from  such assessment; in order for the assessments pursuant to
section thirty-six hundred fourteen-a of this article and section  three
hundred  sixty-seven-i  of  the social services law to be qualified as a
broad-based health  care  related  tax  for  purposes  of  the  revenues
received  by the state pursuant to section thirty-six hundred fourteen-a
of this article and section three hundred sixty-seven-i  of  the  social
services  law  not  reducing the amount expended by the state as medical
assistance  for  purposes  of  federal  financial   participation.   The
commissioner  shall  not  collect  the  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
section thirty-six hundred fourteen-a of this chapter or  section  three
hundred sixty-seven-i of the social services law do not so qualify based
on   the   exclusion  of  licensed  home  care  services  agencies  from
assessments, then the exclusion shall be deemed to have  been  null  and
void   as   of   April  first,  nineteen  hundred  ninety-two,  and  the
commissioner shall collect any  retroactive  amount  due  as  a  result,
without  interest  or  penalty  provided the licensed home care services
agency pays the retroactive amount due within ninety days of notice from
the commissioner to the agency 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 to the agency.