2023 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.