2023 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.