Section 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 of mental retardation and
  developmental disabilities pursuant to article sixteen of  this  chapter
  as  intermediate  care  facilities  for  persons who are developmentally
  disabled, 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  of  mental  retardation  and
  developmental  disabilities  as  the  operator  of   intermediate   care
  facilities  for  persons  who are developmentally disabled. 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 persons who are developmentally  disabled  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 of mental  retardation  and  developmental  disabilities  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 persons who are developmentally disabled operated by  the
  office   of  mental  retardation  and  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 persons who are developmentally disabled operated by the
  office  of  mental  retardation  and  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 persons who are developmentally disabled operated by  the
  office   of   mental   retardation   and   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 of
  mental retardation and 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  of  mental  retardation  and  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  of  mental  retardation  and   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 of mental retardation and 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
  of  mental  retardation  and 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  of  mental  retardation  and  developmental disabilities, or his
  designee, such amount withheld on behalf of the provider of services.
    (d)  The  commissioner  of  the  office  of  mental  retardation   and
  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  of  mental  retardation  and  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  of  mental  retardation  and
  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  of  mental  retardation and 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  of  mental  retardation  and
  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  of  mental  retardation  and  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 of
  mental retardation and 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  of  mental  retardation  and  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  of  mental
  retardation and 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.
    (b) 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 of mental retardation and 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.
    (c) 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   of   mental   retardation   and
  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 of mental retardation  and
  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  of
  mental  retardation  and  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 of mental retardation
  and  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 of mental retardation and  developmental  disabilities  to
  the provider of services.