Section 43.06. Assessments

1.  Providers  of  services,  as  defined in this section, are charged
  assessments on their gross  receipts  received  from  all  patient  care
  services  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 providers of services to  the  commissioner
  of mental health or his or her designee.
    2.  (a) Providers of services, for the purposes of this section, shall
  be hospitals licensed pursuant to article  thirty-one  of  this  chapter
  (which  shall  not  include  wards,  wings,  units  or  other parts of a
  hospital, as defined in article twenty-eight of the public health  law,)
  and  residential treatment facilities for children and youth, as defined
  in section 1.03 of this chapter.
    (b)(i) For  such  hospitals  which  are  providers  of  services,  the
  assessment  shall  be six-tenths of one percent of each provider's gross
  receipts received from all patient care  services  and  other  operating
  income  on  a  cash  basis  beginning  January  first,  nineteen hundred
  ninety-one for hospital or mental health-related services including  but
  not  limited  to  inpatient  service,  outpatient  service and emergency
  service; provided, however, that for all such gross receipts received on
  or after December first, nineteen hundred ninety-eight, such  assessment
  shall  be  two-tenths  of one percent, and further provided that for all
  such gross receipts received on or after April first,  nineteen  hundred
  ninety-nine,  such  assessment  shall  be  one-tenth 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.
    (ii) If required pursuant to the provisions of subdivision thirteen of
  this section, for such hospitals which are  providers  of  services,  an
  additional  assessment  shall  be  one-tenth  of  one  percent  of  each
  provider's gross receipts received from all patient  care  services  and
  other  operating  income on a cash basis beginning April first, nineteen
  hundred  ninety-two  for  hospital  or  mental  health-related  services
  including  but  not limited to inpatient service, outpatient service and
  emergency service; provided, however, that  such  additional  assessment
  shall  expire  and  be  of no further effect for all such gross receipts
  received on or after December first, nineteen hundred ninety-seven.
    (c)(i) For residential treatment facilities for  children  and  youth,
  the  assessment  shall  be  six-tenths of one percent of each provider's
  gross receipts  received  from  all  patient  care  services  and  other
  operating  income on a cash basis beginning July first, nineteen hundred
  ninety-one for hospital or mental health-related service  including  but
  not  limited  to  inpatient  service,  outpatient  service and emergency
  service; provided, however, that for all such gross receipts received on
  or after December first, nineteen hundred ninety-eight, such  assessment
  shall  be  two-tenths  of one percent, and further provided that for all
  such gross receipts received on or after April first,  nineteen  hundred
  ninety-nine,  such  assessment  shall  be  one-tenth 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.
    (ii) If required pursuant to the provisions of subdivision thirteen of
  this section, for residential  treatment  facilities  for  children  and
  youth,  an  additional  assessment, shall be one-tenth of one percent of
  each provider's gross receipts received from all patient  care  services
  and  other  operating  income  on  a  cash  basis beginning April first,
  nineteen  hundred  ninety-two  for  hospital  or  mental  health-related

  service  including  but  not  limited  to  inpatient service, outpatient
  service and emergency service; provided, however, that  such  additional
  assessment  shall  expire and be of no further effect for all such gross
  receipts   received   on  or  after  December  first,  nineteen  hundred
  ninety-seven.
    3. For all providers of services, gross  receipts  from  patient  care
  services  and  other  operating income shall include, but not be limited
  to: (a) all moneys received for or  on  account  of  inpatient  service,
  outpatient  service, emergency service, or other hospital, mental health
  or mental health related service; and (b) all moneys received for or  on
  account  of  such  revenue  sources  as investment income, parking lots,
  cafeterias, gift shops,  and  rental  income,  provided,  however,  that
  subject  to  the provisions of subdivision twelve of this section income
  received from grants, charitable contributions, donations  and  bequests
  and governmental deficit financing shall not be included.
    4.  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.
    5. Estimated payments by or on behalf of providers of services 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 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
  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, the 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
  determines is due, based on evidence of prior period moneys received  by
  a provider of service or evidence of moneys 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, the 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 a provider
  of services' 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 of services 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  organization  operating  in  accordance with article
  forty-four of the public health law shall pay the commissioner,  or  his
  designee, such amount withheld on behalf of the provider of services.
    (d)  The commissioner 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 (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 provider of services 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 provider of services, within sixty days of notice of
  an amount due, may request a public hearing. If a hearing is  requested,
  the  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  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  patient  care  services  and
  operating income for each month as follows:
    (i)  for  hospitals  which  are  providers of services, 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; and
    (iii) for residential treatment facilities for children and youth, for
  the period July first, nineteen  hundred  ninety-one  through  September
  thirtieth,  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 patient care services and 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 providers of services 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 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 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 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 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  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 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  pursuant  to
  this article.
    11.  (a)  (ii)  The assessment shall not be collected in excess of one
  million three  hundred  thousand  dollars  from  providers  of  services
  pursuant  to  paragraph  (b)  of 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 paragraph (b)  of  subdivision  two  of
  this section in excess of one million three 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 mental health based on the
  ratio which a hospital's assessment for such period bears to  the  total
  of the assessments for such period paid by such hospitals.
    (iii)  The  additional  assessment shall not be collected in excess of
  three hundred thousand dollars from providers of  services  pursuant  to
  paragraph (b) of 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 paragraph (b) of subdivision two of this section
  in excess of three 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  mental  health  based  on  the  ratio  which  a
  hospital's  additional  assessment for such period bears to the total of
  the additional assessments for such period paid by such hospitals.

    (b) (ii) The assessment shall  not  be  collected  in  excess  of  two
  hundred  thousand  dollars  from  residential  treatment  facilities for
  children and youth pursuant to paragraph (c) of 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 paragraph (c) of subdivision two of
  this section in excess of 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  mental  health  based  on  the  ratio  which  a
  residential  treatment  facility for children and youth's assessment for
  such period bears to the total of the assessments for such  period  paid
  by such residential treatment facilities for children and youth.
    (iii)  The  additional  assessment shall not be collected in excess of
  fifty  thousand  dollars  from  residential  treatment  facilities   for
  children  and youth pursuant to paragraph (c) of 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  paragraph  (c)  of
  subdivision two of this section in excess of fifty 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 mental health based on the
  ratio which a residential treatment facility for  children  and  youth's
  additional  assessment  for  such  period  bears  to  the  total  of the
  additional  assessments  for  such  period  paid  by  such   residential
  treatment facilities for children and youth.
    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 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  mental 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 mental health 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 mental health
  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 mental health to the provider
  of services.
    13.  Subparagraph  (ii)  of  paragraph  (b)  of  subdivision  two  and
  subparagraph  (ii)  of  paragraph (c) of subdivision two of 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 a difference between the

  rate of assessment on hospitals and residential treatment facilities for
  children and youth assessed pursuant to this section  and  the  rate  of
  assessment  including  the  additional  assessment  on general hospitals
  assessed  pursuant to section twenty-eight hundred seven-d of the public
  health law; in order for the assessments pursuant to  this  section  and
  the assessments including the additional assessment on general hospitals
  pursuant  to  section  twenty-eight hundred seven-d of the public health
  law to be  qualified  as  broad-based  health  care  related  taxes  for
  purposes  of the revenues received by the state pursuant to this section
  and section twenty-eight hundred seven-d of the public  health  law  not
  reducing  the  amount  expended  by  the state as medical assistance for
  purposes of federal financial participation. The commissioner of  mental
  health  shall not collect the additional 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
  this section or the assessments including the additional  assessment  on
  general  hospitals  pursuant  to section twenty-eight hundred seven-d of
  the public health law do not so qualify based on the difference  between
  the  rate of assessment on hospitals or residential treatment facilities
  for children and youth assessed pursuant to this section and the rate of
  assessment including the  additional  assessment  on  general  hospitals
  pursuant  to  section  twenty-eight hundred seven-d of the public health
  law then the  provisions  of  subparagraph  (ii)  of  paragraph  (b)  of
  subdivision  two  and  subparagraph (ii) of paragraph (c) of subdivision
  two of this section shall be deemed to  have  been  in  full  force  and
  effect   as  of  April  first,  nineteen  hundred  ninety-two,  and  the
  commissioner of mental health 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 mental health to the provider of services 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
  of mental health to the provider of services.