Section 3614-A. Home care provider assessments

1. Certified home health
  agencies and providers of  long  term  home  health  care  programs  are
  charged  assessments  on  their gross receipts received from all patient
  care services and  other  operating  income  on  a  cash  basis  in  the
  percentage  amounts  and for the periods specified in subdivision two of
  this section. Such assessments shall be submitted by  or  on  behalf  of
  certified  home  health  agencies  or providers of long term home health
  care programs to the commissioner or his designee.
    2. (a) (i) For certified home health agencies the assessment shall  be
  six-tenths  of  one percent of each certified home health agency'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 home care services; provided, however, that for all  such
  gross  receipts  received  on  or  after  April  first, nineteen hundred
  ninety-nine, such assessment shall be two-tenths  of  one  percent,  and
  further  provided that such assessment shall expire and be of no further
  effect for all such gross receipts received on or after  January  first,
  two thousand.
    (ii)  For  certified home health agencies there shall be an additional
  assessment which shall be three-tenths of one percent of each  certified
  home  health  agency's  gross  receipts  received  from all patient care
  services and other operating income on a cash basis. The assessment year
  shall be April first, nineteen hundred ninety-two to March thirty-first,
  nineteen hundred ninety-three. The agencies shall  file  the  assessment
  return with any balance due or any refund claimed by May first, nineteen
  hundred  ninety-three.  The  agencies shall make estimated payments on a
  monthly basis starting August fifteenth, nineteen hundred ninety-two and
  continuing on the fifteenth  of  each  month  through  March  fifteenth,
  nineteen  hundred  ninety-three.  Each  estimated  payment  shall  equal
  one-eighth of the total estimated for the assessment year. If the  total
  of  estimated  payments  is  less than ninety-five percent of the actual
  payment due, the agency shall pay a penalty of fifteen  percent  of  the
  difference due for each month in addition to the amount due.
    (iii)  For  certified  home  health agencies, an additional assessment
  shall be three-tenths of one  percent  of  each  certified  home  health
  agency's  gross  receipts  received  from  all patient care services and
  other operating income on a cash basis during the  period  April  first,
  nineteen  hundred  ninety-three through June thirtieth, nineteen hundred
  ninety-four for home care services.
    (b) (i) For providers of long  term  home  health  care  programs  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 long term home health care services;  provided,  however,
  that  for  all  such  gross  receipts  received on or after April first,
  nineteen hundred ninety-nine, such assessment shall be two-tenths of one
  percent, and further provided that such assessment shall expire  and  be
  of  no  further  effect for all such gross receipts received on or after
  January first, two thousand.
    (ii) For providers of long term home health programs there shall be an
  additional assessment which shall be three-tenths of one percent of each
  provider of long term home health care's gross  receipts  received  from
  all  patient  care  services and other operating income on a cash basis.
  The assessment year shall be April first, nineteen hundred ninety-two to
  March thirty-first, nineteen hundred ninety-three. The  providers  shall
  file the assessment return with any balance due or any refund claimed by
  May  first,  nineteen  hundred  ninety-three.  The  providers shall make
  estimated  payments  on  a  monthly  basis  starting  August  fifteenth,

  nineteen  hundred  ninety-two  and  continuing  on the fifteenth of each
  month through  March  fifteenth,  nineteen  hundred  ninety-three.  Each
  estimated  payment shall equal one-eighth of the total estimated for the
  assessment  year.  If  the  total  of  estimated  payments  is less than
  ninety-five percent of the actual payment due, the provider shall pay  a
  penalty  of  fifteen  percent  of  the  difference due for each month in
  addition to the amount due.
    (iii) For providers  of  long  term  home  health  care  programs,  an
  additional  assessment  shall  be  three  tenths  of one percent of each
  provider's gross receipts received from all patient  care  services  and
  other  operating  income  on a cash basis during the period April first,
  nineteen hundred ninety-three through June thirtieth nineteenth  hundred
  ninety-four for long term home health care services.
    (c)  Notwithstanding  any  contrary  provisions of this section or any
  other contrary provision of law or regulation, for certified home health
  agencies and for providers of long term home health  care  programs  the
  assessment  shall  be  thirty-five  hundredths  of  one  percent of each
  agency's or provider's gross receipts received from all home health care
  services and other operating income on a cash basis for periods  on  and
  after April first, two thousand nine.
    3.  Gross  receipts  received from all patient care services and other
  operating income for  purposes  of  the  assessments  pursuant  to  this
  section shall include, but not be limited to:
    (a)  for certified home health agencies, all monies received for or on
  account  of  home  care  services,  including  personal  care  services,
  excluding  subject  to  the  provisions  of  subdivision  twelve of this
  section the component of rates  of  payment  related  to  the  allowance
  provided  in  accordance  with  subdivision  five  of section thirty-six
  hundred fourteen of this article;
    (b) for providers of long term home health care programs,  all  monies
  received  for  or  on  account  of  long term home health care services,
  including personal care services;
    (c) 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  home  care
  provider assessment funds and personal care services provider assessment
  funds  assessed  pursuant  to section three hundred sixty-seven-i of the
  social services law. In the event contracts with the article forty-three
  insurance law plans or other commissioner's designees  are  effectuated,
  the  commissioner  shall  conduct  annual  audits  of  the  receipt  and
  distribution of the assessment funds. The reasonable costs and  expenses
  of  an  administrator as approved by the commissioner, not to exceed for
  personnel services on an annual basis two hundred thousand  dollars  for
  all  assessments  established  pursuant to this section and the personal
  care services provider assessment established pursuant to section  three
  hundred sixty-seven-i of the social services law, shall be paid from the
  assessment funds.
    5.  Estimated  payments  by  or  on  behalf  of  certified home health
  agencies and providers of long term home health  care  programs  to  the
  commissioner  or his 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  certified  home  health agency or provider of a long term home health
  care  program  or  evidence  of  moneys received by such entity for that
  month, the commissioner may estimate the amount due from such entity 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 certified home health agency or provider of a long  term  home  health
  care  program  or  evidence  of  moneys  received by such certified home
  health agency or provider of a long term home health  care  program  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 entity and may collect the deficiency  pursuant  to  paragraph
  (c) of this subdivision.
    (c)  Upon receipt of notification from the commissioner of an entity's
  deficiency under this section, the comptroller or a fiscal  intermediary
  designated  by the director of the budget, or the commissioner of social
  services, or a corporation organized and operating  in  accordance  with
  article  forty-three  of the insurance law, or an organization operating
  in accordance with article forty-four of  this  chapter  shall  withhold
  from  the  amount  of  any  payment  to  be made by the state or by such
  article forty-three corporation or article  forty-four  organization  to
  the  entity  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 this chapter shall pay the commissioner, or
  his designee, such amount withheld on behalf of the entity.
    (d) The commissioner shall  provide  an  entity  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 the certified home health agency  or  provider  of  a
  long  term  home  health  care  program  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 entity, within sixty days of notice of an amount due,
  may   request   a  public  hearing.  If  a  hearing  is  requested,  the
  commissioner shall provide the entity 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 the entity.
    7.  (a)  Every certified home health agency or provider of a long term
  home health care program 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 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.
    (b) Every certified home health agency or provider of a long term home
  health care program 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 certified home health agencies
  or providers of long term home  health  care  programs  for  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 certified home health agency  or  provider  of  a
  long  term  home  health  care  program of an estimated payment shall be
  applied to any other payment  due  from  the  entity  pursuant  to  this
  section,  or,  if no payment is due, at the election of the entity shall
  be applied to future estimated  payments  or  refunded  to  the  entity.
  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.  (c)  The  assessment  shall  not be collected in excess of twenty
  million  four  hundred  thousand  dollars  from  certified  home  health
  agencies and long term home health care programs pursuant to subdivision
  two  of  this  section, licensed home care services agencies pursuant to
  subdivision two of section thirty-six hundred fourteen-b of this article
  and personal care services providers  pursuant  to  subdivision  two  of
  section  three  hundred sixty-seven-i of the social services law for the
  period of April  first,  nineteen  hundred  ninety-seven  through  March
  thirty-first,   nineteen   hundred   ninety-eight.  The  amount  of  the
  assessment collected in excess of twenty million four  hundred  thousand
  dollars  for  the  period  April  first,  nineteen  hundred ninety-seven
  through March  thirty-first,  nineteen  hundred  ninety-eight  shall  be
  refunded  by  the commissioner based on the ratio which a certified home
  health agency's, long term home health  care  program's,  licensed  home
  care  services  agency's or personal care services provider's assessment
  for such period bears to the total of the 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 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, the exclusion
  shall  be  deemed to have been null and void as of April first, nineteen
  hundred ninety-two, and the commissioner shall collect  any  retroactive
  amount  due  as  a  result,  without  interest  or  penalty provided the
  certified home health agency or provider of a long term home health care
  program pays the retroactive amount due within  ninety  days  of  notice
  from  the  commissioner  of  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
  to the provider of services.