Section 3614-B. Licensed home care services agencies assessments

1.
  Licensed home care services agencies are charged assessments, subject to
  the provisions of subdivision thirteen of this section, 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 licensed home care services agencies to the
  commissioner or his designee.
    2. (a) The assessment shall be  six-tenths  of  one  percent  of  such
  licensed  home  care  services agency's gross receipts received from all
  patient care services  and  other  operating  income  on  a  cash  basis
  beginning  April  first, nineteen hundred ninety-two; 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.
    (b)  Notwithstanding  any  contrary  provisions of this section or any
  other contrary provision of law or regulation, the assessment  shall  be
  thirty-five  hundredths  of  one percent of each such licensed home care
  services  agency's  gross  receipts  received  from  all  personal  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 assessment pursuant to this section
  shall  include,  but  not  be  limited to, all moneys received for or on
  account of home care services provided pursuant to a license  issued  by
  the commissioner in accordance with the provisions of section thirty-six
  hundred  five  of  this  article,  provided,  however,  subject  to  the
  provisions of subdivision twelve of this section  that  income  received
  from  grants,  charitable  contributions,  donations  and  bequests  and
  governmental deficit financing shall not be included, and further,  that
  moneys received on which an assessment is paid by a hospital pursuant to
  section twenty-eight hundred seven-d of this chapter, home care provider
  pursuant  to  section  thirty-six  hundred  fourteen-a  of this article,
  personal care  services  provider  pursuant  to  section  three  hundred
  sixty-seven-i  of  the  social  services  law  or  provider  of services
  pursuant to section 43.04 or 43.06 of the mental hygiene law  shall  not
  be included.
    4.  The  commissioner  is  authorized  to  contract  with  the article
  forty-three  insurance  law  plans,  or  if  not  available  such  other
  administrators  as  the  commissioner  shall  designate,  to receive and
  distribute licensed home care services agency 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 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, shall be paid from the assessment funds.
    5. Estimated payments by or on behalf of licensed home  care  services
  agencies  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 the 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  moneys  received  by  a
  licensed  home  care  services  agency or evidence of moneys received by
  such agency for that month, the commissioner may estimate the amount due
  from  such  agency  and may collect the deficiency pursuant to paragraph
  (c) of this subdivision.
    (b) If an estimated payment made for the 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  licensed  home care services agency or evidence of moneys received by
  such agency 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 agency and may collect the deficiency pursuant to
  paragraph (c) of this subdivision.
    (c) Upon receipt of notification from the commissioner of  a  licensed
  home   care   services  agency'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 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 agency
  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 article  forty-four  of  this  chapter  shall  pay  the
  commissioner,  or  his  designee,  such amount withheld on behalf of the
  licensed home care services agency.
    (d) The commissioner shall  provide  a  licensed  home  care  services
  agency  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 licensed home care services agency 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 agency, within sixty days of notice of
  an  amount due, may request a public hearing. If a hearing is requested,
  the commissioner shall provide the licensed home  care  services  agency
  with  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 an agency.
    7. (a) Every licensed home care services agency shall  submit  reports
  on  a cash basis of actual gross receipts received from all patient care
  services and other operating income for each month as follows:  for  the
  quarter  year ending June thirtieth, nineteen hundred ninety-two and for
  each quarter thereafter, the report shall be  filed  on  or  before  the
  forty-fifth day after the end of such period.
    (b)  Every licensed home care services agency shall submit a certified
  annual report on a  cash  basis  of  gross  receipts  received  in  such
  calendar year from all patient care services and other 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 licensed home care services
  agencies 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 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 the 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
  underpayment 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 for such  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  licensed  home  care  services  agency  of  an
  estimated  payment  shall  be  applied to any other payment due from the
  agency pursuant to this section, or,  if  no  payment  is  due,  at  the
  election  of the agency shall be applied to future estimated payments or
  refunded to the agency. 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 or fees
  pursuant to this chapter or the social services law.
    11. The aggregate limit on the assessment for  certified  home  health
  agencies,  long  term  home  health  care  programs,  licensed home care
  services agencies  and  personal  care  services  providers  established
  pursuant  to  paragraph  (c) of subdivision eleven of section thirty-six
  hundred fourteen-a of this  article  for  the  period  of  April  first,
  nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen
  hundred ninety-eight shall be  deemed  to  reflect  the  amount  of  one
  million  three  hundred  thousand dollars for the assessment pursuant to

  subdivision two of this section  for  such  period.  In  the  event,  in
  accordance  with  subdivision  thirteen of this section, the assessments
  pursuant to subdivision two of this section are  not  implemented,  such
  aggregate  limit  shall be reduced by one million three hundred thousand
  dollars for the period of April  first,  nineteen  hundred  ninety-seven
  through March thirty-first, nineteen hundred ninety-eight.
    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 that 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  shall  collect  any
  retroactive amount due as a result, without interest or penalty provided
  the  licensed  home care services agency pays the retroactive amount due
  within ninety days of notice from the commissioner to the agency 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 agency.
    13. 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 the
  exclusion of the home care services agencies assessed pursuant  to  this
  section  from  such assessment; in order for the assessments pursuant to
  section thirty-six hundred fourteen-a of this article and section  three
  hundred  sixty-seven-i  of  the social services law to be qualified as a
  broad-based health  care  related  tax  for  purposes  of  the  revenues
  received  by the state pursuant to section thirty-six hundred fourteen-a
  of this article and section three hundred sixty-seven-i  of  the  social
  services  law  not  reducing the amount expended by the state as medical
  assistance  for  purposes  of  federal  financial   participation.   The
  commissioner  shall  not  collect  the  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
  section thirty-six hundred fourteen-a of this chapter or  section  three
  hundred sixty-seven-i of the social services law do not so qualify based
  on   the   exclusion  of  licensed  home  care  services  agencies  from
  assessments, then 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 licensed home care services
  agency pays the retroactive amount due within ninety days of notice from
  the commissioner to the agency 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 to the agency.