Section 367-I. Personal care services provider assessments

1. Providers of
  personal  care  services,  excepting  those  certified   under   article
  thirty-six  of  the  public health law, are charged assessments on their
  gross receipts received  from  all  personal  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 such personal care services
  providers to the commissioner of health or his/her designee.
    2. (a) The assessment shall be six-tenths of one percent of each  such
  provider's  gross  receipts received from all personal care services and
  other operating income on a cash basis beginning January first, nineteen
  hundred ninety-one; 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 provider's gross
  receipts 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 personal care services  and  other
  operating  income  for  purposes  of  the  assessments  pursuant to this
  section shall include, but not be limited to, all monies received for or
  on account of personal care services, provided, however, that subject to
  the provisions of subdivision eleven of  this  section  income  received
  from  grants,  charitable  contributions,  donations  and  bequests  and
  governmental deficit financing  shall  not  be  included,  and  provided
  further,  however,  that  moneys  received  from a certified home health
  agency or a provider of a long term home health care program assessed on
  such moneys pursuant to section thirty-six  hundred  fourteen-a  of  the
  public health law shall not be included.
    4.  Estimated  payments by or on behalf of such personal care services
  providers to the commissioner of health or his/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.
    5. (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
  health  determines  is  due,  based  on  evidence of prior period moneys
  received by a personal care services  provider  or  evidence  of  moneys
  received  by  such  personal  care services provider for that month, the
  commissioner of health may estimate the amount due  from  such  personal
  care  services  provider  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
  health determines is due, based  on  evidence  of  prior  period  moneys
  received  by  a  personal  care  services provider or evidence of moneys
  received by such personal care services provider 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  of health may estimate the amount due from
  such personal care services provider  and  may  collect  the  deficiency
  pursuant to paragraph (c) of this subdivision.
    (c)  Upon receipt of notification from the commissioner of health of a
  provider'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
  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  the  amount  of  the
  deficiency  determined under paragraph (a) or (b) of this subdivision or
  paragraph (e) of subdivision six 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 of health, or his designee,
  such amount withheld on behalf of the provider.
    (d) The commissioner of health shall provide a provider 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  six  of
  this  section  at least three days prior to collection of such amount by
  the commissioner of health. Such  notice  shall  contain  the  financial
  basis for the commissioner of health's estimate.
    (e) In the event a provider objects to an estimate by the commissioner
  of  health  pursuant  to  paragraph  (a)  or  (b) of this subdivision or
  paragraph (e) of subdivision six of this section of the amount  due  for
  an  assessment,  the  provider, within sixty days of notice of an amount
  due, may request a public  hearing.  If  a  hearing  is  requested,  the
  commissioner  of  health shall provide the provider 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  health  may  direct that a hearing be held
  without any request by a personal care services provider.
    6. (a) Every personal care services provider 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 personal care services provider  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  of  health  to accurately disclose information required to
  implement this section.
    (d) Final payments  shall  be  due  for  all  personal  care  services
  providers  for  the  assessments  pursuant  to  subdivision  two of this
  section upon the due date for submission  of  the  applicable  quarterly
  report.
    (e)  The  commissioner  of  health  may  recoup  deficiencies in final
  payments pursuant to paragraph (c) of subdivision five of this section.
    7. (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 health
  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 health pursuant to paragraph (c) of subdivision five  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 health
  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 of health pursuant to
  paragraph (c) of subdivision five of this section in the same manner  as
  an assessment pursuant to subdivision two of this section.
    (c)  Overpayment  by a personal care services provider of an estimated
  payment shall be applied to any other payment due from the personal care
  services provider pursuant to this section, or, if no payment is due, at
  the election of the personal care services provider shall be applied  to
  future  estimated  payments  or  refunded  to the personal care services
  provider. 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 of health. Interest under this
  paragraph  shall  not  be  paid  if  the amount thereof is less than one
  dollar.
    8. 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 health and credited to the
  general fund.
    9. 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.
    10.  The assessment shall not be collected in excess of twelve million
  dollars from such providers for the period of  January  first,  nineteen
  hundred   ninety-one   through   March  thirty-first,  nineteen  hundred
  ninety-two.  The  amount  of  the  assessment  collected   pursuant   to
  subdivision  two  of  this  section  in excess of twelve million dollars
  shall be refunded to providers by the commissioner of  health  based  on
  the  ratio  which  a  provider's assessment for such period bears to the
  total of the assessments for such period paid by such providers.
    11. 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 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  health  shall
  collect  any  retroactive  amount  due  as a result, without interest or
  penalty  provided  the  personal  care  services   provider   pays   the
  retroactive   amount   due   within  ninety  days  of  notice  from  the
  commissioner of health to the provider 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  health  to  the
  provider.