There is a newer version of the New York Consolidated Laws
2012 New York Consolidated Laws
PBH - Public Health
Article 28 - (2800 - 2823) HOSPITALS
2807-D - Hospital assessments.
NY Pub Health L § 2807-D (2012) What's This?
§ 2807-d. Hospital assessments. 1. (a) Hospitals, as defined in this
article, excluding hospitals specified in paragraph (b) of this
subdivision, 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 hospitals to the
commissioner or his designee.
(b) Subject to the provisions of subdivision twelve of this section,
the following categories of hospitals shall not be charged assessments
pursuant to this section: (i) voluntary nonprofit and private
proprietary general hospitals which qualify for distributions made in
accordance with paragraph (c) of subdivision nineteen of section
twenty-eight hundred seven-c of this article, or for assessments during
the period January first, nineteen hundred ninety-seven through December
thirty-first, nineteen hundred ninety-seven voluntary nonprofit and
private proprietary general hospitals which qualified for distributions
made in accordance with paragraph (c) of subdivision nineteen of section
twenty-eight hundred seven-c of this article as of December
thirty-first, nineteen hundred ninety-five; (ii) voluntary nonprofit
hospitals totally financed by charitable contributions or by the income
thereon dedicated to free care of low income patients; and (iii) any
facility dedicated solely to the care of police, firefighters,
volunteer firefighters, and emergency service personnel.
(c) On and after December first, nineteen hundred ninety-seven, the
term "general hospital", as used in this section, includes specialty
hospitals for persons who are developmentally disabled, licensed by the
office of mental retardation and developmental disabilities and which
are also issued an operating certificate pursuant to section
twenty-eight hundred five of this article.
2. (a) (i) For general hospitals the overall assessment shall be
six-tenths of one percent and the assessment shall vary from 0.5% to
0.675% of each general hospital's gross receipts received from all
patient care services and other operating income on a cash basis during
the period January first, nineteen hundred ninety-one through March
thirty-first, nineteen hundred ninety-two for hospital or health-related
services, including but not limited to inpatient service, outpatient
service, emergency service, referred ambulatory service and ambulatory
surgical service. The assessment shall vary according to the percentage
of nineteen hundred eighty-nine medicaid inpatient revenues as a
percentage of total nineteen hundred eighty-nine inpatient revenues as
reported on the institutional cost report submitted to the department
for nineteen hundred eighty-nine according to the following: for
hospitals with medicaid revenue up to and including 10%, the assessment
shall be .5%, for hospitals with medicaid revenue greater than 10% up
to and including 15%, the assessment shall be .525%, for hospitals with
medicaid revenue greater than 15% up to and including 20%, the
assessment shall be .65%, and for hospitals with medicaid revenue over
20%, the assessment shall be .675%. In the event that the provisions
relating to the additional supplementary low income patient adjustment
established in accordance with subdivision fourteen-d of section
twenty-eight hundred seven-c of this article cannot be implemented,
then the general hospital assessment established in accordance with this
paragraph shall be calculated without variation specified in this
paragraph and the assessment for each general hospital whose assessment
was greater than six-tenths of one percent shall become six-tenths of
one percent.
(ii) For general hospitals the assessment shall be six-tenths of one
percent of each general hospital'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
health-related services, including, but not limited to inpatient
service, outpatient service, emergency service, referred ambulatory
service and ambulatory surgical 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.
(iii) For general hospitals an additional assessment shall be
one-tenth of one percent of each general hospital'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 health-related services, including, but not limited to
inpatient service, outpatient service, emergency service, referred
ambulatory service and ambulatory surgical 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.
(iv) Subject to the provisions of subdivision twelve of this section,
the assessment and additional assessment pursuant to subparagraphs (ii)
and (iii) of this paragraph during the period January first, nineteen
hundred ninety-eight through December thirty-first, nineteen hundred
ninety-eight for voluntary nonprofit and private proprietary general
hospitals which qualified for distributions made in accordance with
paragraph (c) of subdivision nineteen of section twenty-eight hundred
seven-c of this article as of December thirty-first, nineteen hundred
ninety-five shall be abated by seventy-five percent, and during the
period January first, nineteen hundred ninety-nine through December
thirty-first, nineteen hundred ninety-nine shall be abated by
twenty-five percent.
(v) Notwithstanding any contrary provisions of this paragraph or any
other provision of law or regulation, for general hospitals the
assessment shall be thirty-five hundredths of one percent of each
general hospital's gross receipts received from all patient care
services and other operating income on a cash basis for the period April
first, two thousand five through March thirty-first two thousand seven
for hospital or health-related services, including, but not limited to
inpatient service, outpatient service, emergency service, referred
ambulatory service and ambulatory surgical services, but not including
residential health care facilities services or home health care
services.
(vi) Notwithstanding any contrary provisions of this paragraph or any
other provision of law or regulation, for general hospitals the
assessment shall be thirty-five hundredths of one percent of each
general hospital's gross receipts received from all patient care
services and other operating income on a cash basis for periods on and
after April first, two thousand nine, for hospital or health-related
services, including, but not limited to inpatient services, outpatient
services, emergency services, referred ambulatory services and
ambulatory surgical services, but not including residential health care
facilities services or home health care services.
(b) (i) For residential health care facilities the assessment shall be
six-tenths of one percent of each residential health care facility's
gross receipts received from all patient care services and other
operating income on a cash basis beginning April first, nineteen hundred
ninety-one for hospital or health-related services, including adult day
services; provided, however, that for all such gross receipts received
on or after September first, nineteen hundred ninety-seven such
assessment shall be three-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 December first, nineteen
hundred ninety-eight.
(ii) For residential health care facilities an additional assessment
shall be one and two-tenths percent of each residential health care
facility'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 health-related services, including
adult day services; provided, however, that such additional assessment
shall expire and be of no further effect for all such gross receipts
received on or after April first, nineteen hundred ninety-nine.
(iii) For residential health care facilities a further additional
assessment shall be three and eight tenths percent of each residential
health care facility's gross receipts received from all patient care
services and other operating income on a cash basis for the period of
July first, nineteen hundred ninety-five through March thirty-first,
nineteen hundred ninety-six for hospital or health-related services,
including adult day services. The residential health care facility shall
file the assessment return with any balance due or any refund claimed by
May first, nineteen hundred ninety-six. Notwithstanding any inconsistent
provision of this section, the residential health care facility shall
make estimated payments to the commissioner on a monthly basis starting
August fifteenth, nineteen hundred ninety-five and continuing on the
fifteenth of each month through March fifteenth, nineteen hundred
ninety-six equal to one-eighth of the total estimated for this further
additional assessment for the further additional assessment period. If
the total of estimated payments is less than ninety-five percent of the
actual payment due, the residential health care facility shall pay to
the commissioner a penalty of fifteen percent of the difference due for
each month in addition to the amount due. The commissioner may recoup
deficiencies and penalties pursuant to paragraph (c) of subdivision six
of this section.
* (iv) For residential health care facilities a further additional
assessment shall be one and nine-tenths percent of each residential
health care facility's gross receipts received from all patient care
services and other operating income on a cash basis for the period of
April first, nineteen hundred ninety-six through March thirty-first,
nineteen hundred ninety-seven for hospital or health-related services,
including adult day services. The residential health care facility shall
file the assessment return with any balance due or any refund claimed by
May first, nineteen hundred ninety-seven. Notwithstanding any
inconsistent provision of this section, the residential health care
facility shall make estimated payments to the commissioner on a monthly
basis starting May fifteenth, and continuing on the fifteenth of each
month through March fifteenth equal to one-eleventh of the total
estimated for this further additional assessment for the period April
first, nineteen hundred ninety-six through March thirty-first nineteen
hundred ninety-seven. If the total of estimated payments is less than
ninety-five percent of the actual payment due, the residential health
care facility shall pay to the commissioner a penalty of fifteen percent
of the difference due each month in addition to the amount due. The
commissioner may recoup deficiencies and penalties pursuant to paragraph
(c) of subdivision six of this section.
* NB There are 2 subpar (iv)'s
* (iv) For residential health care facilities a further additional
assessment shall be one and nine-tenths percent of each residential
health care facility's gross receipts received from all patient care
services and other operating income on a cash basis for the period of
April first, nineteen hundred ninety-six through March thirty-first,
nineteen hundred ninety-seven for hospital or health-related services,
including adult day services. The residential health care facility shall
file the assessment return with any balance due or any refund claimed by
May first, nineteen hundred ninety-seven. Notwithstanding any
inconsistent provision of this section, the residential health care
facility shall make estimated payments to the commissioner on a monthly
basis starting May fifteenth, and continuing on the fifteenth of each
month through March fifteenth, equal to one-eleventh of the total
estimated for this further additional assessment for the period
beginning April first of nineteen hundred ninety-six and ending March
thirty-first, nineteen hundred ninety-seven. If the total of the eleven
required estimated payments is less than ninety-five percent of the
actual payment due, the residential health care facility shall pay to
the commissioner a penalty of fifteen percent of the difference due for
each month in addition to the amount due. The commissioner may recoup
deficiencies and penalties pursuant to paragraph (c) of subdivision six
of this section.
* NB There are 2 subpar (iv)'s
* (v) For residential health care facilities in addition a further
additional assessment shall be (a) two and three-tenths percent of each
residential care facility's gross receipts received from all patient
care services and other operating income on a cash basis beginning May
first, nineteen hundred ninety-six through December thirty-first,
nineteen hundred ninety-six for hospital or health-related services,
including adult day services and (b) one and nine-tenths percent of each
residential care facility's gross receipts received from all patient
care services and other operating income on a cash basis beginning
January first, nineteen hundred ninety-seven and ending February
twenty-eighth, nineteen hundred ninety-seven for hospital or
health-related services, including adult day services.
* NB There are 2 subpar (v)'s
* (v) For residential health care facilities in addition a further
additional assessment shall be (a) two and three-tenths percent of each
residential care facility's gross receipts received from all patient
care services and other operating income on a cash basis beginning May
first, nineteen hundred ninety-six and ending December thirty-first,
nineteen hundred ninety-six for hospital or health-related services,
including adult day services and (b) one and nine-tenths percent of each
residential care facility's gross receipts received from all patient
care services and other operating income on a cash basis beginning
January first, nineteen hundred ninety-seven and ending February
twenty-eighth, nineteen hundred ninety-seven for hospital or
health-related services, including adult day services; provided,
however, that for all such gross receipts received on or after April
first, nineteen hundred ninety-seven, such further additional assessment
shall be three and six-tenths percent, and further provided that for all
such gross receipts received on or after April first, nineteen hundred
ninety-nine, such further additional assessment shall be two and
four-tenths percent, and further provided that such further additional
assessment shall expire and be of no further effect for all such gross
receipts received on or after January first, two thousand.
* NB There are 2 subpar (v)'s
(vi) Notwithstanding any contrary provision of this paragraph or any
other provision of law or regulation to the contrary, for residential
health care facilities the assessment shall be six percent of each
residential health care facility's gross receipts received from all
patient care services and other operating income on a cash basis for the
period April first, two thousand two through March thirty-first, two
thousand three for hospital or health-related services, including adult
day services; provided, however, that residential health care
facilities' gross receipts attributable to payments received pursuant to
title XVIII of the federal social security act (medicare) shall be
excluded from the assessment; provided, however, that for all such gross
receipts received on or after April first, two thousand three through
March thirty-first, two thousand five, such assessment shall be five
percent, and further provided that for all such gross receipts received
on or after April first, two thousand five through March thirty-first,
two thousand nine, and on or after April first, two thousand nine
through March thirty-first, two thousand eleven such assessment shall be
six percent, and further provided that for all such gross receipts
received on or after April first, two thousand eleven through March
thirty-first, two thousand thirteen such assessment shall be six
percent.
(c) For all other facilities issued an operating certificate pursuant
to section twenty-eight hundred five of this article, including
diagnostic and treatment centers, the assessment shall be six-tenths of
one percent of each facility'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
health-related services, including diagnostic and treatment center
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.
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:
(a) for general hospitals, all monies received for or on account of
inpatient hospital service, outpatient service, emergency service,
referred ambulatory service and ambulatory surgical service, or other
hospital or health-related services, excluding, subject to the
provisions of subdivision twelve of this section: distributions from bad
debt and charity care regional pools, primary health care services
regional pools, bad debt and charity care for financially distressed
hospitals statewide pools and bad debt and charity care and capital
statewide pools created in accordance with section twenty-eight hundred
seven-c of this article and the components of rates of payment or
charges related to the allowances provided in accordance with
subdivisions fourteen, fourteen-b and fourteen-c, the adjustment
provided in accordance with subdivision fourteen-a, the adjustment
provided in accordance with subdivision fourteen-d, the adjustment for
health maintenance organization reimbursement rates provided in
accordance with section twenty-eight hundred seven-f of this article,
the adjustment for commercial insurer reimbursement rates provided in
accordance with paragraph (i) of subdivision eleven of section
twenty-eight hundred seven-c of this article or, if effective, the
adjustment provided in accordance with subdivision fifteen of section
twenty-eight hundred seven-c of this article or the adjustment provided
in accordance with section eighteen of chapter two hundred sixty-six of
the laws of nineteen hundred eighty-six as amended and physician
practice or faculty practice plan revenue received by a general hospital
based on discrete billings for private practicing physician services,
revenue received by a general hospital from a public hospital pursuant
to an affiliation agreement contract for the delivery of health care
services to such public hospital, revenue received pursuant to paragraph
(i) of subdivision thirty-five of section twenty-eight hundred seven-c
of this article, revenue received pursuant to section twenty-eight
hundred seven-w of this article, all revenue received as
disproportionate share hospital payments, in accordance with title
nineteen of the federal Social Security Act, revenue received pursuant
to sections eleven, twelve, thirteen and fourteen of part A of chapter
one of the laws of two thousand two, revenue received pursuant to
sections thirteen and fourteen of part B of chapter one of the laws of
two thousand two, revenue from patient personal fund allowances, revenue
from income earned on patient funds, investment income from externally
restricted funds, revenue from investment sinking funds, revenue from
investment operating escrow accounts, investment income from funded
depreciation, investment income from mortgage repayment escrow accounts,
revenue derived from the operation of schools leading to licensure, and
revenue from the collection of sales and excise taxes;
(b) for residential health care facilities, all monies received for or
on account of hospital or health-related service, including adult day
services, excluding subject to the provisions of subdivision twelve of
this section the component of rates of payment related to the adjustment
provided in accordance with subdivision twelve of section twenty-eight
hundred eight of this article;
(c) for all other facilities issued an operating certificate pursuant
to section twenty-eight hundred five of this article, including
diagnostic and treatment centers, all monies received for or on account
of hospital or health-related services, however, subject to the
provisions of subdivision twelve of this section, excluding the
component of rates of payment related to the allowance provided in
accordance with paragraph (f) of subdivision two of section twenty-eight
hundred seven of this article, excluding for a diagnostic and treatment
center operated by a health maintenance organization operating in
accordance with the provisions of article forty-four of this chapter or
article forty-three of the insurance law monies received for or on
account of services provided to subscribers of such health maintenance
organization and excluding patient care services which if provided to
persons eligible for medical assistance pursuant to title eleven of
article five of the social services law would be eligible for ninety
percent federal funds as set forth in section nineteen hundred three of
the federal social security act; and
(d) for all hospitals, excluding diagnostic and treatment centers
operated by a health maintenance organization operating in accordance
with the provisions of article forty-four of this chapter or article
forty-three of the insurance law, shall include monies 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 and the component of rates of payment
reflecting any cost of the assessment reimbursable pursuant to
subdivision ten of this section shall not be included.
4. For periods prior to January first, two thousand five, 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 hospital
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 four 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 hospitals 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 hospital or evidence of moneys received by such hospital for that
month, the commissioner may estimate the amount due from such hospital
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 hospital or evidence of moneys received by such hospital 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
hospital and may collect the deficiency pursuant to paragraph (c) of
this subdivision.
(c) Upon receipt of notification from the commissioner of a hospital'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 hospital 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 hospital.
(d) The commissioner shall provide a hospital 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 hospital 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 hospital, within sixty days of notice of an amount due, may request
a public hearing. If a hearing is requested, the commissioner shall
provide the hospital 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 hospital.
7. (a) Every hospital 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 hospital 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, provided, however, that for periods on and after July
first, two thousand twelve, such reports and any associated
certifications shall be submitted electronically in a form as may be
required by the commissioner.
(d) Final payments shall be due for all hospitals 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. Delinquent
amounts which have been referred for recoupment or offset pursuant to
paragraph (c) of subdivision six of this section, or which have been
referred to the office of the attorney general for collection, shall be
deemed final and not subject to further revision or reconciliation by
the commissioner based on any additional reports or other information
submitted by the hospital, provided, however, that such delinquencies
shall not be referred for such recoupment or for such collection based
on estimated amounts unless the hospital has received written
notification of such delinquencies and has been given no less than
thirty days in which to submit delinquent reports.
(f) Payments and reports submitted or required to be submitted to the
commissioner or to the commissioner's designee pursuant to this section
shall be subject to audit by the commissioner for a period of six years
following the close of the calendar year in which such payments and
reports are due, after which such payments shall be deemed final and not
subject to further adjustment or reconciliation, including through
offset adjustments or reconciliations made to subsequent payments made
pursuant to this section, provided, however, that nothing herein shall
be construed as precluding the commissioner from pursuing collection of
any such payments which are identified as delinquent within such six
year period, or which are identified as delinquent as a result of an
audit commenced within such six year period, or from conducting an audit
of any adjustment or reconciliation made by a hospital.
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 hospital of an estimated payment shall be applied
to any other payment due from the hospital pursuant to this section, or,
if no payment is due, at the election of the hospital shall be applied
to future estimated payments or refunded to the hospital. 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:
(a) credited to the general fund;
(b) provided, however, that funds accumulated, including income from
invested funds, from the assessments provided in accordance with
subparagraph (v) of paragraph (a) and subparagraphs (iii), (iv), (v) and
(vi) of paragraph (b) of subdivision two of this section, including
interest and penalties, shall be deposited by the commissioner and
credited to the special revenue fund-other, miscellaneous special
revenue fund (339), medical assistance account. To the extent of funds
appropriated therefor, funds shall be made available for payments under
the medical assistance program provided pursuant to title eleven of
article five of the social services law;
(c) and provided further, however, that funds accumulated, including
income from invested funds, for a period from the assessment and
additional assessment provided in accordance with subparagraphs (ii) and
(iii) of paragraph (a) of subdivision two of this section, including
interest and penalties, on voluntary nonprofit and private proprietary
general hospitals which qualified for distributions made in accordance
with paragraph (c) of subdivision nineteen of section twenty-eight
hundred seven-c of this article as of December thirty-first, nineteen
hundred ninety-five shall be transferred by the commissioner and
consolidated with funds accumulated from the allowance pursuant to
subdivision two of section twenty-eight hundred seven-j of this article
for such period and allocated in accordance with subdivision nine of
section twenty-eight hundred seven-j of this article.
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 residential health care facilities,
for the period January first, nineteen hundred ninety-two through March
thirty-first, nineteen hundred ninety-nine, the additional assessment of
one and two-tenths percent, and for the period July first, nineteen
hundred ninety-five through March thirty-first, nineteen hundred
ninety-six the further additional assessment of three and eight-tenths
percent, and for the period April first, nineteen hundred ninety-six
through March thirty-first, nineteen hundred ninety-seven the further
additional assessment of one and nine-tenths percent, and for the period
May first, nineteen hundred ninety-six through December thirty-first,
nineteen hundred ninety-six the further additional assessment of two and
three-tenths percent and for the period January first, nineteen hundred
ninety-seven through February twenty-eighth, nineteen hundred
ninety-seven the further additional assessment of one and nine-tenths
percent, and for the period April first, nineteen hundred ninety-seven
through March thirty-first, nineteen hundred ninety-nine the further
additional assessment of three and six-tenths percent, and for the
period April first, nineteen hundred ninety-nine through December
thirty-first, nineteen hundred ninety-nine the further additional
assessment of two and four-tenths percent, imposed pursuant to 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 regulations 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 the purposes of determining rates of
payment pursuant to this article for residential health care facilities,
the assessment imposed pursuant to subparagraph (vi) of paragraph (b) of
subdivision two of this section shall be a reimbursable cost to be
reflected as timely as practicable, and subsequently reconciled to
actual cost, in rates of payment applicable within the assessment
period, provided further, however, that insofar as such assessment is in
excess of six percent it shall not be deemed a reimbursable cost and
shall not be reflected in such rates of payment.
(d) provided, however, that the adjustment to rates of payment made
pursuant to paragraph (c) of this subdivision shall be calculated on a
per diem basis and based on total reported patient days of care minus
reported days attributable to title XVIII of the federal social security
act (medicare) units of service.
(e) the provisions of paragraphs (c) and (d) of this subdivision shall
each be contingent upon receipt of all federal approvals required by
federal law and regulations for federal financial participation in
payments made in accordance with paragraphs (c) and (d) of this
subdivision.
11. (a) (ii) The assessment shall not be collected in excess of one
hundred thirty-four million three hundred thousand dollars from general
hospitals 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 (a) of subdivision two of
this section in excess of one hundred thirty-four 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 general hospitals by the commissioner based on the
ratio which a general hospital's assessment for such period bears to the
total of the assessments for such period paid by general hospitals.
(iii) The additional assessment shall not be collected in excess of
fourteen million nine hundred thousand dollars from general hospitals
for the period of April first, nineteen hundred ninety-seven through
November thirtieth, nineteen hundred ninety-seven. The amount of the
additional assessment collected pursuant to paragraph (a) of subdivision
two of this section in excess of fourteen million nine hundred thousand
dollars for the period of April first, nineteen hundred ninety-seven
through November thirtieth, nineteen hundred ninety-seven shall be
refunded to general hospitals by the commissioner based on the ratio
which a general hospital's additional assessment for such period bears
to the total of the additional assessments for such period paid by
general hospitals.
(b) (ii) The assessment shall not be collected in excess of fifteen
million dollars from residential health care facilities for the period
of April first, nineteen hundred ninety-eight through March
thirty-first, nineteen hundred ninety-nine. The amount of the assessment
collected pursuant to paragraph (b) of subdivision two of this section
in excess of fifteen million dollars for the period of April first,
nineteen hundred ninety-eight through March thirty-first, nineteen
hundred ninety-nine shall be refunded to residential health care
facilities by the commissioner based on the ratio which a residential
health care facility's assessment for such period bears to the total of
the assessments for such period paid by residential health care
facilities.
(iii) The additional assessment shall not be collected in excess of
eighty-nine million nine hundred thousand dollars from residential
health care facilities for the period of April first, nineteen hundred
ninety-eight through March thirty-first, nineteen hundred ninety-nine.
The amount of the additional assessment collected pursuant to paragraph
(b) of subdivision two of this section in excess of eighty-nine million
nine hundred thousand dollars for the period of April first, nineteen
hundred ninety-eight through March thirty-first, nineteen hundred
ninety-nine shall be refunded to residential health care facilities by
the commissioner based on the ratio which a residential health care
facility's additional assessment for such period bears to the total of
the additional assessments for such period paid by residential health
care facilities.
(iv) The further additional assessment shall not be collected in
excess of one hundred sixty-four million seven hundred thousand dollars
from residential health care facilities for the period July first,
nineteen hundred ninety-five through March thirty-first, nineteen
hundred ninety-six. The amount of the further additional assessment
collected pursuant to paragraph (b) of subdivision two of this section
in excess of one hundred sixty-four million seven hundred thousand
dollars for the period of July first, nineteen hundred ninety-five
through March thirty-first, nineteen hundred ninety-six shall be
refunded to residential health care facilities by the commissioner based
on the ratio which a residential health care facility's further
additional assessment for such period bears to the total of the further
additional assessments for such period paid by residential health care
facilities.
(v) The further additional assessment imposed pursuant to subparagraph
(iv) of paragraph (b) of subdivision two of this section shall not be
collected in excess of one hundred twelve million dollars from
residential health care facilities for the period April first, nineteen
hundred ninety-six through March thirty-first, nineteen hundred
ninety-seven. The amount of the further additional assessment collected
pursuant to subparagraph (iv) of paragraph (b) of subdivision two of
this section in excess of one hundred twelve million dollars for the
period of April first, nineteen hundred ninety-six through March
thirty-first, nineteen hundred ninety-seven shall be refunded to
residential health care facilities by the commissioner based on the
ratio which a residential health care facility's further additional
assessment for such period bears to the total of the further additional
assessments for such period paid by residential health care facilities.
(vi) The further additional assessment shall not be collected in
excess of one hundred ten million dollars from residential health care
facilities for the period May first, nineteen hundred ninety-six
through February twenty-eighth, nineteen hundred ninety-seven. The
amount of the further additional assessment collected pursuant to
subparagraph (v) of paragraph (b) of subdivision two of this section in
excess of one hundred ten million dollars for the period May first,
nineteen hundred ninety-six through February twenty-eighth, nineteen
hundred ninety-seven shall be refunded to residential health care
facilities by the commissioner based on the ratio which a residential
health care facility's further additional assessment for such period
bears to the total of the further additional assessments for such
period paid by residential health care facilities.
(vii) The further additional assessment shall not be collected in
excess of two hundred forty million dollars from residential health care
facilities for the period April first, nineteen hundred ninety-seven
through March thirty-first, nineteen hundred ninety-eight. The amount of
the further additional assessment collected pursuant to subparagraph (v)
of paragraph (b) of subdivision two of this section in excess of two
hundred forty million dollars for the period of April first, nineteen
hundred ninety-seven through March thirty-first, nineteen hundred
ninety-eight shall be refunded to residential health care facilities by
the commissioner based on the ratio which a residential health care
facility's further additional assessments for such a period bears to the
total of the further additional assessments for such period paid by
residential health care facilities.
(viii) The further additional assessment shall not be collected in
excess of two hundred fifty-six million eight hundred thousand dollars
from residential health care facilities for the period April first,
nineteen hundred ninety-eight through March thirty-first, nineteen
hundred ninety-nine. The amount of the further additional assessment
collected pursuant to subparagraph (v) of paragraph (b) of subdivision
two of this section in excess of two hundred fifty-six million eight
hundred thousand dollars for the period April first, nineteen hundred
ninety-eight through March thirty-first, nineteen hundred ninety-nine
shall be refunded to residential health care facilities by the
commissioner based on the ratio which a residential health care
facility's further additional assessments for such period bears to the
total of the further additional assessments for such period paid by
residential health care facilities.
(c) (ii) The assessment shall not be collected in excess of seven
million four hundred thousand dollars from all other facilities issued
an operating certificate pursuant to section twenty-eight hundred five
of this article 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 seven million four hundred
thousand dollars for the period of 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
facility's assessment for such period bears to the total of the
assessments for such period paid by such facilities.
12. (a) Each exclusion of hospitals or sources of gross receipts
received from the assessments effective on or after April first,
nineteen hundred ninety-two, and prior to April first, two thousand two,
established pursuant to this section shall be contingent upon either:
(i) qualification of the assessments for waiver pursuant to federal law
and regulation; or (ii) 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, 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 hospital pays
the retroactive amount due within ninety days of notice from the
commissioner to the hospital 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 hospital.
(b) The exclusion of the hospitals described in paragraph (b) of
subdivision one of this section and the exclusion of revenue described
in subdivision two of this section from the assessments set forth in
subdivision two of this section for periods on and after April first,
two thousand two shall be contingent upon either: (i) qualification of
the assessments for waiver pursuant to federal law and regulation; or
(ii) 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 such
assessments relying on such exclusion, 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 such assessments do not so qualify based on such
exclusion, then the commissioner shall, to the extent necessary to
achieve such qualification for federal financial participation, deem
such exclusions null and void as of the first day of the period for
which such assessments apply, and the commissioner shall collect any
retroactive amount due as a result, without interest or penalty provided
the hospital pays the retroactive amount due within ninety days of
notice from the commissioner to the hospital that such exclusion is null
and void.
(c) No hospital shall be obligated to pay assessments pursuant to
subparagraph (v) of paragraph (a) of subdivision two of this section
prior to December first, two thousand five. The commissioner shall
collect payment obligations incurred prior to December first, two
thousand five proportionally over the remaining months in the state fiscal year.
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