§ 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.