§ 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.