2014 -- H 7742

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LC004202

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     STATE OF RHODE ISLAND

IN GENERAL ASSEMBLY

JANUARY SESSION, A.D. 2014

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A N   A C T

RELATING TO HEALTH AND SAFETY -- TAXATION RELIEF FROM PREMIUM-BASED

TAXATION OF HEALTHCARE SERVICES

     Introduced By: Representatives Silva, and McLaughlin

     Date Introduced: February 27, 2014

     Referred To: House Finance

     It is enacted by the General Assembly as follows:

     SECTION 1. Section 23-1-46 of the General Laws in Chapter 23-1 entitled "Department

of Health" is hereby amended to read as follows:

     23-1-46. Insurers Surcharge. – Surcharge. – (a) Beginning in the fiscal year 2007,

each insurer licensed or regulated pursuant to the provisions of chapters 18, 19, 20, and 41 of title

27 shall be assessed a child immunization assessment and an adult immunization assessment for

the purposes set forth in this section. The department of health shall make available to each

insurer, upon its request, information regarding the department of health's immunization

programs and the costs related to the program. Further, the department of health shall submit to

the general assembly an annual report on the immunization programs and cost related to the

programs, on or before February 1 of each year. Annual assessments shall be based on direct

premiums written in the year prior to the assessment and for the child immunization program

shall not include any Medicare Supplement Policy (as defined in section 27-18.2-1(g)), Medicaid

or Medicare premiums. Adult influenza immunization program annual assessments shall include

contributions related to the program costs from Medicare, Medicaid and Medicare Managed Care.

As to accident and sickness insurance, the direct premium written shall include, but is not limited

to, group, blanket, and individual policies. Those insurers assessed greater than ten thousand

dollars ($10,000) for the year shall be assessed four (4) quarterly payments of twenty-five percent

(25%) of their total assessment. Beginning July 1, 2001, the annual rate of assessment shall be

determined by the director of health in concurrence with the primary payors, those being insurers

assessed at greater than ten thousand dollars ($10,000) for the previous year. This rate shall be

calculated by the projected costs for the Advisory Committee on Immunization Practices (ACIP)

recommended and state mandated vaccines after the federal share has been determined by the

Centers for Disease Control and Prevention. The primary payors shall be informed of any

recommended change in rates at least six (6) months in advance, and rates shall be adjusted no

more frequently than one time annually. For the childhood vaccine program the director of the

department of health shall deposit these amounts in Beginning in fiscal year 2016, a portion of the

amount collected from the surcharge described in § 44-65.1-1 et seq., up to the actual amount

expended or projected to be expended by the state for vaccines for children that are recommended

by the Advisory Committee on Immunization Practices (ACIP), the American Academy of

Pediatrics (AAP), and/or mandated by state law, less the federal share determined by the Centers

for Disease Control and Prevention, shall be deposited into the "childhood immunization

account" described in § 23-1-45(a). These assessments funds shall be used solely for the purposes

of the "childhood immunization programs" described in § 23-1-44, and no other. For the adult

immunization program the director of the department of health shall deposit these amounts in the

"adult immunization account". Beginning in fiscal year 2016, a portion of the amount collected

from the surcharge described in § 44-65.1-1 et seq., up to the actual amount expended or

projected to be expended by the state for adult immunizations recommended by ACIP and/or

mandated by state law, less the federal share determined by the centers for disease control and

prevention, shall be deposited into the "adult immunization account" described in § 23-1-45(c).

These funds shall be used solely for the purposes of the "adult immunization programs" described

in § 23-1-44 and no other.

     (b) The department of health shall submit to the general assembly an annual report on the

immunization programs and costs related to the programs, on or before February 1 of each year.

The department of health shall make available to each payer of the surcharge, upon its request,

detailed information regarding the department of health's immunization programs and the costs

related to those programs. Any funds collected in excess of funds needed to carry-out ACIP

recommendations shall be deducted from the subsequent year's assessments surcharge.

     SECTION 2. Section 42-12-29 of the General Laws in Chapter 42-12 entitled

"Department of Human Services" is hereby amended to read as follows:

     42-12-29. Children's health account. -- (a) There is created within the general fund a

restricted receipt account to be known as the "children's health account". All money in the

account shall be utilized by the department of human services to effectuate coverage for the

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following service categories: (1) home health services, which include pediatric private duty

nursing and certified nursing assistant services; (2) comprehensive, evaluation, diagnosis,

assessment, referral and evaluation (CEDARR) services, which include CEDARR family center

services, home based therapeutic services, personal assistance services and supports (PASS) and

kids connect services and (3) child and adolescent treatment services (CAITS). All money

received pursuant to this section shall be deposited in the children's health account. The general

treasurer is authorized and directed to draw his or her orders on the account upon receipt of

properly authenticated vouchers from the department of human services.

      (b) Beginning in the fiscal year 2007, each insurer licensed or regulated pursuant to the

provisions of chapters 18, 19, 20, and 41 of title 27 shall be assessed for the purposes set forth in

this section. The department of human services shall make available to each insurer, upon its

request, information regarding the department of human services child health program and the

costs related to the program. Further, the department of human services shall submit to the

general assembly an annual report on the program and cost related to the program, on or before

February 1 of each year. Annual assessments shall be based on direct premiums written in the

year prior to the assessment and shall not include any Medicare Supplement Policy (as defined in

section 27-18-2.1(g)), Medicare managed care, Medicare, Federal Employees Health Plan,

Medicaid/RIte Care or dental premiums. As to accident and sickness insurance, the direct

premium written shall include, but is not limited to, group, blanket, and individual policies. Those

insurers assessed greater than five hundred thousand dollars ($500,000) for the year shall be

assessed four (4) quarterly payments of twenty-five percent (25%) of their total assessment.

Beginning July 1, 2006, the annual rate of assessment shall be determined by the director of

human services in concurrence with the primary payors, those being insurers likely to be assessed

at greater than five hundred thousand dollars ($500,000). The director of the department of

human services shall deposit that amount Beginning in fiscal year 2016, a portion of the amount

collected from the surcharge described in § 44-65.1-1 et seq., up to the actual amount expended

or projected to be expended by the state for the services described in § 42-12-29(a), but not more

than the limit set forth in § 42-12-29(d), shall be deposited in the "children's health account". The

assessment funds shall be used solely for the purposes of the "children's health account" and no

other.

      (c) The department of human services shall submit to the general assembly an annual

report on the program and costs related to the program, on or before February 1 of each year. The

department shall make available to each payer of the surcharge, upon its request, detailed

information regarding the department of health's children's health programs described in

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subsection (a) and the costs related to those programs. Any funds collected in excess of funds

needed to carry out the programs shall be deducted from the subsequent year's assessment

surcharge.

      (d) The total annual assessment on all insurers share of the surcharge shall be equivalent

to the amount paid by the department of human services for all services, as listed in subsection

(a), but not to exceed seven thousand five hundred dollars ($7,500) per child per service per year.

      (e) The children's health account shall be exempt from the indirect cost recovery

provisions of section 35-4-27 of the general laws.

     SECTION 3. Section 44-17-1 of the General Laws in Chapter 44-17 entitled "Taxation of

Insurance Companies" is hereby amended to read as follows:

     44-17-1. Companies required to file -- Payment of tax -- Retaliatory rates. -- Every

domestic, foreign, or alien insurance company, mutual association, organization, or other insurer,

including any health maintenance organization, as defined in section 27-41-1, any medical

malpractice insurance joint underwriters association as defined in section 42-14.1-1, and any

nonprofit dental service corporation as defined in section 27-20.1-2 and any nonprofit hospital or

medical service corporation, as defined in chapters 27-19 and 27-20, transacting business in this

state except companies mentioned in section 44-17-6, and organizations defined in section 27-25-

1, transacting business in this state health maintenance organizations as defined in § 27-41-1,

nonprofit hospital or medical service corporations as defined in chapters 27-19 and 27-20, and

insurers as defined in § 42-62-4(7), shall, on or before March 1 in each year, file with the tax

administrator, in the form that he or she may prescribe, a return under oath or affirmation signed

by a duly authorized officer or agent of the company, containing information that may be deemed

necessary for the determination of the tax imposed by this chapter, and shall at the same time pay

an annual tax to the tax administrator of two percent (2%) of the gross premiums on contracts of

insurance, except for ocean marine insurance, as referred to in section 44-17-6, covering property

and risks within the state, written during the calendar year ending December 31st next preceding,

but in the case of foreign or alien companies, except as provided in section 27-2-17(d) the tax is

not less in amount than is imposed by the laws of the state or country under which the companies

are organized upon like companies incorporated in this state or upon its agents, if doing business

to the same extent in the state or country.

     SECTION 4. Title 44 of the General Laws entitled "TAXATION" is hereby amended by

adding thereto the following chapter:

CHAPTER 65.1

HEALTHCARE SERVICES SURCHARGE

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     44-65.1-1. Short title. -- This chapter shall be known and may be cited as "The

Healthcare Services Surcharge Act."

     44-65.1-2. Definitions. – As used in this chapter, the following words and phrases shall

have the following meanings:

     (1) "Administrator" means the tax administrator within the department of administration.

     (2) "Healthcare services" means and includes all of the following when provided by a

provider (as defined below) to a patient in this state:

     (i) Inpatient hospital services;

     (ii) Outpatient hospital services;

     (iii) Nursing facility services (other than services of intermediate care facilities for

individuals with intellectual disabilities);

     (iv) Physician services;

     (v) Home healthcare services;

     (vi) Outpatient prescription drugs;

     (vii) Services of managed care organizations (including health maintenance organizations

and preferred provider organizations);

     (viii) Ambulatory surgical center services;

     (ix) Podiatric services;

     (x) Chiropractic services;

     (xi) Psychological services;

     (xii) Therapist services, meaning physical therapy, speech therapy, occupational therapy,

respiratory therapy, audiological services, and rehabilitative specialist services;

     (xiii) Nursing services, including services of nurse midwives, nurse practitioners, and

private duty nurses;

     (xiv) Laboratory and imaging services, including x-ray, ultrasound, echocardiography,

computed tomography (CT), magnetic resonance imaging (MRI), positron emission tomography

(PET), positron emission tomography/computed tomography (PET/CT), general nuclear

medicine, and bone densitometry procedures;

     (xv) Emergency ambulance services; and

     (xvi) Any other healthcare items or services not listed above when provided by a

provider, as defined below, in this state.

     (3) "Insurer" means all persons (as defined below) offering, administering, and/or

insuring healthcare services, including, but not limited to, policies of accident and sickness

insurance, as defined by chapter 18 of title 27:

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     (i) Nonprofit hospital or medical service plans, as defined by chapters 19 and 20 of title

27;

     (ii) Any other person whose primary function is to provide diagnostic, therapeutic, or

preventive services to a defined population on the basis of a periodic premium;

     (iii) All domestic, foreign, or alien insurance companies, mutual associations and

organizations; health maintenance organizations, as defined by chapter 41 of title 27;

     (iv) All persons providing health benefits coverage on a self-insurance basis;

     (v) All third-party administrators described in chapter 20.7 of title 17;

     (vi) All pharmacy benefits managers; and

     (vii) All persons providing health benefit coverage under Title XIX of the Social Security

Act (Medicaid), including the state's Medicaid plan and Medicaid managed care organizations

offering managed Medicaid.

     (4) "Net claims charge" means either:

     (i) The amount paid on a cash basis by an insurer to a provider for healthcare services for

a patient or, in the case of global payment arrangements, paid by an insurer to a provider for

healthcare services rendered to the insurer's members; or

     (ii) The gross amount received on a cash basis by a provider from patients (or their

authorized representative) for healthcare services that are not paid or reimbursed by an insurer,

including, by way of illustration but not of limitation, healthcare services provided to patients

who are not enrolled in healthcare coverage, and healthcare services provided to patients that are

excluded from the healthcare coverage in which they are enrolled; provided, however, that the

term "net-claims charge" for the purposes of paragraph (ii) explicitly excludes:

     (A) Amounts that a patient is required to pay to the provider as a copayment, deductible,

or coinsurance; and

     (B) De minimis amounts. - For purposes of this exclusion, an amount is "de minimis" if

the liability to the provider for all healthcare services provided by the provider to the patient (for

non-hospital services), provided by the provider to the patient per discharge (for inpatient hospital

services), or provided by the provider to the patient within a twenty-four (24) hour period (for

outpatient hospital services) after adjustments, if any, for the provider's reasonable discount

policy or refunds on a cash basis, does not exceed ten thousand dollars ($10,000). The

administrator, by regulation, may exclude from the term "net-claims charge" additional amounts

for which billing or enforcing collection of the surcharge would not be cost effective.

     (5) "Patient" means any individual receiving healthcare services from a provider, other

than a patient whose healthcare services are paid or reimbursed by Part A or Part B of the

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Medicare program, a Medicare supplemental policy (as defined in § 27-18-2.1(g)) or Medicare

managed care policy, the federal employees' health benefit program, Tricare, CHAMPUS, the

Veterans' healthcare program, or the Indian health service program; provided, however, that an

individual who is not enrolled in any such benefit plan or program, but who is eligible for

Medicaid or RIte Care, or whose household income does not exceed four hundred percent (400%)

of the federal poverty level for a family of the size involved, shall not be considered a "patient"

for purposes of this chapter.

     (6) "Person" means any individual, corporation, company. association, partnership,

limited liability company, firm, state and local governmental corporations, districts, and agencies,

joint stock associations, and the legal successor thereof.

     (7) "Provider" means any person who furnishes healthcare services to patients that is

required to be licensed under title 23; provided, however, that with respect to x-ray and imaging

services, the term "provider" shall mean only those persons who furnish imaging services as a

hospital, rehabilitation hospital center, or not-for-profit organization ambulatory care facility that

is required to be licensed under title 23; and provided, further, that during fiscal year 2014, the

term "provider" shall only include a hospital.

     (8) "Surcharge" means the assessment imposed on net claims charges pursuant to this

chapter.

     44-65.1-3. Imposition of surcharge. -- (a) A surcharge shall be imposed upon the net

claims charge in each month at the rate provided in this section. Beginning July 1, 2015, the

surcharge shall be imposed at a rate of one and twenty-five hundredths percent (1.25%) for fiscal

year 2015 and one and five tenths percent (1.5%) for fiscal year 2016. For fiscal year 2017 and

after, the surcharge shall be imposed at a rate of eighty-five hundredths of a percent (.85%) plus a

rate determined in accordance with subsection (c). This surcharge shall be in addition to any other

fees or assessments upon the insurer or provider allowable by law.

     (b) The surcharge shall be paid by or on behalf of the provider of healthcare services as

follows:

     (1) For all net claims charges paid or reimbursed by an insurer, the surcharge shall be

paid by the insurer; provided, however a person providing health benefits coverage on a self-

insurance basis that uses the services of a third-party administrator or pharmacy benefits manager

shall not be required to pay an assessment for a claim where the assessment on that claim has

been paid by the third-party administrator or pharmacy benefit manager;

     (2) For all net claims charges for patients that are not paid or reimbursed by an insurer,

the surcharge shall be paid by the provider that provided the healthcare services to the patient;

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provided, however, that the provider shall not be required to pay a surcharge on amounts that are

not net claims charges (as defined herein) or that are not for patients (as defined herein),

including, but not limited to:

     (A) Any amounts not actually received by the provider on a cash basis;

     (B) Any amounts received by a provider that a patient is required to pay as a copayment,

deductible, or coinsurance;

     (C) Any amount received by a provider from a patient that is "de minimis", as defined

above;

     (D) Any amounts for which billing or enforcing collection of the surcharge would not be

cost effective, as determined by regulation;

     (E) Any amounts received by a provider for healthcare services for individuals whose

healthcare services are paid or reimbursed by Part A or Part B of the Medicare program, a

Medicare supplemental policy (as defined in § 27-18-2.1(g) or Medicare managed care policy, the

federal employees' health benefit program, Tricare, CHAMPUS, the Veteran's healthcare

program, or the Indian health service program; or

     (F) Any amounts received by a provider for healthcare services from individuals eligible

for but not enrolled in Medicaid or RIte Care, or individuals whose household income does not

exceed four hundred percent (400%) of the federal poverty level for a family of the size involved.

     (c) The administrator, will calculate the surcharge percentage for fiscal year 2016 and

each subsequent fiscal year based on the funding needs as determined by the director of the

department of health for the childhood and adult immunization vaccine programs described in §

23-1-46, the funding needs as determined by the director of the department of human services for

the children's health services program described in § 42-12-29, and the projected net claims

charge of all persons subject to the surcharge. The administrator will establish and publish the

surcharge percentage for the fiscal year beginning July 1, 2016 on or before April 15, 2015, and

annually by April 15 thereafter.

     44-65.1-4. Returns and payment. -- (a) Subject to subsection (b), every person required

to pay a surcharge shall, on or before the twenty-fifth (25th) day of the month following the month

of receipt of net-claims charge, make a return to the administrator together with payment of the

monthly surcharge.

     (b)(1) Upon request of the director of the department of health, the administrator shall

develop a process whereby any insurer required to pay the surcharge may be directed to pre-pay a

fraction of the next year's estimated surcharge, equal to one-half (1/2) of the portion of the

surcharge relating to the immunization programs described in title 23, and the administrator shall

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make the pre-paid amount collected by the administrator available to the department of health for

the administration of the child and adult immunization programs.

     (2) Any person required to pay the surcharge that can substantiate that the person's

surcharge liability has averaged less than twenty-five thousand dollars ($25,000) per month may

file returns and remit payment on or before the last day of July, October, January and April of

each year for the preceding three (3) months' period; provided, however, that the person will be

required to make monthly payments if the administrator determines that:

     (i) The person has become delinquent in either the filing of the return or the payment of

the surcharge due thereon; or

     (ii) The liability of the person exceeds seventy-five thousand dollars ($75,000) in

surcharge per quarter for any two (2) subsequent quarters.

     (3) Providers required to pay a surcharge whose liability does not exceed ten thousand

dollars ($10,000) per month then may elect to file returns and remit payment annually on or

before the last day of June each year.

     (c) The administrator is authorized to adopt rules, pursuant to this chapter, relative to the

form of the return and the data that it must contain for the correct computation of net claims

charge or the surcharge. All returns shall be signed by the person required to pay the surcharge, or

by its authorized representative, subject to the pains and penalties of perjury. If a return shows an

overpayment of the surcharge due, the administrator shall refund or credit the overpayment to the

person required to pay the surcharge.

     (d) The administrator, for good cause shown, may extend the time within which a person

is required to file a return, and if the return is filed during the period of extension no penalty or

late filing charge may be imposed for failure to file the return at the time required by this chapter,

but the person shall be liable for interest as prescribed in this chapter. Failure to file the return

during the period for the extension shall void the extension.

     44-65.1-5. Set-off for delinquent payment of surcharge. -- If a person required to pay a

surcharge shall fail to pay a surcharge within thirty (30) days of its due date, the administrator

may request any agency of state government making payments to the person to set-off the amount

of the delinquency against any payment due the person from the agency of state government and

remit the sum to the administrator. Upon receipt of the set-off request from the administrator, any

agency of state government is authorized and empowered to set-off the amount of the

delinquency against any payment or amounts due the person. The amount of set-off shall be

credited against the surcharge due from the person.

     44-65.1-6. Surcharge on available information -- Interest on delinquencies --

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Penalties -- Collection powers. -- If any person shall fail to file a return within the time required

by this chapter, or shall file an insufficient or incorrect return, or shall not pay the surcharge

imposed by this chapter when it is due, the administrator shall assess upon the information as may

be available, which shall be payable upon demand and shall bear interest at the annual rate

provided by § 44-1-7 of the Rhode Island general laws, as amended, from the date when the

surcharge should have been paid. If any part of the surcharge made is due to negligence or

intentional disregard of the provisions of this chapter, a penalty of ten percent (10%) of the

amount of the determination shall be added to the tax. The administrator shall collect the

surcharge with interest in the same manner and with the same powers as are prescribed for

collection of taxes in this title.

     44-65.1-7. Claims for refund -- Hearing upon denial. -- (a) Any person required to pay

the surcharge may file a claim for refund with the administrator at any time within two (2) years

after the surcharge has been paid. If the administrator shall determine that the surcharge has been

overpaid, he or she shall make a refund with interest from the date of overpayment.

     (b) Any person whose claim for refund has been denied may, within thirty (30) days from

the date of the mailing by the administrator of the notice of the decision, request a hearing and the

administrator shall, as soon as practicable, set a time and place for the hearing and shall notify the

insurer or provider.

     44-65.1-8. Hearing by administrator on application. -- Any person aggrieved by the

action of the administrator in determining the amount of any surcharge or penalty imposed under

the provisions of this chapter may apply to the administrator, within thirty (30) days after the

notice of the action is mailed to it, for a hearing relative to the surcharge or penalty. The

administrator shall fix a time and place for the hearing and shall so notify the person. Upon the

hearing the administrator shall correct manifest errors, if any, disclosed at the hearing and

thereupon assess and collect the amount lawfully due together with any penalty or interest

thereon.

     44-65.1-9. Appeals. -- Appeals from administrative orders or decisions made pursuant to

any provisions of this chapter shall be to the sixth division district court pursuant to chapter 8 of

title 8 of the Rhode Island general laws, as amended. The right to appeal under this section shall

be expressly made conditional upon prepayment of all surcharges, interest, and penalties unless

the person moves for and is granted an exemption from the prepayment requirement pursuant to §

8-8-26 of the Rhode Island general laws, as amended. If the court, after appeal, holds that the

person is entitled to a refund, the insurer or provider shall also be paid interest on the amount at

the rate provided in § 44-1-7.1 of the Rhode Island general laws, as amended.

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     44-65.1-10. Records. -- Every person required to pay the surcharge shall:

     (1) Keep records as may be necessary to determine the amount of its liability under this

chapter;

     (2) Preserve those records for a period of three (3) years following the date of filing of

any return required by this chapter, or until any litigation or prosecution under this chapter is

finally determined;

     (3) Make those records available for inspection by the administrator or his/her authorized

agents, upon demand, at reasonable times during regular business hours.

     44-65.1-11. Method of payment and deposit of surcharge. -- (a) The payments

required by this chapter may be made by electronic transfer of monies to the general treasurer.

     (b) The general treasurer shall take all steps necessary to facilitate the electronic transfer

of monies to the "childhood immunization account" described in § 23-1-45(a) in the amount

described in § 23-1-46(a); to the "adult immunization account" described in § 23-1-45(c) in the

amount described in § 23-1-46(a); to the "children's health account" described in § 42-12-29(a) in

the amount described in § 42-12-29(b); and the remainder of the payments not allocated to those

programs shall be deposited to the general fund. The general treasurer shall provide the

administrator a record of any monies transferred and deposited.

     44-65.1-12. Rules and regulations. -- The administrator is authorized to make and

promulgate rules, regulations, and procedures not inconsistent with state law and fiscal

procedures as he or she deems necessary for the proper administration of this chapter and to carry

out the provisions, policies, and purposes of this chapter.

     44-65.1-13. Surcharge allocation. -- A person required to pay a surcharge may pass on

the cost of that surcharge in the cost of its services, such as the charges for healthcare services to

patients (for providers) or its premium rates (for insurers), without being required to specifically

allocate those costs to individuals or populations that actually incurred the surcharge.

     44-65.1-14. Severability. -- If any provision of this chapter or the application of this

chapter to any person or circumstances is held invalid, that invalidity shall not affect other

provisions or applications of the chapter that can be given effect without the invalid provision or

application, and to this end the provisions of this chapter are declared to be severable.

     44-65.1-15. Excluded coverage. – This chapter shall not apply to insurance coverage

providing benefits for:

     (1) Hospital confinement indemnity;

     (2) Disability income;

     (3) Accident only;

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     (4) Long term care;

     (5) Medicare supplement;

     (6) Limited benefit health;

     (7) Specified disease indemnity;

     (8) Sickness or bodily injury or death by accident or both; and

     (9) Other limited benefit policies.

     SECTION 5. Sections 1 and 2 of this act shall take effect on July 1, 2015 and Sections 3

and 4 of this act shall take effect upon passage.

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EXPLANATION

BY THE LEGISLATIVE COUNCIL

OF

A N   A C T

RELATING TO HEALTH AND SAFETY -- TAXATION RELIEF FROM PREMIUM-BASED

TAXATION OF HEALTHCARE SERVICES

***

     This act would replace the current immunization/children healthcare services assessments

and premium taxes imposed on health insurance companies with a healthcare services surcharge

calculated to generate the same amount of revenue as the assessments and taxes.

     Sections 1 and 2 of this act would take effect on July 1, 2015 and Sections 3 and 4 of this

act shall take effect upon passage.

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