TCA § 68-11-830 — Intermediate care facilities for individuals with intellectual disabilities (ICF/IID) — Exercise of enforcement powers — Taxation

Notwithstanding any other law to the contrary, any and all enforcement powers and authority conferred by § 68-11-252 or by §§ 68-11-811 — 68-11-820 and 68-11-826 — 68-11-829 on the commissioner of health shall be exercised by the commissioner of intellectual and developmental disabilities in the case of any facility that is both licensed by the department of intellectual and developmental disabilities, pursuant to title 33, chapter 2, part 4, and is also certified to participate in the medicare or medicaid medical assistance programs as an intermediate care facility for individuals with intellectual disabilities (ICF/IID), as defined by 42 CFR 442.1 et seq. All powers and duties conferred by § 68-11-252 on the board for licensing health care facilities shall, for the limited purposes of this section, be exercised by the commissioner of intellectual and developmental disabilities. Before exercising the powers of §§ 68-11-811 — 68-11-820 and 68-11-826 — 68-11-829, the commissioner of intellectual and developmental disabilities shall first promulgate regulations identifying those standards pertinent to ICF/IIDs whose violation may justify the assessment of a civil monetary penalty, classifying those standards by type, and detailing the circumstances under which civil penalties may be imposed. Each ICF/IID shall pay a tax as set forth in this subsection (d). Licensed facilities that are owned or operated by an agency of the state are not excluded from paying the tax. The tax shall be at the rate of five and one-half percent (5.5%) of the monthly gross receipts of an ICF/IID operating in this state. The tax due from facilities that are not one hundred percent (100%) ICF/IID certified shall be based at the rate of five and one-half percent (5.5%) of the monthly gross receipts generated from beds certified as intermediate care beds for individuals with intellectual disabilities in the facility. The tax shall be paid monthly based on the amount of the tax established in this subdivision (d)(2). The monthly payments are due on the fifteenth of each following month, beginning August 15, 1994, for the July 1994 payment, and ending with a final payment on July 15, 2017. It is the clear and unequivocal intent of the general assembly that this subdivision (d)(2) has retroactive application to January 1, 2008. The commissioner of health shall adopt rules and regulations governing the collection of such taxes. Notwithstanding any other law, the commissioner is authorized to promulgate such rules as emergency rules pursuant to the rulemaking provisions of the Uniform Administrative Procedures Act, compiled in title 4, chapter 5. Any challenge to the tax imposed by this subsection (d) shall be brought pursuant to title 67, chapter 1, part 18 and § 9-8-307(a)(1)(O). All revenue collected pursuant to this subsection (d) shall be deposited in the general fund. If any part of any tax imposed under this subsection (d) is not paid on or before the due date, a penalty of five percent (5%) of the amount due shall at once accrue and be added to such tax. Thereafter, on the first day of each month during which any part of any tax or any prior accrued penalty remains unpaid, an additional penalty of five percent (5%) of the then unpaid balance shall accrue and be added to such tax or prior accrued penalty. In addition, taxes under this subsection (d) not paid on the due date shall bear interest at the maximum lawful rate from the due date to the date paid. Payment shall be deemed to have been made upon date of deposit in the United States mail. The commissioner may, for good cause, approve an alternative payment plan as long as full payment of the tax is made. If an ICF/IID is more than sixty (60) days delinquent in paying its monthly amount, the commissioner of intellectual and developmental disabilities may initiate proceedings to revoke the license of the facility in accordance with the Uniform Administrative Procedures Act. If a facility is more than thirty (30) days delinquent in paying the amount of its tax or any installment of an alternative payment plan approved by the board or commissioner, the commissioner of health has the additional authority to deduct the amount owing from the facility's forthcoming medicaid payments and to notify the facility that it will be locked into a process by which the monthly installment will automatically be deducted from each month's medicaid payment for an appropriate period of time, as determined by the state. The facility will also be notified of an opportunity to request a hearing before the commissioner or the commissioner's designee to consider the sole issues of whether the amount of the tax was proper and whether the payment of the tax was more than thirty (30) days delinquent. If requested by the facility, this hearing shall be promptly held, but in no case shall the pendency of a hearing result in delay of the deductions envisioned in this subdivision (d)(6)(C). The tax imposed by this subsection (d) may not be billed by the ICF/IID as a separately stated charge, but this shall not prevent the ICF/IID from adjusting its rates to defray the cost associated with the tax. The fiscal review committee shall review and have oversight of the implementation of this subsection (d). Any tax obligation imposed by this subsection (d) shall be suspended to the extent that and for the period that receipt of the tax by the state results in a corresponding reduction in federal financial participation under Title XIX of the federal Social Security Act, compiled in 42 U.S.C. § 1396 et seq. The tax established by this subsection (d) shall terminate on July 15, 2017.