[Text of section effective as provided by 1997, 47, Sec. 36 as amended by 2003, 9, Sec. 37 until October 1, 2007. Repealed by 2006, 58, Sec. 43. See 2006, 58, Sec. 146.]

Section 18A. (a) Acute hospitals and ambulatory surgical centers shall assess a surcharge on all payments subject to surcharge as defined in section 1. The surcharge shall be distinct from any other amount paid by a surcharge payor for the services of an acute hospital or ambulatory surgical center. The surcharge amount shall equal the product of (i) the surcharge percentage and (ii) amounts paid for said services by a surcharge payor. The division shall calculate the surcharge percentage by dividing $100,000,000 by the projected annual aggregate payments subject to surcharge. The division shall determine the surcharge percentage before the effective date of this section and may redetermine the surcharge percentage before the following April 1 if the division projects that the initial surcharge established the previous October will produce less than $90,000,000 or more than $110,000,000. Before each succeeding October 1, the division shall redetermine the surcharge percentage incorporating any adjustments from prior years. In each determination or redetermination of the surcharge percentage, the division shall use the best data available as determined by the division and may consider the effect on projected surcharge payments of any modified or waived enforcement under subsection (e). The division shall incorporate all adjustments, including, but not limited to, updates or corrections or final settlement amounts by prospective adjustment rather than by retrospective payments or assessments.

(b) Each acute hospital and ambulatory surgical center shall bill a surcharge payor an amount equal to the surcharge described in subsection (a) as a separate and identifiable amount distinct from any amount paid by a surcharge payor for acute hospital or ambulatory surgical center services. Each surcharge payor shall pay such surcharge amount to the division for deposit in the uncompensated care pool on behalf of said acute hospital or ambulatory surgical center. Upon the written request of a surcharge payor, the division may implement another billing or collection method for such surcharge payor; provided, however, that the division has received all information that it requests which is necessary to implement such billing or collection method; and provided further, that the division shall specify by regulation the criteria for reviewing and approving such requests and the elements of such alternative method or methods.

(c) The division shall specify by regulation appropriate mechanisms that provide for determination and payment of a surcharge payor’s liability, including requirements for data to be submitted by surcharge payors, acute hospitals and ambulatory surgical centers.

(d) A surcharge payor’s liability to said pool shall in the case of a transfer of ownership be assumed by the successor in interest to the surcharge payor.

(e) The division shall establish by regulation an appropriate mechanism for enforcing a surcharge payor’s liability to said pool in the event that a surcharge payor does not make a scheduled payment to said pool; provided, however, that the division may, for the purpose of administrative simplicity, establish threshold liability amounts below which enforcement may be modified or waived. Such enforcement mechanism may include assessment of interest on the unpaid liability at a rate not to exceed an annual percentage rate of 18 per cent and late fees or penalties at a rate not to exceed 5 per cent per month. Such enforcement mechanism may also include notification to the division of medical assistance requiring an offset of payments on the claims of the surcharge payor, any entity under common ownership or any successor in interest to the surcharge payor, from the division of medical assistance in the amount of payment owed to said pool including any interest and penalties, and to transfer the withheld funds into said pool. If the division of medical assistance offsets claims payments as ordered by the division, said division of medical assistance shall be deemed not to be in breach of contract or any other obligation for payment of noncontracted services, and a surcharge payor to which payment is offset under order of the division shall serve all Title XIX recipients in accordance with the contract then in effect with the division of medical assistance. In no event shall the division direct the division of medical assistance to offset claims unless the surcharge payor has maintained an outstanding liability to the uncompensated care pool for a period longer than 45 days and has received proper notice that said division intends to initiate enforcement actions in accordance with the regulations of the division.

(f) Any surcharge payor that fails to file any data, statistics or schedules or other information required under this chapter or by any regulation promulgated by the division or which falsifies the same, shall be subject to a civil penalty of not more than $5,000 for each day on which such violation occurs or continues, which penalty may be assessed in an action brought on behalf of the commonwealth in any court of competent jurisdiction. The attorney general shall bring any appropriate action, including injunctive relief, as may be necessary for the enforcement of the provisions of this chapter.