New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter XI - Limits On Administrative Expenses And Executive Compensation
Part 1002 - Limits On Administrative Expenses And Executive Compensation
Section 1002.4 - Waivers
Universal Citation: 10 NY Comp Codes Rules and Regs ยง 1002.4
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Waivers of limit on executive compensation. The department or its designee and the Director of the Division of the Budget may grant a waiver to the limits on executive compensation in section 1002.3 of this Part for executive compensation for one or more covered executives, or for one or more positions, during the reporting period and, where appropriate, for a longer period upon a showing of good cause. To be considered, an application for such a waiver must comply with this subdivision in its entirety.
(1) The application must be filed no later
than concurrent with the timely submission of the covered provider's EO No. 38
disclosure form required pursuant to section
1002.5 of this Part for the
reporting period for which the waiver is requested. The application shall be
transmitted in the manner and form specified by the department or its designee
and the Director of the Division of the Budget. The department shall consider
untimely waiver applications where a reasonable cause for such delay is
shown.
(2) The following factors,
in addition to any other deemed relevant by the department or its designee and
the Director of the Division of the Budget, shall be considered in the
determination of whether to grant a waiver:
(i) the extent to which the executive
compensation that is the subject of the waiver is comparable to that given to
comparable executives in other providers of the same size and within the same
program service sector and the same or comparable geographic area;
(ii) the extent to which the covered provider
would be unable to provide the program services reimbursed with State funds or
State-authorized payments at the same levels of quality and availability
without obtaining reimbursement for executive compensation given to a covered
executive in excess of the limits in section
1002.3 of this Part;
(iii) the nature, size, and complexity of the
covered provider's operations and the program services provided;
(iv) the provider's review and approval
process for the executive compensation that is the subject of the waiver,
including whether such process involved a review and approval by the board of
directors or other governing body (if such a board or body exists), whether
such review was conducted by at least two independent directors or independent
members of the governing body, whether such review included an assessment of
comparability data including a compensation survey, and contemporaneous
substantiation of the deliberation and decision to approve such executive
compensation;
(v) the
qualifications and experience possessed by or required for the covered
executive(s) or position(s), respectively; and
(vi) the provider's efforts, if any, to
secure executives with the same levels of experience, expertise, and skills for
the positions of covered executives at lower levels of compensation.
(3) A waiver to the limits set
forth in section
1002.3 of this Part shall be
granted only where a covered provider has demonstrated good cause supporting
such a waiver, and has provided any documentation requested by the department
or its designee or the Director of the Division of the Budget to support such a
waiver. Unless additional information has been requested but not received from
the covered provider, a decision on a timely submitted waiver application shall
be provided no later than 60 calendar days after submission of the
application.
(4) If granted, a
waiver to a covered provider shall remain in effect for the period of time
specified by the department or its designee and the Director of the Division of
the Budget for the covered executive position(s) at issue, but shall be deemed
revoked when:
(i) the executive compensation
that is the subject of the waiver increases by more than five percent in any
calendar year; or
(ii) upon notice
provided at the discretion of the department or its designee as a result of
additional relevant circumstances.
(5) Unless already publicly disclosed,
information provided by a covered provider to the department in connection with
a waiver application regarding the limits on executive compensation shall not
be subject to public disclosure under the State's Freedom of Information
Law.
(b) Waivers of limit on reimbursement for administrative expenses. The department or its designee and the Director of the Division of the Budget may grant a waiver to obtain reimbursement for administrative expenses incurred during the reporting period and thereafter in excess of the limit set forth in section 1002.2 of this Part upon a showing of good cause. To be considered, an application for such a waiver must comply with this subdivision in its entirety.
(1)
The application must be filed no later than concurrent with the timely
submission of the covered provider's EO No. 38 disclosure form for the period
for which the waiver is requested, as required pursuant to section
1002.5 of this Part. The
department shall consider untimely waiver applications where a reasonable cause
for such delay is shown.
(2) The
following factors, in addition to any others deemed relevant by the department
or its designee and the Director of the Division of the Budget, shall be
considered in the determination of whether to grant a waiver:
(i) the extent to which the administrative
expenses that are the subject of the waiver are necessary or
avoidable;
(ii) evidence that a
failure to reimburse specific administrative expenses that are the subject of
the waiver would negatively affect the availability or quality of program
services in the covered provider's geographic area;
(iii) the nature, size, and complexity of the
covered provider's operations and the program services provided;
(iv) the provider's efforts to monitor and
control administrative expenses and to limit requests for reimbursement for
such costs; and
(v) the provider's
efforts, if any, to find other sources of funding to support its administrative
expenses and the nature and extent of such efforts and funding
sources.
(3) A waiver to
the limit set forth in section
1002.2 of this Part shall be
granted only where a covered provider has demonstrated good cause supporting
such a waiver, and has provided any documentation requested by the department
or its designee or the Director of the Division of the Budget to support such a
waiver. Unless additional information has been requested but not received from
the covered provider, a decision on a timely submitted waiver application shall
be provided no later than 60 calendar days after submission of the
application.
(4) If granted, a
waiver granted to a covered provider shall remain in effect only for the
reporting period, except that the covered provider may request in its waiver
application and the department or its designee and the Director of the Division
of the Budget may grant an extension of the effective period of such waiver
when the waiver is granted.
(5)
Unless already publicly disclosed, information provided by a covered provider
to the department in connection with a waiver application regarding the limit
on administrative expenses shall not be subject to public disclosure under the
State's Freedom of Information Law.
(c) Denial of waiver request.
(1) If the department or its designee or the
Director of the Division of the Budget proposes to deny a request for waiver
made pursuant to this section the applicant shall be given written notice of
the proposed denial, stating the reason or reasons for such proposed denial.
Such notice shall be sent by certified mail and shall be a final determination
to be effective 30 calendar days from the date of the notice, unless
reconsideration is requested.
(2)
If the department or its designee or the Director of the Division of the Budget
provides a notice of proposed denial, the applicant may request reconsideration
of the proposed denial by submitting a written request for reconsideration
within 30 calendar days of the date of the notice of proposed denial.
Submission of a request for reconsideration within 30 calendar days shall stay
any action to deny an applicant's request for a waiver, pending a decision
regarding such request for reconsideration, and shall stay any action to enter
into a contract or other agreement. Any vouchers submitted by the applicant for
payment by the department during which such reconsideration is pending may be
considered incomplete at the department's discretion.
(3) The written request for reconsideration
shall be signed by the owner(s) or chief executive officer of the applicant,
and shall include all information the applicant wishes to be considered,
including any written documentation that would controvert the reason(s) for the
denial or disclose that the denial was based upon a mistake of fact.
(4) If the applicant properly seeks
reconsideration of the proposed denial, the department or its designee or the
Director of the Division of the Budget shall review the proposed denial and
shall issue a written determination after reconsideration. The determination
after reconsideration may affirm, revoke, or modify the proposed denial. Such
determination shall be a final decision.
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