Current through Register Vol. 46, No. 12, March 20, 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.