N.Y. Comp. Codes R. & Regs. tit. 1 § 400.4

Current through Register Vol. 46, No. 45, November 2, 2024

Section 400.4 - Waivers

(a) Waivers for 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 400.3 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 subsection 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 405 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 400.5 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 400.3 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 for 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 400.2 of this Part upon a showing of good cause. To be considered, an application for such a waiver must comply with this subsection 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 405 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 400.2 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 section 400.4 of this Part, 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 consideration 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.

N.Y. Comp. Codes R. & Regs. Tit. 1 § 400.4