New York Codes, Rules and Regulations › Title 1 - DEPARTMENT OF AGRICULTURE AND MARKETS › Chapter X - Grant Programs › Part 400 - Limits On Administrative Expenses And Executive Compensation › Section 400.4 - Waivers

Current through Register Vol. 46, No. 28, July 10, 2024
(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.