New York Codes, Rules and Regulations › Title 14 - DEPARTMENT OF MENTAL HYGIENE › Chapter XXI - OFFICE OF ALCOHOLISM AND SUBSTANCE ABUSE SERVICES › Part 812 - Limits On Administrative Expenses And Executive Compensation › Section 812.6 - Waivers

Current through Register Vol. 46, No. 28, July 10, 2024
(a) Waivers for
				limit on executive compensation. The office or its designee and the Director of
				the Division of the Budget may grant a waiver to the limits on executive
				compensation in section
				812.5 
				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 timely submission of the covered provider's EO No. 38
				disclosure form required pursuant to section
				812.7  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 office
				or its designee and the Director of the Division of the Budget. The office
				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 office 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
				812.5 
				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 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
				812.5 
				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 office 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 office
				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 office or its designee as a result of additional relevant
				circumstances.
(5)
				Unless already publicly disclosed, information provided by a covered provider
				to the office 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.