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

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