PDD-22-12-00020-RP Limits on Administrative Expenses and Executive Compensation

10/31/12 N.Y. St. Reg. PDD-22-12-00020-RP

NEW YORK STATE REGISTER

VOLUME XXXIV, ISSUE 44

October 31, 2012

RULE MAKING ACTIVITIES

OFFICE FOR PEOPLE WITH DEVELOPMENTAL DISABILITIES

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. PDD-22-12-00020-RP

Limits on Administrative Expenses and Executive Compensation

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action:

Addition of Part 645 to Title 14 NYCRR.

Statutory authority:

Mental Hygiene Law, sections 13.09(b) and 43.02

Subject:

Limits on administrative expenses and executive compensation.

Purpose:

To curb abuses in executive comp. and administrative expenses and ensure that taxpayer dollars are used to help persons in need.

Substance of revised rule:

The proposed regulations add a new Part 645 to 14 NYCRR, titled Limits on Administrative Expenses and Executive Compensation.

Section 645.1 contains definitions for purposes of this Part, including definitions for administrative expenses, covered operating expenses, covered executive, covered provider, executive compensation, program services, program services expenses, related organization, reporting period, State-authorized payments, and State funds.

Section 645.2. Limits on Administrative Expenses. Contains limits on the use of State funds or State-authorized payments for administrative expenses.

The restriction will apply to subcontractors and agents of covered providers which meet the specified criteria.

The restriction will apply to covered providers receiving State funds or State-authorized payments from county or local governments, rather than directly from a State agency, pursuant to specified criteria.

The revised regulation addresses how the restriction will apply in the event that a covered provider has multiple sources of State funds or State-authorized payments.

Section 645.3. Limits on Executive Compensation. Contains restrictions on executive compensation provided to covered executives.

The restriction will apply to subcontractors and agents of covered providers which meet the specified criteria.

The restriction will apply to covered providers receiving State funds or State-authorized payments from county or local governments, rather than directly from a State agency, pursuant to specified criteria.

The revised rule addresses the application of this limit if the covered provider has multiple sources of State funds or State-authorized payments.

Section 645.4. Waivers. Processes are established for covered providers to seek waivers of the limit on administrative expenses and the limits on executive compensation.

Section 645.5. Reporting.

Covered providers are required to report information on an annual basis.

Section 645.6. Penalties.

A process is established for the imposition of penalties in the event of non-compliance with the limit on administrative expenses or the limits on executive compensation.

A copy of the full text of the regulatory proposal is available on the OPWDD website at www.opwdd.ny.gov.

Public hearing(s) will be held at:

3:00 p.m., Dec. 17, 2012 at Office for People with Developmental Disabilities, Counsel's Office Conference Rm., 44 Holland Ave., Albany, NY; and 10:30 a.m., Dec. 19, 2012 at Office for People with Developmental Disabilities, Counsel's Office Conference Rm., 44 Holland Ave., Albany, NY.

Interpreter Service:

Interpreter services will be made available to hearing impaired persons, at no charge, upon written request submitted within reasonable time prior to the scheduled public hearing. The written request must be addressed to the agency representative designated in the paragraph below.

Accessibility:

All public hearings have been scheduled at places reasonably accessible to persons with a mobility impairment.

Revised rule compared with proposed rule:

Substantial revisions were made in Part 645.

Text of revised proposed rule and any required statements and analyses may be obtained from

Barbara Brundage, Director, Regulatory Affairs Unit, Office for People With Developmental Disabilities, 44 Holland Ave., 3rd Floor, Albany, NY 12229, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

December 24, 2012.

Additional matter required by statute:

Pursuant to the requirements of the State Environmental Quality Review Act, OPWDD, as lead agency, has determined that the action described herein will have no effect on the environment, and an E.I.S. is not needed.

Revised Regulatory Impact Statement

1. Statutory authority:

a. OPWDD has the statutory authority to adopt rules and regulations necessary and proper to implement any matter under its jurisdiction as stated in the New York State Mental Hygiene Law Section 13.09(b).

b. OPWDD has the statutory authority to adopt rules and regulations relating to reports concerning costs of providing services, as stated in section 43.02(c) of the Mental Hygiene Law.

2. Legislative objectives: These proposed amendments further the legislative objectives embodied in sections 13.09(b) and 43.02 of the Mental Hygiene Law. The proposed amendments establish limits on administrative expenses and executive compensation.

3. Needs and benefits: In January of this year, Governor Cuomo issued Executive Order 38, which directed each Executive State agency that provides State financial assistance or State-authorized payments to providers of services to promulgate regulations to address the extent and nature of a provider's administrative expenses and executive compensation that are eligible to be reimbursed with State financial assistance or State-authorized payments for operating expenses.

State Government in New York directly or indirectly funds, or authorizes reimbursements with taxpayer dollars, to a large number of tax exempt organizations and for-profit entities that provide critical services to New Yorkers in need. State Government in New York also has an ongoing obligation to ensure that taxpayers' dollars are used properly, efficiently and effectively to improve the lives of New Yorkers and our communities.

In certain instances, providers of services that receive State funds or State-authorized payments have used such funds to pay for excessive administrative expenses and outsized compensation for their senior executives, rather than devoting a greater proportion of such funds to providing direct care or services to individuals. Such abuses involving public funds harm both the people of New York who are paying for such services, and those persons who must depend upon such services to be available and well-funded.

These regulations are being proposed to curb such abuses in executive compensation and administrative costs and ensure that taxpayer dollars are used first and foremost to help New Yorkers in need.

4. Costs:

a. Costs to the Agency and to the State and its local governments: The amendments do not make any changes in the overall amount of State funds and State-authorized payments which are provided to private agencies. Therefore, no changes are expected in costs to OPWDD, New York State or local governments.

b. Costs to private regulated parties: There will be no overall changes in the level of State funds or State-authorized payments received by agencies. In certain instances providers of services that receive State funds or State-authorized payments which currently use such funds to pay for excessive administrative expenses and outsized compensation for their senior executives will be required to redirect the expenditure of funds to the programs that serve individuals with developmental disabilities.

5. Local government mandates: There are no new requirements imposed by the rule on any county, city, town, village; or school, fire, or other special district.

6. Paperwork: The proposed amendments require covered providers to submit a new form to OPWDD on an annual basis in order to submit data necessary for OPWDD to monitor compliance with the requirements and for New York State to assess the impact of the requirements on the use of public funds to support excessive executive compensation and administrative costs among providers. Providers that pay executive over $199,000 will have to document that they meet the 75th percentile and governing body review criteria set forth in regulation. Paperwork will also be needed in the event that the provider seeks a waiver for the limit on executive compensation or the limit on administrative costs.

7. Duplication: The proposed amendments do not duplicate any existing State or Federal requirements that are applicable to services for persons with developmental disabilities.

8. Alternatives: OPWDD was required to propose these regulations pursuant to Executive Order 38 and did not consider any alternatives.

9. Federal standards: The proposed amendments do not exceed any minimum standards of the federal government for the same or similar subject areas.

10. Compliance schedule: The rule will become effective upon adoption. The implementation date establishing the limits on administrative expenses and executive compensation will be April 1, 2013.

Revised Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Governments is not being submitted with this notice because the proposed rule will not impose any adverse economic impact on small businesses, nor will it impose new reporting, recordkeeping or other compliance requirements on small businesses or local governments.

Revised Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not being submitted with this notice because the proposed rule will not impose any adverse economic impact on rural areas.

Revised Job Impact Statement

A Job Impact Statement is not being submitted with this notice because it is evident from the subject matter of the regulation that it will have no impact on jobs and employment opportunities.

Assessment of Public Comment

A Notice of Proposed Rule Making was published in the State Register on May 30, 2012.

All comments received were reviewed and evaluated. Many of the concerns expressed in the comments have been addressed by revisions to the various sections of the proposed regulation. Suggestions from others were determined to be contrary to the goals of the proposed rulemaking.

A number of comments objected generally to the underlying concept of the regulations, stating that the proposed regulation is overly broad in its authority and burdensome in its requirements. OPWDD believes that the proposed limitations in the regulation further the legitimate goal of ensuring that public funds are properly expended and the use of such funds is properly monitored.

Clarification was requested concerning certain defined terms in the proposed regulation, in particular with respect to their intended scope. In response, and taking into account suggestions submitted, changes were made to the definitions of the following terms: administrative expenses, covered provider, covered executive, executive compensation, program services expenses, related entity, State-authorized payments and State funds.

Some commenters stated that the proposed limits on administrative expenses were burdensome and unnecessary, because they would interfere with existing contracts, because they were possibly duplicative of existing state and federal rules, or they will not enhance the protections already provided by restrictions from State reimbursement rates.

Clarification was requested as to what will constitute administrative and program expenses. The proposed regulation has been revised to incorporate an allocation methodology for these two expenses.

There were a wide range of comments and suggestions on the definition of "executive compensation." They covered such topics as: (a) general concerns about application of the definition, (b) exclusions, (c) limitations and application of the definition, and (d) suggestions about surveys and their use. A summary of the comments and suggestions follows:

(a) General concerns regarding the regulation include that it: is too broad since it regulates use of funding sources not emanating from the state; is unrealistic, problematic and intrusive to operations; will adversely affect candidate pools, incumbents, service delivery and the ability of providers to meet the challenges and changes in the health care system; is intrusive to the for-profit sector where executive compensation is a private matter; is faulty in that it will institutionalize abuses through comparability data; and is duplicative as executive compensation is already controlled at the State and federal levels through rate setting, IRS rules and reporting, and the Not-For-Profit Corporation Law. Other comments stated that the regulation would encroached on the State Attorney General's regulation and enforcement; is arbitrary in its establishment of the thresholds of $500,000 and 30%; was exclusive of larger corporations; and inappropriately used a percentile standard that will gradually diminish compensation levels and lead to the existence of two levels of compensation. Commenters also suggested that covered providers subject to penalty should be allowed to submit documentation in advance of penalty review;

(b) Other comments focused on exclusions for not-for-profits and for not-for-profit long term care and senior services providers and an elimination of the 75th percentile threshold.

(c) Still other letters related to limitations and application of the definition of "executive compensation." They suggested that executive compensation rules should only be applied to non-State funds or to State and State-authorized funds. The applicability of the rules with regard to contributions of other non-covered entities should be clarified. Also, letters received argued that the period covered by the limits on executive compensation should not begin on January 1, 2013, the executive compensation limits should be revisited periodically to adjust for changes, and the role of executives in the assurance of program services should be recognized.

(d) Commenters recommended several approaches to determining reasonable compensation, such as the use of recognized surveys or independent commissioned surveys or identification and recognition of specific compensation surveys to establish comparisons. It was suggested that surveys should allow for regional and geographic variations. Further, commenters suggested that the regulation also should address instances where a board or governing body does not exist.

The regulation was revised to address the comments on: the period to be covered by the limits on executive compensation, an annual review of the $199,000 cap and the adjustment thereof, the consideration of the availability of a governing body as alternate to the covered provider's board of directors, the submission of contemporaneous (but not prospective) documentation for penalty review, the recognition of supervisory services of executives as program services, the allocation methodology for reporting administrative and program service costs, the recognition of specific clinical and program personnel as providers of program services, and a method for subcontractors to be advised of the receipt of State or State-authorized funds from a covered provider.

The regulation was not revised to limit the rule to non-State funds, to exclude for-profits from being covered by the regulations, or to alter the 75th percentile threshold because these revisions would compromise the goal of the regulation. Eliminating the executive compensation requirements would eviscerate one of the key objectives of the executive order: limiting the extent of such compensation paid by covered providers that rely to a significant degree upon public funds for their program and administrative services funding. OPWDD is proposing to adopt this regulation because the State of New York directly or indirectly funds with taxpayer dollars a large number of tax exempt organizations and for-profit entities that provide critical services to New Yorkers in need, and the goal is to ensure that taxpayer dollars are used properly, efficiently and effectively to improve the lives of New Yorkers. In certain instances, service providers that receive State funds or State-authorized payments have used such funds to pay for excessive administrative costs or inflated compensation for their senior executives, rather than devoting a greater proportion of such funds to providing direct care or services to their clients. Such abuses involving public funds harm both the people of New York who are paying for such services and those persons who must depend upon such services to be available and well-funded. These regulations provide a benchmark to ensure that State funds or State-authorized payments paid by this agency to providers are not used to support excessive compensation or unnecessary administrative costs. In part because of the funding of resources, their restriction is necessary to accomplish these objectives.

Some comments stated that the proposed waiver process is overly complex and lacking objective criteria. The revised regulation provides greater flexibility in the filing of a waiver application and also has pushed back the implementation date.

Comments received also criticized the proposed reporting requirements suggesting that they require providing information related to administrative and program expenses in a manner inconsistent with other current reporting obligations. The regulation has been amended to conform some of the requirements to those with which many covered providers must already comply, including provisions incorporating the definitions applicable with non-profits under the IRS Code.

Other submissions asked when penalties for excess compensation would be assessed, what the type of penalties would be imposed, and about the level of severity. Commenters also requested details on the criteria for making penalty determination. Changes have been made to the Penalties section in the revised text, including extending the time for submissions, a corrective action plan (CAP) and a request for an administrative appeal to 30 calendar days.

The full Assessment of Comments is available on the OPWDD website at www.opwdd.ny.gov