EO 38 Worksheets - Home Care Association of New York State

Michael Seereiter
Director of Planning, NYS Office of Mental Health
EO #38 Implementation Lead
EO 38 Language
Status of Regulations
Key Elements
Timeline for Implementation
Responsibility of Providers
EO 38 Website/Waiver Application Portal
Preliminary Guidelines
EO 38 Worksheets
Waiver Application Submission Process
Waiver Review Process
Issued January 18, 2012:
“…prevent public funds from being diverted to
excessive compensation and unnecessary administrative
costs, and … ensure that taxpayer dollars are being
used to help New Yorkers in need.”
Drafts published: May 2012, October 2012, March 2013,
and April 2013 (DOH only)
Final Regulations published May 29, 2013
Regulations become effective July 1, 2013
Applicability of regulatory limits on Administrative
Expenses and Executive Compensation take effect
on the first day of the Covered Provider’s Covered
Reporting Period on or after July 1, 2013
Agencies that published draft regulations:
Agriculture & Markets
Division of Criminal Justice Services
Department of Corrections and Community Supervision
Department of Health
Department of State
Homes and Community Renewal
Office for the Aging
Office of Alcoholism and Substance Abuse Services
Office of Children and Family Services
Office of Mental Health
Office for People with Developmental Disabilities
Office of Temporary and Disability Assistance
Office of Victim Services
EO #38 applies to Covered Providers, which are
That are not exempt under the regulations,
That receive State Funds / State Authorized Payments (SF/SAP)
To render Program Services during the Covered Reporting Period,
That received at least an average of $500K in SF/SAP in the Covered
Reporting Period and the one-year period immediately prior, and
• For which the SF/SAP received was at least 30% of total in-state
revenue in the Covered Reporting Period and the one-year period
immediately prior.
Limitations apply only to individuals/entities that qualify as a Covered Provider for
the Covered Reporting Period
1. Governmental Exemption?
2. Covered Reporting Period and One-Year Period Immediately
Preceding Determination – Cost Report period, or fiscal
year/calendar year
3. Program Services provided in CRP?
4. Other Exemptions? e.g. Primarily products v. services, Specific child
care subsidies, DOH and OCFS specific exemptions
5. State Funds/State-Authorized Payments (SF/SAP) – Calculate for
CRP and one-year period immediately prior from list of government
programs, eliminating excluded amounts
6. $500,000 Test – Average annual amount of SF/SAP received
$500,000 or greater in CRP and one-year period immediately prior?
7. 30% Test – At least 30% of in-state revenues received in CRP and
one-year period immediately Preceding from SF/SAP?
Must not exceed 25% for a Covered Reporting Period
beginning between July 1, 2013 and June 30, 2014;
Must not exceed 20% for a Covered Reporting Period
beginning between July 1, 2014 and June 30, 2015; and,
Must not exceed 15% for a Covered Reporting Period
beginning July 1, 2015 or thereafter.
• Must not exceed $199K if compensating only with
• If Executive Compensation exceeds $199,000 using
sources of funding other than SF/SAP: 1) the
compensation must not exceed the 75th percentile of
compensation for comparable executives in comparable
providers; AND, 2) must be reviewed and approved by
the Board of Directors
Covered Providers must submit EO #38 Disclosure
Form no later than 180 days after the last day of the
Covered Reporting Period (July 1, 2014, at the earliest).
Disclosure Form will require attestation from Covered
Provider about Administrative Expenses and Executive
Compensation paid
Limits will be enforced, unless a waiver was granted.
Applications for waiver from Executive Compensation and
Administrative Expenses limits may be submitted starting
July 1, 2013
Waiver submission may occur at any point, but no later
than the submission of the EO #38 Disclosure Form for
the Covered Reporting Period
Waivers granted before last day of Covered Reporting
Period based on projected data will be conditional and will
need to be substantiated with actual data submitted on the
EO #38 Disclosure Form.
Upon EO #38 Disclosure Form submission and
finding of non-compliance, Covered Provider may be
required to develop and implement Corrective Action
If Corrective Action Plan not implemented properly,
Covered Provider may be subject to penalties
◦ EO #38 website launched
◦ Publication of Preliminary Guidelines for affected parties
July 1
◦ Regulatory limitations go into effect
◦ Waiver application web portal opens and submissions
begin; State agency reviews begin
◦ Publication of Final Guidelines for affected parties
◦ EO #38 Disclosure Form portal (with revised Waiver
application submission capacity) opens
July 1
◦ EO #38 Disclosure Form filings begin (will be a different
process than for Waiver Applications)
◦ Waiver applications submissions continue
Read and understand regulations
Read and utilize Preliminary Guidance and worksheets
For those that expect to qualify as a Covered Provider,
ensure compliance with regulatory limits once the
Covered Reporting Period begins on or after July 1,
2013, and/or seek a waiver.
Published June 2013
Step-by-step guidance and worksheets to assist with:
◦ Covered Provider Determination
◦ SF/SAP Calculation
◦ Administrative Expenses and Program Services
Expenses Calculation
◦ Covered Executive Determination and Executive
Compensation Calculation
◦ Waiver application submission instructions
Covered Provider Determination Worksheet
State Funds/State-Authorized Payments (SF/SAP)
Administrative Expenses and Program Services Expenses
Calculation Worksheet
Executive Compensation Calculation Worksheet
1. User Account Creation
Covered Provider submits request for account via EO #38 web portal
Request routed to State agency identified by Covered Provider as Lead
agency (greatest amount of SF/SAP)
Agency verifies Lead agency status (discussion with other agencies)
Lead agency creates user account for Covered Provider
Submission of Waiver Applications
Provider submits waiver application via EO #38 web portal
Lead agency notifies other agencies of pending waiver application ready
for review
Waiver application submitted to Lead Agency
Lead agency assembles all other State agency reviews, if
Once waiver application determination made, Lead Agency
notifies Covered Provider
Lead Agency serves as point of contact for Covered Provider
throughout waiver process (determinations, additional
information requests), for submission of the EO 38 Disclosure
Form, and, if necessary, into Corrective Action Plan and
Penalties period.

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