Executive Compensation and Administrative Expense Limitations Take Effect

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by Joshua Oppenheimer
(Assoc-ALB-GovLP)
OppenheimerJ@gtlaw.com

In January 2012, Governor Cuomo issued Executive Order 38, setting out a plan to limit New York State’s reimbursement for the administrative costs and the compensation paid to executives of not‐for‐profit and for‐profit service providers. Approximately 16 months later, 13 state agencies – including the Office of Alcoholism and Substance Abuse Services (“OASAS”) – announced final adoption of regulations implementing the Governor’s plan.  These regulations, which took effect on July 1, 2013, are likely to affect all Addiction Treatment Providers Association members.  Many affected entities, however, will not be required to comply with the restrictions until 2014 and will not have reporting obligations until 2015, as compliance begins with the first day of the “Covered Reporting Period” following July 1.

 

As a result of the OASAS regulations, substance abuse providers that are deemed “Covered Providers” are subject to limits on what may be paid to “Covered Executives” and the administrative expenses that may be incurred.  Generally, Covered Providers are prohibited from spending more than $199,000 of State Funds/State Authorized payments on any Covered Executive.  Moreover, no Covered Executive may receive more than $199,000 in compensation – regardless of the source of funds – unless, the compensation: (1) is no greater than the 75th percentile of compensation provided to comparable executives affiliated with comparable providers, consistent with the findings in a compensation survey recognized by DOB; and (2) has been approved by the Covered Provider’s board of directors or other governing body, including at least two independent directors or members.  Additionally, the Covered Provider’s Administrative Expenses must not exceed 25% during a Covered Reporting Period beginning between July 1, 2013 and June 30, 2014; 20% for a Covered Reporting Period beginning between July 1, 2014 and June 30, 2015; and 15% for a Covered Reporting Period beginning July 1, 2015 or thereafter.

 

There are some very narrowly tailored exceptions to these rules and, in certain circumstances, it may be appropriate for a Covered Provider to seek a waiver from the State.  The application of these rules is very fact sensitive and nuanced.  More information is available here: http://executiveorder38.ny.gov/, but if you have questions, please contact ATPA.

Updated APG Clinical and Billing Guidance Manual Released

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The final APG Clinical and Billing Guidance Manual has been posted to the APG pages on OASAS’ website.  This version of the Clinial and Billing Guidance manual includes clarification on service guidelines along with updated coding to reflect AMA coding changes that took effect 1/1/2013.  In addition, an updated Encounter form has been posted to the site as well.

 

If you have any questions regarding this notification, please send your questions to the APG mailbox at APG@oasas.ny.gov

IMPORTANT Albany Update: Executive Compensation/Administrative Expenses Cap Regulation Adopted by NYS Agencies

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5/30/13 Albany Update: Executive Compensation/Administrative Expense Cap Regulations Adopted by State Agencies- Effective July 1, 2013

On May 29th, 13 state agencies issued Notices of Adoption for final regulations to limit spending for administrative costs and executive compensation for state funded not-for-profit and for-profit service providers. The regulations are designed to implement Executive Order 38, issued by Governor Cuomo in January 2012 to limit excessive compensation and administrative expenses at service providers that receive state funds or state-authorized payments of federal funds. Below is a summary of the provisions of the final rule followed by links to the full text of the NYSDOH adopted regulation and to the State Register to access each agency’s adopted rule which should not vary substantively from the NYSDOH regulation text.

 

The regulation takes effect July 1, 2013 for covered providers.  Please let us know if you have any questions.

 

Covered Providers:

The definition of covered provider in the regulation is as follows: “covered provider” shall exclusively mean the following facilities and entities: hospitals and nursing homes, both as defined in public health law article 28; home care services agencies, licensed home care agencies, certified home health agencies, residential health care facilities, long term home health care programs, AIDS home care programs, all as defined in public health law article 36; hospice residences as defined in public health law article 40; assisted living residences and enhanced assisted living residences as defined in public health law article 46-B; ambulance services and advanced life support first response services as defined in public health law article 30; adult day health care as defined in 10 NYCRR part 425; health maintenance organizations, as defined in Article 44 of the public health law and other entities approved to operate by the department under article 44 of the public health law; intermediate care facilities as defined in article one of the social services law; entities conducting evaluations or providing services in the early intervention program established in Title II-A of Article 25 of the public health law; and assisted living programs as defined in section 461-l of the social services law; or an independent practice association or a management contractor, as such terms are defined in 10 NYCRR part 98, that is a related organization to a covered provider. A facility or entity listed in this definition shall not be considered a covered provider unless such provider has received state funds or state-authorized payments to provide program services during the most recent reporting period and in the year prior to that period, and in an average annual amount greater than $500,000 during those two years and received at least 30% of their annual funding from the state.

The following providers shall not be considered covered providers:

  • State, county, and local governmental units in New York State, and tribal governments for the nine New York State recognized nations, and any subdivisions or subsidiaries of the foregoing entities;
  • Individuals or entities providing child care services who are in receipt of child care subsidies pursuant to Title 5-C of Article 6, or Section 410 of the Social Services Law, except that such providers may be considered a covered provider if it also receives State funds or State-authorized payments that are not child care subsidies pursuant to Title 5-C of Article 6, or Section 410, of the Social Services Law and would otherwise satisfy the criteria in this definition;
  • Individual professional(s), partnerships, S Corporations, or other entities, at least seventy-five percent of whose program services paid for by State funds or State-authorized payments are provided by the individual professional(s), by the partner(s), or by the owner(s) of the corporation or entity, rather than by employees or independent contractors employed or retained by the entity, as determined by the amounts obtained in State funds or State-authorized payments for such program services;
  • Individuals or entities providing primarily or exclusively products, rather than services, in exchange for State funds or State-authorized payments, including but not limited to pharmacies and medical equipment suppliers. For the purpose of applying this exception, the percentage of revenues derived from products rather than from services shall be used; and
  • Entities within the same corporate family as a covered provider, including parent or subsidiary corporations or entities, except where such a corporation or entity would otherwise qualify as a covered provider but for the fact that it has received its State funds or State-authorized payments from a covered provider rather than directly from a governmental agency.

 

Executive Compensation:

The regulations restrict covered providers from spending more than $199,000(to be reviewed annually) in state funds for the compensation of an executive. If a provider chooses to pay an executive more than $199,000 from other sources, the provider must keep compensation below the top 25 percent in the field or the Board of Directors including two independent directors or voting members much provide a review based upon comparability data (1002.3(b). A waiver discussed below provides exceptions to these provisions.

The definition of a covered executive (director, trustee, officer, and key employee) will have the same meaning as defined by the IRS under Form 990.  If the provider has more than ten key employees meeting the definition then only ten have to be reported under the regulations. In addition, clinical  and program personnel in a hospital or other entity providing program services including chairs of departments, heads of service, chief medical officers, directors of nursing or similar types of personnel fulfilling administrative functions shall not be considered covered executives.

Executive compensation will include under the regulations basically any income reportable on a covered executive’s W-2 form with the exception of mandated benefits, health and life premiums, and pension and deferred compensation plans consistent with other employees of the provider.

If a provider chooses to pay an executive more than $199,000 from other sources, the provider must keep compensation below the top 25 percent in the field, as determined by a compensation survey identified or recognized by the applicable state agency. Providers that pay an executive more than $199,000 must have the compensation approved by its board of directors, including at least two independent directors and must have performed a review of comparability data. In cases where competitive imperatives or the complexity of a provider’s operations require compensation that exceeds the limits and in other instances, providers may apply for a waiver (waiver information below).

 

Administrative Expenses:

The regulations require that commencing on July 1, 2013 at least 75% of a covered provider’s covered operating expenses paid for with state funds are for program services rather than administrative costs. This percentage will increase by 5% each year until it reaches 85% in 2015 and thereafter. Waivers will be granted in certain limited circumstances as defined in regulation.

It further defines Administrative expenses as those authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments that are incurred in connection with the covered provider’s overall management and necessary overhead that cannot be attributed directly to the provision of program services.  Such expenses include but are not limited to:

  • that portion of salaries and benefits of staff performing administrative and coordination functions that cannot be attributed to particular program services, including but not limited to the executive director or chief executive officer, financial officers such as the chief financial officer or controller and accounting personnel, billing, claiming or accounts payable and receivable personnel, human resources personnel, public relations personnel, administrative office support personnel, and information technology personnel, where such expenses cannot be attributed directly to the provision of program services;
  • that portion of legal expenses that cannot be attributed directly to the provision of program services; and
  • that portion of expenses for office operations that cannot be attributed directly to the provision of program services, including telephones, computer systems and networks, professional and organizational dues, licenses, permits, subscriptions, publications, audit services, postage, office supplies, conference expenses, staff development, publicity and annual reports, insurance premiums, interest charges and equipment that is expensed (rather than depreciated) in cost reports, where such expenses cannot be attributed directly to the provision of program services.

 

The regulations recognize that a portion of expenses may be attributed directly to the provision of program services and therefore not included in the percentage cap on administrative expenses. The rule also expands upon list of what administrative expenses will not include:

  • capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property; or
  • property rental or maintenance expenses; or
  • taxes or assessments paid to any unit of government, or, where applicable, distributions made to a shareholder to reimburse or offset the shareholder’s payment of taxes; or
  • equipment rental, depreciation and interest expenses, including expenditures for vehicles and fixed, major movable and adaptive equipment and equipment that is expensed (rather than depreciated) in cost reports; or
  • expenses of an amount greater than $10,000 that would otherwise be administrative, except that they are either non-recurring (no more frequent that once every five years) or not anticipated by a covered provider (unanticipated litigation-related expenses).  Such expenses shall not be considered administrative expenses or program expenses for purposes of the regulation; or
  • that portion of salaries and benefits of staff performing policy development or research.

 

In addition, the revised regulation includes a new definition of covered operating expenses to mean the sum of program services expenses and administrative expenses of a covered provider (as defined in regulation).

 

Under the regulation, program services expenses are those authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments that are incurred by a covered provider or its agent in direct connection with the provision of program services.

 

Program services expenses include but are not limited to the following expenses, if otherwise authorized and allowable pursuant to applicable agency regulations, contracts or other rules that govern reimbursement with State funds or State-authorized payments:

  • that portion of salaries and benefits of staff providing particular program services, including for example employees or contractors providing direct care to clients, and supervisory personnel and support personnel whose work is attributable to a specific program in whole or in part and contributes directly to the quality or scope of the program services provided;
  • that portion of salaries and benefits of quality assurance and supervisory personnel whose work is attributable in whole or in part to particular programs and contributes to the quality or scope of the program services provided by other personnel and related expenses; and
  • that portion of expenses incurred in connection with and attributable to the provision of particular program services, including for example, travel costs to and from client residences, direct care supplies, public outreach or education or personnel training to facilitate program services delivery, information technology and computer services and systems directly attributable to program services such as, for example, electronic patient records systems to facilitate improved patient care or computer systems used in program services delivery or documentation of program services provided, quality assurance and control expenses, and legal expenses necessary to accomplish particular program objectives.

 

Program services expenses do not include:

  • capital expenses, including but not limited to non-personal service expenditures for the purchase, development, installation, and maintenance of real estate or other real property; or
  • property rental, mortgage or maintenance expenses, except where such expenses are made in connection with providing housing to members of the public receiving program series from the covered provider;
  • taxes or assessments paid to any unit of government or, where applicable, distributions made to a shareholder to reimburse or offset the shareholder’s payment of taxes; or
  • equipment rental, depreciation and interest expenses, including expenditures for vehicles and fixed, major movable and adaptive equipment; or
  • expenses of an amount greater than $10,000 that would otherwise be administrative, except that they are either non-recurring (no more frequent that once every five years) or not anticipated by a covered provider (unanticipated litigation-related expenses).  Such expenses shall not be considered administrative expenses or program expenses for purposes of the regulation; or
  • that portion of salaries and benefits of staff performing policy development or research.

 

The rule states that in determining whether an expense is a program service expense or an administrative expense, a covered provider may allocate a portion of the expense to each type if such allocation is supported by the nature of the expense.  Such allocation may include allocation of portions of an employee’s time and compensation to administrative or program services.

 

The rule clarifies that the requirement that the restriction on allowable administrative expenses shall apply to subcontractors and agents of covered providers if the subcontractor or agent has received State funds from the covered provider to provide program or administrative services during a reportable period and would otherwise meet the definition of a covered provider but for the fact that it has received State funds from the covered provider rather than directly from a government agency.

 

Finally, the rule adds other limits on administrative expenses.  It states if a contract, grant, or other agreement is subject to more stringent limits on administrative expenses, whether through law or contract, such limits shall control and shall not be affected by the less stringent limits imposed by the regulations.

 

Reporting:

The regulation requires providers to report annually using an EO #38 Disclosure Form the public funds it has received, the compensation of its executives and highest-paid employees, and its administrative expenses. Providers can file reports electronically using a state-wide form, and they will not need to report to multiple agencies. This reporting requirement has been designed to avoid duplication with existing reporting requirements with which providers already must comply. The form is required to be submitted no later than 180 days following the covered reporting period, unless otherwise authorized.

Penalties/ Enforcement:

The regulation provide for an administrative review process in cases where a provider appears to be out of compliance.  Covered providers will have 30 days from receipt of a notice of non-compliance to submit additional or clarifying information.  If a determination of non-compliance becomes final, the provider will have an opportunity to correct any non-compliance over a period of at least 6 months prior to any penalties or actions being taken against them. The rule requires a provider to submit a corrective action plan within 30 days from notice of a determination of non-compliance.  If a violation is ultimately found and corrective action is not taken by the provider, the regulations include several potential actions, including redirecting the funding, suspension or imposing penalties.  Finally, providers will have 30 days from receipt of a final determination of non-compliance and notice of proposed sanctions to request an administrative appeal.

 

Waivers:

A covered provider’s contract or other agreement with a covered executive agreed to prior to July 1, 2012 shall not be subject to the limits of the regulation during the term of the contract, except that covered providers must apply for a waiver for executive compensation that fails to comply with the regulation if the contract extends beyond April 1, 2015 and renewals of such contracts after the completion of the term must comply with the regulations.

 

Applications for waivers must be filed no later than concurrent with the timely submission of the covered provider’s EO#38 Disclosure Form for the period for which the waiver is requested.

 

Executive Compensation Waivers

Waivers are provided under the regulations on executive compensation to the relative department and the New York State Division of Budget subject to the following:

·         Where a provider has a contract with the department, prior to the date of the contract, renewal or extension.

·         Factors considered for a waiver include:

a)      subject of the waiver is comparable to a waiver given other providers of similar size,

b)      extent provider unable to deliver program services because of complexity of operations, services, etc.

c)      qualifications of the experience possessed by the executive

d)     providers efforts to secure executives with the same levels of experience, expertise and skills for the positions of covered executives at lower levels of compensation;

·         Waivers will only be granted with good cause; and

·         Waivers shall be exempt for the Freedom of Information Law (FOIL).

 

Administrative Expense Waivers

Waivers are provided under the regulations on administrative expenses to the relative department and the New York State Division of Budget subject to the following:

  • The extent to which the administrative expenses that are the subject of the waiver are necessary or avoidable;
  • Evidence that a failure to reimburse specific administrative expenses that are the subject of the waiver would negatively affect the availability or quality of program services in the covered provider’s geographic area;
  • The nature, size, and complexity of the covered provider’s operations and the program services provided;
  • The provider’s efforts to monitor and control administrative expenses and to limit requests for reimbursement for such costs;
  • The provider’s efforts, if any, to find other sources of funding to support its administrative expenses and the nature and extent of such efforts and funding sources;
  • Waivers will only be granted with good cause; and
  • Waivers shall be exempt for the Freedom of Information Law (FOIL).

 

Link to Full Text of NYSDOH Regulation: http://www.health.ny.gov/regulations/recently_adopted/docs/2013-07-01_limits_on_executive_compensation.pdf

 

Link to State Register to Access all applicable Agency Regulations: http://docs.dos.ny.gov/info/register/2013/may29/toc.html

I-STOP Deadline Rapidly Approaching

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Starting August 27, 2013, all physicians who prescribe Schedule II, III and IV controlled substances will be required to consult a new online state registry designed to track the prescription and dispensing of controlled substances.

Additional information about the I-STOP law can be found on the front page of the NYSPA website at www.nyspsych.org.

Justice Center: Notice to Providers 5.2.13

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Dear Colleague:

 

The Justice Center for the Protection of People with Special Needs (Justice Center) was recently created in response to the recognized need to strengthen and standardize the safety net for vulnerable persons who receive care from New York State’s human services agencies. It becomes operational on June 30, 2013.

 

In a prior letter OASAS introduced this law and the impact on you as OASAS certified providers as a result of the changes in law. Specifically, prospective employees or volunteers in OASAS certified and funded programs that will have regular; unsupervised client contact must have their fingerprints taken and a criminal history check performed. Prior to requesting the criminal history check, providers must first request a check of the Vulnerable Persons Central Register Staff Exclusions List. We are attaching an attestation form that must be filled out in order for your program to access the criminal background check determination by OASAS and the State exclusion list that would direct you not to hire someone who is placed on the list. This form must be filled out with information specific to the person within your agency who will be authorized to access this sensitive information. The relevant sections of law that enable this process as well as statements of understanding regarding confidentiality of this material are included in the form.

 

Please return this form no later than May 8. 2013 so that OASAS and the Justice Center can effectively begin to implement this very important new law that will further protect vulnerable persons within our system. Please send this form to the address, email or fax indicated on the form itself. OASAS and the Justice Center are actively working on creating the structure to manage this new system. We are also required to promulgate implementing regulations to carry out the provisions of the Act. To this end, we will strive, as decisions are made, to get information out to the affected provider community in a timely fashion. We are in the process of developing a web page on the OASAS and Justice Center internet site, upon which we will post letters to the field, regulations, training information, FAQs and other relevant information as it becomes available. We would also encourage affected providers and/or the many professional trade associations within the state to post this information on their own websites.

 

In the meantime, a link to Chapter 501 of the Laws of 2012 is provided below for your reference. We encourage you to read through this legislation, and to advise us if you have any specific questions or concerns. Over the ensuing weeks, we plan to seek input from the provider community as we develop the technological processes and systems by which this law will be implemented.

http://www.governor.ny.gov/Justice4SpecialNeeds/home

 

Sincerely,

Robert A. Kent

General Counsel

 

OASAS SEL CBC attestation form

 

Justice Center Notice to Providers 4.24.13

Dear Colleague:

 

The Justice Center for the Protection of People with Special Needs (Justice Center) was recently created in response to the recognized need to strengthen and standardize the safety net for vulnerable persons who receive care from New York State’s human services agencies. It becomes operational on June 30, 2013.

 

Prior to the passage of the Protection of People with Special Needs Act (Act) see, Chapter 501 of the Laws of2012, some human services agencies were authorized, by law, to conduct criminal history information checks of certain individuals. This was not true for OASAS, but rather OMH, OPWDD and others. The Act added OASAS to the criminal history information check and suitability determination process. These reviews and determinations for OASAS certified providers will be conducted by OASAS.

 

The Act also establishes a Vulnerable Persons Central Register (VPCR). The VPCR will contain a Staff Exclusion List (SEL) which will contain the names of individuals deemed ineligible to work in a position having regular and substantial contact with a service recipient. The Jaw requires that an OASAS certified provider request a check of the SEL when considering an applicant for employment and that the SEL check be done prior to requesting the criminal history background check. If the result of the SEL check does not prohibit an applicant from being hired by a provider, the Act then requires that any OASAS certified provider required to conduct an SEL check shall also conduct a check of the State Central Registry for Child Abuse and Neglect (SCR).

 

For OASAS providers, this will mean significant change to existing OASAS criminal background check analysis. In the past this type of information was only gathered as part of the credentialing process by request and consent. This process will now include more individuals than just those seeking a credential and it will be mandatory and obtained upon consent and will be conducted through the NYS Division of Criminal Justice Services. (DCJS) fingerprint based background check system. Beginning June 30, 2013, prospective employees or volunteers who will have regular, unsupervised client contact must have their fingerprints taken and a criminal history check performed through this new process. The fingerprints will be taken by a state contractor, LI Services/MorphoTrust, and submitted to the DCJS. DCJS will then provide criminal history information to OASAS. OASAS will review the criminal history and make a determination regarding suitability for employment or credentialing.

 

OASAS will then advise the provider or the applicant for a credential whether or not the applicant has a criminal history, and, if so, whether the criminal history is of such a nature that the person cannot be hired, retained or credentialed. In some cases, a person may have a criminal background that does not rise to the level which would preclude them being hired, retained or credentialed. OASAS will conduct these reviews consistent with Article 23-A of the Correction Law. Although, the criminal history “rap sheet” cannot legally be shared with the provider, OASAS will share sufficient information, in summary form, with the provider to enable it to make its own determination as to whether or not to employ or retain such person. There will also be instances in which the criminal history information reveals an arrest or criminal charges without a final disposition. In those cases, OASAS will instruct the provider on whether the application will be held in abeyance until the charge is resolved and further information is gathered.

 

Prior to making a determination to deny an application or directing a provider to deny employment, OASAS will afford that individual an opportunity to explain, in writing, why his or her application should not be denied. If after reviewing any materials submitted by the applicant, OASAS determines that employment or volunteer opportunity should be denied, the provider must notify the person that this criminal history information is the basis for the denial of employment or service. An application may be withdrawn at any time and all criminal history data destroyed upon the applicant’s consent. Providers shall notify OASAS when an individual for whom a criminal history has been sought is no longer subject to such a check. Providers must also ensure that prospective employees or volunteers who will be subject to the criminal background check are notified of the provider’s right to request his/her criminal history information, and that he or she has the right to obtain, review, and seek correction of such information in accordance with DCJS regulations.

 

OASAS is actively working on creating the structure to manage this new system. We are also required to promulgate new implementing regulations to carry out the provisions of the Act. To this end, we will strive, as decisions are made, to get information out to the affected provider community in a timely fashion. We are in the process of developing a web page on the OASAS and Justice Center internet site, upon which we will post letters to the field, regulations, training information, F AQs and other relevant information as it becomes available. We would encourage affected providers and/or the professional trade associations to post this information on their websites. In the meantime, a link to Chapter 501 of the Laws of2012 is provided below for your reference. We encourage you to read through this legislation, and to advise us if you have any specific questions or concerns. Over the ensuing weeks, we plan to seek input from the provider community as we develop the technological processes and systems by which this law will be implemented. http://www.governor.ny.gov/Justice4Specia1Needslhome

 

Sincerely,

Robert A. Kent

Social Work Licensure Permanent Exemption in Exec Budget

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We are very pleased to see that the Governor has included a permanent exemption from the social work licensure scope of practice legislation for “individuals working in programs that are regulated, operated, funded or approved by the Office of Mental Health, DOH, the State Office for the Aging, the Office of Children and Family Services, DOCCS, OASAS, and the Office for People with Developmental Disabilities, and/or local governmental units or social services districts.” http://publications.budget.ny.gov/eBudget1314/fy1314artVIIbills/HMH_ArticleVII_MS.pdf (pg. 33)

Article VII language can be found on pages 390-391 at: http://publications.budget.ny.gov/eBudget1314/fy1314artVIIbills/HMH_ArticleVII.pdf

 

From our friends at ASAP

This is a critical issue that has been at the top of ASAP’s advocacy agenda for a number of years given the potential workforce crisis that would arise if current exemptions for our agencies written into law were to sunset. Through the diligent hard work of many of our members and a number of other advocates on this issue, our concerns have been heard and recognized by the Governor in his budget proposal. Governor Cuomo’s administration has clearly recognized that the state cannot afford the fiscal impact, loss of workforce and decreased access to services that would arise should the current exemptions sunset in the social work licensure law.

 

We will advocate strongly throughout the budget season to ensure the Assembly and Senate support this key provision of the Executive Budget, and include it in the final enacted budget. Please feel free to contact us with any questions on this important issue, and thank you to all who contributed to advocacy on this front!

 

We will share further budget details very soon.

GOVERNOR CUOMO AND LEGISLATIVE LEADERS ANNOUNCE AGREEMENT ON LEGISLATION TO PROTECT PEOPLE WITH SPECIAL NEEDS AND DISABILITIES

For Immediate Release: June 17, 2012

GOVERNOR CUOMO AND LEGISLATIVE LEADERS ANNOUNCE AGREEMENT ON LEGISLATION TO PROTECT PEOPLE WITH SPECIAL NEEDS AND DISABILITIES
Legislation Establishes Justice Center for the Protection of People with Special Needs to Prevent, Investigate and Prosecute Abuse and Neglect of Vulnerable New Yorkers

Governor Andrew M. Cuomo, Senate Majority Leader Dean Skelos, and Assembly Speaker Sheldon Silver today announced an agreement on legislation that will establish the strongest standards and practices in the nation for protecting people with special needs and disabilities.

The legislation creates a new Justice Center for the Protection of People with Special Needs, an initiative that will transform how the state protects over one million New Yorkers in State operated, certified or licensed facilities and programs.

The Justice Center will have a Special Prosecutor and Inspector General for the Protection of People with Special Needs who will investigate reports of abuse and neglect and prosecute allegations that rise to the level of criminal offenses. It will also include a 24/7 hotline run by trained professionals, a comprehensive statewide database that will track all reports of abuse and neglect and a statewide register of workers who have committed serious acts of abuse who will be prohibited from ever working with people with disabilities or special needs. The information obtained by the Justice Center will also provide the means to analyze abuse pattern and trends in order to prevent future abuse and provide a basis for the training and supports that program managers and direct care workers need to meet their critical responsibilities.

“The Justice Center for the Protection of People with Special Needs will give New York State the strongest standards and practices in the nation for protecting those who are often the most vulnerable to abuse and mistreatment,” Governor Cuomo said. “This new law will help us protect the civil rights of the more than one million New Yorkers with disabilities and special needs who for too long have not had the protections and justice they deserve. This legislation recognizes the dedication and good work of the many employees who care for the disabled, and we will continue our commitment to providing proper training and support for those who work in these facilities. I commend the Legislative leaders for reaching an agreement on this important bill and thank the many New Yorkers who worked hard across the state to make sure the Justice Center could become a reality.”

Senate Majority Leader Dean Skelos said, “This measure will help ensure that people with special needs, our most vulnerable individuals, are protected from abuse and neglect when placed in the care of others. The Senate, led by Senator Roy McDonald, the Chairman of the Senate’s Committee on Mental Health, has stood with Governor Cuomo on the need to take bold and dramatic steps to address this issue. I am pleased that we have now reached agreement on a bill that will provide peace of mind for the family, friends and loved ones of those affected.”

Assembly Speaker Sheldon Silver said, “This is a victory for New York’s developmentally disabled citizens and their families. Last year, the Assembly took the lead to shed light on the abuses taking place in our system of care for the disabled with a statewide series of public hearings which resulted in heartbreaking testimony. Now, with the Governor’s leadership, the Empire State’s system for the care and treatment of people with disabilities will be transformed. With the creation of an independent Justice Center for the Protection of People with Special Needs, parents will be able to get information on allegations of abuse and know that these cases are taken seriously.”

Senator Roy McDonald, the bill’s sponsor, said, “Protecting vulnerable people and giving peace of mind to their loved ones are some of our most important responsibilities in public service. I’m proud to see this legislation move forward and there’s more to be done in the future to safeguard the well-being of these individuals with disabilities who are entrusted to our care.”

Assembly Member Harvey Weisenberg said, “As a parent of a child with special needs, this legislation is my top priority. It is critical that we protect our most vulnerable citizens from abuse and mistreatment. I applaud this strong legislation for both ensuring the safety and well-being of New York’s developmentally disabled individuals and for providing peace of mind to families who need help in providing essential care.”

Assembly Mental Health Committee Chair Felix Ortiz said, “The care and protection of the developmentally disabled is something we must approach with the utmost respect. I chaired statewide hearings on this issue last year, and the stories we heard moved us to make this a priority in the Assembly. I commend the Governor and our state legislators for creating this independent agency, the Justice Center, to protect and advocate for individuals with disabilities, and for taking major steps to guarantee exceptional care for this vulnerable population.”

Last year, there were more than 10,000 allegations of abuse and neglect against New Yorkers with special needs and disabilities in state operated, certified or licensed facilities and programs. However, the State has never had a consistent and comprehensive standard for tracking and investigating complaints or punishing guilty workers.

The Justice Center for the Protection of People with Special Needs will have primary responsibility for tracking, investigating and pursuing serious abuse and neglect complaints for facilities and provider agencies that are operated, certified, or licensed by the following six agencies: The Department of Health (DOH), the Office of Mental Health (OMH), the Office for People With Developmental Disabilities (OPWDD), the Office of Children and Family Services (OCFS), the Office of Alcoholism and Substance Abuse Services (OASAS), and the State Education Department (SED). The Justice Center will also absorb all functions and responsibilities of the Commission on Quality of Care and Advocacy for Persons with Disabilities, with the exception of the Federal Protection and Advocacy and Client Assistance Programs which will be designated to a qualified non-profit.

Other components and responsibilities of the Justice Center include the following:
· An Executive Director, Special Prosecutor and Inspector General, and a substantial staff of trained investigators, lawyers and administrators. The Justice Center’s law enforcement branch will have concurrent authority with district attorneys to prosecute abuse and neglect crimes committed against such persons.
· Creation of a statewide 24/7 hotline staffed by trained professionals to ensure that allegations of abuse are promptly reported to law enforcement and fully and effectively investigated.
· Development of a register of workers who have committed serious or repeated acts of abuse who will be prohibited from ever being hired again in any position where they would work with people with disabilities or special needs.
· Representing the state at all public employee disciplinary cases or those where the state is seeking termination of employment as the penalty.
· Development of common standards for investigations and requirements to be used to train investigators.
· Development of a code of conduct containing the basic ethical standards to which all individuals working with people with special needs and disabilities would be required to subscribe and would be held accountable.
· Consolidation of background check procedures, including reviewing and evaluating the criminal history for any person applying to be an employee, volunteer or consultant at any facility or provider agency operated, licensed or certified by OMH, OPWDD, and OCFS in a position where a background check is required.
· Providing an annual report to the Governor and the Legislature concerning its work during the preceding year which will include data on central register reports, results of investigations, types of corrective actions taken, results of its review of patterns and trends relating to abuse and reporting of abuse, suggested corrective actions and training efforts.

The bill will also provide for re-designation of an independent agency to conduct protection and advocacy and client assistance functions, in conformance with federal provisions governing oversight of the state’s system of care for persons with disabilities. The independent agency will provide information, references and technical assistance to address the needs of individuals with disabilities; pursue administrative and legal remedies as necessary to protect and advocate for the rights of individuals with disabilities; investigate incidents of abuse and neglect reported to the independent agency; and establish a grievance procedure to ensure that individuals with disabilities have full access to services of the agency.
An Advisory Council of at least 15 members will be created to provide guidance to the Justice Center in the development of policies, programs and regulations. Members will include persons with experience in the care and treatment of, or advocacy on behalf of, individuals with disabilities, as well as individuals or family members of individuals who have participated in programs or received services from provider agencies under the jurisdiction of the Justice Center.

The new law will also replace confusing and inconsistent definitions of abuse and neglect in various laws and regulations with a single consistent standard applicable to human services systems.

Under the legislation, a new level of transparency will be created for non-state operated facilities and programs licensed or certified by the State to serve people with disabilities and special needs. These entities, working with the Justice Center, will need to follow transparency guidelines based on FOIL for information requests regarding abuse or neglect of the people they serve.

The new law also will enhance criminal penalties for endangering the welfare of people with disabilities and special needs and strengthen a prosecutor’s ability to prove that any of these individuals in a facility operated, licensed or certified by the State were the victims of sexual abuse. The law creates a new misdemeanor that will be easier to prove and elevates an existing crime of endangering the welfare of an incompetent or physically disabled person to a class E felony. In addition, the legislation provides that an individual in a residential facility under the jurisdiction of the Office for People With Developmental Disabilities, the Office of Mental Health and the Office of Alcoholism and Substance Abuse Services cannot consent to sex with an employee, thereby removing the prosecutor’s obligation to prove that any sexual activity was nonconsensual.

New Yorkers can learn more about the Justice Center at www.Justice4SpecialNeeds.com
The Justice Center legislation was developed, in part, from recommendations outlined in The Measure of a Society: Protection of Vulnerable Persons in Residential Facilities Against Abuse and Neglect, a special report prepared by Mr. Clarence Sundram, the Governor’s Special Advisor on Vulnerable Persons. A copy of this report is available at: http://www.governor.ny.gov/assets/documents/justice4specialneeds.pdf
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Additional news available at www.governor.ny.gov
New York State | Executive Chamber | press.office@exec.ny.gov | 518.474.8418

Protecting NYers from Prescription Drug Abuse

Dear Fellow New Yorker,

Illegal use of prescription medicine has become one of the nation’s fastest-growing drug problems. Nearly 15,000 people die every year of overdoses due to prescription painkillers nationwide and the prescription drug abuse epidemic has impacted families and lives across New York State.

Recognizing that more than 70 percent of the abused prescription medications are obtained from friends or relatives, this legislation also includes a disposal program to encourage New Yorkers to safely dispose of unused prescription drugs. Additionally, it will increase education for health care providers about the potential for abuse of controlled substances, and the proper balancing of pain management with abuse prevention.

Click here to learn more about the legislation.

With this groundbreaking legislation, Governor Cuomo is making sure that New York State leads the nation in protecting its citizens by helping to put an end to the devastating consequences of prescription drug abuse.

This week, Governor Cuomo, legislative leaders, and the Attorney General announced an agreement that will make New York State a national leader in the battle against prescription drug abuse. The Governor’s legislation creates an all-electronic online registry – the first in the nation – to enable doctors, pharmacists, and law enforcement to track controlled substances in real time and prevent excessive prescription and refill requests.

Cuomo Announces Fed Waiver Request to Invest $10B in MRT Savings & Transform NY’s Healthcare System

via Ashley Behrle

 

 

Governor Cuomo Announces that New York Will Request a Federal Waiver to Invest $10 Billion in Medicaid Redesign Team Savings to Transform the State’s Health Care System Federal Waiver Will Allow New York To Fully Implement the MRT Action Plan … Continue reading →

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