EO-38 Update

Cornelius Murray Esq. and Carl Pucci in Legal

DOH is in the process of amending the EO #38 regulations at 10 NYCRR Part 1002 to address the decision by the Court of Appeals invalidating the so- called “soft cap” (involving the reporting of income from other than State or State-authorized funds). The new regulations will presumably delete the provisions regarding the soft cap. 

Concerns were expressed by members and their CPAs about the now passed deadline for filing the EO#38 Disclosure Form (7/29/19). Many members had not yet filed because the form requires disclosure of soft cap income which in some cases would bring total executive compensation over the $199,000 threshold and would require those filers to request a waiver even though they would not have to under the Court’s decision. 

DOH Legal has advised Providers to file “as best they could” given the circumstances. I would assume this means that in filling out the Disclosure Form facilities would not have to disclose the compensation paid to executives from other than State or State-authorized funds and could bypass the waiver request if the total compensation paid executives from State and State authorized funds amounted to less than the $199,000 cap. DOH Legal also stated that DOH was not about to penalize facilities for the late filings given the circumstances.


Cornelius D. Murray
O’Connell & Aronowitz, P.C.

Carl J Pucci
Chief Financial Officer
518-462-4800 x36