N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.2

Current through Register Vol. 46, No. 43, October 23, 2024

Section 635-6.2 - Determination of whether a transaction is between related parties (see glossary, Subpart 635-99 of this Part)

(a) Where a transaction is not presumed to be between related parties under subdivisions (b) or (d) of this section, OPWDD will determine whether the transaction is between related parties.

(1) Such determination shall be made on a case-by-case basis.

(2) Such determination shall be based on whether the facts and circumstances of the transaction, the parties' situation and history, indicate that the party from whom the provider or individual receiving services obtained the real property, equipment, goods, services or property is a related party.

(3) If a transaction is between a provider (see glossary, Subpart 635-99 of this Part) or individual receiving services and a party not presumed to be a related party (under subdivision [b] or [d] of this section, OPWDD nevertheless can determine that the transaction is between related parties (using the criteria in paragraph [2] of this subdivision), where the party transacting with the provider or individual receiving services directly or indirectly obtained the real property, equipment, goods, services or property in question from someone or an organization (see glossary, Subpart 635-99 of this Part) presumed to be related to the provider or individual (under subdivision [b] or [c] of this section).

(b) The existence of any of the conditions in paragraphs (1) through (6) of this subdivision will create a presumption that the transaction is between a provider and a related party.

(1) The provider is a partnership and the other party to the transaction is a partner of the provider.

(2) The provider is a corporation and the other party to the transaction is an officer, director, trustee, principal stockholder (see glossary, Subpart 635-99 of this Part) or controlling party (see glossary, Subpart 635-99 of this Part) of the provider.

(3) The provider is a corporation and the other party to the transaction is a corporation, where someone is an officer, director, trustee, principal stockholder or controlling party of both corporations.

(4) The provider is a natural person and the other party to the transaction is either:

(i) a member of the provider's immediate family (see glossary, Subpart 635-99 of this Part);

(ii) a partnership in which the provider is a partner;

(iii) a co-partner (see glossary, Subpart 635-99 of this Part) of the provider;

(iv) a corporation in which the provider is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which a member of the provider's immediate family is an officer, director, trustee, principal stockholder or controlling party;

(vi) a corporation in which any partnership in which the provider is a partner is a principal stockholder;

(vii) a corporation in which a co-partner of the provider is an officer, director, trustee, principal stockholder or controlling party; or

(viii) a corporation in which another corporation is a principal stockholder, where the provider is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

(5) The provider is an unincorporated association and the other party to the transaction is either:

(i) someone who is a member of the provider;

(ii) someone, a member of whose immediate family is a member of the provider;

(iii) a partnership in which one partner is a member of the provider;

(iv) a corporation in which a member of the provider is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which a member of the provider has an immediate family member who is an officer, director, trustee, principal stockholder or controlling party;

(vi) a corporation in which any partnership, in which a member of the provider is a partner, is a principal stockholder;

(vii) a corporation in which a co-partner of a member of the provider is an officer, director, trustee, principal stockholder or controlling party; or

(viii) a corporation in which another corporation is a principal stockholder, where a member of the provider is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

(6) The other party to the transaction is a special purpose organization (see glossary, Subpart 635-99 of this Part).

(c) A provider may overcome a presumption that the transaction is between related parties by clearly demonstrating that:

(1) the other party to the transaction in question is a bona fide separate organization;

(2) a substantial part of the other party's business activity of the type carried on with the provider is transacted with other organizations or those not related to the provider and the other party by common ownership or control and there is an open, competitive market for the type of real property, equipment, goods, services or property furnished by the other party;

(3) the real property, equipment, goods, services or properties are those which commonly are obtained by organizations such as the provider from other organizations and are not a basic element of care ordinarily furnished directly to individuals receiving services from such programs; and

(4) the charge to the provider is comparable to the charge for such real property, equipment, goods, services or property in the open market and no more than the charge made under comparable circumstances to others by the other party to the transaction for such real property, equipment, goods, services or property.

(d) The existence of any of the conditions in paragraphs (1) through (5) of this subdivision will create a presumption that the transaction is between an individual receiving services and a related party.

(1) The other party to the transaction is a member of the individual's immediate family.

(2) The other party to the transaction is a partnership in which the individual or a member of the individual's immediate family is a partner.

(3) The other party to the transaction is a corporation in which the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party.

(4) The other party to the transaction is a corporation in which:

(i) any partnership, in which the individual or a member of the individual's immediate family is a partner, is a principal stockholder; or

(ii) another corporation is a principal stockholder, where the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party of such other corporation.

(5) The other party to the transaction is an unincorporated association which has as a member either:

(i) the individual;

(ii) a member of the individual's immediate family;

(iii) a partnership in which the individual or a member of the individual's immediate family is a partner;

(iv) a corporation in which the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or controlling party;

(v) a corporation in which any partnership, in which the individual or a member of the individual's immediate family is a partner, is a principal stockholder; or

(vi) a corporation in which another corporation is a principal stockholder, where the individual or a member of the individual's immediate family is an officer, director, trustee, principal stockholder or a controlling party of such other corporation.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.2

Amended New York State Register October 28, 2015/Volume XXXVII, Issue 43, eff. 11/1/2015

Amended New York State Register April 20, 2016/Volume XXXVIII, Issue 16, eff. 4/20/2016

Amended New York State Register September 21, 2016/Volume XXXVIII, Issue 38, eff. 9/21/2016