N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.3

Current through Register Vol. 46, No. 45, November 2, 2024

Section 635-6.3 - Leases for real property

(a) This subdivision applies to allowability of costs for leases for real property except for continuing residential lease arrangements as specified in subdivision (b) of this section.

(1) In order for lease costs to be considered for allowability, the provider or individual lessee must submit the lease to OPWDD for approval. In deciding whether to approve a lease, OPWDD shall consider whether the lease is in the best interests of the programs and the persons it serves and whether the lease in any way violates public policy. In deciding whether to approve an amount for rent, OPWDD shall consider whether the provider's rate, fee or price, as a whole, including the amount of rent to be approved, would result in payment which is consistent with efficiency and economy.

(2) If an approved lease (see glossary, Subpart 635-99 of this Part) or approved proprietary lease (see glossary, Subpart 635-99 of this Part) is between the provider or individual lessee and a party which is not a related party, allowable lease costs shall be the lesser of contract rent or fair market rent.

(3) If an approved lease or approved proprietary lease is between the provider or individual lessee and a related party, allowable lease costs shall be the least of:

(i) contract rent (see glossary, Subpart 635-99 of this Part);

(ii) fair market rent (see glossary, Subpart 635-99 of this Part); or

(iii) the landlord's net cost (see glossary, Subpart 635-99 of this Part).

(4) The commissioner may waive the limitations on allowable costs as stated in paragraph (3) of this subdivision upon a showing that such limitations would jeopardize the opening or continued operation of the program or services and that the negotiations for the lease or proprietary lease were conducted as though the parties were not related.

(5) The commissioner may, upon application from a provider, allow lease costs in an amount equal to contract rent and greater than fair market rent if all of the conditions in subparagraph (i) or (ii) of this paragraph are met.

(i) The commissioner will allow such lease costs only for as long as it is necessary for the provider to relocate the program or services located on the lease property; and

(a) the lease is a renewal that is not pursuant to an option to renew;

(b) the lease is a renewal of a lease for an existing program or services; and

(c) the provider has shown that:

(1) the provider has made diligent efforts to negotiate a lease renewal for fair market rent or less;

(2) the provider has been unable to negotiate a lease renewal for less than the current rent;

(3) the parties to the lease renewal are not related; and

(4) allowance of lease costs in the amount of contract rent is necessary to ensure the continued operation of the program or services; or

(ii) A substitute provider (see section 635-99.1[bp] of this Part) is designed to operate the program at the same physical location, and OPWDD determines that allowing such lease costs:

(a) is an economic and efficient use of resources; and

(b) is necessary to protect the health, safety, or welfare of the persons who are receiving or will receive services at the facility or program in question.

(6) Contract rent incurred pursuant to an approved lease or approved proprietary lease which is renewed pursuant to an option to renew is allowable.

(7) Costs incurred pursuant to an approved lease or approved proprietary lease which is renewed other than pursuant to an option to renew (see glossary, Subpart 635-99 of this Part) shall be allowable as follows:

(i) If the lease is between parties who are not related, allowable costs are determined in accordance with paragraph (2) of this subdivision.

(ii) If the lease is between parties who are related, allowable costs are determined in accordance with paragraph (3) of this subdivision.

(iii) OPWDD shall decide whether to approve any such renewal at least 30 days before the last day the lease may be renewed, if the provider or individual lessee has notified OPWDD in accordance with subparagraph (iv) of this paragraph.

(iv) Whenever possible, the provider or individual lessee shall submit to OPWDD a request for approval of lease renewals at least 120 days prior to the last date for renewing the lease.

(b) This subdivision governs the allowability of lease costs applicable to continuing residential lease arrangements for periods after December 31, 2011, for which periods OPWDD has not approved lease costs for an entire calendar year. This subdivision applies to residential lease renewals which are not renewals pursuant to an option to renew.

(1) There shall be an allowable lease cost, exclusive of any ancillary costs, for an entire calendar year. The allowable lease cost, exclusive of any ancillary costs, for a calendar year shall be the base lease amount for such calendar year adjusted by an annual percentage for such calendar year.

(2) Base lease amount. The base lease amount for a calendar year shall be the allowable lease cost calculated in accordance with this section in effect on December 31st of the prior calendar year, exclusive of any ancillary costs (see paragraph [3] of this subdivision).

(3) Ancillary costs. Ancillary costs are those charges identified in a lease in addition to monthly rent. These include but not limited to: special assessments, taxes, co-op or condominium maintenance fees, utility payments assessed by the lessee by the lessor pursuant to the terms of the lease, and lessor-financed renovations billed as additional rent.

(4) For ancillary costs under the terms of the lease to be allowable the lessee must submit an application to OPWDD specifying the nature and amounts of the ancillary costs. OPWDD may approve or disapprove the request or adjust the amount to be reimbursed based on whether the ancillary costs are reasonable and necessary.

N.Y. Comp. Codes R. & Regs. Tit. 14 §§ 635-6.3

Amended, New York State Register, Volume XXXVI, Issue 31, effective 8/6/2014

Amended New York State Register August 12, 2015/Volume XXXVII, Issue 32, eff. 8/12/2015

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

Amended New York State Register February 24, 2016/Volume XXXVIII, Issue 08, eff. 2/24/2016

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