Title 44: Comptroller

Chapter 1: Bond Transfers

§ 1-01 Issuance of New Bond.

Upon registration of the transfer of a registered bond, the transferee may be provided with a new bond.

§ 1-02 Form of New Bond.

The new bond shall be of substantially the same form and tenor as the bond presented, except as provided below.

§ 1-03 Signing and Attesting of New Bond.

The new bond shall be signed and attested, either:

  1. by manual or facsimile signature by the appropriate persons in office at the time of delivery to the transferee, or
  2. by facsimile signature of the appropriate persons in office at the time of issuance, provided, however, that in the event the new bond is not authenticated by the fiscal agent, as defined in or designated pursuant to § 70.00 of the New York Local Finance Law, as the case may be, it shall be attested by the manual signature of the City Clerk, or the deputy of the City Clerk, in office at the time of delivery to the transferee.

§ 1-04 Execution and Authentication of New Bond.

The new bond shall be executed as of the date of the bond presented and shall be authenticated as of the date of delivery of the new bond.

§ 1-05 Destruction of Old Bond.

The bond presented shall be destroyed in such manner as is set forth in any agreement between the City and its fiscal agent and a certificate of destruction shall be prepared as set forth in such agreement.

§ 1-06 Effectiveness.

These Rules and Regulations shall be effective immmediately; provided, however, that neither delivery of new bonds prior to the effective date hereof nor the application of procedures inconsistent with the requirements of these Rules and Regulations shall affect the validity of new bonds.

Chapter 2: Comptroller’s Prevailing Wage Law Regulations

§ 2-01 Applicability.

These regulations apply to Comptroller investigations, determinations, hearings, reports and recommendations, and orders under New York state labor law articles eight and nine and New York City Administrative Code § 19-142; Comptroller investigations, determinations, hearings and reports and recommendations made to the New York city department of housing preservation and development under New York state real property tax law § 421-a(8), (16)(h) and (17)(g); and Comptroller investigations, determinations, hearings and reports and recommendations made to city agencies under the prevailing wage provisions of New York City Administrative Code § 6-109.

§ 2-02 Definitions.

As used in this chapter, the following terms have the following meanings. Capitalized terms that are not specifically defined in this chapter have the meanings set forth in the laws designated in 44 RCNY § 2-01.

Bona Fide Fringe Benefit. “Bona Fide Fringe Benefit” means any payment made by a Covered Employer, other than wages, that directly benefits a Covered Worker, including but not limited to paid vacation or sick leave, medical or dental insurance, retirement accounts or annuities and apprenticeship training.

Bureau. “Bureau” means the comptroller’s bureau of labor law.

Certified Payroll Report. “Certified Payroll Report” means a weekly payroll record in the form provided on the comptroller’s website.

Complaining Worker. “Complaining Worker” means a worker who has filed a written complaint for the underpayment of Prevailing Wages and Supplements with the Bureau.

Comptroller. “Comptroller” means the City of New York comptroller or the comptroller’s designee.

Covered Employer. “Covered Employer” means any person or entity subject to liability for Prevailing Wages and/or Supplements under labor law articles eight or nine on public works projects or building service contracts for the City of New York by and through its agencies or public benefit corporations; or under real property tax law § 421-a(8), (16)(h), or 17(g); or New York City Administrative Code § 6-109 or 19-142.

Covered Work. “Covered Work” means any work that is subject to the requirements of articles eight or nine of the labor law on public works projects or building service contracts for the City of New York by and through its agencies or public benefit corporations; or subject to the requirements of real property tax law § 421-a(8), (16)(h) or (17)(g); or New York City Administrative Code § 6-109 or 19-142. “Covered Work” does not include purely supervisory work, or work that is not performed on or about the site of the project, contract or building in question.

Covered Worker. “Covered Worker” means any person who performs Covered Work.

Daily Sign-In Log. “Daily Sign-In Log” means a daily attendance record in the form provided on the comptroller’s website.

Document. “Document” means records in any form or electronically stored information, including writings, graphs, charts and other data or data compilations stored in any medium.

Prevailing Wage and/or Supplement. “Prevailing Wage and Supplement” or “Prevailing Wage” or “Prevailing Supplement” mean Prevailing Wages and/or Supplements as defined in labor law articles eight and nine; real property tax law § 421-a(8), (16)(h) or (17)(g); and New York City Administrative Code §§ 6-109(a) and 19-142.

Worker Notice Poster. “Worker Notice Poster” means a notice in the form provided on the comptroller’s website detailing the Prevailing Wages and Supplements due for Covered Work performed on a particular project, contract or building.

§ 2-03 Annual Prevailing Wage and Supplement Determinations.

(a) Prevailing Wage Schedules. On June 1 of each year, the Bureau preliminarily determines and publishes Prevailing Wage and Supplement rates for each trade classification. The Bureau then considers any comments from interested persons asserting errors or omissions in the preliminary Prevailing Wage and Supplement rates if such comments are submitted in writing on or before June 15 of the same year. On July 1 of each year, the Bureau determines and publishes the Prevailing Wage and Supplement rates for each trade classification effective from the date of publication until June 30 of the following year. In January of each year, the Bureau may publish updated Prevailing Wage and Supplement rates for each trade classification, without a comment period, effective from the date of publication until June 30 of the same year.
  1. Standard for Prevailing Wage and Supplement Rates.

   (1) The Prevailing Wage and Supplement rates for each trade classification are based upon the rate of wage paid and supplements provided by virtue of a collective bargaining agreement between a bona fide labor organization and employers of the private sector performing public or private work, provided the employers party to the agreement employ at least 30 percent of the workers in the same trade or occupation in the City of New York. If it is determined that less than 30 percent of the workers in a particular trade or occupation in the City of New York receive a collectively bargained rate of wage and supplements, then the average wage paid and supplements provided to such workers in the same trade or occupation in the City of New York during the prior year is the Prevailing Wage and Supplement rate.

   (2) For all Prevailing Wage and Supplement rates other than those governed by labor law article eight, the Bureau considers: (i) wage and fringe benefit data from the Occupational Employment Statistics survey and the National Compensation survey; (ii) classification data from the Standard Occupational Classification System and the North American Industry Classification System; as well as (iii) any other competent evidence submitted by an interested person before the Bureau adopts rates from a collective bargaining agreement.

  1. Challenges to Prevailing Wage and Supplement Determinations. An interested person that seeks to challenge an annual determination of Prevailing Wage and Supplement rates by the Bureau for a trade classification must request a redetermination by the Bureau for that trade classification in writing on or before March 1 in order for the redetermination to be effective on July 1 of that year. The request for redetermination must include competent evidence that the Bureau’s prior annual determination of Prevailing Wage and Supplement rates for that trade classification was erroneous in accordance with the standard set forth in 44 RCNY § 2-03(b).
  2. Inability to Determine or Invalidity of Prevailing Wage or Supplement Rates. If the Bureau is unable to determine or update the Prevailing Wage or Supplement rates for a trade classification in time for publication in any schedule, for any reason, such as the failure to obtain information concerning collective bargaining agreements, or if the Prevailing Wage or Supplement rates for any trade classification in any schedule are declared invalid by a court of competent jurisdiction, then the last valid Prevailing Wage or Supplement rate determination for that trade classification remains the Prevailing Wage and Supplement rate for that schedule.

§ 2-04 Prevailing Wage and Supplement Requirements and Recordkeeping.

(a) Applicable rates. The Prevailing Wage and Supplement rates that are required for Covered Work are the rates that are published and effective as set forth in 44 RCNY § 2-03(a) at the time that the Covered Work is performed.
  1. Prevailing Supplement rates.

   (1) The obligation to pay Prevailing Supplements may be discharged by either the provision of (i) Bona Fide Fringe Benefits that cost no less than the Prevailing Supplement rate, (ii) a supplement to the hourly wage in an amount no less than the Prevailing Supplement rate, or (iii) a combination of Bona Fide Fringe Benefits and wage supplements that, collectively, costs no less than the Prevailing Supplement rate.

   (2) The obligation to pay Prevailing Wages cannot be reduced or discharged through the provision of Bona Fide Fringe Benefits that cost more than the Prevailing Supplement rate. (3) The hourly cost of a Bona Fide Fringe Benefit provided by a Covered Employer to a Covered Worker under 44 RCNY § 2-04(b)(1) must be determined by dividing the total annual cost or contribution for providing such Bona Fide Fringe Benefit by the total annual hours of Covered Work and all other work performed by that Covered Worker for that Covered Employer. However, a Covered Employer that provides an hourly contribution for each hour of Covered Work to an individual account for a Covered Worker is credited for such hourly contribution.

  1. Required records.

   (1) Covered Employers must maintain Documents consisting of the following records for six years after Covered Work is performed, must preserve the records immediately when notified by the Bureau of a compliance investigation, and must produce true copies of all such records within the time requested by the Bureau after notice of the right to counsel described in 44 RCNY § 2-05(f):

      i) Contracts and subcontracts for Covered Work;

      ii) Certified Payroll Reports for Covered Work;

      iii) Daily Sign-In Logs for Covered Work;

      iv) Weekly payroll records, registers or journals required by labor law Section 195;

      v) All Documents and records concerning the cost of Bona Fide Fringe Benefits provided to Covered Workers, including but not limited to invoices, account statements, benefits remittance reports and benefits plan descriptions; and

      vi) All Federal and State employment tax returns and filings, including but not limited to quarterly combined withholding, wage reporting, and unemployment insurance form NYS-45 returns; employers’ quarterly Federal tax form 941 returns; wage and tax form W-2 statements; and miscellaneous income form 1099 statements.

   (2) Each Covered Employer must maintain one weekly Certified Payroll Report for each project, contract or building on which it performs Covered Work. The Certified Payroll Report must set forth the names, addresses and trade classifications for all Covered Workers employed by the Covered Employer on the project, contract or building, as well as the hours and days of Covered Work, the hourly wage and supplement rates, and the weekly gross and net pay amounts for each Covered Worker. The Certified Payroll Report must be signed and affirmed to be true under penalties of perjury by an officer or principal of the Covered Employer.

   (3) Each Covered Employer must maintain one Daily Sign-In Log for each project, contract or building on which it performs Covered Work. The Daily Sign-In Log must set forth the names, trade classifications, daily start and end times of Covered Work for, and must be signed by, each Covered Worker employed by the Covered Employer on the project, contract or building.

   (4) Each Covered Employer must post a Worker Notice Poster in a prominent and accessible place at each project, contract or building on which it performs Covered Work. The Worker Notice Poster must set forth the Prevailing Wages and Supplements due for the Covered Work performed on that project, contract or building.

§ 2-05 Compliance Investigations, Compliance Determinations, Settlements, Interest and Penalties.

(a) The Bureau investigates and determines underpayments of Prevailing Wages and Supplements by Covered Employers under labor law articles eight and nine, real property tax law § 421-a(8), (16)(h), and (17)(g) and New York City Administrative Code § 19-142 for Covered Work performed within the two-year period immediately preceding the earlier of: (i) the commencement of the compliance investigation by the Bureau, or (ii) the filing of a written complaint by a Covered Worker with the Bureau or the New York State Department of Labor.
  1. The Bureau investigates and determines underpayments of Prevailing Wages and Supplements by Covered Employers under New York City Administrative Code § 6-109 for Covered Work performed within the three-year period immediately preceding the earlier of: (i) the commencement of the compliance investigation by the Bureau, or (ii) the filing of a written complaint with the Bureau by a Covered Worker, the representative of a Covered Worker or a labor union with an interest in the Covered Work at issue. Compliance investigations concerning underpayment of Prevailing Wages and Supplements for Building Service Employees that are also covered by labor law article nine are governed by the provisions of 44 RCNY § 2-05(a).
  2. The Bureau may decline to investigate and determine underpayments of Prevailing Wages and/or Supplements if the Complaining Worker or the Complaining Worker’s representative has participated in any other legal proceeding to recover the same unpaid Prevailing Wages and/or Supplements that are the subject of the complaint.
  3. A private settlement between a Covered Worker and a Covered Employer, or the execution of a release by a Covered Worker in favor of a Covered Employer, does not preclude investigation and determination as to underpayment of Prevailing Wages and/or Supplements by the Bureau.
  4. The Bureau does not disclose the names or identities of Complaining Workers unless necessary for settlement or hearing.
  5. Covered Employers under investigation by the Bureau have the right to be represented by counsel at their own expense. Covered Employers are notified of the right to counsel at the commencement of a compliance investigation in which records, described in 44 RCNY §§ 2-04(c), 2-05 and 2-06 may be demanded. Counsel must file a written notice of appearance with the Bureau. All subsequent notices, Documents or other communications are sent to such counsel and deemed service upon the Covered Employer.
  6. During the compliance investigation, the Covered Employer must provide all relevant information and Documents within the time requested by the Bureau, including but not limited to the records required by 44 RCNY § 2-04(c). Upon completion of a compliance investigation with a finding of violation, the Bureau sends a written thirty day notice to the Covered Employer that it will begin calculations of Prevailing Wage and/or Supplement underpayments for a determination. In preparing its determination, the Bureau will not consider any information or Documents requested by the Bureau and not provided by the Covered Employer within thirty days of the written notice.
  7. If a Covered Employer failed to keep or provide to the Bureau in a timely manner accurate records as required by 44 RCNY § 2-04(c), the Bureau is permitted to calculate underpayments of Prevailing Wages and/or Supplements due to Covered Workers by using the best available evidence and the burden shifts to the Covered Employer to negate the reasonableness of the Bureau’s calculations. In such case, the amount and extent of underpayment is a matter of reasonable inference and may be based upon the statements of Covered Workers.
  8. The Bureau may resolve a compliance determination by stipulation of settlement with a Covered Employer, which includes: (i) findings and assessments as to the underpayment of Prevailing Wages and/or Supplements, (ii) findings as to the willfulness of the violation, (iii) assessments of interest and, (iv) in cases brought under labor law articles eight and nine and New York City Administrative Code §§ 6-109 and 19-142 only, assessment of a civil penalty.
  9. Stipulations of settlement resolving compliance determinations under labor law articles eight and nine and New York City Administrative Code § 19-142 are endorsed by the Comptroller and have the effect of an order of the Fiscal Officer under those laws. Stipulations of settlement resolving compliance investigations under real property tax law § 421-a(8), (16)(h) and (17)(g) must be endorsed by the New York City department of housing preservation and development in order to have final effect under that statute. Stipulations of settlement resolving compliance investigations under New York City Administrative Code § 6-109 must be endorsed by the contracting agency in order to have final effect under that statute.
  10. Interest.

   (1) The Bureau assesses interest due on the underpayment of Prevailing Wages and/or Supplements from the date of underpayment, and such interest cannot be waived by stipulation of settlement.

   (2) Upon resolution of a compliance determination by stipulation of settlement, the Bureau may reduce the rate of interest on the underpayment of Prevailing Wages and/or Supplements from the rate of interest then in effect as prescribed by the superintendent of banks under Section fourteen-a of the banking law per annum to a rate of interest not less than six percent, based upon due consideration of the size of the Covered Employer’s business, the good faith of the Covered Employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements.

  1. Civil Penalty.

   (1) In cases brought under labor law articles eight and nine and New York City Administrative Code §§ 6-109 and 19-142, the Bureau assesses any civil penalty in accordance with the criteria set forth in labor law §§ 220(8), 220-b (2)(d) and 235(5)(b) and New York City Administrative Code § 6-109(e)(1)(a).

   (2) The Bureau may waive the civil penalty for a Covered Employer entering into a stipulation of settlement for underpayments of Prevailing Wages and/or Supplements by its subcontractor where there is uncontroverted evidence of all of the following:

      (i) the Covered Employer or its agent provided the subcontractor with the applicable Prevailing Wage and Supplement schedule for the project or contract;

      (ii) the Covered Employer made a good faith effort to ensure that the subcontractor complied with all Prevailing Wage and Supplement requirements, including but not limited to requesting and reviewing Certified Payroll Reports;

      (iii) the subcontractor cannot be located, despite the Covered Employer having made a good faith attempt to locate said subcontractor, or the subcontractor has filed for bankruptcy protection, or the subcontractor is no longer in business;

      (iv) the Covered Employer has paid the subcontractor in full in accordance with the terms of its subcontract agreement;

      (v) the Covered Employer has fully cooperated, in a timely manner, with the Bureau’s compliance investigation; and

      (vi) in all likelihood, the Covered Employer will be unable to receive indemnification from the subcontractor for the restitution the Covered Employer has paid.

  1. The Bureau sends written notice to a Complaining Worker or the Complaining Worker’s representative upon closure of a compliance investigation without a finding of violation. This notice of a final determination, binding on the Complaining Worker, commences any applicable time limits under article 78 of the New York State civil practice law and rules. If the Covered Employer under investigation has been notified of a compliance investigation, the Bureau sends written notice of closure without a finding of violation to the Covered Employer.

§ 2-06 Hearings, Reports and Recommendations and Orders.

(a) Designation. All hearings required by New York labor law articles eight and nine; real property tax law § 421-a(8), (16)(h) and (17)(g); and New York City Administrative Code §§ 6-109 and 19-142 are held by the office of administrative trials and hearings trials division.
  1. Discovery. Each party must provide to all other parties, no later than ten business days before trial: (i) the names of all witnesses the party expects to present at trial, (ii) copies of all Documents or other exhibits the party expects to introduce at trial, (iii) copies of all Documents provided by each Complaining Worker and (iv) copies of all statements, in any form, provided by each Covered Employer that is a party to the hearing.
  2. Preclusion.

   (1) Failure of a Covered Employer to provide any information or Document requested by the Bureau in a timely manner as set forth in 44 RCNY § 2-05(g) and (h) may be grounds for preclusion of that Document or drawing of an adverse inference at the trial upon motion to the administrative law judge.

   (2) No party may seek to introduce any testimonial, documentary or other evidence concerning the immigration status of Covered Workers at the trial, including but not limited to information about their social security or individual taxpayer identification numbers, except upon motion to the administrative law judge for good cause shown.

  1. Report and recommendation.

   (1) Within a reasonable time after the conclusion of the hearing, the administrative law judge issues a written report, including proposed findings of fact and conclusions of law, and recommendation as to the order.

   (2) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the administrative law judge forwards the report and recommendation to the Comptroller for consideration and the Comptroller issues an order.

   (3) In cases brought under real property tax law § 421-a(8), (16)(h), and (17)(g), the administrative law judge forwards the report and recommendation to the New York City department of housing preservation and development for consideration and that agency issues an order.

   (4) In cases brought under New York City Administrative Code § 6-109, the administrative law judge forwards the report and recommendation to the contracting agency for consideration, and the contracting agency issues an order.

  1. Order.

   (1) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the Comptroller may, on his or her own initiative or on application duly made, on notice to all parties: (i) request further information or briefing on any relevant issue or (ii) provide copies of any recalculation of Prevailing Wages and Supplements underpayment, interest and civil penalty, and request comments from the parties to the hearing before issuing an order. Such request and any responses are part of the record.

   (2) In cases brought under labor law articles eight and nine and New York City Administrative Code § 19-142, the Comptroller may adopt, reject or modify the administrative law judge’s report and recommendation when issuing an order; such order is to be based exclusively upon the record as a whole, including facts of which official notice has been taken.

   (3) The Bureau files the order of the Comptroller and serves a notice of filing, with copy of the order, on every party.

Chapter 3: Comptroller’s Living Wage and Minimum Average Hourly Wage Law Regulations.

§ 3-01 Applicability.

These regulations apply to Comptroller investigations, determinations, hearings, reports and recommendations, and orders under New York state real property tax law § 421-a(16)(c) and to Comptroller investigations, determinations, hearings and reports and recommendations made to City agencies under the living wage provisions of New York City Administrative Code § 6-109.

§ 3-02 Definitions.

As used in this chapter, the following terms have the following meanings. Capitalized terms that are not specifically defined in this chapter have the meanings set forth in the laws designated in 44 RCNY § 3-01.

Bureau. “Bureau” means the comptroller’s bureau of labor law. Certified Payroll Report. “Certified Payroll Report” means a weekly payroll record in the form provided on the comptroller’s website.

Complaining Worker. “Complaining Worker” means a worker who has filed a written complaint for the underpayment of Wages and Supplements with the Bureau.

Comptroller. “Comptroller” means the City of New York comptroller or the comptroller’s designee.

Covered Employer. “Covered Employer” means any person or entity subject to liability for Wages and Supplements under real property tax law § 421-a(16)(c) or New York City Administrative Code § 6-109.

Covered Work. “Covered Work” means any work that is subject to the requirements of real property tax law § 421-a(16)(c) or New York City Administrative Code § 6-109.

Covered Worker. “Covered Worker” means any person who performs Covered Work.

Daily Sign-In Log. “Daily Sign-In Log” means a daily attendance record in the form provided on the comptroller’s website.

Document. “Document” means records in any form or electronically stored information, including writings, graphs, charts and other data or data compilations stored in any medium.

Wage and Supplement. “Wage and Supplement” means Living Wage and Health Benefits or Health Benefits Supplement Rate as defined in New York City Administrative Code § 6-109(b), or minimum average hourly wage as set forth in real property tax law § 421-a(16)(c).

Worker Notice Poster. “Worker Notice Poster” means a notice in the form provided on the comptroller’s website detailing the Wage and Supplement due for Covered Work performed on a particular project, contract or building.

§ 3-03 Wage and Supplement Required Records.

(a) Covered Employers must maintain Documents consisting of the following records for six years after Covered Work is performed, must preserve the records immediately when notified by the Bureau of a compliance investigation, and must produce true copies of all such records within the time requested by the Bureau after notice of the right to counsel described in 44 RCNY § 3-04(f):

   1) Contracts and subcontracts for Covered Work;

   2) Certified Payroll Reports for Covered Work;

   3) Daily Sign-In Logs for Covered Work;

   4) Weekly payroll records, registers or journals required by labor law Section 195;

   5) All Documents and records concerning the cost of Health Benefits or Employee Benefits provided to Covered Workers, including but not limited to invoices, account statements, benefits remittance reports and benefits plan descriptions; and

   6) All federal and state employment tax returns and filings, including but not limited to quarterly combined withholding, wage reporting, and unemployment insurance form NYS-45 returns; employers’ quarterly Federal tax form 941 returns; wage and tax form W-2 statements; and miscellaneous income form 1099 statements.

  1. Each Covered Employer must maintain one weekly Certified Payroll Report for each project, contract or building on which it performs Covered Work. The Certified Payroll Report must set forth the names, addresses and trade classifications for all Covered Workers employed by the Covered Employer on the project, contract or building, as well as the hours and days of Covered Work, the hourly wage and supplement rates, and the weekly gross and net pay amounts for each Covered Worker. The Certified Payroll Report must be signed and affirmed to be true under penalties of perjury by an officer or principal of the Covered Employer.
  2. Each Covered Employer must maintain one Daily Sign-In Log for each project, contract or building on which it performs Covered Work. The Daily Sign-In Log must set forth the names, trade classifications, daily start and end times of Covered Work for, and must be signed by, each Covered Worker employed by the Covered Employer on the project, contract or building.
  3. Each Covered Employer must post a Worker Notice Poster in a prominent and accessible place at each project, contract or building on which it performs Covered Work. The Worker Notice Poster must set forth the Wages and Supplements due for the Covered Work performed on that project, contract or building.
  4. Each Independent Monitor contracted under real property tax law § 421-a(16)(c) must submit one Project Wide Certified Payroll Report to the Bureau within one year of the Completion Date for each project that involves Covered Work. The Project Wide Certified Payroll Report must attach all Contractor Certified Payroll Reports submitted to the Independent Monitor, and must be signed and affirmed to be true under penalties of perjury by the Independent Monitor, based upon a review of the information contained in the attached Contractor Certified Payroll Reports. The Project Wide Certified Payroll Report must:

   1) Identify all Covered Employers that performed Covered Work on the project;

   2) For each Covered Employer, set forth the completion date for its Covered Work on the project;

   3) For each Covered Employer, set forth the date that its Contractor Certified Payroll Report was submitted to the Independent Monitor, or state that no Contractor Certified Payroll Report was submitted;

   4) For each Covered Employer, calculate and set forth the total hours of Covered Work performed by all Covered Workers it employed on the project, based upon its Contractor Certified Payroll Report;

   5) For each Covered Employer, calculate and set forth the total Wages paid for Covered Work to all Covered Workers it employed on the project, based upon its Contractor Certified Payroll Report;

   6) Calculate and set forth the total hours of Covered Work performed on the project, based upon the Contractor Certified Payroll Reports;

   7) Calculate and set forth the total Wages paid for all Covered Work on the project, based upon the Contractor Certified Payroll Reports;

   8) Calculate and set forth the Average Hourly Wage paid for all Covered Work on the project; and

   9) If the Average Hourly Wage is less than the applicable minimum average hourly wage as set forth in real property tax law § 421-a(16)(c), then calculate and set forth the aggregate amount of the deficiency for all Covered Workers on the project.

§ 3-04 Compliance Investigations, Compliance Determinations, Settlements, Interest and Penalties.

(a) The Bureau investigates and determines underpayments of Living Wage and Health Benefits or Health Benefits Supplement Rate by Covered Employers under New York City Administrative Code § 6-109 for Covered Work performed within the three-year period immediately preceding the earlier of: (i) the commencement of the compliance investigation by the Bureau, or (ii) the filing of a written complaint with the Bureau by a Covered Worker, the representative of a Covered Worker or a labor union with an interest in the Covered Work at issue.
  1. The Bureau investigates and determines liability for underpayments of minimum average hourly wage by Covered Employers under real property tax law § 421-a(16)(c) for Covered Work on a project, provided such compliance investigation is commenced within one year of the Completion Date of the project.
  2. The Bureau may decline to investigate and determine underpayments of Wages and Supplements if the Complaining Worker or the Complaining Worker’s representative has participated in any other legal proceeding to recover the same unpaid Wages and Supplements that are the subject of the complaint.
  3. A private settlement between a Covered Worker and a Covered Employer, or the execution of a release by a Covered Worker in favor of a Covered Employer, does not preclude investigation and determination as to underpayment of Wages and Supplements by the Bureau.
  4. The Bureau does not disclose the names or identities of Complaining Workers unless necessary for settlement or hearing.
  5. Covered Employers under investigation by the Bureau have the right to be represented by counsel at their own expense. Covered Employers are notified of the right to counsel at the commencement of a compliance investigation in which records, described in 44 RCNY §§ 3-03(a), 3-04 and 3-05 may be demanded. Counsel must file a written notice of appearance with the Bureau. All subsequent notices, Documents or other communications are sent to such counsel and deemed service upon the Covered Employer.
  6. During the compliance investigation, the Covered Employer must provide all relevant information and Documents within the time requested by the Bureau, including but not limited to the records required by 44 RCNY § 3-03(a). Upon completion of a compliance investigation with a finding of violation, the Bureau sends a written thirty day notice to the Covered Employer that it will begin calculations of Wage and Supplement underpayments for a determination. In preparing its determination, the Bureau will not consider any information or Documents requested by the Bureau and not provided by the Covered Employer within thirty days of the written notice.
  7. If a Covered Employer failed to keep or provide to the Bureau in a timely manner accurate records as required by 44 RCNY § 3-03(a), the Bureau is permitted to calculate underpayments of Wages and Supplements due to Covered Workers by using the best available evidence and the burden shifts to the Covered Employer to negate the reasonableness of the Bureau’s calculations. In such case, the amount and extent of underpayment is a matter of reasonable inference and may be based upon the statements of Covered Workers.
  8. The Bureau may resolve a compliance determination by stipulation of settlement with a Covered Employer, which includes: (i) findings and assessments as to the underpayment of Wages and Supplements, (ii) findings as to the willfulness of the violation, (iii) assessments of interest and, (iv) in cases brought under New York city Administrative Code § 6-109 only, assessment of a civil penalty.
  9. Stipulations of settlement resolving compliance determinations under real property tax law § 421-a(16)(c) are endorsed by the Comptroller and have the effect of an order of the Fiscal Officer under that statute.
  10. Stipulations of settlement resolving compliance investigations under New York City Administrative Code § 6-109 must be endorsed by the contracting agency in order to have final effect under that statute.
  11. Interest.

   (1) The Bureau assesses interest due on the underpayment of Wages and Supplements from the date of underpayment at the rate of interest then in effect as prescribed by the superintendent of banks under Section fourteen-a of the banking law per annum, and such interest cannot be waived by stipulation of settlement.

   (2) Upon resolution of a compliance determination by stipulation of settlement, the Bureau may reduce the rate of interest on the underpayment of Wages and Supplements to a rate of interest not less than six percent, based upon due consideration of the size of the Covered Employer’s business, the good faith of the Covered Employer, the gravity of the violation, the history of previous violations and the failure to comply with recordkeeping or other non-wage requirements.

  1. The Bureau sends written notice to a Complaining Worker or the Complaining Worker’s representative upon closure of a compliance investigation without a finding of violation. This notice of a final determination, binding on the Complaining Worker, commences any applicable time limits under article 78 of the New York State civil practice law and rules. If the Covered Employer under investigation has been notified of a compliance investigation, the Bureau sends written notice of closure without a finding of violation to the Covered Employer.

§ 3-05 Hearings, Reports and Recommendations and Orders.

(a) Designation. All hearings required by New York real property tax law § 421-a(16)(c) and New York City Administrative Code § 6-109 are held by the office of administrative trials and hearings trials division.
  1. Discovery. Each party must provide to all other parties, no later than ten business days before trial: (i) the names of all witnesses the party expects to present at trial, (ii) copies of all Documents or other exhibits the party expects to introduce at trial, (iii) copies of all Documents provided by each Complaining Worker and (iv) copies of all statements, in any form, provided by each Covered Employer that is a party to the hearing.
  2. Preclusion.

   (1) Failure of a Covered Employer to provide any information or Document requested by the Bureau in a timely manner as set forth in 44 RCNY § 3-04(g) and (h) may be grounds for preclusion of that Document or drawing of an adverse inference at the trial upon motion to the administrative law judge.

   (2) No party may seek to introduce any testimonial, documentary or other evidence concerning the immigration status of Covered Workers at the trial, including but not limited to information about their social security or individual taxpayer identification numbers, except upon motion to the administrative law judge for good cause shown.

  1. Report and recommendation.

   (1) Within a reasonable time after the conclusion of the hearing, the administrative law judge issues a written report, including proposed findings of fact and conclusions of law, and recommendation as to the order.

   (2) In cases brought under real property tax law § 421-a(16)(c), the administrative law judge forwards the report and recommendation to the Comptroller for consideration and the Comptroller issues an order.

   (3) In cases brought under New York City Administrative Code § 6-109, the administrative law judge forwards the report and recommendation to the contracting agency for consideration, and the contracting agency issues an order.

  1. Orders under real property tax law § 421-a(16)(c).

   (1) The Comptroller may, on his or her own initiative or on application duly made, on notice to all parties: (i) request further information or briefing on any relevant issue or (ii) provide copies of any recalculation of Wages and Supplements underpayment and interest, and request comments from the parties to the hearing before issuing an order. Such request and any responses are part of the record.

   (2) The Comptroller may adopt, reject or modify the administrative law judge’s report and recommendation when issuing an order; such order is to be based exclusively upon the record as a whole, including facts of which official notice has been taken.

   (3) The Bureau files the order of the Comptroller and serves a notice of filing, with copy of the order, on every party.

Chapter 4: Hospital Audits

§ 4-01 Final Audit Report.

(a) After the receipt of the hospital's objections to the draft audit report, or if no objections have been received within 30 days after mailing the draft audit report to the hospital, a final report shall be issued. In preparing the final audit report, the Bureau of Financial Audit (BFA) of the New York City Comptroller's Office (Comptroller) shall consider the objections, any supporting documents and materials submitted therewith, the draft audit report, and any additional material which may become available.
  1. The final audit report and/or the cover letter accompanying it shall clearly advise the hospital:

   (1) of the nature and amount of the audit findings, the basis for the action and the statutory, regulatory or other legal basis therefore;

   (2) of the action which will be taken;

   (3) that the withholding action will occur 35 days from the date of the final audit report unless an appeal is taken;

   (4) of the right to appeal the administrative action by requesting a hearing;

   (5) the name, title, address and telephone number of the BFA’s Director whom the hospital must contact to request a hearing;

   (6) that a request for a hearing must be made in writing and postmarked or delivered within 30 days of receipt of the final audit report which shall be presumed to be five days from the date of mailing; and

   (7) that the request may not address issues regarding the:

      (i) statistical sampling and extrapolation methodologies used to determine the disallowances;

      (ii) disallowances where patient account records to substantiate billings were missing at the time of the audit; or

      (iii) any issue that could have been raised, but was not, in a written response to the draft report.

§ 4-02 Request for Hearing.

(a) A hospital has the right to an administrative hearing to challenge the final audit report and may request such a hearing within 30 days of receipt of the final audit report which shall be presumed to be five days from the date of mailing.
  1. The request for hearing shall be in writing and shall be delivered or mailed to the BFA’s Director, who will forward such request to the New York City Office of Administrative Trials and Hearings (OATH) for scheduling on the calendar. It shall be accompanied by a copy of the final audit report which is to be the subject of the hearing and shall include the following additional information:

   (1) the specific item or items to which objections are made;

   (2) the factual basis for the objections; and

   (3) any legal authority for the objections.

  1. When a timely request for a hearing has been made, a hearing shall be held, except when the request has been withdrawn or abandoned by the hospital.

   (1) A request for a hearing shall be considered withdrawn only upon receipt of a written statement or by the making of a statement on the record at the hearing by the hospital or by the hospital’s attorney or representative.

   (2) A request for a hearing shall be considered abandoned if, without good cause, neither the hospital nor the hospital’s attorney or representative appears at the time and place designated for the hearing.

  1. Upon receipt of a request for a hearing, the BFA’s Director shall:

   (1) have OATH designate an Administrative Law Judge to hear, report and recommend; and establish a time and place for such hearing;

   (2) notify the hospital of the time and place of such hearing at least 15 days before the commencement of the hearing;

   (3) include in a notice of hearing a statement:

      (i) of those issues which are controverted and to be determined at the hearing;

      (ii) of the legal authority and jurisdiction under which the hearing is to be held, and a reference to the particular sections of the law and rules involved;

      (iii) of the hospital’s right to be represented by an attorney or other representative, to cross-examination, to present evidence and produce witnesses on the hospital’s own behalf; and

      (iv) that the burden of proof at the hearing shall be on the hospital.

§ 4-03 The Hearing Officer.

The hearing shall be conducted by an Administrative Law Judge employed by OATH for that purpose. The judge shall have all the powers conferred by law to administer oaths, issue subpoenas, require the attendance of witnesses and production of records, rule upon requests for adjournment, rule upon evidentiary matters and to otherwise regulate the hearing, observe requirements of due process and effectuate the purposes and provisions of applicable law.

§ 4-04 Authorization of Representative.

An individual, other than an attorney, representing the hospital, shall have written authorization signed by an officer or director of the hospital.

§ 4-05 Conduct of Hearings; Rights of Hospital.

(a) The judge shall preside over the hearing, make all procedural rulings, and make a statement on the record describing the nature of the proceedings, the issues, and the manner in which the hearing will be conducted.
  1. The issues and documentation presented at the hearing shall be limited to issues relating to determinations made in the final audit report. A hospital may not raise issues regarding the:

   (1) statistical sampling and extrapolation methodologies used to determine the disallowances;

   (2) disallowances where patient account records to substantiate billings were missing at the time of the audit; or

   (3) any issue that could have been raised, but was not, in a written response to the draft report.

  1. The rules of evidence observed by a court of law need not apply.
  2. Computer-generated documents prepared by the New York State Department of Social Services (NYSDSS) or its fiscal agent to show the nature and amount of payments made under the Medicaid program shall be presumed, in the absence of evidence to the contrary, to constitute an accurate reflection of NYSDSS’ records as to the amount and type of payment made to a hospital as well as the basis for such payment.
  3. An extrapolation based upon a Comptroller’s Office audit utilizing a valid statistical sampling method shall be presumed, in the absence of evidence to the contrary, to be accurate.
  4. An audit report of the Comptroller’s Office shall be presumed to be correct and the burden of proof shall be upon the hospital to show by a preponderance of the evidence that any item of such report is incorrect.
  5. All testimony shall be given under oath or affirmation administered by the judge.
  6. The hospital shall be entitled to be represented, to have witnesses give testimony and to otherwise present relevant and material evidence on the hospital’s behalf, to cross-examine witnesses and to examine any document or other item offered into evidence.
  7. A typed or recorded copy of the record of the hearing will be prepared by OATH; a copy shall be provided upon request for a reasonable cost.
  8. At the discretion of the judge, the hearing may be adjourned for good cause upon the request of either party or upon the judge’s own motion.
  9. The hearing shall be conducted in conformity with procedural requirements of applicable law and the rules of procedure adopted by OATH which are not inconsistent with these rules.
  10. After the conclusion of the hearing, the presiding Administrative Law Judge will prepare a report and recommendation.
  11. The report will summarize the evidence presented and contain an analysis of the legal and factual issues, with recommended findings of fact and recommended dis- position.
  12. The report will be sent to the Comptroller for a final decision.
  13. A copy of the report will also be delivered or mailed to the hospital.

§ 4-06 Decision After Hearing.

(a) The hearing decision shall be made and issued by the Comptroller and shall be based exclusively on the record and transcript of the hearing. In reaching a decision, the Comptroller may review the memoranda of law of the parties, if any. The Comptroller shall not be bound by the judge's recommendation but may adopt, reject or modify such recommendation, in whole or in part, as may be appropriate. The decision shall be in writing and shall state reasons for the determinations and, when appropriate, direct specific action.
  1. A copy of such decision shall be mailed by the Comptroller to the hospital and the hospital’s attorney or representative, if any, and to NYSDSS.
  2. In the event that a decision is adverse to the hospital, in whole or in part, the hospital has the right to judicial review in accordance with the provisions of Article 78 of the Civil Practice Law and Rules.

§ 4-07 Recoupment of Overpayments.

Upon determination that overpayments have been made, the BFA shall transmit a “Withholding Request for Provider Recoupment Initiated by the Local District” to NYSDSS. NYSDSS’ fiscal agent shall recover overpayments by withholding against the hospital’s current or future payments on claims submitted or a percentage of payments otherwise payable on such claims, at the option of NYSDSS. Such withholding may be made at any time after the issuance of a decision after hearing or, if a hearing has not been requested in accordance with this chapter, at any time after expiration of the time period allowed (30 days) for the making of such request.

Chapter 5: Rules For Petitioning

§ 5-01 Scope.

These Rules and Regulations shall govern the procedures by which the public may submit petitions for rulemaking to the Comptroller pursuant to § 1043(f) of the New York City Charter (City Administrative Procedures Act).

§ 5-02 Definitions.

Person. “Person” shall mean an individual, partnership, corporation or other legal entity, and any individual or entity acting in a fiduciary or representative capacity.

Petition. “Petition” shall mean a request or application for any agency to adopt a rule.

Petitioner. “Petitioner” shall mean the person who files a petition.

Rule. “Rule” shall have the meaning set forth in § 1041(5) of the City Administrative Procedure Act and shall mean generally any statement or communication of general applicability that

  1. implements or applies law or policy or
  2. prescribes the procedural requirements of an agency, including an amendment, suspension, or repeal of any such statement or communication.

§ 5-03 Procedures for Submitting Petitions; Responses to Petitions.

(a) Any person may petition the Comptroller to consider the adoption of a rule. The petition must contain the following information:

   (1) The rule to be considered, with proposed language for adoption;

   (2) A statement of the Comptroller’s authority to promulgate the rule and its purpose; (3) Petitioner’s argument(s) in support of adoption of the rule;

   (4) The period of time the rule should be in effect;

   (5) The name, address and telephone number of the petitioner or his or her authorized representative;

   (6) The signature of petitioner or his or her representative.

  1. Any change in the information provided pursuant 44 RCNY § 5-03(a)(5) must be communicated promptly in writing to the Comptroller.
  2. All petitions should be typewritten, if possible, but handwritten petitions will be accepted, provided they are legible.
  3. The petition shall be filed in duplicate on plain white paper.
  4. Petitions shall be mailed or delivered to the agency’s Deputy General Counsel, Sue Ellen Dodell, at 1 Centre Street, Room 518, New York, NY 10007.
  5. Upon receipt of a petition submitted in the proper form, the Deputy General Counsel will stamp the petition with the date it was received and will assign the petition a number.
  6. Within sixty days from the date the petition was received by the Comptroller, the Comptroller shall either deny such petition in a written statement containing the reasons for denial, or shall state in writing the Comptroller’s intention to grant the petition and to initiate rulemaking by a specified date. In proceeding with such rulemaking, the Comptroller shall not be bound by the language proposed by petitioner, but may amend or modify such proposed language at the Comptroller’s discretion. The Comptroller’s decision to grant or deny a petition is final.

§ 5-04 Public Notice; Promulgation of Rules and Regulations.

(a) The Comptroller shall publicize by posting in a conspicuous location:

   (1) these procedures for submitting petitions for rulemaking and

   (2) the name, title, business address and telephone number of the officer designated to receive petitions, who shall be Sue Ellen Dodell, Deputy General Counsel, 1 Centre Street, Room 518, New York, NY 10007, (212) 669-7778.

  1. The Comptroller shall forthwith submit for publication in The City Record notice of the name, title, business address and telephone number of the officer designated to receive petitions. Notice of any change in the above information shall be published as soon as practicable in The City Record. Such notice shall not constitute a rule as defined in the City Charter, § 1041, subd. 5.

§ 5-05 Severability.

If any provision of these Rules and Regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of these Rules and Regulations or the application thereof to other persons and circumstances.