Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
This complimentary event is designed for government leaders and technology professionals who are responsible for delivering secure, efficient, and citizen-focused digital services. From cybersecurity and AI to data governance and digital service delivery, sessions are built to spark insight, encourage collaboration, and support real-world implementation.
|
For registration assistance, contact: |
The New York State Department of Civil Service posted the following notice on the Internet on July 8, 2026.
Supplemental Military Leave Benefits
I.D. No. CVS-14-26-00017-A Filing No. 563 Filing Date: 2026-06-23 Effective Date: 2026-07-08
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of Sections 21.15 and 28-1.17 of Title 4 NYCRR.
Statutory authority: Civil Service Law, section 6(1)
Subject: Supplemental military leave benefits.
Purpose: To extend the availability of supplemental military leave benefits for certain New York State employees until December 31, 2026.
The text or summary was published in the April 8, 2026 issue of the Register, I.D. No. CVS-14-26-00017-P.
Final rule as compared with last published rule: No changes.
Text of rule and any required statements and analyses may be obtained from:
Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov
Assessment of Public Comment The agency received no public comment.
In February 2020, Respondent entered a New York City police station, drew a gun and opened fire, wounding a police lieutenant. Respondent pleaded guilty to two counts of attempted murder in the first degree and was sentenced to concurrent prison terms of 23 years to life.
In December 2023, the New York City Comptroller notified the New York State Office of Victim Services [Victim Services] which was acting on behalf of a police officer [PO] who was on duty in the police station during Respondent's attack that Respondent was to receive a settlement of $189,300 in connection with a class action. Victim Services relayed that information to PO and PO told Victim Services of PO's intent to commence a civil action against Respondent to recover damages for psychological and emotional injuries PO sustained as a result of Respondent's crime.
Victim Services, acting on PO's behalf, then commenced a proceeding pursuant to Executive Law §632-a, commonly known as the Son of Sam Law, seeking a preliminary injunction to preserve the settlement funds. Supreme Court initially granted Victim Services' request for a temporary restraining order freezing those funds until joinder of issue. Following a hearing at which Respondent appeared pro se, Supreme Court determined that PO was not a "crime victim" within the meaning of Executive Law §632-a (1) (d) because PO did not satisfy the definition of "victim" in Executive Law §621 (5), which, as relevant here, encompasses "a person who suffers personal physical injury as a direct result of a crime" (Executive Law §621 [5] [a]) and dismissed Victim Services' petition and vacated the temporary restraining order. Victim Services appealed.
The Appellate Division reversed the Supreme Court's ruling, observing that "Executive Law §632-a sets forth a statutory scheme intended to improve the ability of crime victims to obtain full and just compensation from the person(s) convicted of the crime by allowing crime victims or their representatives to sue the convicted criminals who harmed them when the criminals receive substantial sums of money from virtually any source and protecting those funds while litigation is pending" and a "[c]rime" is, as relevant here, is "any felony defined in the laws of the state" (see Executive Law §632-a [1] [a] [i]), and a "[c]rime victim" is "the victim of a crime" (see Executive Law § 632-a [1] [d] [i]), a phrase that "includes the subject of the felonious conduct".
Explaining that Executive Law §621 "govern[s] the general powers of [Victim Services]" and provides that its definitions apply throughout Executive Law Article 22 — of which Executive Law §632-a is a part", the Appellate Division said that "The issue is therefore whether Executive Law §632-a's definition of 'crime victim' incorporates Executive Law §621's definition of 'victim' or replaces it" The Appellate Division then observed that "It is well settled that, when interpreting a statute, [courts] attempt to effectuate the intent of the Legislature and the starting point for discerning such intent is the language of the statute, citing Matter of New York State Crime Victims Bd. v Gordon, 66 AD3d 1213, and other New York State Court decisions.
The Appellate Division's decision observes that the structure and language of Executive Law § 632-a (1) (d) demonstrate that its reference to "the victim of a crime" does not incorporate the definition of "victim" in Executive Law § 621 (5). Where the Legislature intended to incorporate a definition from Executive Law § 621, it did so by explicit cross-reference. Thus, in addition to "the victim of a crime" (Executive Law § 632-a [1] [d] [i]), a "crime victim" under the Son of Sam Law includes "the representative of a crime victim as defined in [Executive Law §621(6)]" and "a good samaritan as defined in [Executive Law § 621(7)]". The absence of a comparable cross-reference to Executive Law §621 (5)'s definition of "victim" must be regarded as deliberate (see People v Finnegan, 85 NY2d 53, 59 [1995], cert denied 516 US 919 [1995]). It follows that "the victim of a crime" under Executive Law § 632-a (1) (d) (i) is not confined to persons who suffer physical injury (see Executive Law § 621 [5] [a]; cf. Matter of New York State Off. of Victim Servs. v Mobayed, 245 AD3d 1085). Applying the statute as written, the Appellate Division concluded that PO is a "crime victim" pursuant to Executive Law § 632-a.
Turning to Victim Services' application for a preliminary injunction freezing Respondent's settlement funds, the Appellate Division opined that Victim Services satisfied each of prongs of the appropriate test: A probability of success on the merits; PO's additional details of Respondent's conduct and PO's resulting losses and injuries; and the risk of irreparable injury without provisional relief is manifest, as dissipation of the settlement funds would bar any recovery by PO and potentially other injured victims of Respondent's crime.
The Appellate Division then observed that 10% of Respondent's settlement — $18,930 — is statutorily exempt from restraint and considering the policy objectives of the Son of Sam Law, the balance of equities favor Victim Services and remitted the matter to Supreme Court to issue an appropriate preliminary injunction.
Click HERE to access the Appellate Division's decision posted on the Internet.
In what could be subtitled "a judicial autopsy of an administrative decision", the text of the Appellate Division's decision in the instant matter is set out below:
In the Matter of National Seating & Mobility, Inc., Petitioner,
v
New York State Office of Medicaid Inspector General et al., Respondents.
Decided and Entered: July 2, 2026
CV-25-0551
Calendar Date: May 26, 2026
Before: Reynolds Fitzgerald, J.P., Ceresia, Mcshan, Mackey And Ryba, JJ.
Benesch Friedlander Coplan & Aronoff LLP, New York City (Mark J. Silberman of Benesch Friedlander Coplan & Aronoff LLP, Chicago, Illinois, of counsel, admitted pro hac vice), for petitioner.
Letitia James, Attorney General, Albany (Kate H. Nepveu of counsel), for respondents.
Ceresia, J.
Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent Office of the Medicaid Inspector General to obtain reimbursement for certain Medicaid payments made to petitioner.
Petitioner provides customized wheelchairs and related durable medical equipment (hereinafter DME) to individuals, including Medicaid recipients. Respondent Office of the Medicaid Inspector General (hereinafter OMIG) is an independent office within respondent Department of Health (hereinafter DOH) responsible for "detecting and combating Medicaid fraud and abuse and maximiz[ing] the recoupment of improper Medicaid payments" (Public Health Law § 30). In December 2020, OMIG notified petitioner that it would be conducting an audit of a random sample of 160 Medicaid claims petitioner submitted in calendar years 2015 through 2017 (hereinafter the audit period). During the audit period, petitioner had filed 1,586 claims totaling $388,829. OMIG performed a review of the 160 sample claims and then issued a draft audit report identifying, as relevant here, 110 claims with inadequate supporting documentation. More particularly, OMIG found that for these claims, petitioner had failed to obtain original signed orders from Medicaid recipients' medical providers as required by New York's Medicaid Durable Medical Equipment Manual: Policy Guidelines (hereinafter the DME policy guidelines). Using statistical sampling methodology, OMIG extrapolated the sample findings to the total number of claims and determined that petitioner had received overpayments in the amount of $270,804. In response to the draft audit report, petitioner raised several objections and provided additional documents. OMIG thereafter issued a final audit report, adhering to its prior conclusions and offering a settlement amount of $251,393. After an administrative hearing held at petitioner's request, an Administrative Law Judge (hereinafter ALJ) upheld OMIG's disallowances and total overpayment calculation. Petitioner then commenced the instant proceeding, and Supreme Court transferred it to this Court (see CPLR 7804 [g]).
We confirm. First, as to petitioner's argument that OMIG improperly enforced the DME policy guidelines without promulgating them under the rulemaking requirements of the State Administrative Procedure Act (hereinafter SAPA), this contention is unpreserved for our review because it was not raised at the hearing (see Matter of Woojin Cho v New York State Dept. of Health, Bd. of Professional Med. Conduct, 243 AD3d 1049, 1050-1051 [3d Dept 2025]; Matter of Rispoli v DiNapoli, 180 AD3d 1127, 1128 [3d Dept 2020]). Instead, it was improperly presented for the first time in petitioner's reply brief (see Matter of Maidenbaum & Sternberg, LLP v New York State Dept. of Taxation & Fin., 243 AD3d 1054, 1056 [3d Dept 2025]; Uzamere v State of New York, 240 AD3d 1020, 1021 [3d Dept 2025]). Even if this were not the case, we would find the claim to be lacking in merit. "[S]pecifically exempted from the definition of a rule under [SAPA] are 'forms and instructions, interpretive statements and statements of general policy which in themselves have no legal effect but are merely explanatory' " (Matter of North Shore Hematology-Oncology Assoc., P.C. v New York State Dept. of Health, 240 AD3d 42, 45 [3d Dept 2025], lv denied 44 NY3d 904 [2025], quoting State Administrative Procedure Act § 102 [2] [b] [iv]; see Mrijaj v Genting N.Y. LLC, 235 AD3d 558, 559 [1st Dept 2025], appeal dismissed 43 NY3d 1001 [2025]). In this instance, the relevant section of the DME policy guidelines is an interpretive statement that serves to explain a regulation. That is, petitioner was obligated by regulation to retain each "written order" or "fiscal order" issued by a medical provider (18 NYCRR 505.5 [a] [8]), terms that are defined in the regulation, and the DME policy guidelines explain the various kinds of documents that are acceptable to meet this definition. Critically, a guideline or directive is not a rule subject to SAPA when it "merely address[es] the type of documentation needed to establish whether a predetermined test of eligibility for approval has been met" (Matter of Brightonian Nursing Home, Inc. v Zucker, 212 AD3d 162, 167 [3d Dept 2023] [internal quotation marks, brackets and citation omitted], appeal dismissed 39 NY3d 1144 [2023]), as is the case here.
Turning to the merits, "[i]n reviewing a Medicaid eligibility determination rendered after a hearing, this Court must review the record, as a whole, to determine if the agency's decisions are supported by substantial evidence and are not affected by an error of law" (Matter of Krooks v Delaney, 203 AD3d 1292, 1294 [3d Dept 2022] [internal quotation marks and citations omitted]; see CPLR 7803 [4]). "Substantial evidence is a minimal standard that requires less than the preponderance of the evidence and demands only the existence of a rational basis in the record as a whole to support the findings upon which the determination is based" (Matter of Cooperstown Ctr. for Rehabilitation & Nursing v New York State Dept. of Health, 225 AD3d 1045, 1047 [3d Dept 2024] [internal quotation marks and citations omitted]; see Matter of Dunkez Private Home Care, Inc. v McDonald, 243 AD3d 986, 988 [3d Dept 2025]). "If substantial evidence is present in the record, this Court cannot substitute its own judgment for that of the respondent, even if a contrary result is viable" (Matter of Shanahan v Justice Ctr. for the Protection of People with Special Needs, 198 AD3d 1157, 1158 [3d Dept 2021] [internal quotation marks and citations omitted]; see Matter of P.C. v Stony Brook Univ., 43 NY3d 574, 581 [2025]).
Pertinent here, a provider "contesting the findings of an OMIG audit . . . has the burden of demonstrating 'that all claims submitted and denied were due and payable under the Medicaid program' " (Matter of Wegman v New York State Dept. of Health, 229 AD3d 862, 864 [3d Dept 2024] [brackets omitted], quoting 18 NYCRR 519.18 [d] [1]; see Matter of Atlanticare Mgt., LLC v Ives, 212 AD3d 132, 137 [3d Dept 2022], lv denied 40 NY3d 902 [2023]). In that regard, the provider must agree "to comply with the rules, regulations and official directives" of DOH (18 NYCRR 504.3 [i]) and "to prepare and . . . maintain contemporaneous records demonstrating its right to receive payment under the" program (18 NYCRR 504.3 [a]). As mentioned above, petitioner was required to retain each "written order" or "fiscal order" issued by a medical provider, terms that are "used interchangeably" and defined to mean "any original, signed written order of a practitioner which requests [DME]" (18 NYCRR 505.5 [a] [8]; see 18 NYCRR 517.3 [b] [1]). Under the DME policy guidelines in place during the audit period, a "fiscal order" was acceptable if it was "a signed written order, or electronically transmitted fiscal order." Where a "signed written order" was not written on an official, serialized prescription form, but was instead telephoned or faxed, the DME provider was then responsible for "obtain[ing] the original signed fiscal order from the ordering practitioner within 30 calendar days." By contrast, an "electronically transmitted fiscal order" was one that "originate[d] from the practitioner's computer and [was] directly transmitted to the ... DME provider's computer or fax."
At the hearing, OMIG presented evidence including the orders examined under the audit, as well as testimony pertaining to OMIG's evaluation and ultimate disqualification of 110 of said orders. According to hearing testimony by an auditor with OMIG, these 110 orders constituted "signed written orders" that bore practitioners' signatures. However, none were written on a serialized prescription pad. Instead, OMIG determined that in each instance, a proposed order was sent via fax from petitioner to a practitioner, who then physically signed the order before faxing it back to petitioner. Therefore, OMIG concluded, and the ALJ agreed, that petitioner was required to obtain the original order from the practitioner containing a "wet signature," or one written in ink within 30 days, but it failed to do so at any point. Petitioner did not argue that it had produced any original orders bearing wet signatures, but instead contended that this was not required because the orders in question constituted "electronically transmitted fiscal orders" in that they were sent from the practitioners to petitioner via an "email to fax" system, whereby the practitioner would send the signed order by email to petitioner's fax number. The ALJ rejected this contention, noting that even if petitioner had presented any evidence to support this assertion which it did not petitioner had failed to adequately explain how the orders could be said to have originated from the practitioner's computer, as required to constitute an "electronically transmitted fiscal order." Having reviewed the hearing proof including the orders at issue, it is plain that petitioner failed to comply with the DME policy guidelines and, resultingly, substantial evidence supports the ALJ's determination that the Medicaid payments pertaining to these orders were not authorized (see Matter of Wegman v New York State Dept. of Health, 229 AD3d at 864-865; Matter of Fast Help Ambulette, Inc. v New York State Dept of Health, 198 AD3d 756, 759-760 [2d Dept 2021]; Matter of Gignac v Paterson, 70 AD3d 1310, 1311-1312 [4th Dept 2010], lv denied 14 NY3d 714 [2010]).
Nevertheless, petitioner also challenges the determination based upon a change in the DME policy guidelines. Specifically, petitioner points out that, beginning with the 2021 version of the guidelines, DOH indicated that a "signed written order" could now include a legible, validated facsimile of an original signed order and that, in such case, the original order with the wet signature would no longer be required. While not disputing that this change occurred after the audit period and did not apply to the orders in this case, petitioner claims that the policy change reveals that reliance upon the previous version of the guidelines was arbitrary and capricious. We disagree. In keeping with the goal of Medicaid fraud prevention, both the earlier and the later versions of the guidelines implemented certain safeguards pertaining to the use of faxed orders. While the earlier guidelines achieved that goal by requiring the original order with wet signature, the later guidelines removed that condition but added requirements that the fax be legible and that the provider take certain steps to validate the order and the practitioner's identity. Neither version of the guidelines, in our view, is arbitrary or capricious, and the fact remains that petitioner did not meet the guidelines that were in place during the audit period.
Finally, we are unpersuaded by petitioner's assertion that it was unfairly subjected to a "penalty" of full reimbursement of the Medicaid overpayments despite the fact that all of the DME underlying the orders was actually provided to Medicaid recipients. "[P]etitioner's reimbursement of the unauthorized payments is not a sanction or penalty, but merely a remedy in the nature of recoupment" (Matter of A.R.E.B.A. Casriel v Novello, 298 AD2d 134, 135 [1st Dept 2002], lv denied 100 NY2d 506 [2003]; accord Matter of Harry's Nurses Registry, Inc. v New York State Off. of Medicaid Inspector Gen. [OMIG], 236 AD3d 1338, 1340 [4th Dept 2025]; see 18 NYCRR 516.3 [a] [1]). This is because "[a] Medicaid provider is liable for reimbursement of any overpayment . . . and an overpayment 'includes any amount not authorized to be paid under the medical assistance program' " (Matter of A.R.E.B.A. Casriel v Novello, 298 AD2d at 135, quoting 18 NYCRR 518.1 [c]; see Matter of Gignac v Paterson, 70 AD3d at 1312). Where, as here, a provider engages in "unacceptable practices" (18 NYCRR 518.1 [c]), defined to include "[u]nacceptable recordkeeping" (18 NYCRR 515.2 [b] [6]), OMIG "may require repayment of the amount determined to have been overpaid" (18 NYCRR 518.1 [b]). Therefore, petitioner's argument that full recoupment is improper because it is shocking to one's sense of fairness is misplaced, as that standard applies in situations where the agency has imposed a penalty (see e.g. Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Rensselaer County Dept. of Social Servs. v McDonald, 244 AD3d 1444, 1450 [3d Dept 2025]). Petitioner's remaining contention concerning a purported due process violation has been considered and found to be lacking in merit.
Reynolds Fitzgerald, J.P., McShan, Mackey and Ryba, JJ., concur.
ADJUDGED that the determination is confirmed, without costs, and petition dismissed.
Click HERE to access the decision of the Appellate Division posted on the Internet.
On June 26, 2026, New York State Comptroller Thomas P. DiNapoli, Orleans County District Attorney Susan M. Howard and New York State Police Superintendent Steven G. James announced that the former president of the Clarendon Historical Society, Melissa M. Ierlan, pleaded guilty to a felony for stealing over $62,000 from the non-profit and will pay $62,000 in restitution. She also previously held positions as the town historian, the code inspector for the Town of Clarendon and the code enforcer for the towns of Byron and Murray.
The Clarendon Historical Society, which receives town funding, operates and manages two buildings as a museum, housing local artifacts and displays.
“Ierlan exploited her role in preserving the town’s rich history to instead enrich herself,” DiNapoli said. “As part of her plea agreement, she now has to return the money she stole. My thanks to D.A. Howard and the New York State Police for their partnership on this case.”
“We will not tolerate the conduct of those who use their position to steal money meant to enrich the community and the lives of others. It is disreputable for any entrusted individual to take advantage of others, especially in this manner. The State Police will continue to assist the Comptroller’s Office and Orleans County District Attorney’s Office in investigating and apprehending anyone willing to engage in dishonest acts,” James said.
A joint investigation by DiNapoli’s office and the New York State Police determined that Ierlan, who had been president and financial controller from 2020-2025, had unchecked control of the society’s accounts, which enabled her to embezzle more than $62,000 from July 2020 to September 2025. Ierlan made numerous personal purchases and payments with the society’s debit card and checkbook, withdrew thousands of dollars in cash in person at the bank branch and at the ATM. She also made payments to her personal credit card with society funds.
Ierlan also fraudulently reimbursed herself for the purchase of a fiberglass ox statue for the “Oxen of Orleans” Public Art Project. Ierlan purchased the ox with her own personal funds and was reimbursed by the Town of Clarendon with federal American Rescue Plan Act funds. She then issued herself a second reimbursement with society funds. Ierlan also used society funds to purchase a shipping container for personal use, deposited society donations into her personal bank account, and transferred society funds to a deceased relative’s estate account of which she was the executor.
Ierlan pleaded guilty to grand larceny in the fourth degree before Judge Sanford Church in Orleans County Court. Her sentencing is scheduled for Aug. 26.
Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by emailing a complaint to investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.