Removing a tenured State or municipal employee alleged to have abandonment the position from service

New York State Civil Service Rule 4 NYCRR 5.3(d), since repealed, permitted the appointing authority of a State department or agency employee to terminate a tenured employee in the Classified Service absent for a period of ten or more days without an explanation by deeming the employee to have resigned from his or her position. Many local commissions had adopted a similar rule or regulation. In Bernstein v Industrial Commissioner, 59 AD2d 678, the Appellate Division held that so terminating such a tenured employee under color of 4 NYCRR 5.3(d) violated the employee's right to administrative due process. 

Notwithstanding the Bernstein decision, such a provision has survived in collective bargaining agreements negotiated pursuant to Article 14 of the Civil Service Law, the so-called "Taylor Law", with respect to tenured employees in the Classified Service. For example, in Schacht v City of New York, 39 NY2d 28, the Court of Appeals noted that the relevant collective bargaining agreement expressly provided that the unauthorized absence of a tenured employee in the Classified Service for 10 consecutive workdays could be deemed to constitute a resignation by the appointing authority.

In Ciccarelli v West Seneca Central School District, 107 AD2d 105, a tenured teacher* challenged a Board of Education’s resolution terminating her from her position based on its finding that she had abandoned her position. Tracking Bernstein, the Appellate Division the court explained that the burden of proving that the educator had abandoned her tenured teaching position was upon the appointing authority and must be supported  "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, opined the court, a tenured teacher may be terminated only in accordance with the disciplinary procedures set out in §3020-a of the Education Law.

* Teachers serve in positions in the Unclassified Service.

The finding of an unwarranted invasion of privacy an exception to disclosure of medical records pursuant to New York State's Freedom of Information Law

In this appeal the Appellate Division held that Supreme Court had properly determined that an exception to New York State's Freedom of Information Law [FOIL] disclosure requirements for "an unwarranted invasion of privacy", applied to the medical records of Petitioner's murder victim, citing Public Officers Law §87[2][b] and Newton v District Attorney of Bronx County, 186 AD2d 57,

In addition, the Appellate Division held that "Autopsy records concerning the Petitioner's victim were also exempt from disclosure," citing Public Officers Law §87[2][a]; the New York City Charter §557[g]; and Mitchell v Borakove, 225 AD2d 435, [appeal dismissed 88 NY2d 919.

Addressing the Respondent's denial of access to graphic photographs of the victim of the murder pursuant to Public Officers Law §87(2)(b), the Appellate Division opined that Petitioner "failed to articulate any public interest in disclosure of these photographs which would require the court to balance the public's interest in disclosure against the victim and her family's privacy rights", citing Matter of New York Times Co. v City of N.Y. Fire Dept., 4 NY3d 477, and Matter of Edwards v New York State Police, 44 AD3d 1216.

Click HERE to access the opinion of the Appellate Division posted on the Internet.

Retired county police officer alleged to have taken unlawful pension benefits from the New York State and Local Retirement System

On February 7, 2023, New York State Comptroller Thomas P. DiNapoli and Ulster County District Attorney David J. Clegg announced the indictment* of a former Ulster County BOCES criminal justice instructor, a retired Westchester County Police Officer. The retired police officer allegedly stole over $163,000 from the New York State and Local Retirement System (NYSLRS) by taking unlawful pension payments and forging a required certificate purportedly issued by the State Education Department (SED).

“The defendant allegedly submitted forged documents to scam the New York state retirement system,” DiNapoli said. “He will now face the consequences of his actions. Safeguarding the New York State and Local Retirement System and maintaining its integrity are priorities for my office. I thank District Attorney Clegg, the State Education Department and the State Police for their partnership in holding accountable those who think they can swindle the pension system.”

After retiring from the Westchester Police Department in 2005, Anthony Sciacca was hired as an instructor at Ulster County BOCES teaching criminal justice and earning a salary of over $70,000. As a retiree under the age of 65 at the time, without a waiver, Sciacca was not allowed to earn more than $30,000 annually in other New York State public employment while continuing to receive his full NYSLRS pension benefit.**

The joint investigation revealed that while Sciacca had a lawful waiver from Sept.1, 2005 through June 30, 2011, he did not have a lawful waiver for the next eight years. However, he continued to earn his Ulster County BOCES public salary in excess of $70,000 on top of receiving his monthly NYSLRS pension payments.

When the NYSLRS discovered that Sciacca’s income was over the limit and that it had no waivers on file, Sciacca’s pension was suspended, and he was asked to provide copies of any waivers he had been granted. In response to NYSLRS’ inquiry, Sciacca allegedly supplied the retirement system with falsified documents. These documents stated that his waivers had been approved.

The investigation revealed that these documents were fraudulent, and that no such waivers had been obtained. Through his scheme, Sciacca was able to collect over $163,000 in NYSLRS pension payments to which he was not entitled.

DiNapoli’s investigation was spurred by SED’s examination of Sciacca’s credentials. During this review, SED also discovered that Sciacca had allegedly forged a document to show that he had received a “Security Operations, Professional Certificate,” which was a requirement of his continued BOCES employment. 

Sciacca was arraigned in Ulster County Criminal Court before Judge Bryan E. Rounds on Feb. 6, 2023, and is due back in court on Feb. 22, 2023. He was charged with Scheme to Defraud, Grand Larceny, Defrauding the Government, four counts of Forgery, two counts of Offering a False Instrument for Filing, two counts of Falsifying a Business Record and Retirement Fraud. Ulster County Assistant District Attorney Felicia S. Raphael, chief of the Financial & Cyber Crimes Bureau, is prosecuting the case.

The charges add to those first brought against him when he was arrested on July 14, 2022, which then included Grand Larceny, three counts of Forgery, three counts of Filing a False Instrument, three counts of Falsifying Business Records and one count of retirement fraud.

* The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

** See, generally, Article 7 of the Retirement and Social Security Law, which addresses the reemployment of retired public employees of the State of New York in the public service in the State of New York.

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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 filing a complaint online at https://www.osc.state.ny.us/investigations, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Employer's motion to confirm an arbitration award granted

The Appellate Division affirmed Supreme Court's denial of the Respondent union's cross motion to vacate the arbitration award, explaining courts lacks the authority, to "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator [, even if] it believes its interpretation would be the better one"*, citing Matter of United Fedn. of Teachers, Local 2, AFT, AFL—CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72.

Noting the ruling in Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [cert.  dismissed 548 US 940], the Appellate Division said "It is well settled that judicial review of arbitration awards is extremely limited", although "CPLR 7511(b)(1)(iii) permits vacatur of an award where ... the arbitrator exceeds his or her power."

The Appellate Division then observed that the arbitrator exceeds his or her power where his or her award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Barone v Haskins, 193 AD3d 1388, appeal dismissed 37 NY3d 1032, lv denied 37 NY3d 919 [see Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332].

The Appellate Division opined that in the instant matter "the arbitrator merely interpreted and applied the provisions of the relevant collective bargaining agreement (CBA), as she had the authority to do," citing Lackawanna Professional Fire Fighters Assn., Local 3166, IAFF, AFL-CIO, 156 AD3d at 1408, and that the court was "powerless to set aside that interpretation even if we disagree with it...."

* The Appellate Division indicated that the plain language of the Collective Bargaining Agreement [CBA] supported the arbitrator's interpretation of the CBA.

Click HERE to access the Appellate Division's decision posted on the Internet.

Compelling disclosure of records pursuant the New York State's Freedom of Information Law

 

Matter of Puig v New York State Police

2023 NY Slip Op 00258

Decided on January 19, 2023

Appellate Division, Third Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered:January 19, 2023

534648

[*1]In the Matter of Kenneth Puig, Appellant,

v

New York State Police et al., Respondents.

Calendar Date:December 15, 2022
Before:Garry, P.J., Lynch, Aarons, Reynolds Fitzgerald and Ceresia, JJ.

Law Offices of Cory H. Morris, Melville (Cory H. Morris of counsel), for appellant.

Letitia James, Attorney General, Albany (Laura Etlinger of counsel), for respondents.

 

Ceresia, J.

Appeal from a judgment of the Supreme Court (Catherine E. Leahy Scott, J.), entered November 17, 2021 in Albany County, which dismissed petitioner's application, in a proceeding pursuant to CPLR article 78, to review a determination of respondent New York State Police denying petitioner's Freedom of Information Law request.

Following the repeal of Civil Rights Law § 50-a (see L 2020, ch 96, § 1) — which formerly shielded law enforcement personnel records from inspection or review without a court order— petitioner, an attorney, made a Freedom of Information Law (hereinafter FOIL) request for, among other things, copies of all disciplinary records of any state trooper who had been disciplined. Respondent New York State Police (hereinafter respondent) denied the request on the ground that it failed to reasonably describe the records sought and was exceedingly broad. Specifically, respondent stated that it had employed thousands of individuals throughout its history and noted that disciplinary records are maintained by individual employee, such that a search of every employee's file would constitute a monumental task. Petitioner sent respondent a letter administratively appealing this determination and, within that letter, modified his request, indicating that he was only seeking disciplinary records of active troopers assigned to the Counties of Orange, Dutchess and Ulster. In response to the administrative appeal, respondent affirmed the denial of the broader request but remitted the narrower, modified request to its Records Access Office for a determination. Upon remittal, that office denied petitioner's modified request on the basis that it still failed to reasonably describe the records sought, because respondent's employee files, in which disciplinary records are kept, cannot be searched by county of assignment. Petitioner administratively appealed, and respondent failed to rule on the appeal.

Petitioner thereafter commenced this CPLR article 78 proceeding to compel disclosure of the records sought in his modified request. Petitioner also sought an order directing respondent to undergo training regarding its legal obligations under FOIL, as well as an award of counsel fees and litigation costs. Following joinder of issue, Supreme Court dismissed the petition, finding that respondent had established a valid basis to deny the modified request — namely, that it was unable to search for and locate the records sought when described by county. The court also denied the additional requested relief. Petitioner appeals.^[FN1]

It is well settled that, "[u]nder FOIL, agency records are presumptively available for public inspection" (Matter of Empire Ch. of Associated Bldrs. and Contractors, Inc. v New York State Dept. of Transportation, ___ AD3d ___, ___, 2022 NY Slip Op 06852, *1 [3d Dept 2022] [internal quotation marks and citations omitted]). While Public Officers Law § 89 (3) (a) requires that the records sought be "reasonably described," an agency denying a FOIL request for lack of a reasonable description "bears the burden to establish that the descriptions were insufficient for purposes of locating and identifying the documents sought" (Matter of Jewish Press, Inc. v New York State Police, 207 AD3d 971, 974 [3d Dept 2022] [internal quotation marks and citations omitted]; see Matter of Konigsberg v Coughlin, 68 NY2d 245, 249 [1986]). With particular respect to records that are maintained electronically, the agency must show "that the descriptions provided are insufficient for purposes of extracting or retrieving the requested document[s] from the virtual files through an electronic word search . . . [by] name or other reasonable technological effort" (Matter of Pflaum v Grattan, 116 AD3d 1103, 1104 [3d Dept 2014]; see Matter of Reclaim the Records v New York State Dept. of Health, 185 AD3d 1268, 1269 [3d Dept 2020], lv denied 36 NY3d 910 [2021]).

As noted above, in denying petitioner's modified request, respondent indicated that it was not able to conduct a search of its disciplinary records based upon a trooper's county of assignment. Thus, respondent reasoned, it would be necessary to search "every employee's individual file[], a herculean task that is not required under FOIL." Respondent elaborated upon this reasoning in its answer to the petition by submitting the sworn affidavit of an attorney assigned to assist respondent with FOIL requests, who claimed that, although respondent has the ability to "track discipline electronically [going] back to 1999," respondent "does not file, maintain or index employee records by what county they work out of. To the extent that [respondent] is an agency that services the entire State of New York, there may be instances where [m]embers of [respondent] work across county lines or in multiple counties on the same day."

Notwithstanding this position, the parties acknowledge that the three counties at issue in petitioner's modified request are served by only two of respondent's 11 troops — Troop F and Troop K. Respondent concedes that troopers are generally assigned to work in a specific troop. Thus, given that the records sought by petitioner are confined to two identifiable troops, we find that the description in petitioner's modified request was reasonable and sufficiently detailed to enable respondent to locate and identify the requested records.

However, the question of whether a request contains a reasonable description is separate from consideration as to whether the request is unduly burdensome (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d 731, 733 [2d Dept 2020]; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d 153, 162 [1st Dept 2010]). While an agency may not "evade the broad disclosure provisions of FOIL by merely asserting that compliance could potentially require the review of [a large volume] of records" (Matter of Ruberti, Girvin & Ferlazzo v New York State Div. of State Police, 218 AD2d 494, 499 [3d Dept 1996]), we note that the record concerning this issue is not sufficiently developed, in that it does not demonstrate how many troopers' files would need to be searched or the particular manner in which such a search would be conducted. Accordingly, we remit the matter to Supreme Court for a determination as to whether it would be unduly burdensome for respondent to comply with petitioner's modified request (see Matter of Jewish Press, Inc. v New York City Dept. of Educ., 183 AD3d at 733; Matter of New York Comm. for Occupational Safety & Health v Bloomberg, 72 AD3d at 162). Upon remittal, the court shall also reconsider whether petitioner is entitled to counsel fees and costs (see Public Officers Law § 89 [4] [c] [ii]).

Garry, P.J., Lynch, Aarons and Reynolds Fitzgerald, JJ., concur.

ORDERED that the judgment is modified, on the law, without costs, by reversing so much thereof as denied petitioner's modified requests for records, counsel fees and costs; matter remitted to the Supreme Court for further proceedings not inconsistent with this Court's decision; and, as so modified, affirmed.

Footnotes

Footnote 1: To the extent that petitioner now challenges the denial of his original request for all trooper disciplinary records statewide, that claim is unpreserved as it was not raised in the petition (see Matter of Urena v Mulligan, 201 AD3d 1215, 1218 [3d Dept 2022]; Marshall v City of Albany, 184 AD3d 1043, 1044 [3d Dept 2020]).

Concerning confirming or vacating an arbitration award

Noting that judicial review of arbitration awards is limited, the Appellate Division indicated an arbitration award would be vacated:

1. When the arbitrator's award is "so imperfectly executed ... that a final and definite award upon the subject matter submitted was not made"; or

2. When the arbitration award is indefinite or nonfinal for purposes of CPLR §7511 because:

            a. it does not dispose of a particular issue raised by the parties; or

            b. it leaves the parties unable to determine their rights and obligations; or

            c. it does not resolve the controversy submitted; or

            d. it creates a new controversy;

Citing Union-Endicott Cent. Sch. Dist. v Peters, 123 AD3d 1198; Matter of Rochester City School Dist. [Rochester Teachers Assn. NYSUT/AFT-AFL/CIO], 38 AD3d 1152, and Matter of Civil Serv. Empls. Assn. v County of Nassau, 305 AD2d 498, the Appellate Division explained that in this instance the arbitrator denied the contract grievance in full, resolving the stipulated issue of whether the County violated the collective bargaining agreement, and held "the Supreme Court properly confirmed the original arbitration award as it was not indefinite or nonfinal, and it completely disposed of the issue before the arbitrator."

Further, opined the Appellate Division, arbitrators are without power to render a new award or to modify an original award, except as provided in CPLR 7509" although an arbitrator may modify an award, inter alia,* where "the arbitrators have awarded upon a matter not submitted to them and the award may be corrected without affecting the merits of the decision upon the issues submitted."

*Among other things.

Click HERE to access the Appellate Division's decision posted on the Internet.

Follow-up on reports concerning school districts facing "fiscal stress"

New York State Comptroller Thomas P. DiNapoli reports school districts designated in fiscal stress dropped to record lows largely due to aid increase.

The Comptroller's office has been tracking local government and school district fiscal stress for nearly a decade through its Fiscal Stress Monitoring System and now reports that its finds that for fiscal year 2021-22 indicates only 14 school districts were designated in fiscal stress. This is the lowest number of districts in stress since the System’s inception.

Major increases in aid over the last two years from both the federal government (temporary) and the State (ongoing) have helped – particularly for many high-need districts that have struggled to avoid fiscal stress in recent years.

For more, see the Comptroller's: 

Report on Fiscal Year 2021-22 Results; and the

Lists of School Districts in Stress and all School District FSMS Scores.

Reports and fiscal stress scores for all counties, cities, towns and villages are available. For more information and for the Comptroller's most recent data, visit the Fiscal Stress Monitoring System main page.  

Characteristics of a hostile work environment for the purposes of litigating claims brought pursuant to 42 U.S.C. §1983

To prevail in a “hostile work environment” action brought pursuant to 42 U.S.C. §1983  the Plaintiff must set out claims alleging racial discrimination, retaliation, and a hostile work environment and demonstrate that his “workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of [his] employment and create an abusive working environment.”  

The Circuit Court Appeals, Second Circuit held that Plaintiff’s hostile work environment claim was based on the same conduct underpinning his racial discrimination and retaliation claims: his being given work orders to change light bulbs and, from time to time, receiving work orders for items not in need of repair. 

The Circuit Court explained that such "identified conduct falls far short of the conduct required to sustain a hostile work environment claim." The Circuit Court then affirmed the District Court’s grant of summary judgment dismissing Plaintiff’s complaint.

The District Court had dismissed Plaintiff's claims, in part, because Plaintiff failed to identify any adverse employment action. The Circuit Court, agreeing with the District Court that the Plaintiff failed to identify an adverse employment action, affirmed the lower court's ruling and opined that it "need not address any of the other grounds identified by the District Court as supporting summary judgment". 

Click HERE to access the Circuit Court's decision posted on the Internet.

Applying the Doctrine of Res Judicata

Federal district court dismissed Plaintiff's cause of action pursuant to the doctrine of res judicata. 

The U. S. Circuit Court of Appeals, Second Circuit, affirmed the lower court's ruling explaining “res judicata bars re-litigation of a claim if :

    (1) the previous action involved an adjudication on the merits; [and]

    (2) the previous action involved the same parties or those in privity with them; [and] 

    (3) the claims asserted in the subsequent action were, or could have been, raised in the prior action.”

In this instance the Plaintiff and the Defendants were parties in both this case and the prior litigation and the prior action was decided on the merits through a motion to dismiss. 

The Circuit Court also noted that Plaintiff's current claims against Defendants could have been brought in the earlier action if they were not and, accordingly, the District Court properly determined that the claims against Defendants were barred by res judicata. 

As to another claim advanced by Plaintiff, the Circuit Court observed that "defamation claims against the attorneys relating to their work in the prior lawsuit are precluded by the common law litigation privilege," citing Martirano v. Frost, 25 N.Y.2d 505. The court opined that "a courtroom statement is absolutely privileged unless it is 'so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame'”. 

Click HERE to access the Circuit Court's decision.

Report by New York State Comptroller issued January 25, 2023 identifies school districts in fiscal stress

Fourteen school districts statewide were designated in some level of fiscal stress under State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System for the school year (SY) ending on June 30, 2022, down from 23 districts in fiscal stress the prior year. This is the lowest incidence of fiscal stress recorded for schools since the system’s inception in the 2012-13 school year.

“The number of districts designated in a fiscal stress category has fallen considerably over the past three years. This year there was a particularly steep drop because of significant increases in both federal and state aid,” DiNapoli said. “High need districts in urban and suburban areas, which typically have the highest incidence of fiscal stress, received some of the largest increases in aid. However, the federal aid is temporary so school district officials may face difficult operational and staffing decisions in determining how to best provide services to their students in the future.”  

The Comptroller’s Fiscal Stress Monitoring System was designed to identify issues that school districts, counties, cities, towns and villages are having with budgetary solvency, or the ability to generate enough revenues to meet expenses. The Comptroller releases fiscal stress scores for the various categories of government three times a year. School districts are given a fiscal stress score based on several factors: year-end fund balance, operating deficits and surpluses, cash position, and reliance on short-term debt for cash-flow. The higher the score the more severe the level of stress.

The monitoring system, which excludes New York City and the “Big Four” City School Districts of Buffalo, Rochester, Syracuse and Yonkers, found one school district in “significant fiscal stress,” which is the highest category - Mount Vernon City School District in Westchester County.

Five districts were designated as being in moderate fiscal stress. Only one of these, East Ramapo Central School District in Rockland County, saw a decrease in its stress score since last year. The remaining four – Arkport Central School District (Steuben County) Harrisville Central School District (Lewis County), New Suffolk Common School District (Suffolk County), and Roscoe Central School District (Sullivan County) – had score increases.

In response to the COVID-19 pandemic, the federal government passed three major multiyear grants of aid targeted to low-income school districts. In total, school districts included in FSMS reported receiving nearly $1 billion in temporary federal aid during SY 2021-22.

DiNapoli’s report also notes many school districts also saw a substantial increase in ongoing state aid. In State Fiscal Year 2021-22 Enacted Budget, the state committed to fully funding Foundation Aid for school districts by SY 2023-24. Total state aid reported by school districts (excluding New York City and the Big Four) increased from $13.8 billion in SY 2020-21 to $15 billion in SY 2021-22, an increase of $1.1 billion, or 8.5%.

Lists [Click on text set out in color to access the data.]

School Districts in Stress for Fiscal Year Ending 2022

Complete List of School District Fiscal Stress Scores

Report

Fiscal Stress Monitoring System: School Districts Fiscal Year 2012-22 Results

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Amending the New York State Assembly maps

The Appellate Division, First Department, affirming an order entered by Supreme Court Justice Laurence L. Love which, to the extent appealed from, ordered New York State's Independent Redistricting Commission (IRC):

1. Initiate the constitutional process for amending the New York State Assembly maps;

2. Conduct public hearings consistent with Article III, §4(c) of the New York State Constitution; 

3. Make plans, data and information available for the public to view at least 30 days prior to the first public meeting; and

4. Submit to the legislature an Assembly redistricting plan or plans and implementing legislation by April 28, 2023.

This plan would be voted upon by the legislature in a single bill.

Justice Love further ordered that should either house of the legislature failed to approve the implementing legislation, or if the Governor vetoed such legislation," the IRC would, within 15 days and in no case later than June 16, 2023, prepare a second redistricting plan and implementing legislation.

In the event either the legislature failed to approve the second plan and implementing legislation, or if the Governor vetoed it, then the legislature would introduce such implementing legislation with any amendments deemed necessary.

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State Comptroller Thomas D. DiNapoli releases audits

On January 24, 2023, following audits were issued by State Comptroller DiNapoli:

Click on the text highlighted in color to access the full text of the audit report. 

 

Department of Health: Medicaid Program – Improper Payments for Brand Name Drugs  (2020-S-62)

The audit identified $1.1 million in Medicaid overpayments for brand name prescription drugs where generic drugs were available but not substituted. In addition, the audit found $1 million in potential cost avoidance associated with 27,455 Medicaid fee-for-service claims for drugs that appear to be generic but were paid using brand name pricing methods. 

 

Department of Health: Medicaid Program – Claims Processing Activity October 1, 2021 Through March 31, 2022 (2021-S-28) 

OSC’s audit of Medicaid claims processing activity identified over $22 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. About $9.9 million of the improper payments had been recovered by the end of the audit fieldwork. The audit also identified 11 Medicaid providers who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. Upon being advised of the providers, the Department removed them from the Medicaid program. 

 

New York City Health and Hospitals Corporation: Controls Over Equipment (Follow-Up) (2022-F-19)

The initial audit, issued in January 2019, determined that the New York City Health and Hospitals Corporation’s (H+H’s) controls over its inventory of equipment needed improvement, as auditors found equipment tracking problems and record-keeping issues associated with relinquished, mass-retired, transferred and repaired assets. The follow-up found that H+H made some progress in addressing the issues identified. Of the six recommendations from the initial audit, H+H implemented two and partially implemented one; three recommendations were not implemented. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by CVS Health for Pharmacy Services for Ineligible Members (Follow-Up) (2022-F-29)

The initial audit, issued in September 2021, found that nearly $30.7 million in pharmacy service claims were paid on behalf of ineligible members due to data transfer issues between the Civil Service and CVS systems and retroactive disenrollment of members. The follow-up found that Civil Service and CVS made progress addressing the issues identified in the initial audit; namely, Civil Service and CVS are working to develop a procedure for the recovery of these and future improper payments. Of the report’s six recommendations, two were implemented, three were partially implemented and one was no longer applicable. 

 

Department of Civil Service: New York State Health Insurance Program – Payments by UnitedHealthcare for Medical/Surgical Services for Ineligible Members (Follow-Up) (2022-F-30)

An audit issued in September 2021 found that United made a total of $5.7 million in improper payments for medical/surgical services on behalf of ineligible members. The follow-up found that Civil Service and United made significant progress in addressing the issues identified in the initial audit. United recovered about $500,000 of the $5.7 million in overpaid benefits originally identified, and Civil Service and United identified another $10.9 million in claims for ineligible members, of which about $4.9 million has been recovered. Of the initial report’s three audit recommendations, two were implemented and one was partially implemented. 

 

State Education Department: Oversight of Career and Technical Education Programs in New York State Schools (Follow-Up) (2022-F-17)

The initial audit, issued in December 2020, found that the department did not provide adequate oversight of CTE programs offered through the secondary school system to ensure they align with student goals and the needs of the State labor market – specifically, those occupations that are most in demand, fastest growing or highest salaried. Auditors also identified several common issues that are a deterrent to students’ enrollment in CTE and their successful completion of the program, further contributing to the lack of skilled employees in certain industries. The follow-up found that the department made limited progress in addressing the issues identified in the initial audit report. Of the initial report’s seven audit recommendations, three were implemented, one was partially implemented and three were not implemented. 

 

Department of Health: Improper Medicaid Payments for Misclassified Patient Discharges (Follow-Up) (2022-F-21)

The initial audit report, issued in August 2021, found the department did not have a process to identify and recover improper Medicaid payments for inpatient claims with incorrect patient status codes, resulting in $28 million in improper and questionable Medicaid payments for recipients who were reported as discharged from a hospital, but then admitted to a different hospital within 24 hours of the reported discharge (which often meets the definition of a transfer). The follow-up found that the department made some progress in addressing the problems identified in the initial audit report, but additional action is still required. Of the initial report’s four audit recommendations, one was implemented, two were partially implemented and one was not yet implemented.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.