Links to selected items concerning government operations posted on the Internet during the week ending July 12, 2024

A Nationwide Effort to Put More Women on the Force  Women make up only 12 percent of police officers nationwide. One initiative aims to triple that. READ MORE

 

After Supreme Court Allows Penalties for Homelessness, Not Everyone in Law Enforcement Is  applauding.  The court’s recent ruling prompted concern in some quarters that police could become the primary face of homeless response. But some chiefs worry they’re caught in the middle of societal problems they aren’t equipped to handle. READ MORE

 

AI-Powered Productivity for Your Government Workforce Empower your employees to deliver their best work from anywhere with Surface devices designed for the era of AI. DOWNLOAD THE INFOGRAPHIC »

 

All Access: Customer Experience and Accessibility Collide  From principles of human-centered design to adhering to web accessibility best practices, the new issue of Government Technology explores what it takes to make online government truly work for all residents. READ MORE

 

Amazon Web Services Makes a New Play in Public-Sector AI  Backed by $50 million worth of rewards, this new push from the cloud operator aims to spark innovation in generative AI projects. The move comes as Amazon’s AWS keeps expanding in government. READ MORE

 

America’s Biggest Education Experiment Is Happening in Houston  The changes in Houston Independent School District rival some of the most significant shake-ups to a public school system ever. Could it change schools nationwide? READ MORE

 

Beryl Only the Latest Billion-Dollar Disaster to Strike Texas This Year  People associate climate effects more with California and Florida, but Texas has seen flooding, wildfires and devastating thunderstorms in addition to this week's hurricane. READ MORE

 

Beryl Will Be ‘Trial Run’ for This Year’s Hurricane Season  Before making landfall, Hurricane Beryl had already made history as the fastest-growing hurricane to form this early in the season. But experts recommend treating Beryl as the new normal for this upcoming hurricane season. READ MORE

 

Boom or Bust? Deciphering Mixed Messages on the Tech Job Market  Why so many layoffs? Are technology jobs plentiful or lacking? With unemployment relatively low, why are many cyber pros and tech experts struggling to get an interview? READ MORE

 

Building Entrepreneur Ecosystems With Technology — ICYMI  HUUB founder and CEO Jenny Poon explains how cities can re-envision technical assistance programs to bring education and resources to their small businesses. READ MORE

 

California’s Depleting Groundwater Threatens Community’s Future  In the Cuyama Valley, north of Santa Barbara, water continues to be heavily pumped to irrigate thousands of acres of farmland. A plan to prevent over-pumping has sparked a legal battle. READ MORE

 

Central Florida Uses First-in-U.S. Tech to Keep Roads Clean  The Central Florida Expressway Authority is using four autonomous devices similar to dashcams to monitor road debris in real time while keeping drivers anonymous. Created in England, this is their first use on American roads. READ MORE

 

Colorado Has the Most Women Leading Local Governments  The Center for American Women and Politics at Rutgers ranked the state first in terms of the share of women who serve in municipal government, at 46.1 percent. The center also ranked Colorado second among states for women legislators. READ MORE

 

Connecting Older New Yorkers Through Skills Training, AI  The New York State Office for the Aging is giving older adults more options to connect with each another and the world by providing them with a variety of technologies — and the skills they need to use them. READ MORE

 

Contactless Payment Arrives for Boston Transit in August  The $935.4 million system upgrade will launch on Aug. 1, allowing riders on the Green Line and Mattapan Line trolleys to tap their credit/debit card, phone or watch to pay for fares. READ MORE

 

Corporate Landlords Put Pressure on Rents in Key Markets  The nation suffers from a housing shortage of between 1.5 million and 5.5 million units. Renters occupy about 15.9 million single-family homes and corporate landlords own about 3 percent of them. READ MORE

 

Digital Counties 2024: Winners Push Transparency, Engagement  The first-place finishers in this year's Digital Counties Survey from the Center for Digital Government are those that have focused on modernizing major systems while also championing innovation. READ MORE

 

Emory University Brings AI Education to the Public With Statewide Tour  Emory faculty are working with the nonprofit Rowen Foundation and the Georgia Chamber of Commerce to host free AI training sessions for the general public in 19 locations across Georgia. READ MORE

 

Empty Storefronts? Let Entrepreneurs Make Things There.  New York and other cities are changing their zoning codes to allow clean, small-scale production in their commercial corridors. Opening up retail spaces to “artisanal manufacturing” has many benefits for communities. READ MORE

 

Feds Allow Oregon to Offer Medicaid to Those Behind Bars  The new program aims to close health-care gaps when people are released and tackle addiction problems. READ MORE 

 

Feds Award $18.2M in Cybersecurity Grants to Tribal Nations  The Department of Homeland Security's Tribal Cybersecurity Grant Program is set to send the money to 32 tribal nations, aiming to help strengthen cybersecurity postures against rising threats. READ MORE

 

First Federally Funded EV Charging Station Opens in Ohio  The first electric vehicle charging station funded through the Infrastructure Investment and Jobs Act opened for business last December in London, Ohio. More are set to open in Maine, Colorado and Vermont this year. READ MORE

 

Gen Z Makes Its Entrance Onto the Political Stage  Members of the youngest generation of adults are starting to hold office. READ MORE

 

Generative AI in Health Care: Opportunities and Cautions  Generative AI (GenAI) is transforming healthcare by enabling new possibilities in data analysis, patient care, and administrative tasks. However, its implementation raises concerns about bias, cybersecurity, and ethics. This research brief provides an overview of GenAI's capabilities, use cases, and potential drawbacks in healthcare. DOWNLOAD

 

Georgia First in the Nation to Require Police Training in Election Law  There are penal provisions in every state's election codes. Most officers don't know that they exist. READ MORE

 

How Are States Addressing Chronic Absenteeism?  Absenteeism rates in K-12 schools are falling but remain higher than pre-pandemic levels. READ MORE

 

How Contact Centers Can Innovate Without Disruption  Contact centers are essential to creating a satisfying customer experience (CX) for government agencies and their constituents. In this Government Technology Q&A, Jerry Dotson, vice president of public sector, Avaya Government Solutions, explains how the right CX platform lets government organizations implement new contact center technologies easily and efficiently. READ MORE

 

How K-12 Districts Can Prepare for FCC's New Cybersecurity Program  The FCC expects to open the application window for the three-year $200 million Schools and Libraries Cybersecurity Pilot Program this fall and urges prospective applicants to start preparing now. READ MORE

 

How to Navigate IT Challenges in Government  The public sector faces some unique challenges when it comes to IT management. Here’s what government IT organizations are doing to tackle problems and deliver a great user experience. READ MORE

 

How to Secure Your Agency's Microsoft 365 Environment  While Microsoft 365 prioritizes security, the platform's native capabilities only go so far. Organizations using Microsoft 365 still need to implement adequate security measures to avoid cybersecurity gaps. This report from CoreView offers practical solutions to address M365 security, governance and license management challenges. DOWNLOAD

 

Improving Financial Equity  Nearly 6 million U.S. households don't have traditional checking or savings accounts. Yet many agencies continue to issue payments using paper checks or methods such as direct deposit that are difficult for unbanked residents to use. This paper explains how agencies can expand their options for issuing payments to constituents, providing equity for unbanked residents and better convenience and more payment choices for everyone. DOWNLOAD

 

Iowa Residents, Businesses React as Cyber Crime Rises  As cyber attacks increase, more Iowa residents face having their personal information stolen as Iowa businesses risk having their computers shut down — or paying a ransom to stay up. READ MORE

 

Louisiana’s High Court Ruling a Victory for Public Records  The 4-3 decision ensures that the public is “guaranteed access to public records unless a law specifically and unequivocally provides otherwise.”  READ MORE

 

Maine Joins 9 Other States to Improve Reliable and Clean Energy  The state has joined with other Northeastern states in an effort to plan and develop regional transmission infrastructure. READ MORE

 

More Software Companies Sign Federal Secure by Design Pledge  Nearly 160 software companies have now signed CISA’s voluntary Secure by Design Pledge, which is a promise to work on seven key goals that could better protect their customers from hackers. READ MORE

 

N.J. Unveils AI Training, Tool for State Government Workers  The state has been an early adopter of artificial intelligence, and is now equipping staff with the skills and knowledge they need to leverage AI securely. Training is free and voluntary. READ MORE

 

NC Lawmakers Have Until End of Year to Resolve Hot-Button Issues  Several major bills went unresolved when the main legislative session ended in June. Now lawmakers have just a few days remaining in session each month. READ MORE

New Haven, Conn., Getting ‘Back on Track’ After 2023 Hack  Michael Simeone, who became the city’s inaugural chief technology officer in March, said his focus has been “getting the Board of Education and the city back on track” after a June 2023 breach. READ MORE

 

Oakland Overstates Reductions in Crime Due to Faulty Data  The Bay Area city had recently touted a 33 percent year-over-year decrease in crime. But a review of police data found that the city overstated the improvements and has been using incomplete information for years. READ MORE

 

Often Overlooked, Printers Require Protection Strategies  We rely on printing and document sharing so often it’s easy to overlook the security vulnerabilities inherent to them. However, both pose significant risks. DOWNLOAD

 

Old Pipes Lose Texas Cities 88B Gallons of Water  The lost water costs the cities millions and heightens the state’s water supply challenges. READ MORE

 

Oregon to Require Graduates to Pass Financial Literacy and Career Prep  The state’s Board of Education agreed to require high schoolers to take and pass stand-alone classes on financial literacy and college and career preparation to graduate, starting with this fall’s sophomores. READ MORE

 

Payments as a Gateway to Improved Utility and Local Government Customer Experience  In this fast-paced digital era, the expectations of constituents are evolving at an unprecedented rate. However, attempting to constantly keep up with shifting experiential standards is a costly, time-consuming, and nearly impossible task for billers. Maintaining a positive customer experience is key to keeping call volumes down, customer satisfaction scores high, and ensuring constituents are willing to make desired actions like signing up for paperless billing and AutoPay. DOWNLOAD

 

Plummeting Enrollment Leads More Colleges to Close  College enrollment levels were already projected to decline due to lower birth rates. Recent difficulties with federal financial aid and teens' growing concerns about cost haven’t helped. READ MORE

 

Protect Digital Identities from Fraud  Discover strategies to enhance digital identity security and reduce fraud risks. READ THE WHITE PAPER

 

Ransomware Attack Hits Florida Department of Health This new cyber attack has disrupted the state’s ability to issue death and birth certificates, and the breach might be putting sensitive patient data at risk. READ MORE

 

Soon Gas Taxes Won’t Pay for Roads. But Amazon Deliveries Might  As cars become more fuel efficient and EVs become more prominent, states will not be able to rely on gas taxes for much longer. But some states are considering fees on Amazon deliveries as part of their road-funding solution. READ MORE

 

States Need Stronger Identity Verification as Online Services Grow  New research shows reliance on outdated identity verification methods. READ MORE

 

States Should Think Beyond Mobile Drivers' Licenses for Digital Identity  Other forms of digital ID will also be important for serving constituents online and preventing fraud. READ MORE

 

Strengthen Your Digital Identity Today  Learn effective methods to safeguard digital identities and prevent online fraud.  ACCESS THE FULL WHITE PAPER

 

Strengthening Supervision for Safer Communities  Staff shortages and rising caseloads are contributing to an increase in the average time adults remain incarcerated. Supervision software can streamline pretrial, probation and parole processes and help officers manage cases more efficiently. This paper explains how modern supervision software can help improve outcomes and protect communities. DOWNLOAD

 

The Emerging Leader in EV Production: Georgia, not Michigan  From cars to school buses to battery manufacturing, no state can match Georgia's corporate investments. They’re making a real impact in communities across the state, creating thousands of permanent jobs. READ MORE

 

The Growing Role of the City-Level Chief Data Officer  Just a few years ago, only a handful of cities had chief data officers. Now that the position is more prevalent, experts take stock of what it takes to build an effective, data-driven local government. READ MORE

 

Trying to Strengthen Congress, the Supreme Court Has Weakened It There are reasons Congress writes vague laws. Giving courts more latitude to strike them down will ultimately limit the power of Congress, not just the agencies that interpret those laws. READ MORE

 

Updates to the CJIS Security Policy – What You Need to Know  Join the GovTech Cybersecurity July 11, 2024 webinar to learn about the new baseline security standards and changes in the CJIS Security Policy. REGISTER NOW

 

Utah Launches Office of Artificial Intelligence Policy  The Office of Artificial Intelligence Policy at the Utah Department of Commerce has opened roughly four months after its creation. It will explore the most effective methods of AI regulation and guide development of responsible policies. READ MORE

 

Voters in Several States Can Cut — or Abolish — Property Taxes This Fall  Voters in at least seven states will decide property tax measures in November. Most would limit what homeowners have to pay, but two would eliminate the tax completely. READ MORE

 

What are the top technology trends in Government in 2024? By 2026, over 70% of government agencies will use AI to enhance human administrative decision making. Learn what actions you can take today in this complimentary report from Gartner®. READ THE REPORT »

 

What Does AI Mean for Human-Centered Design?  As governments increasingly put end users at the forefront of how they're developing digital services, we checked in with state CIOs to see where that effort intersects with the rise of artificial intelligence. READ MORE

 

What Government Can Learn from the Private Sector About AI  A new survey reveals a significant lag in generative AI adoption compared to the private sector. The findings highlight the need to address knowledge gaps, embrace innovative solutions and develop robust AI governance policies. READ MORE

 

What Happens to States’ Leftover Broadband Funding?  The list of potential uses for any leftover BEAD funding includes digital equity, and one state has a plan that would direct the money toward the work for years to come. READ MORE

 

What Kids Behind Bars Need: Mentors Who’ve Been There  Peers who have been through the juvenile justice system can help put incarcerated young people on a path to rehabilitation and redemption, but these mentors need access. States should give it to them. READ MORE

 

When Using GenAI to Empower, Push Against Its Limitations  A new paper from the National Association of State Chief Information Officers explores the role of generative AI in improving accessibility for people with disabilities. It finds use cases and limitations alike. READ MORE

 

Why Some Politicians Can’t Resist the Lure of Corrupt Acts  Do some politicians get into trouble because they believe they can get away with anything? READ MORE

Wyoming Lawmakers Split on AI Governance, May Draft Second Bill  The state Legislature’s Select Committee on Blockchain, Financial Technology and Digital Innovation Technology is considering a bill on “unlawful dissemination of misleading synthetic media.” READ MORE

Rights of Employees to Express Breast Milk at the Workplace

On July 11, 2024, the New York State Department of Civil Service published  Attendance and Leave Bulletin, Policy Bulletin 2024-06, addressing the rights of employees of the State of New York and certain other entities "as the employer" to express breast milk at their workplace.

Text of Policy Bulletin 2024-06 is posted on the Internet at:
https://www.cs.ny.gov/attendance_leave/PolBull24-06.cfm

Policy Bulletin 2024-06 is also available in PDF format at:
https://www.cs.ny.gov/attendance_leave/PB2024-06-Rights-of-Employees-to-Express-Breast-Milk-in-the-Workplace.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

 

New York State's Comptroller DiNapoli releases recently completed municipal and school district audits

On July 11, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

City of Little Falls – Financial Condition Audit Follow-Up (Herkimer County)

The city has not addressed 12 audit recommendations made in a June 2021 audit. City officials could not provide reasonable explanations for their lack of corrective action.

Scio Central School District – Capital Assets (Allegany County)

District officials did not maintain complete and accurate capital asset records. As a result, of the 100 capital assets valued at $113,000, 51 assets worth $38,000 could not be located. The missing assets included laptops, digital cameras, computer monitors and televisions. Auditors found 38 capital assets worth $47,000 did not have their location listed. In addition, although required annually, the last physical inventory was conducted in 2017. The superintendent and former business administrator, while familiar with the district’s asset policy and procedures, did not comply with them. Had the board ensured compliance, complete and accurate assets records may have been maintained. 

Village of Dolgeville – Treasurer’s Records and Reports (Herkimer and Fulton Counties)

The treasurer did not record all financial activity using proper accounting procedures. As a result, inadequate records and reports were maintained, and the board lacked the financial information necessary to properly monitor and manage village finances. The treasurer did not: properly account for fund balance within each village fund or establish capital projects funds to separately account for the financial activity of projects undertaken; periodically reconcile water and sewer receivable control account balances to the total of the individual customer account balances. The treasurer also did not provide adequate budget status and balance sheet reports to the board each month or prepare and file the required annual financial report with the Office of the State Comptroller for the 2019-20 through 2022-23 fiscal years.

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The party claiming insurance coverage bears the burden of proving entitlement

Here, the plaintiff failed to meet its prima facie burden of demonstrating as a matter of law that it was either an insured or additional insured under the policy. It is undisputed that the policy was issued to the Village and did not name the plaintiff as an insured or additional insured and that NYMIR's written consent to transfer the rights under the policy to the plaintiff was never obtained.

 

Town of Brookhaven v New York Mun. Ins. Reciprocal

2024 NY Slip Op 03450

Decided on June 20, 2024

Appellate Division, Second 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 on June 20, 2024 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
FRANCESCA E. CONNOLLY, J.P.
CHERYL E. CHAMBERS
DEBORAH A. DOWLING
HELEN VOUTSINAS, JJ.

2022-09144
(Index No. 601165/21)

[*1]Town of Brookhaven, appellant,

v

New York Municipal Insurance Reciprocal, et al., respondents, et al., defendant.

Rubin Paterniti Gonzalez Rizzo Kaufman, LLP, Garden City, NY (Maria Massucci of counsel), for appellant.

Congdon, Flaherty, O'Callaghan, Travis & Fishlinger, Uniondale, NY (Kathleen D. Foley of counsel), for respondents.

DECISION & ORDER

In an action for a judgment declaring that the plaintiff is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Kathy G. Bergmann, J.), dated October 6, 2022. The order, in effect, denied the plaintiff's motion for summary judgment on the complaint, and granted the cross-motion of the defendants New York Municipal Insurance Reciprocal and Wright Risk Management for summary judgment dismissing the complaint insofar as asserted against them.

ORDERED that the order is affirmed, with costs, and the matter is remitted to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is not an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal to the Incorporated Village of Mastic Beach and that the defendants New York Municipal Insurance Reciprocal and Wright Risk Management are not obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18.

The plaintiff commenced this action for a judgment declaring that it is an insured under insurance policy number MPLVMAS001 issued by the defendant New York Municipal Insurance Reciprocal (hereinafter NYMIR) to the Incorporated Village of Mastic Beach and that NYMIR and the defendant Wright Risk Management (hereinafter WRM) are obligated to defend and indemnify the plaintiff in regard to personal injury claims originally made against the Village but subsequently asserted against the plaintiff due to the Village's dissolution in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18. The plaintiff asserted that pursuant to General Municipal Law § 790, upon the Village's dissolution, the plaintiff had assumed the Village's debts, liabilities, and obligations and that the plaintiff became entitled to various rights held by the Village, including [*2]entitlement to the insurance coverage provided by the policy issued by NYMIR to the Village. The plaintiff also maintained that the subject insurance rights were transferred to it pursuant to certain resolutions adopted by the plaintiff in connection with the Village's dissolution. However, the insurance policy included a provision requiring written permission from NYMIR to transfer any such rights under the policy. The plaintiff moved for summary judgment on the complaint. NYMIR and WRM (hereinafter together the moving defendants), NYMIR's contract manager that provided insurance services for NYMIR, cross-moved for summary judgment dismissing the complaint insofar as asserted against them. By order dated October 6, 2022, the Supreme Court, in effect, denied the plaintiff's motion, and granted the moving defendants' cross-motion. The plaintiff appeals.

"The party claiming insurance coverage bears the burden of proving entitlement" (New York State Thruway Auth. v Ketco, Inc., 119 AD3d 659, 661; see National Abatement Corp. v National Union Fire Ins. Co. of Pittsburgh, Pa., 33 AD3d 570, 571). "However, a party is not entitled to coverage if it is not named as an insured or additional insured on the face of the policy as of the date of the accident for which coverage is sought" (New York State Thruway Auth. v Ketco, Inc., 119 AD3d at 661; see Essex Ins. Co. v Michael Cunningham Carpentry, 74 AD3d 733, 733). "[W]hether a third party is an additional insured under a policy is determined from the intention of the parties to the policy, as determined from the four corners of the policy itself" (Arch Specialty Ins. Co. v RLI Ins. Co., 209 AD3d 812, 814 [internal quotation marks omitted]; see Chipotle Mexican Grill, Inc. v RLI Ins. Co., 199 AD3d 979, 983). "'Where a third party seeks the benefit of coverage, the terms of the policy must clearly evince such intent'" (Arch Specialty Ins. Co. v RLI Ins. Co., 209 AD3d at 814, quoting Hargob Realty Assoc., Inc. v Fireman's Fund Ins. Co., 73 AD3d 856, 857).

Here, the plaintiff failed to meet its prima facie burden of demonstrating as a matter of law that it was either an insured or additional insured under the policy. It is undisputed that the policy was issued to the Village and did not name the plaintiff as an insured or additional insured and that NYMIR's written consent to transfer the rights under the policy to the plaintiff was never obtained. Further, contrary to the plaintiff's contentions, the plaintiff did not automatically obtain the rights under the policy pursuant to General Municipal Law § 790 or pursuant to certain Town of Brookhaven resolutions dated October 26, 2017. Accordingly, the plaintiff's motion was properly denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851).

The moving defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that NYMIR never consented to a transfer of rights under the policy from the Village to the plaintiff as required by the explicit terms of the policy (see Zuckerman v City of New York, 49 NY2d 557). Moreover, contrary to the plaintiff's contention, the rights under the policy did not automatically vest in the plaintiff by operation of law. The moving defendants also demonstrated, prima facie, that summary judgment dismissing the complaint insofar as asserted against WRM was proper because WRM was not an insurer under the policy and it did not issue the policy (see id.). In opposition to the moving defendants' prima facie showing, the plaintiff failed to raise a triable issue of fact (see id.). Accordingly, the Supreme Court properly granted the moving defendants' cross-motion for summary judgment dismissing the complaint insofar as asserted against them.

Since this is a declaratory judgment action, we remit the matter to the Supreme Court, Suffolk County, for entry of a judgment declaring that the plaintiff is not an insured under insurance policy number MPLVMAS001 issued by NYMIR to the Village and that the moving defendants are not obligated to defend and indemnify the plaintiff in underlying actions entitled Young v Town of Brookhaven, pending in the Supreme Court, Suffolk County, under Index Numbers 606461/18 and 623726/18 (see Lanza v Wagner, 11 NY2d 317).

CONNOLLY, J.P., CHAMBERS, DOWLING and VOUTSINAS, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court

 

New York State Comptroller DiNapoli releases recently completed audits of New York State Departments and agencies

On July 10, 2024, New York State Comptroller Thomas P. DiNapoli announced the following local government and school audits were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

Department of Health – Medicaid Program – Improper Payments for Brand Name Drugs (Follow-Up) (2024-F-9)  New York’s Medicaid program, administered by the Department of Health (DOH), covers medically necessary prescription and non-prescription drugs. State law directs pharmacies to substitute prescribed drugs with less expensive drugs containing the same active ingredients, dosage form and strength. A prior audit, issued in December 2022, found $1,102,823 in Medicaid overpayments for brand name prescription drugs where generic drugs were available. The follow-up found DOH officials instituted a system enhancement that identified certain drugs as generic, but that the system enhancement did not apply to all Food and Drug Administration-approved generics. Further, since the initial audit, Medicaid has paid an additional $6.3 million for drugs that appear to be generic drugs but were paid using brand name drug pricing methods, and the Office of the Medicaid Inspector General has made minimal progress in reviewing and recovering any improper payments identified in the initial report. Of the initial report’s three audit recommendations, two were not implemented and one was partially implemented.

Homes and Community Renewal – Division of Housing and Community Renewal – Physical and Financial Conditions at Selected Mitchell-Lama Developments Located Outside New York City – Sunnyside Manor: Unauthorized Bank Account (2024-S-12)  The Mitchell-Lama Housing program was created to provide affordable rental and cooperative housing to middle-income families. Pursuant to the New York Codes, Rules and Regulations, program developments must open a bank account to deposit all rent receipts and other miscellaneous operating income and use this account to disperse all expenses for operations. Auditors found that the Sunnyside Manor development’s Board of Directors (Board) held a checking account (with an average monthly balance of $14,007 for the 3 fiscal years ended March 31, 2022) separate from the development’s operating accounting that, according to the property manager, included deposits of community room rental income. In addition to these deposits, auditors identified transactions, totaling $51,048, paid from Sunnyside Manor’s operating account to the Board-held account. Bank statements for the Board-held account showed numerous questionable debit card transactions, including Amazon purchases (such as vitamins, a treadmill mat, a cooking apron, and toys) totaling $2,512 and restaurant payments totaling $1,723.

State Education Department (Preschool Special Education Audit Initiative) – UCP of Niagara County dba Empower – Compliance with the Reimbursable Cost Manual (2023-S-3)  United Cerebral Palsy Association (UCP) of Niagara County dba Empower (Empower), a not-for-profit special education provider located in Niagara Falls, is approved by the State Education Department (SED) to provide education services to children with disabilities up to age 5. For the 3 fiscal years ended June 30, 2020, Empower reported approximately $6.6 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $1,141,685 in reported costs that did not comply with requirements.

Department of Labor – Controls and Management of the Unemployment Insurance System (Follow-Up) (2023-F-41)  One of the Department of Labor’s (DOL) key tasks in assisting the unemployed is administering the State’s Unemployment Insurance (UI) program. A prior audit, issued in November 2022, found deficiencies with DOL’s oversight and management of its UI system. During the pandemic, faced with the high demand for UI benefits and the need to process claims quickly, DOL resorted to stop-gap measures to compensate for system limitations, which resulted in misclassification of claims as State instead of federal liabilities, overpayment of claims, and supplemental spending to maintain the outdated UI system infrastructure while a new system was in development. DOL officials made some progress addressing the issues identified in the initial audit report, including continuing the development of a replacement system and collecting and analyzing data to improve the balance between fraudulent identity protection and streamlining the process for those in need of UI benefits. Of the initial report’s six recommendations, two were implemented, three were partially implemented, and one was not implemented.

Department of Health – Medicaid Program – Managed Care Payments to Unenrolled Providers (2021-S-6)  Medicaid managed care organizations establish provider networks by contracting with physicians, hospitals, and other providers to provide medical care to their members. The 21st Century Cures Act and additional federal guidance mandated that managed care in-network providers enroll as participating providers in the state Medicaid program by January 1, 2018 (with the exception of certain provider types). Through the screening and provider enrollment process, the Department of Health (DOH) gains a level of assurance over a provider’s validity to provide Medicaid services. Auditors found DOH does not monitor encounter claims, which detail member health care services and payments to providers, to identify inappropriate managed care payments to providers who are not enrolled in Medicaid. This and other weaknesses led to over $1.5 billion in improper and questionable payments. 

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Decisions of the Commissioner of Education, Decision No. 18,430

The Commissioner will only decide matters in actual controversy

Appeal of JONATHAN DAVIS from action of the Board of Education of the Board of Trustees of the Mount Vernon Public Library regarding his removal from office.[1]

Decision No. 18,430

(July 1, 2024)

Brill Legal Group, P.C., attorneys for respondent, Peter E. Brill, Esq., of counsel

ROSA., Commissioner. -- Petitioner appeals from the decision of the Board of Trustees of the Mount Vernon Public Library (“respondent”) to remove him from office.  The appeal must be dismissed as moot. 

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522). 

Petitioner’s request for interim relief was denied on March 11, 2024 and his term as a member of the Board of Trustees expired on June 30, 2024.  Accordingly, there is no further meaningful relief that can be granted, and the appeal must be dismissed (Appeal of Petrocelli, 62 Ed Dept Rep, Decision No. 18,223; Appeal of Ayala, 62 id., Decision No. 18,155).

THE APPEAL IS DISMISSED.

Rebutting the statutory presumption that a firefighter suffered a heart attack and was permanently incapacitated as the result of the performance of his duties

Petitioner, a firefighter, applied for performance of duty disability retirement benefits in June 2015 asserting that he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although petitioner indeed was found to be permanently incapacitated, his application was denied upon the ground that his disability was not the natural and proximate result of an incident sustained in-service.

The sole contested issue is whether the Retirement System met its burden of rebutting the statutory presumption, "which, in turn, required the Retirement System to demonstrate — through expert medical proof — that petitioner's cardiac condition was caused by risk factors other than his employment". The Appellate Division concluded that "petitioner's application for performance of duty disability retirement benefits was properly denied" by the Retirement System.

 

 

Matter of Martino v DiNapoli

2024 NY Slip Op 03526

Decided on June 27, 2024

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:June 27, 2024

CV-23-0976

[*1]In the Matter of Joseph Martino, Petitioner,

v

Thomas P. DiNapoli, as State Comptroller, Respondent.

Calendar Date:May 31, 2024
Before:Egan Jr., J.P., Reynolds Fitzgerald, Ceresia, Fisher and Mackey, JJ.

Schwab & Gasparini, PLLC, White Plains (James A. Resila of counsel), for petitioner.

Letitia James, Attorney General, Albany (Sean P. Mix of counsel), for respondent.

Fisher, 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 denying petitioner's application for performance of duty disability retirement benefits.

Petitioner, a firefighter, applied for performance of duty disability retirement benefits in June 2015 asserting that he was permanently incapacitated from the performance of his duties as the result of a heart condition. Although petitioner indeed was found to be permanently incapacitated, his application was denied upon the ground that his disability was not the natural and proximate result of an incident sustained in service. Following a hearing and redetermination, including the review of voluminous medical records, the Hearing Officer upheld the denial, finding that petitioner's disability was not caused by the performance and discharge of his duties as a firefighter. Respondent adopted the Hearing Officer's findings of fact and conclusions of law, prompting petitioner to commence this CPLR article 78 proceeding to challenge respondent's determination.

The New York State and Local Employees' Retirement System concedes that petitioner is permanently incapacitated from the performance of his duties as a firefighter and, further, that the "heart presumption" set forth in Retirement and Social Security Law § 363-a (1) applies. As such, the sole contested issue is whether the Retirement System met its burden of rebutting the statutory presumption, "which, in turn, required the Retirement System to demonstrate — through expert medical proof — that petitioner's cardiac condition was caused by risk factors other than his employment" (Matter of O'Donoghue v DiNapoli, 221 AD3d 1229, 1230 [3d Dept 2023]; see Matter of Park v DiNapoli, 123 AD3d 1392, 1393 [3d Dept 2014]; Matter of Ferguson v DiNapoli, 114 AD3d 1015, 1015 [3d Dept 2014], lv denied 23 NY3d 901 [2014]; Matter of Walters v DiNapoli, 82 AD3d 1487, 1487-1488 [3d Dept 2011]). Upon our review of the record, we are satisfied that the statutory presumption was rebutted.

With respect to the May 2015 incident, petitioner testified that he arrived at the firehouse for his scheduled shift and, after "go[ing] over the rig and mak[ing] sure everything is where it's supposed to be," he went upstairs to complete his paperwork. Although he initially "was feeling okay," he "started getting a burning sensation in [his] chest" and began "sweating a little bit." A call then came in for "a pan and meat" in an apartment building — meaning that someone had burned their dinner and filled the building with smoke — and petitioner donned his turn-out gear (weighing approximately 70 pounds) and responded to the call. On the way to the call, petitioner testified, the sweating and burning sensation "had subsided," but it returned after exiting the building. During the call, petitioner carried a positive pressure fan up two flights of stairs to help ventilate the structure[*2]. When petitioner returned to the ladder truck, his symptoms became "more intense and [his] arm started hurting." Upon returning to the firehouse, petitioner "started feeling worse and worse," prompting his colleagues to call for an ambulance. Subsequent testing revealed that petitioner had suffered a heart attack.

Although petitioner attributes his heart attack to the rigors of firefighting, the record reflects that petitioner has "a markedly positive family history" for coronary artery disease. Notably, petitioner's father had a heart attack in his early 40s, and petitioner has "multiple first-degree relatives with premature cardiovascular disease." As to petitioner's admitted history of cigarette smoking, petitioner testified that he smoked 10 or 12 cigarettes a day for one year and quit smoking altogether in 2007, but petitioner's medical records indicate that he smoked at least a pack of cigarettes a day for multiple years and suggest that he did not quit smoking until 2015. Prior to his disabling heart attack in May 2015, petitioner experienced "some chest discomfort" while drinking a protein shake in January 2015, prompting an evaluation at a local emergency department. Although the evaluation was "negative" and petitioner was discharged, he experienced two subsequent episodes of "chest burning after exercise," underwent a nuclear stress test, which reportedly showed "a fix basal inferior wall defect without ischemia," and was placed on blood pressure medications.

After examining petitioner in 2017 and reviewing various medical records, including the statement of disability completed by petitioner's cardiologist, the Retirement System's expert concluded that petitioner was permanently disabled from his duties as a firefighter "due to his coronary artery disease and prior [myocardial infarction]," both of which were "related to [petitioner's] cigarette smoking and markedly positive family history for early [coronary artery disease]." Although petitioner faults the Retirement System's expert for failing to expressly exclude his employment as a causative factor (see e.g. Matter of Walsh v DiNapoli, 83 AD3d 1278, 1279 [3d Dept 2011]; Matter of Bryant v Hevesi, 41 AD3d 930, 932 [3d Dept 2007]), petitioner's argument on this point overlooks the fact that his own cardiologist concluded that petitioner's disabling heart condition did not arise out of his employment. Pointedly, in response to a question on the physician's statement of disability asking whether the subject condition was due to an injury or illness arising out of petitioner's employment, petitioner's cardiologist answered, "[n]o." Taken together, the medical proof is "sufficient to exclude petitioner's employment as a causative factor in the development of his disabling coronary artery disease and, as such, the statutory presumption was effectively rebutted" (Matter of O'Donoghue v DiNapoli, 221 AD3d at 1231; see e.g. Matter of Ashley v DiNapoli, 97 AD3d 1057, 1058 [3d Dept 2012]; Matter [*3]of Baron v New York State Comptroller, 84 AD3d 1678, 1679 [3d Dept 2011]; Matter of Walters v DiNapoli, 82 AD3d at 1488; Matter of Marinelli v DiNapoli, 82 AD3d 1347, 1348 [3d Dept 2011]; Matter of Rivera v DiNapoli, 78 AD3d 1295, 1296 [3d Dept 2010]). Accordingly, petitioner's application for performance of duty disability retirement benefits was properly denied.

Egan Jr., J.P., Reynolds Fitzgerald, Ceresia and Mackey, JJ., concur.

ADJUDGED that the determination is confirmed, without costs, and petition dismissed.

 

 

Labor Law §565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position

An Assistant Counsel and Legislative Coordinator in the Executive Chamber served in a nontenured position from December 2019 until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law §565(2)(e). Claimant appealed the Labor Department's rejection of his application.

The Appellate Division, however, dismissed claimant's appeal, opining "There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role."

 

Matter of Herskowitz (Commissioner of Labor)

2024 NY Slip Op 03527

Decided on June 27, 2024

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:June 27, 2024

CV-23-1035

[*1]In the Matter of the Claim of Craig Herskowitz, Appellant. Commissioner of Labor, Respondent.

Calendar Date:May 28, 2024
Before:Garry, P.J., Egan Jr., Lynch, Fisher and Powers, JJ.

Craig Herskowitz, New York City, appellant pro se.

Letitia James, Attorney General, New York City (Dennis A. Rambaud of counsel), for respondent.

Fisher, J.

Appeal from a decision of the Unemployment Insurance Appeal Board, filed December 7, 2022, which ruled that claimant was ineligible to receive unemployment insurance benefits because he was employed in a major nontenured policymaking or advisory position within the meaning of Labor Law § 565 (2) (e).

At all times relevant, claimant was one of approximately 10 individuals employed as an Assistant Counsel and Legislative Coordinator in the Executive Chamber. He was appointed to this nontenured position by the Counsel to the Governor in December 2019 and served in that capacity until August 2021. The Department of Labor denied claimant's subsequent application for unemployment insurance benefits upon the ground that claimant was employed in a major nontenured policymaking or advisory position with a governmental agency and, therefore, his employment was excluded from covered employment pursuant to Labor Law § 565 (2) (e). Following a hearing, an Administrative Law Judge sustained the initial determination. Upon administrative review, the Unemployment Insurance Appeal Board affirmed, prompting this appeal.

We affirm. Initially, any argument regarding the admission into evidence of Hearing Exhibits 6 and 7 is unpreserved for our review as claimant raised no objection in this regard at the administrative hearing (see e.g. Matter of Lamo [Commissioner of Labor], 205 AD3d 1297, 1298 [3d Dept 2022]; Matter of DeCarlo [Commissioner of Labor], 6 AD3d 1003, 1003 [3d Dept 2004]). Turning to the merits, "[f]or purposes of determining a claimant's eligibility for unemployment insurance benefits, Labor Law § 565 (2) (e) excludes from employment services rendered for a governmental entity by a person in a major nontenured policymaking or advisory position" (Matter of Birnbaum [Commissioner of Labor], 122 AD3d 1039, 1040 [3d Dept 2014] [internal quotation marks and ellipsis omitted]; see Matter of Briggs [Commissioner of Labor], 90 AD3d 1349, 1350 [3d Dept 2011]). Whether this exclusion applies "presents a mixed question of law and fact, [and] the Board's determination must be upheld if it has a rational basis" (Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d 970, 971 [3d Dept 1993]; see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040; Matter of Le Porte [New York City Dept. of Personnel-Hartnett], 142 AD2d 866, 866 [3d Dept 1988], lv denied 73 NY2d 705 [1989]). In this regard, whether a claimant's recommendations or advice is heeded — or the fact that his or her decisions are subject to approval by a higher authority — is irrelevant (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d 559, 560 [3d Dept 2004], lv denied 3 NY3d 610 [2004]). Finally, "it is within the exclusive province of the Board to evaluate evidence and the inferences to be drawn therefrom, and the Board is the final arbiter of witness credibility" (Matter of Fraternal Order of Eagles [Commissioner of Labor], 209 AD3d 1067, 1068 [3d Dept 2022[*2]] [internal quotation marks and citations omitted]; see Matter of Kramer [RTTemps, LLC-Commissioner of Labor], 202 AD3d 1230, 1231-1232 [3d Dept 2022]).

There is no dispute that claimant held a nontenured position in the Executive Chamber, and the record as a whole provides a rational basis for the Board's finding that claimant served in a major policymaking or advisory role (see Matter of Birnbaum [Commissioner of Labor], 122 AD3d at 1040-1041; Matter of Townes [Commissioner of Labor], 114 AD3d 989, 990-991 [3d Dept 2014]; Matter of Richman [Commissioner of Labor], 254 AD2d 673, 673-674 [3d Dept 1998]). The testimony offered by the Executive Chamber's then-Chief Administrative Officer and the information contained in Hearing Exhibit 1, which outlined claimant's job duties and was received into evidence without objection, established that claimant served as the "chief legal advisor" on issues affecting the three state agencies contained within his designated portfolio. In that capacity, claimant, among other things, "approved the development of the legislative agenda of each agency" and "was the only attorney advising the [Counsel] on major matters," including litigation strategies, involving those agencies. Notably, claimant conceded that he advised the Counsel regarding legal issues involving the relevant state agencies, negotiated with the Legislature with respect to the "content, breadth, and scope of proposed legislation" and would "fill in" for the Counsel in meetings related thereto. Although claimant denied that he played a major policymaking or advisory role in the Executive Chamber, insisting that he was more akin to a "mid-level employee," any conflict in the hearing testimony presented a credibility issue for the Board to resolve (see Matter of Lamo [Commissioner of Labor], 205 AD3d at 1298; Matter of Richman [Commissioner of Labor], 254 AD2d at 674), and — as noted previously — the fact that claimant's decisions were subject to review and/or approval by the Counsel or the relevant deputies is not determinative (see Matter of Newell [County of Nassau-Commissioner of Labor], 9 AD3d at 560). Accordingly, claimant's application for unemployment insurance benefits was properly denied (see Matter of Franconeri [New York City Dept. of Personnel-Hudacs], 190 AD2d at 971-972). Claimant's remaining arguments, to the extent not specifically addressed, have been examined and found to be lacking in merit.

Garry, P.J., Egan Jr., Lynch and Powers, JJ., concur.

ORDERED that the decision is affirmed, without costs.