Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 3, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on December 3, 2014
Click on text highlighted in color  to access the full report

Department of Health (DOH): Improper Payments Related to the Medicare Buy-In Program (Follow-Up) (2014-F-12)
An initial audit report issued in October 2012 determined that, from March 2006 through February 2011, Medicaid made nearly 260,000 improper payments (totaling about $26.8 million) for people enrolled in the Medicare buy-in program. In a follow-up, auditors found that DOH officials made progress in addressing the problems identified in the initial audit report. However, further actions are still needed as millions of dollars in questionable and improper Medicaid payments continue to be paid for people enrolled in the Medicare buy-in program. 

Department of Health: Medicaid Program – Excessive Medicaid Payments to Federally Qualified Health Centers for Group Therapy Services (2013-S-51)With approval from the federal Centers for Medicare and Medicaid Services, DOH amended the Medicaid State Plan in 2008 to allow Federally Qualified Health Centers (FQHCs) to provide group therapy services, including group therapy provided by clinical social workers, to Medicaid recipients. FQHCs are organizations such as community health centers and public housing centers that provide primary and preventive care to underserved populations. Auditors found that during the audit period, Medicaid overpaid four FQHCs $7.7 million because the FQHCs billed incorrect reimbursement rates on their claims for group therapy services. The FQHCs billed an approximate rate of $200 per person for group therapy, as opposed to the required $35.16 rate per person.
Hudson River-Black River Regulating District: Financial Management Practices (2013-S-55)
Auditors found revenue from statutory beneficiaries, hydropower agreements, and permit holders has not been sufficient to cover the district’s annual needs. Since September 2009, the district has had a significant backlog of capital projects because of funding limitations, including one project that had been mandated by the Federal Energy Regulatory Commission in 2007 for public safety reasons. The district has cut spending and taken other steps to balance its annual budgets. However, it could potentially generate more revenue and become more efficient by strengthening its practices over past-due assessments, facility maintenance, equipment inventories, time and attendance, and procurement. 

Office of Parks, Recreation and Historic Preservation (OPRHP): Riverbank State Park Administration of the Concession Contract With Riverbank Restaurant Group (RRG) (2013-S-22)
OPRHP entered into a 10-year contract with RRG to provide food concession services at Riverbank State Park in Manhattan. The anticipated state revenues resulting from this contract were estimated at $160,000 annually. RRG was also contractually required to invest a minimum of $622,000 in capital improvements and concession-related upgrades. Auditors found RRG’s reported monthly sales, and the office’s associated licensing fees, were significantly less than anticipated in the contract – about $11.6 million in sales and $580,000 in licensing fees from 2005 to 2009. Further, RRG did not submit the correct amount of licensing fees on the revenues it did report. At the time of the audit, RRG owed OPRHP $136,459 in licensing fees. OPRHP did not perform a thorough vendor responsibility check on RRG before the contract was awarded, and did not adequately monitor RRG operations on a timely basis. 
 

A public officer failing to file a timely oath of office forfeits his or her appointment or election to such office

A public officer failing to file a timely oath of office forfeits his or her appointment or election to such office

Public Officers Law §30

§30 of the Public Officers Law, among other things, provides that “Every office shall be vacant" upon the refusal or neglect of the individual to file his or her official oath or undertaking, if  one is required, before or within thirty days after the commencement of  the term of office for which he or she is chosen, if an elective office, or if an appointive  office, within thirty days after notice of his or her appointment, or within thirty days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if   no time be so specified, within thirty  days  after  notice  to  him or her in   pursuance of law, that such renewal undertaking is required.*

As an example, the Schenectady Gazette recently reported that three members of the Saratoga Springs Housing Authority were removed from their respective offices because they each had failed to sign their oaths of office within thirty days of taking office as required by §30.1(h) of the Public Officers Law.

Timely filing the required oath or undertaking is critical as the Appellate Division ruled in Lombino v Town Board, Town of Rye, 206 AD2d 462. John V. Lombino contended that he had filed his oath of office on January 3. The court, however, determined that Lombino was notified of his appointment to the position of Assessor in November and began working on December 3. Thus, said the court, even if Lombino filed his oath of office on January 3 as claimed, the filing was more than 30 days after both the notification and commencement of his term and the Town Board properly declared the office of Assessor vacant.**

* Subject to other provisions, the neglect   or failure of any state or local officer to execute and file his or her oath of office and official undertaking within the time limited therefor by law shall not create a vacancy in the office if such officer was on active duty in the armed forces of the United States and absent from the county   of his or her residence at the time of his or her election or appointment.

** See, also, Scro v Board of Educ. of Jordan-Elbridge Cent. School Dist., 87 A.D.3d 1342 and Formal Opinions of the Attorney General, Opinion 98-F6.

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Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services

Maggie Miller named Chief Information Officer of the New York State Office of Information Technology Services
Source: Office of the Governor

On December 3, 2014, Governor Andrew M. Cuomo announced that he has appointed Maggie Miller Chief Information Officer of the New York State Office of Information Technology Services. Miller will oversee the agency’s centralized IT services to the State and government entities; set statewide technology policy for all state government agencies; and monitor all large technology expenditures in the state to find more efficient, low cost and innovative solutions. Ms. Miller, the former Chief Information Officer of Girl Scouts USA, is expert in IT strategy, innovation, business transformation, multi-channel strategies, M&A evaluation and integration, business intelligence and analytics, and outsourcing.

Ms. Miller will begin her position as Chief Information Officer of the State Information Technology Services on December 8, 2014. This appointment does not require Senate confirmation.

Retirement Update from the Internal Revenue Service

Retirement plan updates issued by the Internal Revenue Service

Click on highlighted text to access the complete advisory

Updated Model Notices

Updated model eligible rollover distribution notices

For Sponsors of 401(a), 403(a), 403(b) and governmental 457(b) plans to notify participants of rollover options for their distributions from Roth and non-Roth accounts, including the right to direct pre-tax and after-tax amounts to separate destinations(Notice 2014-74)

Retirement Plan Webinars

Remember to registerfor these upcoming retirement plan webinars – 2 p.m. EST:

• Dec. 4 - Properly Defining Retirement Plan Compensation 
• Dec. 11 - Retirement Plan Distributions: What Every Participant Should Know
  

Updated Publications 

• Publication 1-EP, Understanding the Employee Plans Examination Process (10-2014)
• Publication 1020, Appeal Procedures Employee Plans Examinations (11-2014)
  
  

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

Placing an employee on an involuntary leave pursuant to Civil Service Law §72.5

OATH Index No. 2443/14

Following an investigation of several complaints of workplace violence involving an employee, Anonymous, the individual was referred to a psychiatrist for evaluation. The psychiatrist found that Anonymous presented a risk of danger in the workplace. The appointing authority placed Anonymous on involuntary leave pursuant to §72.5 of the Civil Service Law.

At the §72 disability hearing that followed, the appointing authority presented testimony from an investigator and both sides presented medical expert testimony.

OATH Administrative Law Judge Alessandra F. Zorgniotti found the opinion of  Anonymous’s expert to be “conclusory” as he did not explain how Anonymous’s culture would cause him to be paranoid and aggressive with others.

Judge Zorgniotti recommended that Anonymous remain on involuntary leave pursuant to §72.5, finding that the appointing authority had properly placed Anonymous on pre-hearing involuntary leave based upon documented instances of threats, hostility and anger to co-workers, and the evaluation of an independent psychiatrist.

With respect the placement of an employee involuntarily on leave pursuant to Civil Service Law §72.5, the appointing authority is authorized to immediately place an individual on such an involuntary leave of absence in the event the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with agency operations.

§72 leave is leave without pay. However, an employee placed on a §72.5 involuntary leave of absence is entitled to use all accumulated unused sick leave, vacation, overtime and other time allowances standing to his or her credit in order to remain on the payroll. If the employee declines to use his or her accumulated leave credits in order to remain on the payroll, or having elected to remain on the payroll, exhausts his or her accumulated leave credits, he or she is placed in leave without pay status.

§72.5, in pertinent part, provides that if, after the hearing, the employee is determined not to be physically or mentally unfit to perform the duties of his or her position, “he or she shall be restored to his or her position and shall have any leave credits or salary that he or she may have lost because of such involuntary leave of absence restored to him or her".

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2443.pdf
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