Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Selected reports issued by the Office of the State Comptroller during the week ending August 13, 2016

Source: Office of the State Comptroller

Click on text highlighted in color to access the entire report 

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits listed below: 

Office of Temporary and Disability Assistance ­- National Directory of New Hires Data Security

The office has taken actions to comply with the federal requirements for securing directory data. Auditors found that the office is fully compliant with 23 of the 32 requirements and partially compliant with seven requirements. Two requirements were not applicable due to current practices at the office and modifications of federal reporting requirements. 
Office of Temporary and Disability Assistance: National Directory of New Hires Data Security
(2016-S-27) 

Queens County District Attorney’s Office - Oversight of Persons Convicted of Driving While Intoxicated  
Although 9,604 offenders overseen by the office received court orders to install Ignition Interlock Devices (IIDs), only 1,952 offenders (20.3 percent) did. By borough, IID installation rates ranged from 9 percent in Brooklyn to 30 percent in Staten Island. Generally, offenders who did not install IIDs signed court affidavits stating that they would not drive a motor vehicle during the period of conditional discharge unless it had an IID. Auditors also found material noncompliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. 

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2015-N-2) 

NYS Department of Education - Compliance With the Reimbursable Cost Manual Report 2015-S-96 

Costs submitted by the Early Education Center on its Consolidated Fiscal Report (CFR) were properly calculated, adequately documented and allowable under SED’s guidelines for the fiscal year ended June 30, 2014.
State Education Department (SED): Early Education Center, Compliance with the Reimbursable Cost Manual (2015-S-96)  


NYS Department of Education - The Alcott School; Compliance With the Reimbursable Cost Manual
For the year ended June 30, 2014, auditors identified $55,969 in ineligible costs that Alcott reported on its CFR. The ineligible costs included: $52,442 in personal service costs, which consisted of $49,874 in unsupported staff time, and $2,568 in employee compensation that was reported as more than one full-time equivalent on the CFR; and $3,527 in other than personal service costs, which consisted of $1,889 in inadequately documented expenses, $1,252 in working capital interest, and $386 in food and other non-reimbursable costs.
State Education Department: The Alcott School, Compliance with the Reimbursable Cost Manual (2015-S-97) 


Metropolitan College of New York; Higher Education Services Corporation; State Education Department - Audit of the State Financial Aid Program at Metropolitan College of New York, Report 2015-T-7 
Auditors determined that the procedures used by Metropolitan officials to certify students for state financial aid substantially complied with the governing law and regulations. However, Metropolitan was overpaid $20,944 because school officials incorrectly certified some students as eligible for financial aid.

Tuition Assistance Program: State Financial Aid Program at Metropolitan College of New York

(2015-T-7) 


Inappropriate Medicaid Payments

New York state’s Medicaid system made as much as $12.1 million in inappropriate payments during 2015, including $2.3 million for dead patients and millions more for recipients who had been dropped from long term care coverage, according to an audit released August 9, 2016 by State Comptroller Thomas P. DiNapoli. By the end of audit fieldwork, about $2.1 million of the overpayments were recovered.

The Comptroller said: “My auditors continue to find glitches in the Department of Health’s payment control systems that allow wasteful payments to be made,” DiNapoli said. “The department agreed with most of our recommendations and is working to fix the problems we have uncovered. It should recover up to $10 million that should not have been spent.”

New York’s Medicaid program, administered by the state Department of Health (DOH), is a federal, state, and locally funded program that provides a wide range of medical services to those who are economically disadvantaged or have special health care needs.

DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients and generates payments to reimburse the providers for their claims.

DiNapoli’s office audits Medicaid payments on a routine basis to make sure claims are being paid appropriately and to determine if improvements are needed and whether money should be recovered because of errors, abuse or fraud. In 2015, DiNapoli’s auditors questioned $223 million in payments.

Managed Long-Term Care (MLTC) plans provide services to recipients who have a long-lasting health problem or disability. Medicaid pays MLTC plans a monthly payment for every recipient enrolled in an MLTC plan. According to the department’s MLTC contract, DOH has the right to recover capitation payments made to plans for recipients who it is later determined were inappropriately enrolled because of death, incarceration, or relocation out of the plan’s service area. From Feb. 1, 2015 to Sept. 30, 2015, Medicaid made 1,745 capitation payments totaling more than $7.1 million for 1,324 recipients who were retroactively disenrolled from a plan by DOH or local Departments of Social Services.

With the enactment of the federal Patient Protection and Affordable Care Act (PPACA) in 2010, the state developed New York State of Health (NYSOH) as a new online marketplace for individuals to obtain health insurance coverage, including Medicaid. The PPACA requires NYSOH to verify an applicant’s identifying information when determining Medicaid eligibility and enrollment. Once individuals are enrolled in Medicaid, NYSOH is required to periodically verify recipients are alive to ensure active coverage is appropriate.

DiNapoli’s auditors determined NYSOH enrolled 119 deceased individuals into the Medicaid program, and NYSOH did not automatically terminate 1,177 enrollees who apparently died after enrollment. Medicaid overpaid 4,892 claims totaling $2,282,626 on behalf of 966 enrolled recipients. At the end of our fieldwork, 766 of the 1,296 deceased enrollees still had active Medicaid coverage through NYSOH. 

DOH subsequently completed its review of the 766 enrollees, concluded that 4 individuals were alive and took the necessary steps to close the accounts of the remaining 762 enrollees.

DiNapoli’s auditors also found:

1. $1,052,058 in overpayments for claims billed with incorrect information pertaining to other health insurance coverage that recipients had;

2. $813,412 in overpayments for low-birth weight  newborn claims that were submitted with incorrect birth weights;

3. $708,016 in overpayments for inpatient claims that were billed at a higher level of care than what was actually provided; and

4. $77,861 in improper payments for duplicate billings and claims for clinic, transportation, durable medical equipment, and eye care services.

Auditors also identified providers in the Medicaid program who were charged with or found guilty of crimes that violate health care programs’ laws or regulations. DOH terminated 26 of those providers, but the status of five other providers was still under review at the time fieldwork was completed. 

DiNapoli made 11 recommendations to DOH to recover the remaining inappropriate Medicaid payments and improve claims processing controls. 

DOH generally agreed with the audit recommendations and indicated that certain actions have been and will be taken to address them. The agency’s complete response is included in the final audit.

Read the reportor go to: http://www.osc.state.ny.us/audits/allaudits/093016/15s16.pdf

Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”

Duties and responsibilities of members of Taylor Law “union negotiating committees” and "management teams”

Matter of Jeffersonville-Youngsville CSD, Decision U-6341

Matter of the Town of  Dresden, Decision U-7383

Matter of Nassau County Community College, 24 PERB 4583

Copaigue Union Free School District, 23 PERB 3046

Village of Port Chester, Decisions U-7856; U-7941

The summaries of the several PERB rulings set out below serve as a reminder of the major duties and responsibilities of members of the negotiating body representing union members and the negotiating team representing the employer in collective bargaining pursuant to Article 14 of the Civil Service Law, the Taylor Law, during the ratification process of the proposed collective bargaining agreement as well as the duties imposed on the “legislative body” that may be involved in the ratification process.

Matter of Jeffersonville-Youngsville CSD, PERB U-6341

The Jeffersonville-Youngsville Central School District negotiating team consisted of the Superintendent and three School Board members.

The District’s and the Union’s negotiating teams had agreed to all terms of a proposed agreement except the "2nd year salary offer." After obtaining authority to place an additional $2,000 "on the table" from the seven member School Board during the final day of negotiations, the Superintendent offered, and the Union accepted, a settlement which provided for more than the additional $2,000 authorized by the Board.

Although the Union's member ratified the agreement, the full School Board did not, with two to the three Board members of the District's negotiating team voting against the "ratification." When the Superintendent declined to execute a "memorandum agreement," the Union filed an unfair labor practice claim with PERB. 

Ultimately PERB directed the Superintendent to sign the memorandum agreement with the Union and, if requested, to sign "a formal ... contract" reflecting the salary agreements reached with the Union in the course of collective bargaining.

PERB explained that a School Board may not deprive the District's negotiating team of the power vested in it to negotiate a collective bargaining agreement. The School Board, as the "legislative body" has a different role (see Civil Service Law §201). PERB also commented that the School Board did not advise the Union of any "restrictions" on the District's team, "even if it had the authority to do so."

PERB also indicated that with respect to the two team/Board Members who voted against ratification, "each member of a negotiating team is obligated to support every part of an agreement unless the other party has been advised that he (or she) dissented from the part of the agreement which he subsequently opposed" in the course of negotiations.”

N.B. Unresolved, however, is the question of "legislative action ... providing the additional funds" by the School Board. Under the Taylor Law, any provision of an agreement that requires action by a legislative body, such as the allocation of funds, is not to take effect until the legislative body concerned acts to provide the required monies.* When the full Board votes on this matter, presumably all three "team/Board members" will be required to vote in favor of the allocation of required funds consistent with their "team position." This illustrates another of the difficulties that must be considered when a member of the "legislative body" is also designated to serve as a negotiating team member.

Matter of the Town of Dresden

In another case in which PERB distinguish the different roles administrators and legislators have in Taylor Law negotiations is Matter of the Town of Dresden, Case U-7383.

In this instance the Town Supervisor refused to sign the negotiated agreement contending that he lacked authority to reach a final agreement without the prior approval of the Town Board. The Union filed an improper practice charge with PERB.

PERB said that the Taylor Law contemplates negotiations will be an executive rather than a legislative process. Any resulting agreement is between the employer's administrative body and the Union and is binding on the parties. Those provisions requiring approval by the legislature, typically appropriations and related actions are not enforceable until the necessary legislative action is taken as earlier noted. 


Matter of Nassau County Community College

Another element to consider regarding the ratification of a collective bargaining agreement negotiated pursuant to the Taylor Law concerns the duty of negotiators to recommend ratification of a proposed agreement.

In Matter of Nassau County Community College, 24 PERB 4583, PERB sustained its Administrative Law Judges ruling that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support." As a remedy, it ordered the union to execute a collective bargaining agreement embodying the agreements reached by the parties and reflected in a memorandum of understanding if requested to do so by the employer.


Matter of Copaigue Union Free School District

In a situation similar to the one the served of the genesis of Matter of Nassau Community College, in the course of the process of ratifying the proposed collective bargaining agreement between the Copaigue Union Free School District and a collective bargaining unit of employees in the District, the Union's chief negotiator, at the beginning of a unit member meeting to vote on the ratification of a proposed agreement, announced that the Union’s four person negotiating committee was deadlocked, 2 to 2, with respect to approving the ratification of the tentative agreement. The union members then voted and the proposed agreement was rejected.

Copaigue filed an unfair labor practice charge with PERB alleging that the Union’s chief negotiator’s statement violated §209-a.2(b) of the Taylor Law. PERB’s Administrative Law Judge agreed, holding that the disclosure of the split in the views of the team members concerning the acceptance or rejection of the tentative agreement by the chief negotiator was, at best, the expression of a "neutral position on the part of the negotiating team in contravention of its duty under the [Taylor Law] to affirmatively support ratification."

PERB affirmed the ALJ’s ruling, noting that "the failure of negotiators affirmatively to support an agreement is in violation of the Taylor Law unless the negotiators had advised the other party in advance that they would not give such support."

Village of Port Chester

Alleged misunderstanding of the terms and conditions set out in a collective bargaining agreement by a party does not permit that party to repudiate the collective bargaining agreement or apply its interpretation of its terms and conditions..

As PERB ruled in Village of Port Chester, Cases U-7856; U-7941, an agreement ratified by the Village's Trustees cannot be thereafter repudiated by the Village on the grounds that it was not given a thorough explanation of the provisions in the agreement prior to its being ratified nor may it impose its understanding of the contents of the agreement upon the union as the ratification process is of no consequence with respect to the validity of the agreement.

* Civil Service Law §204-a. Agreements between public employers and employee organizations.
1. Any written agreement between a public employer and  an employee organization determining the terms and conditions of  employment of public employees shall contain the following notice in  type not smaller than the largest type used elsewhere in such agreement:  "It is agreed by and between the parties that any provision of this  agreement requiring legislative action to permit its implementation by  amendment of law or by providing the additional funds therefor, shall  not become effective until the appropriate legislative body has given  approval."

New legal search tool available from Casetext

New legal search tool available from Casetext

Source: Casetext, Inc., 430 Sherman Ave., Suite 305, Palo Alto, CA 94306

Using the latest computer technology, Casetext has a new tool for use in legal research, its Case Analysis Research Assistant [CARA]. Interested individuals may sign up for a free one-week trial period to test CARA's power using your "real-time" legal research projects.

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The procedure is simple and user friendly. The researcher logs into his or her Casetext account, or creates his or her free account if new to Casetext, and goes to CARA -- https://casetext.com/cara -- to initiate the research project. If there are questions concerning using CARA during this trial period, the researcher may arrange for brief telephone consultation.

The researcher may then securely upload a brief, memorandum of law, or other document in WORD™ or a searchable PDF format. CARA suggests “the more citations, the better!” CARA then provides a list of relevant decisions and other information, with links to the document[s] located so the user may read them in full if he or she elects to do so.

Casetext notes that there are other research-related activities wherein CARA may prove useful such as:

1. Checking an opponent's or an amicus curiae's brief, answer, memorandum of law, etc., for relevant decisions than may not have been cited therein in the course of preparing your response;

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Below is a truncated result from a draft memorandum upload to CARA’s secure website that included Garcia v San Antonio Metro. Transit Authority as one of the cases cited.

GARCIA v. SAN ANTONIO METRO. TRANSIT AUTH

469 U.S. 528 (1985)

Summaries from Subsequent Cases (25 subsequent decisions were listed.)

Holding district court did not err in granting dismissal rather than judgment where defendant's 12(c) motion raised what was essentially a 12(b)(6) defense.

Loncar v. Gaming, 2:13-cv-02218-JAD-GWF (D. Nev. Sep 22, 2015)

Key Passages from this Case (82 key passages were indicated.)

“We therefore now reject, as unsound in principle and unworkable in practice, a rule of state immunity from federal regulation that turns on a judicial appraisal of whether a particular governmental function is "integral" or "traditional." Any such rule leads to inconsistent results at the same time that it disserves principles of democratic self-governance, and it breeds inconsistency precisely because it is divorced from those principles. If there are to be limits on the Federal Government's power to interfere with state functions — as undoubtedly there are — we must look elsewhere to find them.”

Insights (2 comments concerning this case were returned.)

LI Village Treasurer Is Exempt Administrative Employee Based on Purchasing Duties

…Municipal workers have been protected by the FLSA since the Supreme Court’s landmark 1985 decision in Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528 (U.S. 1985) (though public sector employers are permitted to pay premium overtime via compensatory time rather than cash wages under 29 U.S.C. § 207(o)). However, as evidenced by a recent federal court decision, FLSA exemptions still apply to public sector employees who meet the applicable exemption standards.…

Noel P. Tripp, Esq.,

Jackson Lewis P.C.

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Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment

Employee alleges termination for planning to testify against the employer in an age discrimination case constituted a violation of the First Amendment

Stilwell v City of Williams, USCA, 9^th Circuit, Case #14-15540

Source: FindLaw, part of Thomson Reuters

FindLaw reports that “In a suit brought by a City employee who alleged that he was fired for planning to testify against the City in a lawsuit relating to age discrimination, the District Court's grant of summary judgment to defendant is vacated and remanded where: 1) plaintiff was engaged in speech as a citizen for First Amendment purposes because his sworn statements and imminent testimony about the City's retaliatory conduct were outside the scope of his ordinary job duties and were on a matter of public concern; and 2) he retaliation provision of the Age Discrimination in Employment Act (ADEA), did not preclude plaintiff’s 42 U.S.C. section 1983 First Amendment retaliation claim.”

In Connick v Myers, 461 US 138, the U.S. Supreme Court said that federal courts will consider retaliation allegations based on an employee's claim of free speech where the speech concerns matters of public concern in contrast to speech involving “only matters of a personal interest” to the employee.*

A second test that must be met by a public employee claiming that his or her employer's action violates his or her right to free speech: Did the employee's statement outweigh the employer's interest in terminating or otherwise disciplining an employee whose conduct “hinder effective and efficient fulfillment of its responsibilities to the public?”

In Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 23 NY3d 251, the Court of Appeals held that  public employer may impose restraints on First Amendment activities of its employees that are job-related that would be unconstitutional if applied to the public at large, explaining “that viewing the record evidence in light of established federal precedent … the teachers' interests in engaging in constitutionally protected speech in the particular manner that was employed on the day in question were outweighed by the District's interests in safeguarding students and maintaining effective operations,” at a school.**

Other decisions in which a public employee's right to free speech was considered include Tytor v Laramie County School District, CA10 [unpublished]; Jeffries v Harleston, CA2, 52 F3d 9; and Barnard v Jackson County, CA8, 43 F3d 1218. 

* In evaluating the validity of a restraint on government employee speech, courts must “arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees” [see Matter of Pickering, 391 US at 568]. However, the Pickering’s balancing test applies only when the employee speaks “as a citizen upon matters of public concern” rather than “as an employee upon matters only of personal interest.”

** See http://publicpersonnellaw.blogspot.com/2014/05/a-public-employer-may-impose-restraints.html, a NYPPL summary of the Santer ruling.

The text of the Stilwell decision is posted on the Internet at:

https://cdn.ca9.uscourts.gov/datastore/opinions/2016/08/05/14-15540.pdf

State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics

State Comptroller Thomas P. DiNapoli forwards auditor’s findings for review by the Public Officers Law violations to the State’s Joint Commission on Public Ethics

Source: Office of the State Comptroller

SUNY Downstate Medical Center (Downstate) consultant, Pitts Management Associates, Inc. (PMA), charged Downstate $83,156 in questionable travel and lodging expenses, exceeding the conditions of the contract, including pricey rooms at the Carlyle Hotel and a “team dinner” that included cocktails, according to a report released on August 8, 2016,  by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli said “My auditors exposed questionable expenses and ethical lapses that have no place in state government. Auditors found “tens of thousands in monthly hotel costs and expensive dinners on the public’s dime at a time when Downstate was supposed to be getting its fiscal house in order.”

Indicating that Downstate “failed to protect the public’s money,” the Comptroller urged the Joint Commission on Public Ethics “to review this questionable behavior.”

Downstate hired PMA to provide organizational restructuring and consulting to identify solutions to fiscal difficulties as reported in a 2013 Comptroller audit that revealed Downstate was facing potential insolvency. PMA had two subsequent contracts with Downstate worth $35.8 million.

DiNapoli’s report found several instances in which Downstate’s then administration failed to act in the state’s best interest by eliminating certain cost controls over PMA travel expenses, including a prohibition on reimbursement for alcohol. In addition, the then president charged his Bermuda airfare and some of his lodging at the Fairmont Hamilton Princess hotel to his state-issued credit card for a six-day birthday bash for PMA’s chair, prompting a referral by the Comptroller to the state Joint Commission on Public Ethics.

According to the report, PMA’s questionable expenses included:

1. Lodging costs of $17,688, including $14,193 in weekend hotel expenses for a consultant who had traveled home and did not require overnight accommodations, and a $1,419 charge for a single night’s stay at the Carlyle for the PMA Chairman;

2. Inappropriate meal expenses of $13,629, including free meals for Downstate staff, which is prohibited for state employees;

3. A non-itemized $2,039 “team dinner” at Manhattan’s Docks Oyster Bar and Seafood Grill with nearly $400 for alcohol. The total far exceeded the allowable U.S. General Services Administration and New York state dinner rates;

4. An alleged ‘travel expense’ of $32,500 for a management software license; and

 
5. Transportation expenses totaling $33,203, nearly half of which lacked proper documentation and included $537 for limousine drivers to wait outside restaurants for hours for PMA consultants to finish dinner.

DiNapoli recommended that Downstate:

1. Recover $41,512, including $32,500 for software license fees;

2. Review the then president’s actions and ensure time cards and expenses are properly documented and business-related;

3. Develop a policy for consulting contracts that includes reimbursement for meals, transportation and lodging that conforms to the GSA Rates and/or the New York State Travel Manual; and

4. Perform an independent examination of all travel-related expenses – that PMA charged and Downstate approved – for reasonableness, and recover as appropriate.

In response, Downstate acknowledged that improvements are needed in the procurement and payment areas and agreed to recover the $41,512 in miscellaneous expenses including the software license fees.

The Comptroller’s report and Downstate’s full response is posted on the Internet at: http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20160808.pdf