New York State Comptroller Thomas P. DiNapoli issues audits and examinations

On November 6, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations had been issued.

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Department of Health (DOH): Medicaid Program: Overpayments for Therapy Services and Prescription Drugs Covered by Medicare (2016-S-73)

The audit identified $20.1 million in Medicaid payments made by DOH for therapy services and drugs that should have been paid for by Medicare.

Department of Health: Improper Medicaid Payments to a Transportation Provider (Follow-Up) (2019-F-28)

An audit issued in September 2018 found that a transportation provider did not maintain the required documentation to support claims prior to 2016, totaling $1.4 million. In a follow-up, auditors found DOH made some progress in addressing the problem identified in the initial report. The Office of the Medicaid Inspector General opened an investigation into the provider; which remained ongoing at the time of the follow-up review.

Department of Health: Medicaid Payments to Medicare Advantage Plan Providers (Follow-Up) (2019-F-29)

An initial audit released in September 2018 identified $770,935 in Medicaid overpayments for Medicare Part C cost-sharing. In a follow-up, auditors found DOH made some progress in addressing the problems identified. However, no action had been taken to recover the inappropriate payments.

New York City Department of Buildings (DOB) Elevator Safety (Follow-Up) (2019-F-22)

An audit issued in June 2018 concluded that inspectors did not always perform thorough elevator inspections. As a result, hazardous and other unsafe conditions were not always identified and corrected. In a follow-up, auditors found that of the prior recommendations, DOB implemented three, partially implemented four, and did not implement two.

New York State Health Insurance Program: CVS Health: Temporary Holding Account Rebate Revenue (2019-S-27)

CVS Health did not seek rebates from drug manufacturers on claims that were, in fact, rebate-eligible. Auditors identified $428,958 in rebate revenue that is due to the state Department of Civil Service for rebate-eligible claims in the account for the period Jan. 1, 2014through Dec. 31, 2018. 

Metropolitan Transportation Authority: Triborough Bridge and Tunnel Authority (TBTA): Selected Aspects of Collection of Bridge and Tunnel Tolls and Fees (Follow-Up) (2019-F-1)

An earlier report found that, while the TBTA makes efforts to collect unpaid tolls, $11.3 million in tolls were either written off or uncollected. In addition, TBTA had more than $72 million in unpaid fees for the Henry Hudson Bridge from 2013 through 2015. In a follow-up, auditors found TBTA officials have made progress in addressing the issues identified. However, additional improvements are needed.

State Education Department (SED): Oversight of Nurse Licensing (Follow-Up) (2019-F-26)

An audit issued in September 2017 found the SED was not completing investigations, particularly for complaints that pose a substantial danger to public health and safety, in a timely manner. In a follow-up, auditors found SED made some progress in addressing the issues identified in the initial audit.

Department of Taxation and Finance: Controls Over Unclaimed Bottle Deposits (Follow-Up) (2019-F-6)

A report issued in December 2017, determined that the department deposited all funds received into the General Fund, as required. However, it did not assess penalties on 39 deposit initiators that failed to file required quarterly reports, nor did it assess penalties on those who filed late, and took little action to improve compliance. In a follow-up, auditors found the department has made significant progress in addressing the issues identified in the audit.

Employee Organization Leave

Employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end.

This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. 

Another element affecting State employees on Employee Organization Leave: The State Ethics Commission has advised that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities” [see Advisory Opinion #90-a ].

Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.

Failure to respond to a request for documents sought pursuant New York State's Freedom of Information Law

An individual [Petitioner] had made numerous requests to the County District Attorney's Office [Respondent] pursuant to the Freedom of Information Law [FOIL] for copies from the negatives of crime scene photographs related to his criminal case. Not receiving any response to his FOIL request,* Petitioner eventually commenced a CPLR Article 78 proceeding seeking to compel the Respondent to produce the photographs. Supreme Court dismissed the petition based on the Respondent's certification that the requested records could not be located and Petitioner appealed.

The Appellate Division affirmed the lower court's decision, explaining that in the event the custodian of the record or records sought is unable to locate documents properly requested pursuant FOIL, Public Officers Law §89(3) requires the custodian to certify that it does not have possession of the requested record or the record cannot be found "after diligent search."**

However, said the Appellate Division, "even where an entity properly certifies that it was unable to locate requested documents after performing a diligent search, the person requesting the documents may nevertheless be entitled to a hearing on the issue where he or she can 'articulate a demonstrable factual basis to support the contention that the requested documents existed and were within the entity's control.'"

In this instance Petitioner did not establish his entitlement to a hearing as FOIL only requires the custodian of the record to provide copies of "any information kept, held, filed, produced or reproduced by, with or for the [Respondent]." Although Petitioner submitted a police department property report that listed a roll of film, the court said that nothing in the record indicates that the roll of film or any photographs that may have been developed therefrom were ever in Respondent's possession.

Citing Gould v New York City Police Dept., 89 NY2d at 279, the Appellate Division held that as Respondent had adequately certified that "no requested documents could be found after a diligent search," the Supreme Court had properly dismissed the Petitioner's Article 78 action.

* Public Officers Law §89[4][a] provides that a failure to respond is deemed a constructive denial of a Freedom of Information Law request.

** The statute, however, does not specify the manner in which an agency must certify that documents cannot be located and neither a detailed description of the search nor a personal statement from the person who actually conducted the search is required.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07657.htm

Appealing administrative decisions made by New York State Education Department staff members

New York State Education Department’s Office of Teaching Initiatives [SED] denied the request submitted by a school counselor [Petitioner] holding a provisional certification for an extension of time in which to complete the requirements for obtaining permanent certification as a school counselor.

 

The Petitioner held provisional certification as a school counselor. In 2013 Petitioner received an extension to complete the necessary requirements to receive permanent certification.  Petitioner requested a second extension of time in 2019, which SED denied. Petitioner appealed to the decision to the Commissioner of Education seeking SED issuance of a permanent certificate in school counseling or, in the alternative, an extension of time in during which Petitioner could complete any additional requirements."

The Commissioner dismissed the appeal for "lack of jurisdiction." 

Citing Appeal of Carmel Academy, 56 Ed Dept Rep, Decision No. 16,976, the Commissioner explained that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department" and  that any such appeal must adjudicated "in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17773

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