Audits of State Departments and Agencies issued September 25, 2020

On September 25, 2020, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued.

Click on the text in color to access the full report. 

Department of Environmental Conservation: Oversight of Waste Tire Cleanup and Use of Waste Tire Fees (Follow-Up) (2020-F-12) A report issued in August 2019 found that DEC had made significant progress abating identified waste tire sites. However, auditors identified delays in the timely abatement of waste tire sites due to delays in establishing a new abatement contract through the Office of General Services as well as other problems with certain enforcement steps. In a follow-up, auditors found that DEC has implemented all three of the recommendations from the initial report.  

Department of Environmental Conservation (DEC): Title V Operating Permit Program Revenues, Expenditures, and Changes in Fund Balance for the Eight Fiscal Years Ended March 31, 2017 (2020-F-13) An audit covering the period April 1, 2009 through March 31, 2017 found DEC generally had adequate procedures in place to capture the Clean Air Act program’s revenues, expenditures and changes in fund balance transaction data. However, auditors identified errors in the permit fee billing process and in the allocation of expenses to the program. In a follow-up, auditors found DEC has made significant progress in correcting the problems identified in the prior report.  

Department of Health (DOH): Medicaid Overpayments for Inpatient Care Involving Mechanical Ventilation Services (Follow-Up) (2020-F-10) A report released in May 2019 identified $975,795 in overpayments on 32 inpatient claims that reported 96 consecutive hours or more of mechanical ventilation services. In a follow-up, auditors found DOH officials made some progress in addressing the problems identified in the initial audit report; however, additional action is needed.  

Department of Labor (Labor), Department of Taxation and Finance (Tax and Finance): New York Youth Jobs Program (Follow-Up) (2020-F-7) A report issued in January 2019, found Labor could improve its methods for verifying eligibility for the youth jobs program, and that Tax and Finance could better ensure that the tax credits granted are accurate and only for program-eligible youth. In a follow-up, auditors found that Labor and Tax and Finance implemented the five recommendations from the initial audit. 

Office of Mental Health (OMH): Administration of the Contract With the Postgraduate Center for Mental Health (Follow-Up) (2020-F-51) A report issued in December 2016, determined sampled clients under the Supportive Housing Contract with the Postgraduate Center for Mental Health were eligible for the program, were referred to the program via the proper authorities and that client case files contained required documentation. However, visits to certain client apartments identified what appeared to be ongoing conditions that could negatively affect the health or safety of clients. In a follow-up, auditors found OMH has made some progress addressing the issues identified in the initial report. 

Division of Military and Naval Affairs: Lead Contamination of State Armories (2019-S-50) Auditors found public access has continued at four armories that contain lead levels exceeding the acceptable threshold. None of these four armories disclosed the excess lead levels to the public. Three are allowing public access through non-military use agreements that include a women’s shelter and a community center. One is a now a military museum. Auditors also found lead hazard awareness training was not provided to employees at three armories. 

Office of Parks, Recreation and Historic Preservation: Compliance With Executive Order 95 (Open Data) (2019-S-65)The office has taken steps to meet the requirements of Executive Order (EO) 95; however, certain aspects of the order have not been fully addressed. Within the required time frame, the office appointed a qualified data coordinator responsible for EO 95 compliance. However, it did not identify the total population of publishable state data that it maintains. Therefore, there is limited assurance the office has provided a complete catalogue or established a schedule for making the data public, as required.  

New York City Department of Sanitation (DSNY): Street and Sidewalk Cleanliness (2019-N-1) DSNY needs to improve its communication, coordination and record keeping processes to efficiently and effectively address persistent cleanliness problems on New York City streets and sidewalks. Based on site visits to a sample of 271 areas with multiple complaints, auditors determined 189 streets and 159 sidewalks were dirty based on ratings criteria. DSNY officials did not analyze readily available data such as service requests or its own monitoring records to identify problem areas or trends.

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Local government 2019 Fiscal Stress Scores announced by New York State's Comptroller Thomas P. DiNapoli

Warning that the COVID-19 pandemic could push more local governments into serious fiscal stress, on September 24, 2020, New York State's Comptroller Thomas P. DiNapoli reported that twenty-two local governments* that were designated in fiscal stress for 2019. The scores were based on financial information reported by local governments operating on a calendar year basis for pre-pandemic Jan. 1 – Dec. 31 for 2019. ** 

In the words of the State Comptroller: “We’ve been closely tracking the trends and common problems that communities in fiscal stress are facing. Now the economic damage caused by the pandemic has dramatically altered the fiscal landscape, and many communities are struggling to provide critical services and pay their bills. Without aid from Washington, the options are bleak for local governments trying to stay in the black, and many more local governments may be pushed into serious fiscal stress.”

Comptroller DiNapoli’s Monitoring System informs the public about local governments’ financial health by evaluating and scoring municipalities on financial indicators such as year-end fund balance, cash-on-hand, short-term borrowing, fixed costs and patterns of operating deficits. The system also evaluates population trends, poverty and unemployment to establish separate “environmental” scores for each municipality.

In total, Comptroller DiNapoli has designated 31 local governments in fiscal stress for 2019. This includes nine local governments with non-calendar fiscal years announced in March, including the cities of Long Beach [Nassau County] and Amsterdam [Montgomery County] which had the highest fiscal stress scores in the state.

The State Comptroller also released a report on common elements shared by the 31 local governments in fiscal stress. It also noted the fiscal stress risks associated with COVID-19 on local finances, including sharp declines in sales tax revenue, significant withholding of state aid payments to local governments, and existing stress factors such as low fund balance. The report highlighted the targeted training and guidance offered by the State Comptroller’s Office to help local officials dealing with financial challenges.

Also included were the following: 

Lists
Municipalities in Stress for Fiscal Year Ending 2019
Municipalities Who Did Not File or Designated Inconclusive 

Excel Spreadsheet
Detailed List of All Municipalities in State and Fiscal Stress Points 

Report
Fiscal Stress Monitoring System – Municipalities: Fiscal Year 2019 Results and Fiscal Year 2020 Risks 

Toolkit
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm 

* In January, DiNapoli issued fiscal stress scores for school districts and found 33 school districts designated in some level of fiscal stress for the fiscal year ending June 30, 2019. 

** All New York State's counties and towns, 44 cities and 10 village.

 

Establishing regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19

New York State Senator Sue Serino has introduced a bill, Senate 8996, that would require the New York State Health Department to submit a plan to establish regional step-down facilities to temporarily care for individuals who have been discharged from a hospital after receiving treatment for COVID-19, or any other sickness related to a pandemic, to a nursing home, adult care facility or assisted living residence where such individual would reside in safety. 

The bill provides that the Department of Health, in consultation with organizations representing hospitals, nursing homes, adult care facilities and assisted living residences, shall develop a plan to establish regional step-down facilities in the event of a second wave of COVID-19 or another pandemic and requires the Health Commissioner to submit such plan to the governor and legislative leaders of the Senate and Assembly by no later than October 15, 2020.

Senator Serino's Memorandum in Support of Bill states that "[one] of the biggest lessons learned from [the COVID-19 crisis was] that New York, along with many other states and countries, [was] simply unprepared to handle a pandemic of this magnitude. While concern that hospitals would be overwhelmed at the height of the pandemic was justified, sending COVID-19 positive patients into nursing homes among our most vulnerable population defied commonsense.

"OVID-19, and many believe this to be a serious undercount as New York State, contrary to the practices of other states with major COVID-19 outbreaks, only count residents who died in the facilities and excluded those who contracted the virus in the facility but later died in the hospital. Many within nursing homes have compared the spread of COVID-19 within the facility once it has entered to wildfire. This analogy is particularly troubling given that more than 6,300 hospital patients were released into nursing homes." 

The Commissioner would also be required to review and update the regional step-down facility plan biennially, or more frequently if the Commissioner it deems necessary. The plan would be posted publicly on the Department of Health's website.

No companion bill has yet been introduced in the New York State Assembly.

 

 

Crediting service for certain benefits base on employment in another jurisdiction

In this CPLR article 78 proceeding, an employee of the City of New York [Plaintiff] sought judicial review of a New York City Department of Environmental Protection [DEP] determination that she was not entitled to leave-time credits based on her 17 years service with the City University of New York [CUNY]. Supreme Court denied Plaintiff's petition and dismissed the proceeding, explaining that “employees in the classified service of the City University of New York have not been employees of an agency of the City of New York but have been employees of a separate civil service jurisdiction, the City University of New York.”

According, the court held that DEP's decision that Plaintiff was not a City employee who was covered by the Leave Regulations during the times that she was employed by CUNY "was legally correct and not arbitrary and capricious."

Nonetheless, opined Supreme Court, "if the Plaintiff could show that CUNY and the City had an agreement or MOU [Memorandum of Understanding] permitting the City to recognize her accrued CUNY leave credits, she might be entitled there such credit, noting that "the State has promulgated regulations recognizing a State employee’s right to the transfer of leave credits accrued in the course of other public employment where the prior public employer entered into a reciprocal agreement or MOU with the State for recognition of such leave credits," citing 4 NYCRR 24.1.* 

Insofar as Plaintiff's claim was concerned, CUNY and the City had not entered into such a reciprocal agreement or MOU. Thus, said the court, DEP rationally concluded that there was no basis for crediting the Plaintiff any of her service as a CUNY employee in connection with her City-service leave benefits, or the rate of accrual of those benefits.** In contrast, where an employee resigns one position with the City that was covered by the Leave Regulations and takes another position with the City also covered by the Leave Regulations, the employee does not lose any leave rights or balances, regardless of whether the new position carries the same or a different title, or is in the same or a different agency.

With respect to Plaintiff's contentions, in the words of the court, "A review of applicable law and the administrative record reflects that, since July 1, 1979, CUNY employees have not been employees of the City, and CUNY and the City never entered into an agreement or MOU covering this subject matter." Accordingly, an employee’s length of City service determines his or her rate of accrual of leave balances and the length of such service also is considered in connection with seniority for layoff purposes, and may affect the level of recurring benefits under a collective bargaining agreement.

In other words, should an employee resigns a position with the City that was covered by the Leave Regulations and takes a position with a public employer other than the City, or a City position not covered by the Leave Regulations, "the employee may indeed lose leave rights, including any favorable rates of leave accrual that were in effect as the time of resignation" nor may the employee carry over leave balances in the event that he or she returns to City service in the future.

Accordingly, Supreme Court held that DEP had properly concluded that the Plaintiff's leave-time credits and rate of accrual must be based on a start date of November 2, 2014, when she began her employment with DEP. 

* 4 NYCRR 24.1 is applicable to employees of State executive agencies as the employer. See, also, 22 NYCRR 24.12, which provision is applicable to nonjudicial employees of the State Unified Court System. 

** See Kaslow v City of New York, 23 NY3d 78.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_32931.pdf

Certain teachers employed by the New York City Department of Education seek court order permitting them to "telework remotely"

A number of teachers [Petitioners] employed by the New York City Department of Education [DOE] initiated a CPLR 78 action seeking a court order permitting them to "telework remotely" rather then report to work in person. The Petitioners:

(1) Challenged as arbitrary and capricious the July 15, 2020, DOE's remote teaching policy for the 2020-2021 school year issued in response to the Covid-19 pandemic; and

(2) Sought a court order compelling DOE to allow Petitioners “and all others similarly situated" to telework remotely on full salary or without loss of leave.

Essentially Petitioners’ motion sought a temporary restraining order [TRO] prohibiting DOE from forcing Petitioners to report to work in person, charging their "Cumulative Absence Reserve and sick leave days" as the result of "telework" related absences, if any, and compelling DOE to permit Petitioners to teach remotely.

Supreme Court, after oral argument, opined that "In evaluating the balance of equities on a motion for a preliminary injunction, courts must weigh the interests of the general public as well as the interests of the parties to the litigation,” citing Amboy Bus Co., Inc. v Klein, 2010 NY Slip Op 31356[U]. To obtain an injunction, said the court, a plaintiff is “required to show that the irreparable injury to be sustained is more burdensome to him than the harm that would be caused to the defendant through the imposition of the injunction.”

Explaining that ".... several Petitioners have already been granted leave to work remotely until at least September 21, 2020, or have simply declined to return in-person until further notice," the court held that "the balance of the equities — by an exceedingly thin margin — favors Petitioners."

Supreme Court then granted the TRO solely to the extent that DOE may not, "until further order of the Court:"

a. Compel the named Petitioners to report to work in person;

b. Deny the named Petitioners the ability to work remotely; and

c. With respect to the named Petitioners, deny or deduct salary and/or leave time for remote work.

Supreme Court then ordered the parties to telephone the court to discuss the logistics of an expedited hearing on the preliminary injunction and Petition.

The Supreme Court's decision is posted on the Internet at http://www.nycourts.gov/reporter/pdfs/2020/2020_33016.pdf