Audits issued by the New York State Comptroller during the week ending December 18, 2020

On December 18, 2020, New York State Comptroller Thomas P. DiNapoli announced the following audit reports had been issued.

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

State Departments and Agencies

 

Metropolitan Transportation Authority - Long Island Rail Road (LIRR): Management of Capital Projects (2018-S-70) LIRR’s capital management process is guided by a series of Department of Program Management procedures; however, project managers do not always comply with, and contractors/consultants are not required to follow, these procedures. Auditors believe this contributed to LIRR completing 10 of 11 sampled projects late, ranging from three months to over four years. In addition, eight of the projects sampled were over budget.

 

Office of Information Technology Services (ITS): Oversight of Information Technology Consultants and Contract Staffing (Follow-Up) (2020-F-21) An audit issued in September 2019 found that ITS was monitoring information technology services procured from consultants and contract staff to ensure compliance with contract terms and deliverables. For 14 of the 20 contracts reviewed, ITS provided adequate oversight to ensure that the contractor or consultant was meeting the deliverables. For the remaining six contracts, for which ITS paid out more than $156 million, there were deficiencies in contract monitoring. In a follow up, auditors found ITS has made progress in correcting the problems identified in the initial report.

 

State Education Department (SED): Mary Cariola Children’s Center, Inc. – Compliance With the Reimbursable Cost Manual (2020-S-25) Mary Cariola is a not-for-profit organization located in Monroe County that provides preschool special education services to children with disabilities who are three and four years of age. Mary Cariola is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2016, auditors identified $12,744 in ineligible costs that Mary Cariola reported for reimbursement.

 

State Education Department (SED): Wayne County Chapter NYSARC Inc. (ARC Wayne) – Compliance with the Reimbursable Cost Manual (2020-S-30) ARC Wayne is a not-for-profit organization located in Wayne County. Among other programs, ARC Wayne provides preschool special education services to children with disabilities who are three and four years of age. ARC Wayne is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2017, auditors identified $20,988 in ineligible costs that ARC Wayne reported for reimbursement.  

 

Department of Health: Medicaid Program – Claims Processing Activity Oct.1, 2019 Through March 31, 2020 (2019-S-53) Auditors identified about $2.9 million in improper Medicaid payments that require the department’s prompt attention, including: $978,966 was paid for inpatient claims that were billed at a higher level of care than what was actually provided; $740,920 was paid for newborn birth claims that contained inaccurate information; and $513,427 was paid for practitioner, clinic, inpatient, pharmacy, and episodic home health care claims that did not comply with Medicaid policies.

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Courts will accept an agency's interpretation of its statutory authority if it determines that agency's interpretation of the statute is rational

The New York City's Administrative Code §13-254(a) provides that the New York City's Police Department's Medical Board [Board] may require "any disability pensioner, under the minimum age or period for service retirement elected by him, to undergo medical examination," and if the Board concludes that he or she "is able to engage in a gainful occupation," it certifies the pensioner to the appropriate civil service commission, which places the pensioner "as a preferred eligible on such appropriate lists of candidates as are prepared for appointment to positions for which [the pensioner] is stated to be qualified."

A retired New York City police officer [Petitioner] submitted an application for reinstatement to the New York City Police Department [NYPD]. NYPD rejected the Petitioner's application. Petitioner initiated an action pursuant to CPLR Article 78 challenging NYPD's decision. Supreme Court granted NYPD's motion to dismiss the proceeding and Petitioner appealed.

The Appellate Division unanimously affirmed the Supreme Court's ruling. Noting the Board's authority to reinstate a disability pensioner "is limited to members under the age of 55 or who have not reached the service retirement contribution period (20 0r 25 years) they elected upon joining the pension fund," the court opined that the Board's interpretation of §13-254(a) was rational.*

As was undisputed that when Petitioner joined NYPD he elected a minimum service retirement period of 20 years. It was also conceded that when he requested reinstatement to the NYPD, he was no longer under the minimum 20-year period for service retirement elected by him.

Accordingly, the Appellate Division held that Supreme Court correctly found that the Board's denial of Petitioner's application for reinstatement was "a rational determination based on  the Board's rational interpretation of its statutory authority."

* Encarta^® World English Dictionary^© defines the term "rational" as being "reasonable and sensible: governed by, or showing evidence of, clear and sensible thinking and judgment, based on reason rather than emotion or prejudice".

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07308.htm

 

Considering COVID-19 pandemic infection risks - opening and closing schools

ResearchGate has posted an item by NYPPL's science consultant Dr. Robert Michaels addressing scientifically supportable criteria for deciding whether schools should be open versus closed considering COVID-19 pandemic infection risks.  The item can be viewed (and downloaded at no charge) at:  https://www.researchgate.net/publication/347358002_Look_at_Risks_of_In-person_Schooling_Letter_to_the_Editor_Daily_Gazette_Newspaper_Schenectady_New_York_16_December_2020<br< 

 

Prohibiting employees from associating with persons reasonably believed to be engaged in criminal activities

§2.c of the New York City Police Department's General Regulations Procedure 203-10, Public Contact – Prohibited Conduct, bars an individual subject to its provisions from knowingly associating with any person or organization "Reasonably believed to been engaged in, likely to engage in, or to have engaged in criminal activities."

The New York City Police Department [NYCPD] terminated a NYCPD employee [Petitioner] after a Hearing Officer found that the Petitioner was guilty of associating with an individual "who he should have reasonably believed was involved in criminal activity." Petitioner commenced a CPLR Article 78 action challenging his dismissal from the Department.

The Appellate Division sustained NYCPD's action, finding that the determination that Petitioner was guilty of association with an individual who he should have reasonably believed was involved in criminal activity and in failing to report corruption was supported by substantial evidence.

The court also rejected Petitioner's contention that the Hearing Officer incorrectly considered admissions made in the course of his Internal Affairs Bureau [IAB] interview beyond those that were included in exhibit introduced at the hearing as "unavailing," noting that the Hearing Officer specifically stated that he intended to consider all the portions of the IAB transcript "that amounted to admissions and the limited context necessary to understand" Petitioner's testimony.

The Appellate Division unanimously confirmed NYCPD's action and dismissed Petitioner's appeal, opining that "[t]he penalty of termination does not shock one's sense of fairness."

Other decisions involving administrative disciplinary charges served on police officer alleged to have associated with persons thought to have been engaged in criminal activities include Brinson v Safir, 255 AD2d 247, leave to appeal denied 93 NY2d 805; Richardson v Safir, 258 AD2d 328; Delgado v Kerik, 294 A.D.2d 227 and Hastings v City of Sherrill, 90 AD3 1586.

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07483.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - An publication focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on http://booklocker.com/books/7401.html

 

Denying an application for accidental disability retirement resulting from an injury not a risk of the applicant's ordinary employment duties held arbitrary and capricious

The Medical Board [Board] of the New York City Employees' Retirement System [NYCERS] evaluated a New York City Department of Sanitation employee [Applicant] then serving as a Sanitation General Superintendent, Deputy Chief, who had applied for accidental disability retirement [ADR] benefits. After  reviewing Applicant's medical records the Board determined that, although the Applicant was disabled due to his right knee injury, the incident that caused Applicant's injury was not an accident. The Board recommended that the Applicant be denied ADR benefits and, instead, be granted ordinary disability retirement [ODR] benefits.*

The Board of Trustees [Trustees] of the NYCERS adopted the findings and recommendation of the Board and disapproved Applicant's ADR application for the reasons advanced by the Board.

Applicant filed a CPLR Article 78 petition seeking judicial review of the Trustees'  denial of his application for ADR. Supreme Court granted Applicant's petition to the extent of "annulling the determination and remitting the matter" to the NYCERS for further proceedings and NYCERS, the Trustees, the Board, and the City of New York appealed the Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the Supreme Court's decision, explaining:

1. Retirement and Social Security Law §605-b[b][1] provides that a [New York City] Department of Sanitation worker who "is determined by NYCERS to be physically or mentally incapacitated for the performance of duty as the natural and proximate result of an accident,** not caused by his or her own willful negligence, sustained in the performance of such uniformed sanitation service ...  shall be retired for accidental disability;"

2. Not every injury that occurs while a worker is performing his or her ordinary duties will support an award of ADR benefits; and

3. Applicant's account of the incident underlying his application was that he tripped and fell due to stepping on a loose and broken sidewalk outside the refuse-strewn lot he was photographing.

The Appellate Division concluding that Applicant's injury was not the result of a risk of his ordinary employment duties but rather the result of a sudden, fortuitous, and unexpected precipitating event, and noting "the unrefuted credible evidence regarding Applicant's ordinary employment duties," held that "the challenged determination was made without sound basis in regard to the facts, and thus, the [Trustee's] determination was arbitrary and capricious."

Accordingly, the court sustained the Supreme Court's determination granting Applicant's petition to the extent of, in effect, "annulling the determination and remitting the matter for further proceedings."

* ODR benefits are typically less generous than ADR benefits.

** Citing Lichtenstein v Board of Trustees of Police Pension Fund of Police Dept. of City of N.Y., Art. II, 57 NY2d 1010, the Appellate Division noted that an accident is a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact."

The decision is posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2020/2020_07197.htm.