Audits and reports issued during the week ending October 8, 2021 by the New York State Comptroller

On October 8, 2021, New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued.

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

 STATE DEPARTMENTS AND AGENCIES.

 

Department of Civil Service: New York State Health Insurance Program – Payments by CVS Health for Pharmacy Services for Ineligible Members (2020-S-17) From Jan. 1, 2014 through Dec. 31, 2019, auditors identified 132,051 claims, totaling $30,695,221, that were paid for pharmacy services provided during periods when members were not eligible. Further, Civil Service paid CVS Health $170,359 in administrative fees for processing these claims.  

 

Department of Civil Service:  New York State Health Insurance Program – Payments by UnitedHealthcare for Medical/Surgical Services for Ineligible Members (2020-S-34) Auditors identified $5.7 million that United paid for members who were not eligible for Empire Plan coverage. The improper payments occurred because the member was retroactively disenrolled ($4.6 million), or the claims were paid for services that occurred either before a member was enrolled or after United was notified the member was disenrolled ($1.1 million).

 

State Board of Elections (BOE): Use of Federal Funding for Election Technology and Security (2020-S-18) Generally, the BOE has utilized available funding from its Help America Vote Act Election Security Grant to enhance the state’s election technology and infrastructure. Specifically, the BOE has planned for and spent funds for the activities described in its cybersecurity plan. Although a portion of the funds remains unspent as of February 2021, the BOE has designated the remaining funds for ongoing, multi-year initiatives that continue to address constantly evolving cybersecurity threats and enhance election infrastructure and security.  

 

Department of Health (DOH): Oversight of Registration, Licensing, and Inspection of Radioactive Materials (RAM) Facilities and Radiation Equipment Facilities (2019-S-64) DOH completed 94% of RAM facility and radiation equipment facility inspections on time; however, it completed 44% of those inspections beyond the established 1- to 5-year inspection time frames by relying on a buffer intended to allow for more flexibility and extensions to the inspection intervals for staff time and travel. DOH did not complete all license actions within its 1-year benchmark. For example, as of July 20, 2020, DOH had not completed 55 licensing actions that were beyond the 1-year benchmark. This could potentially jeopardize the quality of the department’s licensing program, which can have a direct bearing on public health and safety, as well as security. 

 

Department of Health (DOH): Medicaid Program – Claims Processing Activity April 1, 2020 Through Sept. 30, 2020 (2020-S-22)

The audit identified over $9.7 million in improper Medicaid payments that require DOH’s prompt attention, including: $4.5 million paid for an incorrect retroactive rate adjustment; and $2.1 million paid for inpatient claims that were billed at a higher level of care than what was actually provided. By the end of the audit fieldwork, about $6.8 million of the improper payments had been recovered. 

 

Department of Health: Medicaid Program – Cost Saving Opportunities on Payments of Medicare Part C Claims (2020-S-65) New York’s current Medicaid payment rules for Medicare Part C cost-sharing liabilities compared to the allowable alternatives have significantly different costs to the Medicaid program. If New York Medicaid had limited its cost-sharing so that the total payment (Medicare’s payment plus what Medicaid was billed for the copayment or coinsurance) was no more than the typical Medicaid fee, it could have saved over $419 million from July 1, 2016 to Dec. 31, 2020. Other states already use this approach, and it is similar to how New York Medicaid currently pays Medicare Part B cost-sharing. Using this reimbursement formula, auditors estimate the state could save over $122 million annually. 

 

State Education Department (SED): Review of Advance Contract Payments (2019-BSE2-01) For the period of July 2012 through July 2018, SED made 216 advance payments totaling $546,625 to 113 contractors whose 25 percent advance payment was the only expenditure made under the contract prior to its expiration. These contacts had a total value of nearly $2.2 million. Auditors selected 13 contracts valued at $224,000 ($56,000 in advance payments) for review and found SED did not obtain any reports from the 13 contractors documenting how the advance funds were expended. As a result, SED needed to improve its contract monitoring to ensure contractors expended advanced funds in accordance with the terms and conditions of the contracts. 

 

State Education Department (SED): Westchester County Chapter NYSARC Inc. (WARC) – Compliance With the Reimbursable Cost Manual (2020-S-27) WARC is an SED-approved, non-profit special education provider located in Westchester County, serving students from Westchester and Putnam counties. Among other programs, WARC provides preschool special education services to children with disabilities who are 3 and 4 years of age. WARC is reimbursed for these services through rates set by SED. For the fiscal year ended June 30, 2016, auditors identified $49,605 in ineligible costs reported by WARC for reimbursement.  

 

Workers' Compensation Board: Assessment of Costs to Administer the Workers' Compensation Program for the Three State Fiscal Years Ended March 31, 2020 (2021-M-1) Auditors performed certain procedures, which were agreed to by the board, to ascertain the expenses it incurred in administering the program for the three State Fiscal Years ended March 31, 2020. On average, the board incurred $207 million in expenses, including about $6 million attributable to administering self-insurance, to administer the program for each of the three years. 

 

Office of General Services (OGS): Compliance With Executive Order 95 (Open Data) (Follow-Up) (2021-F-12) An audit covering the period March 11, 2013 through Dec. 6, 2019 found OGS had taken steps to meet the requirements of EO 95; however, certain aspects of the order were not fully addressed and there was limited assurance OGS provided a complete catalogue of its publishable state data or accompanying schedules for making that data public, as required. In a follow-up, auditors found OGS made limited progress in addressing the problems identified in the initial audit report.

Evaluating jurisdiction of courts to address claims of national origin discrimination, violation of Civil Service Law §75-b, sovereign immunity and subject matter jurisdiction

Supreme Court granted New York State Office of Temporary and Disability Assistance's [ODTA] CPLR §211 motion to dismiss the Petitioner's claims against it under the New York City Human Rights Law [City HRL] alleging national origin discrimination under the New York State Human Rights Law [State HRL], and for alleged violation of Civil Service Law §75-b.

The Appellate Division sustained the dismissal on the ground of sovereign immunity and lack of subject matter jurisdiction, citing Jattan v Queens Coll. of City Univ. of N.Y., 64 AD3d 540. Further, opined the court, Petitioner failed to identify "any independent duty on the part of [ODTA's Deputy Commissioner] to him, outside of the City HRL, which could serve as a vehicle for holding the State "secondarily liable for the tortious acts under respondeat superior".]

Addressing Petitioner's allegations of violation of Civil Service Law §75-b, the Appellate Division sustained Supreme Court's action, explaining that "claims under CSL 75-b are committed to the exclusive jurisdiction of the Court of Claims," citing Article VI, §9 and the Court of Claims Act §§ 8-9. Accordingly, said the Appellate Division, the lower court "properly severed and dismissed that cause of action for lack of subject matter jurisdiction."

With respect to Petitioner's cause of action alleging national origin discrimination against defendants OTDA and the Deputy Commissioner, the Appellate Division ruled "[l]iberally construing the complaint, presuming its factual allegations to be true, and according it the benefit of every possible favorable inference," Petitioner's complaint asserted that [the Deputy Commissioner] was aware of a long chain of discrimination against [Petitioner] and condoned it." 

Further, the Appellate Division said "[i]t can also be inferred that [the Deputy Commissioner] was aware of [Petitioner's] national origin, and condoned the continuing discrimination and concurrent retaliation against him, culminating in the ultimate adverse action of termination of employment."

Accordingly, the Appellate Division reinstated the amended complaint's State HRL cause of action for national origin discrimination against OTDA and the Deputy Commissioner and the accompanying aiding and abetting discrimination claim against the individual defendants.

Click HERE to access the text of the Appellate Division's decision.

Internal Revenue Service's Fiscal Year 2022 Program Letter announced

The Tax Exempt & Government Entities (TE/GE) Fiscal Year 2022 Program Letter (PDF) lists the Internal Revenue Service's priorities for the new fiscal year. 

In addition IRS reported that it will also use its Compliance Program and Priorities webpage to provide information about additional priorities as they are launched.  

IRS listed the following as its Fiscal Year 2022 compliance program and priorities align with the IRS Strategic Goals:

• Strengthen Compliance Activities
• Improve Operational Efficiencies
• Maintain a Taxpayer-Focused Organization
• Ensure Awareness and Collective Understanding
• Leverage Technology and Data Analytics
• Develop Our Workforce

Further, IRS plans to release a summary of its Fiscal Year 2021 accomplishments during the first quarter Fiscal Year 2022, as well as its annual program (or work plan) and accomplishment letters for previous years.

The effective date of a final administrative determination triggers the running of the statute of limitations to challenge the determination

A New York City police officer [Officer] retired from the New York City Police Department [Department] while serving "without firearms privileges." Officer subsequently filed a CPLR Article 78 petition seeking to annul the Department's issuing Officer a retirement identification card containing the words "no firearms." Supreme Court dismissed the proceeding and Officer appealed.

Unanimously affirming the Supreme Court's ruling, the Appellate Division said that the Department "reached a final and binding determination on May 31, 2018," the date on which Officer, then on modified duty status, retired from the Department and the date on which the Department issued Officer a retirement identification card bearing the words "no firearms." In addition, the Department declined to provide Officer with "a good guy letter" that was necessary for Officer to obtain a firearms license.*

The New York City Police Department License Division's "INSTRUCTIONS FOR NYPD RETIREES" states: "A retired law enforcement handgun license will not be issued to you if your [sic] did not receive a Pistol License Inquiry Response form (PD 643-155) a.k.a “good-guy letter, of [sic] if your ID card is stamped “No Firearms.” To obtain a retired law enforcement license, you must have the restriction lifted prior to receiving a license". 

Citing Matter of Baloy v Kelly, 92 AD3d 521, the Appellate Division opined that the possibility of Officer obtaining administrative relief was exhausted when Officer retired without a change in his modified status. Thus, the court concluded, the four-month statute of limitations began to run on May 31, 2018, and Officer's petition, filed in September 2019, was untimely.

Another impediment to Officer's right to challenge the administrative decision was that, as Supreme Court correctly determined, Officer's post-retirement letter "was merely a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations."

* The decision noted that the Department's policy of declining to issue a "good guy letter" in the event an officer retires without firearms privileges.

Click HERE to access the text of the Appellate Division's decision.

 

Municipality's motion for summary judgment based its claim of qualified immunity rejected by United States Circuit Court of Appeals, Second Circuit

In this appeal before the Second Circuit Court of Appeals, the Municipal Defendants [Defendants] ask the Appellate court to "exercise pendent jurisdiction" over the matter and reverse the district court’s denial of Defendant's motion for summary judgment on Plaintiff's state law claims of false arrest, malicious prosecution, intentional infliction of emotional distress, and indemnification, claiming that the Defendants were entitled to "qualified immunity."

The Circuit Court said that public officials performing discretionary functions are entitled to qualified immunity barring §1983 claims unless such officials “violated a statutory or constitutional right” and that right “was ‘clearly established’ at the time of the challenged conduct, citing Ricciuti v. Gyzenis, 834 F.3d 162.

The Circuit Court said it had jurisdiction to review an "interlocutory order denying qualified immunity so long as defendants pursue the appeal ‘on stipulated facts, or on the facts that the plaintiff alleges are true, or on the facts favorable to the plaintiff that the trial judge concluded the jury might find.’” In contrast, the Circuit Court said it did not have jurisdiction to review a denial of qualified immunity to the extent it was based on a district court’s finding that there is enough evidence in the record to create a genuine issue as to factual questions that are material to the resolution of the Defendants' qualified immunity claim.

In this instance the Circuit Court held that it lacked jurisdiction to consider the federal law claims at issue here because the Defendant police officers’ qualified immunity defense turns on disputed fact and the Defendants have not shown that they would be entitled to qualified immunity as a matter of law under Plaintiff’s version of the facts.

Rejecting  Defendants' argument that the Defendant's police officers were entitled to qualified immunity on Plaintiff's false arrest claim and her equal protection claim, the court said that the resolution of these claims turn on the sufficiency of such claims to create an issue for the jury, "a contention that ... cannot[be] entertain on interlocutory review."

The Circuit Court of Appeals then explained that having concluded that it lacked jurisdiction to consider the question of qualified immunity as to Plaintiff's federal law claims, it also lack any basis to exercise pendent jurisdiction over Plaintiff's state law claims.

Click HERE to access the text of the Second Circuit Court of Appeals' decision.