Audits and reports issued by the New York State Comptroller in October, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State Departments and Agencies, New York City Departments and Agencies, Municipalities and School Districts were issued during the month of October, 2022.

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

State Departments, New York City Departments and Agencies and Authorities

Metropolitan Transportation Authority (MTA): Employee Qualifications, Hiring, and Promotions (Follow-Up) (2021-F-27) A January 2019 audit determined that, while the MTA allows employees to transfer across its subsidiary agencies, it did not ensure they met the qualifications for the new position into which they were hired or promoted, including education, experience, and operating license requirements and, for operating titles such as Train Operators, Conductors, and Bus Operators, drug/alcohol screening and medical examinations. The follow-up review found that the MTA made progress in addressing the issues identified. Of the 14 recommendations from the initial report, four were implemented, seven were partially implemented, two were not implemented, and one was no longer applicable.

 

New York City Department of Youth & Community Development (DYCD): Oversight of Afterschool and Summer Youth Employment Contracts (Follow-Up) (2022-F-11) The initial audit, issued in June 2019, determined DYCD was not adequately overseeing its contracts with the Greater Ridgewood Youth Council, Inc., totaling $13.9 million, to administer DYCD’s summer employment and afterschool programs. Auditors identified numerous contract and program policy violations, such as improper hiring practices, inappropriate expenditures, and duplicate compensation costs for overlapping services. The follow-up found DYCD made only limited progress in addressing the issues identified in the initial report. Of the report’s 10 recommendations, five were partially implemented and five were not implemented.

 

Department of Civil Service: Empire Plan Members With Dual Family Coverage (Follow-Up) (2022-F-13) The initial audit, issued in January 2021, determined that for certain organizations that participate in NYSHIP, their employees may be enrolled in two Family coverages – as both a primary policy holder and a dependent of a NYSHIP-eligible family member who also elected Family coverage. The dual coverages are duplicative and associated with significant unnecessary premium costs for both the member and the participating organization. Participating organizations may be unaware that employees have dual Family coverage, and unable to counsel them regarding more cost-effective options, because Civil Service, citing Health Insurance Portability and Accountability Act (HIPAA) rules, does not share data that would allow them to make this determination. The follow-up found that Civil Service implemented both recommendations from the initial audit; however, officials also concluded that information sharing was not feasible, despite auditors pointing out HIPAA exceptions that would allow it.

 

Department of Health (Medicaid Program): Accuracy of Medicaid Eligibility Determined by NY State of Health (Follow-Up) (2022-F-15  The initial audit, issued in September 2020, identified $16.6 million in improper and questionable Medicaid payments. The improper payments stemmed from processing weaknesses in the NY State of Health (NYSOH) system as well as a lack of eligibility and enrollment data reconciliations that resulted in recipients, including some who were deceased, remaining eligible beyond their actual eligibility period. The follow-up found that the Department of Health made some progress addressing the problems identified, such as correcting certain deficiencies in NYSOH data processing. However, further actions are required to prevent additional improper payments. Of the initial report’s six audit recommendations, four were partially implemented and two were implemented.

 

New York City Civilian Complaint Review Board (CCRB): Complaint Processing (2020-N-9) CCRB investigates civilian complaints against the New York City Police Department that allege excessive or unnecessary force, abuse of authority, discourtesy, and use of offensive language. The audit found that CCRB does not complete complaint investigations in a timely manner – taking an average of 14 months in the first half of 2021. Lengthier time frames can drive cases closer to the 18-month statute of limitations and jeopardize CCRB’s ability to hold officers accountable for misconduct. CCRB did not have measures in place to pre-emptively monitor lengthy investigations or to analyze all delays to determine their root cause in order to proactively address and prevent them. In addition, CCRB did not always comply with its established procedures and guidelines intended to ensure that investigations of complaints are conducted in compliance with New York City regulations, that the resulting recommendations are appropriate, and that substantiated cases of misconduct are advanced for disciplinary action.

 

Department of Health (DOH): Medicaid Program – Improper Overlapping Medicaid and Essential Plan Enrollments (2020-S-66) Weaknesses within DOH’s automated claims processes resulted in recipients who should have been enrolled in either Medicaid or the State’s Essential Plan (EP) being improperly enrolled in both – causing both Medicaid and EP programs to make claim payments on their behalf. For the audit period, auditors determined that, during the periods of overlapping enrollment, DOH made Medicaid payments totaling $40.3 million and EP payments totaling $18.4 million. Case reviews by DOH are required to determine which program made improper payments.

 

New York City Department of Small Business Services (SBS): Selected Aspects of Supporting Small Businesses (2020-N-10) SBS’ Employee Retention Grant (ERG) Program was intended to assist businesses and non-profit organizations across all five boroughs retain employees during the COVID-19 pandemic. SBS awarded 3,411 in grants totaling nearly $25 million, but did not provide adequate oversight overall to ensure the grants were awarded and used as the Program intended. Among other issues, auditors found that SBS awarded grants to businesses that did not meet the eligibility requirements, awarded some businesses higher amounts than they were entitled to, and did not follow up with businesses to verify that they retained their employees, as required.

Municipalities and School District

Arlington Fire District – Station Number 5 Renovation (2022M-54)

Baldwinsville Central School District – Fuel Inventory (2022M-106)

Mount Pleasant Blythedale Union Free School District – Procurement (2022M-86)

North Greenbush Common School District – Claims Auditing (2022M-112)

Penfield Central School District – Procurement (2022M-76)

Starpoint Central School District – Network Access and Application User Permissions (2022M-101)

Village of Hancock – Insurance Withholdings (2022M-108)

Village of Ocean Beach – Clerk-Treasurer Compensation (2022M-79)

York Central School District – Financial Management (2022M-96)

York Central School District – Network Access Controls (2022M-93)

 

Challenging the confirmation of an arbitration award

Supreme Court a petition submitted pursuant to CPLR §7510 to confirm an arbitration award and denied the Respondent's cross petition to vacate the award. Respondent appealed but the Appellate Division unanimously affirmed the Supreme Court's ruling.

Respondent challenged the confirmation of an arbitration award alleging Petitioner "committed perjury during the arbitration proceeding."

The Appellate Division explained that Respondent's disagreement with the arbitrator's conclusion that Petitioner did not give perjurious testimony or false responses to discovery demands "was not a proper basis for setting aside the arbitration award under CPLR 7511(b)(1) or on grounds of public policy."

As a general rule, courts will not second-guess the factual findings or the legal conclusions of the arbitrator." Respondent, said the court "has not offered sufficient reason why an exception to that rule exists in this proceeding."

Further, the Appellate Division observed that courts "may not substitute their own credibility determinations for those of the arbitrator", citing Matter of Noralez v New York City Dept. of Educ., 187 AD3d 475.

Addressing Respondent's contention that Petitioner submitted "false responses to discovery demands", citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, the court opined that "there was at least 'a barely colorable justification' for the arbitrator's conclusion that there was a lack of competent evidence to support [Respondent's] claim of false discovery disclosures".

Click HEREto access the Appellate Division's decision posted on the Internet.

"Editor's letter" published in the October 22, 2022 issue of The Week magazine.

Talking Points

William Falk

October 22, 2022

No, it's not over

New Omicron subvariants are headed our way.

I was talking to a neighbor the other day about COVID, and he said with vehemence he wasn't getting the new booster. He'd already had COVID twice, despite being vaccinated with the original two shots in 2021. Since COVID hadn't killed him, he said, why bother with more shots? I reminded him that more than 1 million Americans have died of COVID, and that boosters have been proven to dramatically reduce the risk of serious illness. That led him to launch into a riff on "Fauci" laced with conspiracy theories; if that damn Fauci wanted him to get boosted, well, hell, forget it. These views, of course, are shared by tens of millions of people who've absorbed the same deluge of disinformation, and who've bought into the deadly notion that the other tribe gets shots, and ours doesn't. Besides, the pandemic is over, isn't it?

Sorry, but it isn't. COVID deaths and hospitalizations have fallen dramatically, thanks to the immunity produced by hundreds of millions of vaccinations and tens of millions of COVID infections over the past year. But immunity from infection and shots wanes after four to six months, and every winter, indoor gatherings fuel surges of infectious disease. A new swarm of subvariants has evolved to evade immunity, and are spreading rapidly; hospitals in the U.K., Europe, and Singapore are filling up with COVID cases. One of the new subvariants, BQ.1, already makes up 10 percent of new cases in the U.S., according to the CDC. A substantial portion of the millions who may be infected in coming months may develop long COVID — especially those who are unvaccinated or get COVID multiple times. Fortunately, the new "bivalent" booster will help shield people from serious illness, death, and long COVID. But so far, only about 7 percent of 209 million eligible Americans have gotten the new booster, out of COVID fatigue, tribal loyalty, or not knowing it's available. Don't roll the COVID dice. Go get a booster.

This Editor's Letter posted in The Week magazine is reprinted here, with permission, as a public service.

Determining a nonscheduled Workers' Compensation award payable following the injured employee's death

The initial paragraph of this ruling by the Court of Appeals states "It is well settled that some categories of workers' compensation benefits may pass, in certain circumstances, to the beneficiaries of injured employees who die from causes unrelated to the work injury." The court then noted that unaccrued portions of a nonschedule award under Workers' Compensation Law (WCL) §15(3)(w) do not so pass, explaining that the statute "does not provide for any unaccrued portion of a nonschedule award to remain payable following an injured employee's death."

The Employee had sustained an injury in a work-related accident classified as having a nonschedule permanent partial disability. Employee received an award pursuant to WCL §15(3)(w) in the amount of $500 per week.

Pursuant to statutory caps imposed on the period for which nonscheduled awards may be paid, Employee was to receive this amount for no longer than 350 weeks. Employee, however, passed away due to unrelated causes after 311.2 weeks. Employee's minor son  [Claimant] sought the accrued unpaid amounts of his father's award, as well as benefits for the 38.8 weeks that remained before Employee's award would have reached the statutory durational cap.

The Workers' Compensation Board affirmed an administrative law judge's ruling denying these benefits sought by Claimant explaining that "no additional award is payable to the decedent's surviving child" because "[t]o be entitled to the awards the [employee] must have causally related lost time," and "[w]ith [an employee's] death, there are no future earnings to lose," so "no posthumous award is warranted".

In the words of the Court of Appeals, "[t]here is no dispute that, pursuant to WCL §33, Claimant is entitled to the accrued, unpaid portion of the award which his father should have received during his lifetime, in the amount of 311.2 weeks at $500 per week. [Claimant, however] is not entitled to $500 per week for an additional 38.8 weeks" sought by Claimant.

The court explained that under WCL §15 (4), where an injured employee dies from causes other than the injury, an award "made to a claimant under subdivision three" may pass, as relevant here, to "a surviving child ... under the age of eighteen years." WCL §15(3) provides for two categories of awards for injuries resulting in permanent partial disability. A "schedule loss of use" [SLU] award, provided for in §15(3)(a)-(u), is designed to "compensate for loss of earning power, rather than the time that an employee actually loses from work or the injury itself".

The nature of nonschedule awards, dependent on an employee's actual earnings and the continuance of the disability, is such that there is no remaining portion of the award that can pass through to a beneficiary. Accordingly, the Court of Appeals held that "the Workers' Compensation Board's 2021 decision and so much of the Appellate Division order brought up for review" in the instant appeal should be reversed, with costs, "and the Workers' Compensation Board's 2019 decision reinstated."

Click HEREfor the instant decision by the Court of Appeals.

 

Administrative procedures to be followed are negotiable within the meaning of the Taylor Law

In this action, the Court of Appeals addressed the question whether Article 14 of the Civil Service Law, typically referred to as the Taylor Law, requires a public employer to engage in collective bargaining to determine the administrative procedures to be followed in determining if an employee placed on "workers' compensation leave" pursuant to Section 71 of the Civil Service Lawmay be terminated from the position if the individual is "absent from work for more than a year due to an injury sustained in the line of duty".

The decision notes that in Matter of City of Schenectady v New York State Public Employment  Relations Board, 85 NY2d 480 [Schenectady] the Court of Appeals held that "a city's authority under section 207-c to make initial determinations about those matters is not 'subject to mandatory bargaining' but left open the question of whether 'the procedures for implementation of the requirements of [section] 207-c' are a subject of collective bargaining."

The Court of Appeals then noted that it "answered that question in the affirmative five years later" in Matter of City of Watertown v State of New York Public Employment Relations Board, 95 NY2d 73 [Watertown], holding that "the procedures for contesting the City's determinations under section 207-c are a mandatory subject of bargaining."

Distinguishing its ruling in Schenectady, in Watertown the court concluded that "[u]nlike the initial determinations themselves - which were at issue in Schenectady 'the text of section 207-c says nothing about the procedures for contesting those determinations'" and explained that "'based on the text and history of section 207-c, it was evident that [t]he Legislature expressed no intent - let alone the required 'plain' or 'clear' intent - to remove the review procedures from mandatory bargaining".

Opining that it is undisputed that the City's right to terminate the employee is not a  mandatory negotiation subject of collective bargaining, the Court of Appeals held that the City must negotiate the administrative procedures necessary to implement that right, concluding that in this instance "collective bargaining is required."

Click HEREto access the Court of Appeal' ruling in the instant action.