State Comptroller DiNapoli releases audits of certain state departments and agencies

On October 7, 2025, New York State Comptroller Thomas P. DiNapoli posted audits of certain State Departments and Agencies

Click on the Text highlighted in color to access the audit posted on the Internet

Office of General Services – Capital Asset Management (Follow-Up) (2025-F-2) New York State has a significant investment in capital assets, which the Office of General Services (OGS) considers to be any property with a significant value that is used over a long period of time. OGS established the Statewide Financial System Asset Management Module (SFS AM) to house and maintain capital asset information in a single master file, and State agency managers use it to budget, account for, and control the acquisition and disposition of the State’s capital assets. A prior audit report, issued in February 2024, found that OGS was not adequately overseeing capital assets reported by State agencies to ensure that these agencies were properly and promptly reporting capital assets. OGS has made progress in addressing the issues identified in the initial audit report. Of the report’s seven recommendations, five have been implemented and two have been partially implemented.

New York State Health Insurance Program – CVS Caremark: Effectiveness of CVS Caremark Audits of the Empire Plan Prescription Drug Program (2024-S-4) CaremarkPCS Health, L.L.C. (CVS Caremark) administers the prescription drug program for the Empire Plan, the primary health benefits plan for the New York State Health Insurance Program, administered by the Department of Civil Service (Civil Service). In accordance with Civil Service’s Pharmacy Benefit Services Contract with CVS Caremark, CVS Caremark must implement a comprehensive audit program that includes conducting on-site audits of pharmacies, providing audit reports to Civil Service and notifying Civil Service of any allegations or indications of potential fraud and abuse. The audit found that CVS Caremark audits sometimes reviewed only a minimal number of Empire Plan claims; CVS Caremark did not perform on-site audits of all the top 50 paid pharmacies for calendar years 2019–2023, as required by the Contract; and CVS Caremark has a different understanding of its responsibilities regarding the identification and referral of fraud and abuse than what is outlined in the Contract, resulting in CVS Caremark not referring any potential pharmacy fraud or abuse cases to Civil Service during the audit period.

New York Power Authority – Selected Management and Operations Practices (Follow-Up) (2024-F-15) Charge NY 2.0, a successor to the Charge NY program, aimed to install 10,000 public electric vehicle charging stations in New York State by 2021. Charge NY is a collaboration among the New York State Energy Research and Development Authority, the New York Power Authority (NYPA) and the Department of Environmental Conservation. A prior audit, issued in February 2022, found that NYPA did not place the Charge NY and Charge NY 2.0 charging stations in locations that supported the programs’ intentions and did not review and analyze usage data for charger placement or use outreach efforts to encourage electric vehicle charger installation by its customers. The installation of electric vehicle high-speed chargers was as much as 2 years behind schedule. NYPA made progress in addressing the problems identified in the initial audit report. Of the initial report’s nine audit recommendations, two were implemented, six were partially implemented and one was not implemented.

Hudson River Valley Greenway – Access Controls and Vulnerability Management (2025-S-17) The Hudson River Valley Greenway (HRVG) is responsible for managing grants with a particular emphasis on those related to planning, along with initiatives for trails, water trails and heritage development. HRVG uses an online grant platform that streamlines the entire grant process and must adhere to New York State ITS standards, policies and guidelines, including the IT standards on vulnerability management, account management and authentication. Auditors identified areas where HRVG could improve certain security controls to minimize the various risks associated with unauthorized access to its systems and data. Due to the confidential nature of the audit findings, details of these findings were communicated with three recommendations in a separate, confidential report to the HRVG officials. HRVG officials generally agreed with the findings and indicated actions to implement the recommendations.

State Education Department (Preschool Special Education Audit Initiative): The Arc Jefferson-St. Lawrence – Compliance With the Reimbursable Cost Manual (2024-S-14) The Arc Jefferson-St. Lawrence (Arc-JSLC), a not-for-profit special education provider located in Watertown, is authorized by the State Education Department (SED) to provide Preschool Special Class (over 2.5 hours per day) and Preschool Integrated Special Class (2.5 hours per day) education services to children with disabilities between the ages of 3 and 5 years. For the three fiscal years ended June 30, 2021, Arc-JSLC reported approximately $5.4 million in reimbursable costs for the SED preschool cost-based programs. Auditors identified $91,887 in reported costs that did not comply with requirements.

Purchasing membership credit in the New York City Teachers' Retirement System does not change the member's effective date of such membership in the retirement system

Supreme Court denied Petitioner's CPLR Article 78 action appealing the denial of his application for World Trade Center Retirement Benefits [WTCRB] based on his purchasing membership credit in the New York City Teachers Retirement System [NYCTRS] and dismissed the proceeding. The Appellate Division affirmed the Supreme Court's ruling without costs.

Concluding that the Supreme Court's decision was correct and had a rational basis, the Appellate Division said that the record demonstrates that Petitioner was not a member of NYCTRS until 2005, notwithstanding his purchase of prior service retirement credit. Accordingly, Petitioner was not entitled to WTCRB retirement benefits as the applicant for WTCRB must have been a member of NYCTRS on September 11, 2001.

In the words of the Appellate Division, "Petitioner provided no legal authority for his claim that his 2005 purchase of [NYCTRS] service credit backdated his [NYCTRS] membership".

The Appellate Division's decision also notes that Petitioner's activities in the vicinity of the World Trade Center on September 11, 2001 involved assisting people by providing directions on how to get home or out of Manhattan on foot. Such activities, said the Court, were not part of the World Trade Center "rescue, recovery and cleanup operations" nor were they part of his job duties as a teacher.

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

A collective bargaining agreement may provide that qualified interested employees have precedence over non-employee applicants for appointment to the position

The Town of Clarkstown and the Town's Superintendent of Highways [Petitioners] commenced the instant CPLR Article 75 action in an effort to permanently stay a demand to arbitrate an issue submitted by the certified or recognized employee organization, in this instance the Civil Service Employees Association, Inc. [CSEA].

CSEA contended that the Petitioners' appointment of an "external applicant" to a position in the Town Highway Department violated a provision in the controlling collective bargaining agreement [CBA]. The provision cited by CSEA provided that current employees of the Town, including Highway Department employees, would give "precedence over external applicants" in the appointment of applicants to posted positions.

When the Petitioners' appointing "an external applicant to a position in the Highway Department", CSEA filed demands seeking to have the matter submitted to arbitration on behalf of the current employees of the Town who had applied for appointment to the position. Supreme Court denied the Town's petition and Petitioners appealed. The Appellate Division affirmed the Supreme Court's decision, with costs.

The Appellate Division's decision noted that:

1. "Public policy in New York favors arbitral resolution of public sector labor disputes";

2. A dispute between a public sector employer and an employee is arbitrable if it satisfies a two-prong test whereby the court must:

    [a] first determine whether there is any statutory, constitutional, or public policy prohibition against arbitrating the grievance and if the court determines that there is no such prohibition barring to arbitrating the issue and then:

     [b] "the court must examine the parties collective bargaining agreement and determine if they in fact agreed to arbitrate the particular dispute".

3. Highway Law §140(4) vests a town's highway superintendent with the authority to "employ such persons as may be necessary for ... the maintenance and repair of the town highways and bridges," and the CBA's provision for filling vacancies does not impede or usurp that authority to the extent that the provision in the CBA "does not require the highway superintendent to hire a nonqualified candidate". 

Further, opined the Appellate Division, Supreme Court had correctly determined that the parties had agreed to submit disputed issued involving the terms and conditions of employment set out in the CBA to arbitration.

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

Redressing an interruption which occurred in the course of the administration of an examination

Petitioner in this appeal to New York States' Commissioner of Education challenged the New York City Department of Education's refusal to permit Petitioner's child to retake the examination for admission to a Specialized High School due to an alleged distracting incident that had taken place in the course of the administration of the examination caused by another student taking the examination.

Although the Commissioner dismissed Petitioner's appeal as untimely, Commissioner Rosa addressed two other significant matters:

1. Petitioner's allegation that an incident caused by another participant [classmate] in the examination “completely shatter[ed] [Petitioner's student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”

2. The Department of Education's acted in an arbitrary or capricious manner when it refused to permit Petitioner's child to retake the examination.

As to impact on the incident on Petitioners' child, the Commissioner said that the examination proctor reported that the classmate became distressed but the "The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination"

With respect to Petitioner's assertion that the incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,”  Petitioner did not prove that the New York City Department of Education acted in an arbitrary or capricious manner in denying Petitioner's request that that Petitioner's child be permitted to retake the examination.   

The complete text of the Commissioner's decision is set out below:

Decision No. 18,636

Appeal of G.W., on behalf of his child, from action of the New York City Department of Education regarding administration of an examination.

(September 11, 2025)

Muriel Goode-Trufant, Corporation Counsel, attorneys for respondent, Madison M. Moore, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“respondent”) to allow his child (the “student”) to retake an examination.  The appeal must be dismissed as untimely.

An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Even assuming the accrual date most favorable to petitioner—February 26, 2025, when he was informed that he could file an appeal to the Commissioner—petitioner commenced the instant appeal 48 days thereafter.  Petitioner explains that he “continued to seek internal redress until March 26, 2025.”  A request for reconsideration, however, does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Accordingly, the appeal must be dismissed.

Even if timely, the appeal would have been dismissed on the merits.  Petitioner complains that the student became distracted during an administration of the Specialized High Schools Admissions Test[1] when a classmate cried during the testing period.  As part of an investigation, respondent’s Offices of Assessment (OA) and Student Enrollment (OSE) spoke with the exam proctor.  The proctor reported that the classmate began crying at 11:37 a.m.  The proctor calmed and refocused the classmate, who stopped crying a few minutes later and completed the examination.  The proctor reported that the entire incident lasted less than five minutes.  OA and OSE concluded that the incident did not compromise the administration of the examination or that a retest was otherwise warranted.

While petitioner asserts that this incident “completely shatter[ed] [the student’s] concentration and caus[ed] psychological distress during one of the exam’s most pivotal sections,” he has not proven that respondent acted in an arbitrary or capricious manner.  Therefore, the appeal would be dismissed on the merits (Appeal of Goodman, 35 Ed Dept Rep 93, Decision No. 13,477).

THE APPEAL IS DISMISSED.

[1] Under State law, this examination is “the principal means of admission” into respondent’s Specialized High Schools.  See Appeals of C.K., et al., 59 Ed Dept Rep, Decision No. 17,748.

 

The health insurance benefits of a retiree of a school district or a BOCES cannot be diminished unless a corresponding diminution is made for its active employees

In this hybrid proceeding pursuant to CPLR Article 78, Petitioner challenged a decision of the Board of a Cooperative Educational Services [BOCES] to discontinue its reimbursing certain of its retired employees' Medicare Part B charges and eliminated its reimbursements for Medicare Part D premiums. 

Petitioner also sought a judgment declaring that the BOCES violated Chapter 729 of the Laws of 1994, as amended by Chapter 22 of the Laws of 2007, the so-called "Moratorium Law", prohibiting a school district or a BOCES from diminishing its retirees' health insurance benefits unless it makes a corresponding diminution of such benefits then available to its active employees.

Supreme Court granted the Petitioner's appeal and annulled the BOCES' action. The BOCES was directed to reinstate the subject reimbursements and benefits and the Supreme Court held that the BOCES had violated the Moratorium Law. The BOCES appealed the Supreme Court's ruling.

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

1. The Moratorium Law "sets a minimum baseline or floor for retiree health benefits, which is measured by the health insurance benefits received by the employer's active employees";

2. A school district or BOCES "may not diminish retirees' health insurance benefits unless it makes 'a corresponding diminution in the health insurance benefits or contributions of active employees'"; and

3. The purpose of the Moratorium Law "is to protect the rights of retirees who are not represented in the collective bargaining process".

The Appellate Division held that Supreme Court had correctly determined that BOCES did not make a "corresponding diminution in the health insurance benefits or contributions of active employees" when it reduced the reimbursements to the Petitioner's Medicare Part B charges and eliminated reimbursements for Medicare Part D premiums. 

In addition, the Appellate Division opined that "Supreme Court correctly compared the health insurance coverage offered to certain retirees to the health insurance coverage offered to the active employees" and found that BOCES' contentions to the contrary were "without merit".

Click HERE to access the Appellate Division decision posted on the Internet.