Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Cuomo announces approval of 2014 health insurance plan rates for New York Health Benefit Exchange

Governor Andrew M. Cuomo announced that the Department of Financial Services (DFS) has approved health insurance plan rates for 17 insurers seeking to offer coverage through New York’s Health Benefits Exchange, including eight new entrants into the market that do not currently offer commercial health insurance plans.

In 2012 Governor Cuomo took action to issue an Executive Order establishing the New York Health Benefit Exchange, which is expected to help more than one million uninsured New Yorkers access quality, affordable health care coverage.

The following companies had health insurance plan rates for the health benefits exchange approved today by DFS. The rates approved are subject to final certification of the insurers’ participation in the exchange.

· Aetna

· Affinity Health Plan, Inc.

· American Progressive Life & Health Insurance Company of New York

· Capital District Physicians Health Plan, Inc.

· Health Insurance Plan of Greater New York

· Empire BlueCross BlueShield

· Excellus

· Fidelis Care

· Freelancers Co-Op

· Healthfirst New York

· HealthNow New York, Inc.

· Independent Health

· MetroPlus Health Plan

· MVP Health Plan, Inc.

· North Shore LIJ

· Oscar Health Insurance Co.

· United Healthcare

Enrollment for the exchange begins on October 1, 2013 for coverage that will be effective January 1, 2014.

Additional information about the New York Health Benefit Exchange is available on the Internet at: www.HealthBenefitExchange.ny.gov

An article, Municipalites Need to be Well Positioned in 2013 to Address the Health Care Reform Act, has been posted on the Internet by NYMuniBlog, a LawBlog published by Harris Beach PLLC, a law firm, as a public service, at http://nymuniblog.com/?p=2869

The U.S. Department of Health and Human Services Internet page dedicated to the Affordable Health Care Act is at: http://www.hhs.gov/healthcare/rights/law/index.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending July 19, 2013 [Click on text highlighted in bold to access the full report] 

A.G. Schneiderman & State Comptroller DiNapoli Announce Arrest of Not–For–Profit Executive in Five–Year Public Corruption Scheme

Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli Tuesday announced the arrest of a nonprofit executive accused of pocketing tens of thousands of dollars in taxpayer funds intended for public services in New York City. The joint investigation conducted by the Office of the Attorney General and the State Comptroller–s office revealed that Van R. Holmes —— the president of the Young Leaders Institute, Inc. —— stole more than $85,000 by creating dozens of false records and forged documents which he filed with State and City agencies in order to obtain public money.

DiNapoli: Binghamton Facing Fiscal Challenges, But Outlook Improving

The city of Binghamton is grappling with high rates of unemployment and poverty, but its outlook is improving as it builds up reserve funds, according to a fiscal report issued Thursday by State Comptroller Thomas P. DiNapoli. The report is part of a series of fiscal profiles on cities across the state.

DiNapoli: Lax Board Oversight Allowed Former Village of Old Field Treasurer to Steal Nearly $60,000

Poor oversight by the Board of Trustees of the Village of Old Field allowed its former Treasurer Andrea Brosnan to steal nearly $60,000 in village funds without detection, according to an auditreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. The findings of the audit were shared with Suffolk County District Attorney Thomas J. Spota whose office charged Brosnan with second–degree grand larceny, first–degree falsifying business records, defrauding the government and official misconduct on May 22. Criminal proceedings are pending.

DiNapoli: State Tax Receipts Down in June, but Overall State Fiscal Picture Positive

Personal Income Tax and business tax collections were down in June compared to last year, but the state’s General Fund balance ended the month higher than anticipated, in part because of a $250 million regulatory settlement, according to the June cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Questionable Charges for Rochester Special Education Provider

The Norman Howard School, a Rochester–based special education provider, submitted more than $200,000 in improper charges over a three–year period, mostly for salaries that went to uncertified teachers, according to an auditreleased Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Finds Budgeting Problems at East Ramapo Central School District

Poor financial practices by the East Ramapo Central School District, including inaccurate budget estimates, have left the district with operating deficits for the past two years and could jeopardize future district operations, according to an auditreleased Friday by State Comptroller Thomas P. DiNapoli.

DiNapoli: State Improperly Overpaid Oneonta Dentist $66,000

The state Department of Health improperly paid an Oneonta dentist $66,402 for 2,361 inflated or questionable Medicaid claims he submitted for unwarranted services, including “behavior management,” and dentures that were not delivered to the recipients, according to an auditreleased Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Urges President Obama To Direct Federal Agencies To Adopt “Place Of Celebration” Standard For Recognition Of Same–Sex Marriages

New York State Comptroller Thomas P. DiNapoli Friday released a letterto President Barack Obama calling on him, in light of the recent Supreme Court decision overturning the Defense of Marriage Act, to direct all federal agencies under his control to adopt a marriage “Place of Celebration” standard. This would require federal agencies and programs to recognize all valid same–sex marriages, regardless of the current residence of the same–sex spouses.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed audits of:

the Jefferson Fire District and

the Town of Lagrange.

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] nominated by Governor Cuomo

New leaders of the Office for People with Developmental Disabilities (OPWDD) and the Office of Mental Health [OMH] to be nominated by Governor Cuomo

On July 19, 2013 Governor Andrew M. Cuomo announced the appointments of Courtney Burke as the administration’s new Deputy Secretary for Health, Laurie Kelley to serve as the Acting Commissioner of the Office for People with Developmental Disabilities (OPWDD) and Dr. Ann Sullivan to serve as the Acting Commissioner of the Office of Mental Health.

The Governor intends to nominate both Ms. Kelley and Dr. Sullivan to serve as Commissioners of OPWDD and OMH, respectively, during the next legislative session. Their nominations are subject to confirmation by the New York State Senate.

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Services provided to an educational institution by a student at the institution is not employment for the purposes of eligibility for unemployment insurance benefits

Galindo (Board of Higher Educ., City Univ. of N.Y.--Commissioner of Labor), 108 AD3d 906

"Services rendered for an educational institution by a person who is enrolled and is in regular attendance as a student in such an institution" does not constitute employment within the meaning of the Labor Law §511(15) for the purposes of an individual’s eligibility for unemployment insurance benefits. Whether a claim for unemployment insurance benefits is within the ambit of this exclusion depends on the facts and circumstances of the employment to determine whether the primary purpose of the work was to earn a living or to further the claimant's education.

A claimant for unemployment insurance benefits challenged the Workers’ Compensation Appeal Board’s determination that she was ineligible to receive unemployment insurance benefits.

The claimant began working as an office assistant for the City University of New York [CCNY] and about a year later began taking classes at a community college affiliated with CUNY. The claimant continued working full time for CUNY, thereby obtaining a tuition fee waiver.

When the claimant earned her degree, her employment with CUNY “was discontinued by agreement” and she filed for unemployment insurance benefits. The claimant’s application was denied as excluded under Labor Law §511(15) and she appealed the Board’s determination.

The Appellate Division sustained the Board’s ruling, explaining that “the record contains substantial evidence supporting the factual finding of the Board that claimant was ‘in regular attendance as a student’ and, therefore, ineligible for benefits pursuant to the statute.”

Accordingly, the Appellate Division declined to “disturb” the Board’s determination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05269.htm

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances

Employee’s two-day suspension without pay ruled “beyond arbitrary” under the circumstances

2013 NY Slip Op 51145(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

In this Article 78 Proceeding, the Petitioner asked Supreme Court to annul and rescind the New York City Department of Education’s [DOE] determination that she had administered corporeal punishment to a student and her being suspended without pay for two days as a result of that determination. In addition, Petitioner asked the court [1] to compel DOE “to expunge their files” concerning the event leading to Petitioner’s suspension and [2] her award of back pay and other benefits lost.

The genesis of this action was Petitioner’s receiving a letter from the school principal [Principal] scheduling an appointment to investigate an allegation of corporal punishment made by a parent of one of the students in Petitioner’s class. Petitioner denied the allegations that she had administered corporal punishment to the child.

Principal then notified Petitioner that she was going to refer the allegations to the DOE's Office of Special Investigations [OSI] and Petitioner submitted a written response to Principal in which Petitioner again denied the allegations.

At the conclusion of the school year, Principal told Petitioner that DOE's OSI had not rendered a decision regarding the allegations of corporal punishment nor did the record submitted to Supreme Court contain any information about any investigation or determination by OSI. Subsequently, however, Principal informed Petitioner that she had investigated the complaint, which included interviews with the child’s mother, interviews with students in Petitioner's class who wrote “witness statements,” and the classroom teacher.

The Principal sent Petitioner a “Suspension Letter” stating that:

I have evaluated all of the investigatory results, including your response … and conclude that after completing the investigation, a specific date of occurrence could not be determined. I also could not determine whether or not you have pulled [[the child] by the his neck or shoulders, or pushed him on his back [as his mother alleged]. However based on statements made by some of the students in the class, I conclude that you have grabbed [the student] by the arm and pulled on his sleeves in the past.  

Principal then suspended Petitioner for two days without pay.

After addressing a number of procedural issued, Supreme Court Judge Manuel J. Mendez address the merits of Petitioner’s appeal, finding:

1. The Suspension Letter, the only documentation supplied to the Court recording “DOE's decision,” states that the Principal “was not able to determine the truth regarding any of the allegations made by [the pupil] and his mother.”

2. The Principal’s decision concerning the allegations of corporal punishment were based on the written statements of eight students and the record is silent as to how her discussion with the teacher “factored into her decision.”

3. Seven of the eight written statements submitted by DOE in these proceedings written by “2nd grade special education students ‘include translations' at the bottom whereby someone took it upon themselves to interpret what the unnamed individual concludes the children meant to say.”

4. Four of the seven letters “clearly and unequivocally” state Petitioner never touched the student while three statements mention physical contact between Petitioner and the student, two which state that Petitioner grabbed the student’s arm and the third stated that Petitioner grabbed the student’s clothes. The court noted that there was no description, context, or explanation accompanied these statements.

The court’s conclusion:  “those three written statements were enough for [the principal] to substantiate allegations of corporal punishment against Petitioner and reflect such in Petitioner's permanent record with the DOE.”

Judge Mendez opined that for the Principal to substantiate allegations of corporal punishment against Petitioner based solely on what “those three children wrote at someone else's prompting,” after she was unable to determine any truth to the original allegations, “is beyond arbitrary.”

Judge Mendez annulled the letter substantiating allegations of corporal punishment against Petitioner and ordered DOE to expunge all reference to the “Suspension Letter” determination, and anything else referring to it, from its files, “including, but not limited to, any reference to a substantiated allegation of corporal punishment and the two day suspension.” The court then directed DOE pay Petitioner two-days back pay and other benefits lost as a result of Petitioner's two-day suspension. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_51145.htm

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job

Workers’ compensation claim for the employee’s attorney fees awarded after carrier made full reimbursement for wages paid an employee injured on the job

Casale v City of Rye, 2013 NY Slip Op 05268, Appellate Division, Third Department

A police officer submitted a claim for workers' compensation benefits after sustaining a fractured wrist on the job. The employer did not controvert the claim and paid the officer full wages during the period of his disability. The employer than sought reimbursement from its workers' compensation carrier for the wages it had paid the police officer.

The Workers' Compensation Board, without holding hearings, issued a proposed decision that established the claim and directed the workers' compensation carrier to reimburse the employer for the period of during which it had paid the police officer.

The carrier made full reimbursement to the employer as directed but on the same date that such payment was made the police officer’s attorney faxed a request for fees with the Board. As a result, the Board rescinded its decision and issued a new proposed decision awarding the police officer’s counsel a $750 fee and directed that it be paid by the carrier as a lien on the current award.

The carrier objected, contending that the award had already been paid.

The Board rescinded, again, “all prior decisions and scheduled a hearing.” Ultimately the Board granted police officer's counsel a $750 fee as a lien on any future awards made and the carrier appealed, contending that “the counsel fee award should have been made immediately payable by the carrier as an overpayment.”

The Appellate Division affirmed the Board’s decision, explaining that “counsel fees in conjunction with a workers' compensation claim may be attached as a lien to ‘'any compensation awarded,’ and the fact that a balance is not currently owing to a claimant does not preclude an award of fees made payable as a lien against future awards.”

Noting that there was nothing in the record establishing that the carrier received notice of the counsel fee request before it made full reimbursement to the employer, the Appellate Division declined to disturb the Board’s decision to award such fees as a lien against future awards.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05268.htm

Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint

Failure to establish a prima facie case of unlawful discrimination or retaliation within the meaning of Executive Law §296 requires the dismissal of the complaint
Adeniran v State of New York, 2013 NY Slip Op 03441, Appellate Division, Second Department

Caroline Adeniran brought an action in the State's Court of Claims seeking to recover damages for her allegedly suffering a “retaliatory discharge” in violation of Executive Law §296. Court of Claims Judge Lupez-Summa dismissed Adeniran’s complaint and she appealed.

The Appellate Division sustained Judge Lupez-Summa’s determination, explaining that Adeniran failed to make a prima facieshowing of retaliation under Executive Law §296.

In order to make a prima facie showing of retaliation, a claimant is required to ldemonstrate the following four elements:

a. That he or she was engaged in protected activity;

b. That his or her employer was aware that he or she participated in such activity;

c. That he or she suffered an adverse employment action based upon his or her activity; and

d. That there was a causal connection between the protected activity and the adverse action alleged.

Once such a prima facie case is made, the burden shifts to the employer to present legitimate, independent, and nondiscriminatory reasons to support its action or decision.

Assuming that the employer meets this burden, the claimant would then have the obligation of showing that the reasons advanced by the employer “were merely a pretext” in an effort to excuse its unlawful action or activity.

Adeniran was employed as a registered nurse at the Pilgrim State Psychiatric Center. She alleged that she was harassed and intimidated by the staff of Pilgrim's mental health department and that her employment was terminated in retaliation because she complained to her supervisors.

The Appellate Division said that the employer had rebutted Adeniran prima facie case alleging retaliation by showing that the complaints made by Adeniran to her supervisors did not relate to statutorily forbidden discriminatory practices. Thus, said the court, Adeniran had not demonstrated "the fourth element" required to establish her prima facie case-- that she had engaged in protected activity within the meaning of Executive Law §296 and had suffered an adverse personnel action as a result.

As the employer had rebutted Adeniran’s prima faciecase and Adeniran had failed to show that the employer's rebuttal was “mere pretext,” the Appellate Division said that the State was entitled to summary judgment dismissing Adeniran’s complaint alleging unlawful harassment, explaining that “New York does not recognize a common-law cause of action to recover damages for harassment."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03441.htm

The allocation of positions in the public service to salary grades is a permissive rather than a mandatory subject of collective bargaining

The allocation of positions in the public service to salary grades is a permissive rather than a mandatory subject of collective bargaining

County of Tompkins v. Tompkins County Unit of CSEA (PERB U-5676)

Is the classification and allocation of positions a mandatory subject of negotiations under the Taylor Law? In County of Tompkins v. Tompkins County Unit of CSEA PERB ruled that classification and allocation matters were permissive rather than mandatory subjects of collective bargaining for the purposes of the Taylor Law.

The Tompkins County case arose when the County refused to negotiate the allocation of newly established positions that were in a negotiating unit represented by CSEA.

The Union filed an improper practice charge and the PERB hearing officer ruled that the allocation of positions in an employer’s workforce was a mandatory subject of negotiations. He then dismissed the case upon his finding that the County had reserved to itself the authority to allocate positions in the “Management’s Rights” clause of the contract, which he said precluded negotiations on the subject during the life of the Agreement.

However, the hearing officer had rejected the County’s argument that State and case law, including Evans v. Newman, 49 NY2d 904. Tompkins County contended that the Evan’s decision’s holding that the classification and allocation of positions were not terms and conditions of employment with respect to positions with the State as the employer* was equally applicable to municipal positions.

On appeal, PERB said that it had reconsidered its earlier decisions on the subject and now concluded that the holding in Evans was a general statement of the law “whose applicability was not restricted to the parties in that case.” PERB said that in reconsidering its earlier decisions regarding local employers, “we [now] conclude as to them, as the Court did with respect to the State employees, that allocation and reallocation are an essential aspect of the level and quality of service to be provided by a public employer.”

PERB decided that a public employer should not be compelled to negotiate over such decisions and held that allocations of positions to salary grades are not mandatory subjects of negotiations.

* Evans was employed by the State’s Office of Court Administration.

Positions in the public service may not be abolished in bad faith

Matter of Weimer, 74 AD2d 574

Although the consultant recommended the creation of a new position of “business manager.” to report to the Assistant Superintendent for Business Affairs, the School Board abolished the Assistant Superintendent position in favor of the creation of two new positions: an “Administrator of Operations” and a “Business Manager”. The incumbent of the Assistant Superintendent position, George C. Weimer, Jr., was terminated from his position and two other individuals were appointed to the newly created positions.

The Court held that the duties of the Assistant Superintendent position were merely transferred to two new positions and therefore the abolishment of the Assistant Superintendent position was not made in good faith as the grounds. The decision indicates that Weimer’s tenure rights could not be summarily. The Court also noted that the School Superintendent had earlier suggested to the School Board that “the duties of the (Assistant) position be gradually reduced until the (Assistant) would leave of his own accord.”

The Appellate Division ruled that Weimer had discharged duties substantially similar in nature to the duties assigned to the new positions. He was thus entitled to be granted relief under the provisions of §2510 of the Education Law.*

Weimer, however, indicated in his brief that he has obtained other employment in another school district. Accordingly, the Appellate Division remitted the matter to Supreme Court “for the sole purpose of determining the amount of salary due [Weimer], less the amount of the earnings from other employment and any unemployment [Weimer] may have received.”

* In the words of the court: ”Just as under the provisions of the Civil Service Law, a municipality may not abolish a position by subterfuge (Switzer v Sanitary Dist. No. 7, Town of Hempstead, 59 A.D.2d 889, app dsmd 43 N.Y.2d 845; Matter of Wipfler v Klebes, 284 NY 248; Wood v City of New York, 274 NY 155; Ann., 87 ALR3d 1165, 1184), a school board under the provisions of the Education Law may not abolish a position by subterfuge (Matter of Amos v Board of Educ., 54 A.D.2d 297, 301, affd 43 N.Y.2d 706; cf. Matter of Abramovich v Board of Educ., 46 N.Y.2d 450, 454; Education Law, §2510.“

The decision is posted on the Internet at:

http://ny.findacase.com/research/wfrmDocViewer.aspx/xq/fac.19800204_0040515.NY.htm/qx

At least one part of an examination for a position in the competitive class must be competitive

At least one part of an examination for a position in the competitive class must be competitive

Informal Opinions of the Attorney General, January 8, l980

A selection procedure for employment in the competitive class consisting of a qualifying written test and a ranked (competitive) physical agility test complies with the constitutional and statutory requirements for a competitive examination of merit and fitness for the position “where practicable.”

Further the Civil Service Commission has the discretion to determine the appropriate selection devices. 

When it has been determined that a competitive examination is practicable, that test may be a written tests, an oral test or a performance test, or any combination thereof, so long as some part of the test can be scored and the candidates ranked on the basis of their scores.

The Opinion also observed that “All that is necessary is that the test selected be objective in nature and the scoring procedures reviewable.