State audits released by New York State Comptroller DiNapoli

State audits released by New York State Comptroller DiNapoli

Click on text highlighted in color to access the full report

On April 17, 2014, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued:

New York City Department of Environmental Conservation: Controls Over Computers (Follow-Up) (2013-F-27)
An initial audit report, issued in January 2012, found that the department did not place enough priority on ensuring that computer assets were properly controlled and appropriately used. Auditors concluded that these weak management practices increased the risk that equipment may be misappropriated, or used for personal use. In a follow-up, auditors found the department has made some progress in addressing the issues identified in the initial report, but additional improvements are still needed. Of the four prior recommendations, one has been implemented, two have been partially implemented, and one has not been implemented.

State Department of Health: Medicaid Payments for Medicare Part A Beneficiaries (Follow-Up) (2013-F-16)
An initial audit report issued in September 2010 identified $14 million in potential Medicaid overpayments for claims pertaining to 2,564 individuals enrolled in both Medicaid and Medicare. Auditors recommended the Department of Health (DOH) improve its detection of Medicare Part A coverage for Medicaid recipients and prevent improper payments. In a follow-up, auditors found DOH has made considerable progress in correcting the problems identified in the initial audit report. This included the recovery of approximately $22.6 million in Medicaid overpayments. Of the initial report’s four recommendations, three were implemented and one was not implemented.

State Department of Health, Medicaid Program: Improper Payments for Ancillary Services Provided During Hospital Inpatient Admissions (2012-S-160)
Ancillary services refer to health care services provided in the home, medical offices, clinics, and other freestanding sites. Medicaid claims for ancillary services are processed by eMedNY, DOH's automated claims processing and management information system. Claims are subject to various edits – automated controls within eMedNY – designed to pay Medicaid claims in accordance with Medicaid reimbursement policies. During the audit period, eMedNY identified 9,821 improper ancillary service claims totaling about $1 million that were paid and reported to DOH officials. However, at the time of audit fieldwork, DOH had not taken actions to recover these improper payments. In addition, Medicaid paid $368,000 for about 6,600 improper ancillary service claims for recipients who were also covered by Medicare.

Office of Mental Health, New York Psychiatric Center: Controls Over State Resources (Follow-Up) (2013-F-22)
The New York State Psychiatric Institute, established in 1895, is one of two clinical research facilities administered by the Office of Mental Health. The institute conducts clinical trials and research studies relating to the treatment of mental illness. An initial audit report, issued in January 2011, found institute management had not always provided adequate control over state resources. Auditors found insufficient controls to ensure institute employees performed state work commensurate with their pay, and the institute was not taking steps to ensure it was receiving fair compensation for use of its facilities by Columbia University. In a follow-up, auditors found institute officials have made some progress in addressing the issues identified in the initial report, but additional improvements are needed. Of the seven prior recommendations, one has been implemented and six have been partially implemented.

State Department of Transportation: Oversight of Grants (Follow-up) (2013-F-29)
An initial report, issued in July 2011, examined the Department of Transportation’s (DOT) oversight of grant activity. Auditors found that the monitoring performed by the Freight and Passenger Rail Bureau and the Aviation Bureau could be improved with more effective analysis of available data, and through more effective communication and information sharing within the DOT and with other state agencies that also provide grant funding. In a follow-up, auditors found DOT has made progress in correcting the problems identified in the initial report. Of the eight prior audit recommendations, three recommendations have been implemented and five recommendations have been partially implemented. DOT is awaiting implementation of a new statewide grants management system, scheduled for April 2014, which it believes will address several of the remaining issues. 
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Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

Terminated noncompetitive class employee having less than five years of service entitled to back pay and benefits under the terms of a collective bargaining agreement

2014 NY Slip Op 02061, Appellate Division, Second Department

The Board of Education adopted the recommendation of a Civil Service Law §75 hearing officer finding the employee [Petitioner] guilty of misconduct and terminating her employment as a teacher's aid without back pay and employment benefits.

Petitioner initiated an Article 78 action challenging the Board’s decision in which she claimed, among other things, that she was entitled to certain back pay and employment benefits.

The Appellate Division held that Supreme Court had properly granted that branch of the Petitioner’s claim that sought an award of back pay and employment benefits.

The court explained that while Petitioner had less than the five years of continuous service which would ordinarily be required for her to be entitled to the protections of Civil Service Law §75,* the collective bargaining agreement between the School District and Petitioner's union extended the protections afforded by Civil Service Law §75 to noncompetitive class employees who had three years of service.

The court held that “as the Supreme Court determined,” once the arbitrator found that Petitioner satisfied the tenure requirements under the collective bargaining agreement, she was entitled to the protections of Civil Service Law §75, including back pay and benefits for any period of suspension in excess of 30 days, up to the date of the disciplinary determination by the appointing authority terminating her employment.

* See Civil Service Law §75[1][c]), which provides, in pertinent part, that an employee “holding a position in the non-competitive class … who since his [or her] last entry into service has completed at least five years of continuous service in the non-competitive class ….” is covered by the provisions of §75.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02061.htm

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Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Statute providing for a “presumption” that a disabling condition was incurred in the performance of duty to be read narrowly

Anonymous v Kelly, 2014 NY Slip Op 02141, Appellate Division, First Department

Rejection of Anonymous’ application for accidental disability retirement benefits was affirmed by Appellate Division, vacating a ruling by Supreme Court remanding the matter to the Retirement System’s Board of Trustees.

The court said that Supreme Court “incorrectly found that [Anonymous] was entitled to the presumption of General Municipal Law §207-p, thereby improperly shifting the burden of proof as to causation to the employer.

General Municipal Law §207-p provides, in pertinent part, that "any paid member of a . . . police department . . . who successfully passed a physical examination upon entry into the service of such department who contracts HIV [parenthetical omitted], tuberculosis or hepatitis, will be presumed to have contracted such disease as a natural or proximate result of an accidental injury received in the performance and discharge of his or her duties . . ., unless the contrary be provided by competent evidence."

Although Anonymous did not suffer from any of the three diseases named in the statute, Supreme Court found that his "illness was the type that the 207-p presumption was intended to cover."

However, said the Appellate Division, “the plain language of the statute makes it clear that the presumption is only applicable to the three named diseases.” Accordingly, said the court, it was Anonymous' burden to prove that his condition was caused by an accidental line-of-duty injury, not the employer’s burden to demonstrate that his condition was not caused by an accidental line-of-duty injury.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_02141.htm

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Official misconduct

Official misconduct

OATH Index Nos. 1679/13, 1680/13, 1681/13

Two job center directors and a deputy director were charged with improperly transferring cases from other job centers in order to increase their own center’s job placement statistics.

The employees admitted that they participated in the scheme but that they did so under pressure of meeting agency-wide goals. OATH Administrative Law Judge John B. Spooner found that the employees had violated agency rules.

Judge Spooner denied the employees’ motion to dismiss a portion of the charges as time-barred, finding respondents’ conduct fell within the crimes exception to the 18-month limitations period in §75 of the Civil Service Law, i.e, the employees had committed the crimes of official misconduct and computer tampering.

ALJ Spooner recommended dismissal of charges that respondents violated the Conflicts of Interest Law since there was no proof that they gained a private or personal advantage from the transfers.

As to the penalty to be imposed, the ALJ recommended termination of employees’ employment as their participation in the scheme for as long as three years “was an egregious violation of the trust placed in them as managers, as well as their fundamental responsibility as civil servants.”  

The decision is posted on the Internet at: 

http://archive.citylaw.org/oath/10_Cases/13-1679.pdf

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