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October 07, 2016

Selected reports issued by the New York State Comptroller during the week ending October 5, 2016


Selected reports issued by the New York State Comptroller during the week ending October 5, 2016: Completed audits of State Departments and Agencies; Municipalities and School Districts and BOCES
Source: Office of the State Comptroller

[Internet links highlighted in color]

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued and the full text of each are posted on the Internet:

State Departments and Agencies

State Education Department (SED): Selected Aspects of the Migrant Education Program (Follow-Up) (2016-F-9)
An audit report issued in May 2015 determined that the Migrant Education Program did not meet certain program outcomes and overarching program goals. SED did not complete federally required documents in a timely manner; and a significant portion of the Migrant Education Tutorial Services faced challenges obtaining migrant student performance data. In a follow-up report, auditors found SED has made significant progress in correcting the problems identified in the initial report. Several of the strategies the program plans to implement are scheduled to begin with the 2016-2017 school year. 

State Education Department: Kidz Therapy Services, PLLC, Compliance with the Reimbursable Cost Manual (2015-S-63)
For the three fiscal years ended June 30, 2014, auditors identified $249,850 in reported costs that did not comply with the state requirements for reimbursement and recommend such costs be disallowed. These ineligible costs included $240,553 in personal service costs and $9,297 in other than personal service costs.

Department of Health (DOH): Improper Fee-for-Service Payments for Pharmacy Services Covered by Managed Care (Follow-Up) (2016-F-5)
An audit issued in January 2015 determined that, for the 27-month period of Oct. 1, 2011 through Dec. 31, 2013, Medicaid inappropriately paid 29,289 fee-for-services pharmacy claims totaling $978,251 on behalf of 18,010 Medicaid recipients whose pharmacy benefits were covered by managed care. In a follow-up report, auditors determined DOH has made some progress in addressing the problems identified in the initial audit report. However, further actions are still needed.

Department of Health: Improper Payments for Controlled Substances That Exceed Allowed Dispensing Limits (Follow-Up) (2016-F-6)
An audit report issued in February 2015, determined that, for the period Jan. 1, 2009 through Dec. 31, 2013, Medicaid overpaid pharmacies $1,183,601 for 13,705 fee-for-service claims in which quantities of controlled substances exceeded the supply limits allowed. Auditors further identified 3,323 managed care claims for controlled substances in which the quantities dispensed exceeded the limits set by law. In a follow-up report, auditors found DOH has made progress in addressing the problems identified in the initial audit report. This included implementing controls to prevent the payment of pharmacy claims for quantities of controlled substances that exceeded supply limits. These actions resulted in the denial of approximately $3.3 million in claims through July 2016.

Department of Labor (DOL): Examination of Unemployment Insurance (UI) Benefits 2015 Year End Report (2016-BSE4-01)
Auditors identified 11,306 UI overpayments totaling more than $3.6 million. This includes $93,760 in current payment requests stopped, $280,276 in future payments that would have been made over the life of the claim and $3,311,848 in erroneous payments made. Based on the errors identified, DOL assessed $471,458 in monetary penalties to 344 claimants. Auditors also identified 588 underpayments totaling $105,744. DOL has recovered $253,968 in forfeited UI benefits from claimants who made false statements or representations to obtain benefits they were not eligible to receive and $488,138 from New York state employees who owed DOL for UI overpayments made in prior years.

Municipalities

Altona Volunteer Fire Company, Inc. – Financial Operations (Clinton County)
Company officials did not establish adequate controls or provide sufficient oversight of financial activities. Consequently, the company’s accounting records were not properly maintained, bank reconciliations were not prepared and crucial financial reports were inaccurate or not prepared and submitted to company officials or to the comptroller’s office.

City of Gloversville – Parking Violation Operations (Fulton County)
City officials have not established sufficient procedures for pursuing the collection of unpaid parking violations or set a benchmark for collection rates. The city collected $110,000 in revenues for 4,367 violations from January 2011 through April 2016, which represents 61 percent of total parking violations. The city could have collected an additional 1,757 parking violations totaling approximately $44,000 if it collected fines for 85 percent of the parking violation tickets issued. If the city collects the additional 24 percent of parking violations that are still outstanding, dating back to January 2011, the city could receive approximately $83,000 in additional revenue.

City of Jamestown – Financial Condition (Chautauqua County)
The city incurred operating deficits in fiscal years 2012 through 2015 totaling $2.8 million. As a result, general fund balance decreased by approximately 58 percent, from $4.8 million to $2 million. The city’s financial condition will continue to decline during 2016 because the adopted budget is again not structurally balanced. The city will likely incur an operating deficit of at least $400,000 unless significant and immediate spending changes are implemented.

Town of Warwarsing – Napanoch Water District Rents and Assessments (Ulster County)
The board needs to improve its internal controls over water rents to ensure that they are accurately billed and collected and assessments are properly levied. Auditors found that internal controls over water rents and assessments were inadequate and oversight is lacking. Because town officials were uncertain of district boundaries, assessments were not levied on all properties in the district. As a result, assessments charged to district property owners were higher than necessary.

School Districts and BOCES

Frankfort-Schuyler Central School District – Financial Management (Herkimer County)
District officials did not adopt budgets based on historical or known trends but instead overestimated expenditures by almost $2.7 million from 2011-12 through 2014-15. The district appropriated $2.4 million in fund balance as a financing source in the annual budgets for 2012-13 through 2015-16. However, the district’s budgeting practices resulted in operating surpluses in three of these years and will also likely end 2015-16 with an operating surplus. As a result, none of the appropriated fund balance will be needed to finance operations. The district also retained an average of approximately $342,000 of unrestricted funds in the debt service fund, $1.1 million in the agency fund’s group health insurance account and $429,000 in excessive reserves over these years. When adding back unused appropriated fund balance, excess money retained in the debt service, agency funds and reserves, the district’s recalculated unrestricted fund balance exceeded the statutory limit, averaging more than 18 percent of the ensuing year’s appropriations, or more than four times the statutory limit.

Hammondsport Central School District – Nonresident Tuition (Steuben County)
District officials should improve their billing process for nonresident students by determining actual attendance dates. Auditors reviewed 10 tuition invoices for seven nonresident students placed at the district totaling $219,941 from the 2012-13 through 2014-15 years. While district officials effectively identified nonresident students who were placed at the district, the treasurer ,a href="used incorrect attendance dates when calculating bills for three students. As a result, two home districts were underbilled by $5,078 and one home district was overbilled by $638.

Putnam Northern Westchester Board of Cooperative Educational Services (BOCES) – Information Technology and Claims Auditing (2016M-205)
BOCES officials need to improve controls to adequately secure and protect IT systems. The rooms housing the servers and IT infrastructure did not have safeguards to track access and protect IT assets, and BOCES officials have not developed a disaster recovery plan to guide action in the event of a disaster. Additionally, the board appointed a claims auditor but needs to improve its oversight of the claims auditing function. There was no evidence that 33 claims totaling $100,873 were checked to ensure they did not exceed their related purchase orders or that 13 claims totaling $42,526 agreed with approval contracts or agreements.

Raquette Lake Union Free School District – Monitoring Financial Condition (Hamilton County)
The board did not ensure that adequate accounting records and reports were maintained and did not effectively monitor the district’s financial operations. The clerk did not maintain accurate and complete accounting records and the treasurer did not provide the board with adequate periodic reports. Furthermore, auditors recalculated the district’s assets, liabilities and fund balance and found unrestricted fund balance deficits for the 2013-14 and 2014-15 fiscal years and budgetary deficits for the 2013-14, 2014-15 and 2015-16 fiscal years. Additionally, the district incurred a cash flow shortage that precluded employees from cashing their paychecks from July 2013 to September 2013.

Western Suffolk Board of Cooperative Educational Services – Budget Transfers and Confirming Purchase Orders (2016M-218)
The board did not always enforce its policies and procedures. Auditors reviewed 30 budget transfers totaling $9.2 million and found that 24 totaling $7.8 million were not presented to the board for approval. The board approved the remaining six budget transfers totaling $1.4 million between 18 and 70 days after the transfer was processed. The board’s ability to monitor the budget and ensure that account codes are not overspent is compromised when it does not approve budget transfers.

October 06, 2016

An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct


An employer is not liable for an employee's discriminatory acts targeting a co-worker unless the employer encouraged, condoned or approved such misconduct
Figueroa v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06319, Appellate Division, Fourth Department
Schwallie v New York State Div. of Human Rights and Buffalo City School Dist., 2016 NY Slip Op 06322, Appellate Division, Fourth Department
 
At the time of the alleged unlawful acts of employment discrimination both Rachel Figueroa and Ashleigh Schwallie were employed by the Buffalo City School District [District] and both worked at the same school.

They both alleged that they had been victims sexual harassment by a coworker. They subsequently filed separate complaints against the District alleging sexual harassment and retaliation with the New York State Division of Human Rights [Division]. The Division dismissed their respective complaints.

Then both Figueroa and Schwallie commenced separate proceedings pursuant to Executive Law §298* seeking court orders annulling the relevant decisions of the Division dismissing their complaints of sexual harassment and retaliation. The Appellate Division dismissed both appeals “on the merits.”

The court said it agreed with the District that substantial evidence supported the determinations of the Division that the District was not liable for the coworker's discriminatory conduct. The Appellate Division explained that "[u]nder [New York State’s] Human Rights Law, an employer cannot be held liable for an employee's discriminatory act[s] unless the employer became a party to [them] by encouraging, condoning, or approving [them]."

Neither Figueroa nor Schwallie had established that the District became a party to the alleged sexual harassment by a co-worker. Indeed, said the court, “the record establishes that [the District] reasonably investigated complaints of discriminatory conduct and took corrective action.”

The Appellate Division also found that substantial evidence supported the Division’s determinations that neither Figueroa nor Schwallie were subjected to retaliation by the District for complaining about alleged acts of unlawful discrimination by the co-worker. While both had established  prima facie cases of retaliation, the court found that the District "came forward with legitimate, independent, and nondiscriminatory reasons to support its employment decision[s]" and neither Figueroa not Schwallie had shown that that those reasons were pretextual,

With respect to alleged acts of alleged retaliation for filing a human rights complaint, where the employer has presented a lawful reason or explanation to rebut a charging party's prima facie evidence of retaliation, the burden shifts to the charging party to present facts to rebut each reason or explanation advanced by the employer in it defense against the charge of retaliation.

The Appellate Division unanimously confirmed the Division’s decisions and dismissed both petitions.

* §298 of the Executive Law provides for judicial review and enforcement of determinations by the New York State Division of Human Rights and provides, in pertinent part that “Any complainant, respondent or other person aggrieved by an order of the commissioner which is an order after public hearing … dismissing a complaint, … may obtain judicial review thereof ….”

The Figueroa decision is posted on the Internet at:

The Schwallie decision is posted on the Internet at:

October 05, 2016

Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit


Reducing health insurance prescription co-pay benefits for an employer’s retirees to the same level as the employer’s active employees' prescription co-pay benefit
Altic v Board of Educ., 2016 NY Slip Op 06315, Appellate Division, Fourth Department

As relevant to this action, §14 of Part B of Chapter 504 of the Laws of 2009  amended Chapter 729 of the Laws of 1994 and made permanent temporary legislation prohibiting a school district, a BOCES, or a vocational education and extension board providing health insurance benefits and employer contributions on behalf  retirees and their dependents that were less than the health insurance benefits and employer contributions it provide on behalf a corresponding group of active employees.*

In this action there was no question that the prescription co-pay benefits for retirees and active employees were identical from June 30, 1994, the effective date of this so-called Moratorium Statute through June 30, 2007. Effective July 1, 2007, pursuant to a collective bargaining agreement [CBA], the prescription co-pay benefit for active employees was reduced. The prescription co-pay benefit for active employees was again reduced pursuant to the terms and conditions of a subsequent CBA, effective September 1, 2013. 

Accordingly, Onondaga-Cortland-Madison Board of Cooperative Educational Services [OCM] reduced its prescription co-pay benefits for its active employees’ as the result of collective bargaining effective September 1, 2013. OCM subsequently reduced its prescription co-pay benefits for its retirees to the same level it paid on behalf of the active employees' for the prescription co-pay benefit effective April 1, 2014.

Nancy Altic, on behalf of herself and other OCM retirees, filed an Article 78 petition challenging OCM’s reduction of its prescription co-payment benefits it made on behalf of its retirees. Supreme Court granted Altic’s petition and annulled OCM’s decision to reduce the OCM’s prescription co-pay benefit for its retired employees to the then same level of its prescription co-pay benefit it made on behalf of its active employees as set out in the collective bargaining agreement. Supreme Court held that OCM had violated certain provisions of Chapter 504 of the Laws of 200.

OCM appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and dismissed Altic’s petition.

The Appellate Division explained that the Moratorium Statute, first enacted in 1994 "sets a minimum baseline or floor for retiree health insurance benefits.” That floor was measured by the health insurance benefits received by active employees.” In other words, said the court, the Moratorium Statute “does not permit an employer to whom the statute applies to provide retirees with lesser health insurance benefits than active employees."

In view of this, the Appellate Division concluded that, “inasmuch as there was a corresponding diminution of  [prescription co-pay] benefits . . . effected [with respect to retired employees] . . . from the present level  … on or after June 30, 1994” to the level of the prescription co-pay benefits being made on behalf of active OCM employees, OCM did not violate the Moratorium Statute.

* §14 of Part B of Chapter 504 of the Laws of 2009 amended §1 of Chapter 729 of the laws of 1994, making permanent temporary legislation addressing the health insurance benefits and contributions to be made on behalf of retired employees of school districts, BOCES and certain other educational entities, to read as follows: “Section 1. From on and after June 30, 1994 [until May 15, 2010,]a school district, board of cooperative educational services, vocational education and extension board or a school district as enumerated in section 1 of chapter 566 of the laws of 1967, as amended, shall be prohibited from diminishing the health insurance benefits provided to retirees and their dependents or the contributions such board or district makes for such health insurance coverage below the level of such benefits or contributions made on behalf of such retirees and their dependents by such district or board unless a corresponding diminution of benefits or contributions is effected from the present level during this period by such district or board from the corresponding group of active employees for such retirees.” 

The decision is posted on the Internet at:



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