Appellate Division reviews an administrative disciplinary determination by the Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs

While most administrative disciplinary actions involving public sector employees are presently processed in accordance with the terms and conditions set out in a collective bargaining agreement, in some instances other laws, rules and regulations will control. 

The O'Grady decision by the Appellate Division, the full text of which is set out below, illustrates one such type of administrative disciplinary procedure and the individual's appeal from a determination made after hearing by the appointing authority conducted pursuant to Social Services Law §494 and 14 NYCRR 700.6[a]:

Matter of O'Grady v Kiyonaga

2019 NY Slip Op 04170

Decided on May 29, 2019

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Todd L. Crawford, P.C., Roosevelt, NY, for petitioner.

Letitia James, Attorney General, New York, NY (Judith N. Vale and Linda Fang of counsel), for respondent.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of David Molik, Director of the Administrative Hearings Unit of The New York Justice Center for the Protection of People with Special Needs dated August 5, 2016. The determination adopted the findings of fact and conclusions of law of an Administrative Law Judge dated July 13, 2016, made after a hearing, that the petitioner committed category three neglect as defined by Social Services Law §493(4)(c), and denied the petitioner's request that the subject substantiated report of neglect dated November 25, 2014, be amended and sealed.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner is a teacher who was employed, at relevant times, by Ferncliff Manor School (hereinafter Ferncliff Manor), a facility that is certified by the Office of People with Developmental Disabilities. In 2013, the New York Justice Center for the Protection of People with Special Needs (hereinafter the Justice Center) received a report alleging that the petitioner committed neglect by, inter alia, failing to properly supervise a service recipient (hereinafter the student) on September 10, 2013. The report alleged that the petitioner failed to properly monitor the actions of the student on a playground on the Ferncliff Manor property and that the student absconded from the property and reached a nearby street, where he was found by a bystander who placed him into a vehicle.

Following an investigation by the staff of Ferncliff Manor, the Justice Center substantiated the allegation of neglect in a report dated November 25, 2014. The petitioner exercised her right to a hearing before an Administrative Law Judge (see Social Services Law §494; 14 NYCRR 700.6[a]). The Administrative Law Judge found, upon the hearing, that a preponderance of the evidence showed that the petitioner committed a category three act of neglect (see Social Services Law §§493[3][a][i]; [4][c]; 494[1][a]; 14 NYCRR 624.5[j][1][i]; 700.4-700.5). David Molnik, Director of the Administrative Hearings Unit of the Justice Center, adopted the Administrative Law Judge's findings and recommended decision and denied the petitioner's request to amend and seal the substantiated report (see 14 NYCRR 700.13[a]). The petitioner commenced this proceeding against Jay Kiyonaga, individually and as Acting Executive Director of the Justice [*2]Center, pursuant to CPLR 78 to review that determination. By order dated June 28, 2017, the Supreme Court, Westchester County, transferred the proceeding to this Court pursuant to CPLR 7804(g).

In this proceeding, the petitioner seeks to annul the determination of the Justice Center, contending that it was not supported by substantial evidence (see CPLR 7804[g]). Social Services Law § 488(1)(h) defines neglect as "any action, inaction or lack of attention that breaches a custodian's duty and that results in or is likely to result in physical injury or serious or protracted impairment of the physical, mental or emotional condition of a service recipient." Social Services Law §493(4) sets forth, as relevant, three categories of reports of abuse or neglect perpetrated by a custodian. The particular category designation depends on the nature and severity of the conduct, and each category carries with it different consequences (see Matter of Anonymous v Molik, 32 NY3d 30, 35-36). Category one is limited to a specified list of "serious physical abuse, sexual abuse or other serious conduct" (Social Services Law §493[4][a]), and category two contains conduct that "seriously endangers the health, safety or welfare of a service recipient" (Social Services Law § 493[4][b]). The third category encompasses all other acts of abuse or neglect that do not rise to the level of conduct as "described in categories one and two" (Social Services Law §493[4][c]).

At an administrative hearing to determine whether a report of category three neglect is substantiated, the Justice Center is required to establish, by a preponderance of the evidence, that the subject committed abuse or neglect (see Matter of Anonymous v Molik, 32 NY3d at 34). Upon review of such an administrative determination made after an evidentiary hearing, the determination of the Justice Center must be upheld if supported by substantial evidence (see CPLR 7803[4]; Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d 1355, 1356-1357).

Here, the determination of the Justice Center was based on substantial evidence. The hearing evidence showed, inter alia, that prior to this incident, the staff at Ferncliff Manor developed a mandatory Individual Plan of Protective Oversight (hereinafter IPOPO) for the student. That IPOPO, which was developed with input from teachers and other professionals, provided, inter alia, "[l]ine of sight - staff is to be within 3 feet of [the student] due to hyperactivity, impulsivity and running," and indicated that the student was at a "HIGH RISK" for "running/wandering away." The IPOPO defined the term "line of sight" as follows: "Staff will ensure the individual is always within their line of sight. This does not mean the staff member needs to be constantly looking at the student/resident, but rather be able to see the person at any given time."

The hearing evidence showed that at the time of this incident, there were four staff members supervising the student and his five classmates, as was required by the policy of the facility: the petitioner teacher and three aides. The petitioner acknowledged that she was not directly watching the student when he absconded, and that she did not see the student abscond from the playground. The student was not located until after he had crossed the playground, breached a fence, run to a nearby street, and encountered the individual who placed him in a vehicle. Notably, the petitioner did not testify that she had directed any of her aides to specifically supervise the student at the time of the incident.

Under these circumstances, substantial evidence supports the determination of the Justice Center that the petitioner committed category three neglect (see Matter of Williams v New York State Justice Ctr. for the Protection of People with Special Needs, 151 AD3d at 1356-1357; see also Matter of Kelly v New York State Justice Ctr. for the Protection of People with Special Needs, 161 AD3d 1344).

Therefore, the determination should be confirmed, the petition denied, and the proceeding dismissed on the merits.

SCHEINKMAN, P.J., DILLON, MALTESE and LASALLE, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court

State Medicaid paid for erectile dysfunction drugs for sex offenders

Lax oversight over erectile dysfunction drugs for sex offenders was not the only problem. The Comptroller also noted that other Medicaid patients get drugs they shouldn't have otherwise obtained.

The state’s Medicaid program paid more than $60,000 for sexual and erectile dysfunction (ED) drugs and treatments for 47 sex offenders, according to an audit released on June 5, 2019 by State Comptroller Thomas P. DiNapoli. In total, Medicaid made more than $930,000 in payments for ED drugs and treatments for recipients, including sex offenders, that are barred under Medicaid.

“There are clear rules about what conditions Medicaid will cover when it comes to erectile dysfunction drugs. And paying for sex offenders who’ve committed terrible crimes to get these drugs should never be lost in the bureaucratic administration of this program,” DiNapoli said. “Nearly two decades ago this office identified this problem, which led to national and state changes. While the state Department of Health immediately followed up to make corrections during the course of our audit, our auditors found that the problem persisted and needed to be fixed.”

In 2005, a review by the Office of the State Comptroller determined that Medicaid paid for the erectile dysfunction drug Viagra on behalf of 198 recipients who were registered sex offenders classified as level-3 (most likely to reoffend). Given the risk to public safety, the review sparked an overhaul of legislation at the federal and state levels to ensure such drugs are not paid for by Medicaid.

Current federal and state laws prohibit Medicaid from paying for drugs to treat sexual or erectile dysfunction for Medicaid recipients, including registered sex offenders. State law additionally prohibits payment for procedures or supplies to treat ED for registered sex offenders.

In 2011, Medicaid pharmacy benefit management for managed care recipients was transferred from DOH to managed care organizations (MCOs). DOH directed MCOs on how to handle ED drug exclusions and indicated uses. Under managed care, MCOs are expected to police the drugs Medicaid recipients enrolled in their plans can get and to determine their medical necessity.

Auditors found that did not always happen. Since the transition of pharmacy benefit management to MCOs, Medicaid continued, primarily under managed care, to fund drugs, procedures, and supplies that enhance sexual and erectile function for recipients, including registered sex offenders.

DiNapoli’s auditors found that from April 1, 2012 to July 1, 2018, Medicaid made $2.8 million in payments for ED drugs approved to also treat Benign Prostatic Hyperplasia (BPH) or Pulmonary Arterial Hypertension (PAH) on behalf of patients who did not have such diagnoses listed on their medical claims submitted up to six months before receiving the prescriptions. These claims indicate an elevated risk that the drugs may have been abused or sold to others. Among those payments, 411 recipients had a diagnosis of ED (but no BPH or PAH diagnosis) on their claims, totaling $207,256 in Medicaid payments.

Similarly, Medicaid paid $285,641 for ED drugs approved to also treat BPH or PAH for 14 sex offenders (see table 3 in audit), 11 of whom were classified as a level-2 or a level-3 sex offender. Auditors reviewed the medical records of 13 of the 14 sex offenders to determine if the records supported a diagnosis of BPH or PAH and found 31 percent, or four of 13 cases, supported only a diagnosis of ED. One case was indeterminate.

DOH did not monitor the use of ED drugs, procedures, and supplies, including payments by MCOs. The audit and the department’s analyses both indicate a large portion of MCO claims for ED drugs approved to treat other medical conditions lack assurance of medical necessity. MCOs made most of the payments the auditors reported on.

DiNapoli’s auditors found some MCO controls are not designed to effectively prevent sex offenders from obtaining treatment for ED. Specifically, after a recipient obtains ED treatment, if an MCO finds out the recipient is a registered sex offender, the MCO merely does not pay for the services when other steps could be taken to prevent sex offenders from obtaining them.

Auditors further found DOH’s eMedNY computer payment system also incompletely incorporated controls to prevent covering ED procedures and supplies for convicted sex offenders. Consequently, Medicaid fee-for-service inappropriately paid $27,288 for 21 excluded ED procedures and supplies provided to 15 sex offenders (at least 6 of the 15 were classified as level-2 or level-3 sex offenders).

DiNapoli recommended DOH:

• Review the payments identified by auditors and ensure recoveries are made from providers, as appropriate;

• Regularly provide MCOs with detailed lists of all ED drugs, procedures, and supplies that are excluded or have limited Medicaid coverage;

• Periodically monitor coverage, utilization, and payment of ED drugs, procedures, and supplies; and take corrective actions to ensure compliance with laws, policies, and procedures; and

• Improve DOH’s eMedNY computer system controls to apply sex offender status in the processing of certain claims and prevent the processing of incomplete electronic Division of Criminal Justice Services sex offender registry files.

In its response to the audit, DOH indicated the actions it would take to correct the issues found. The department’s complete response is included in the audit.

Click report to read the DOH's response to the Comptroller's audit  or go to https://www.osc.state.ny.us/audits/allaudits/093019/sga-2019-18s16.pdf.

To find out how your government money is being spent go to Open Book New York. 

Judicial review of an arbitration award resulting from compulsory arbitration stricter than judicial review of an award resulting from voluntary arbitration

The Appellate Division unanimously affirmed a Supreme Court's granting the petition of the Board of Education to vacate an arbitration award and the penalty imposed by an arbitrator and remanded the matter to different "appropriate arbitrator" on the panel established to hear cases involving allegations of teacher misconduct.

Ruling that the lower court "correctly vacated the arbitration award in this disciplinary action," which was subject to compulsory arbitration, the Appellate Division explained that judicial review is "stricter (for compulsory arbitration) than for a determination rendered (after) ... voluntary arbitration". Here, said the court, the record supports the Supreme Court's conclusion that the arbitrator's opinion and award was not only irrational, but also arbitrary and capricious.

The Appellate Division noted that the administrative record supported the lower court's determination to sustain all charges and specifications filed against the educator, two of which were based the teacher's conduct and statements, "which threatened physical violence and placed at least one child in fear of his physical safety."

The court also sustained the Supreme Court's upholding the specification of misconduct charging certain students who were the target of the teacher's racist comments "could not have been 'unaffected' by the statements, which were far from 'benign' or 'uplifting,' as characterized by the arbitrator."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_04297.htm

Setting the terms and conditions of a disciplinary probationary period

Pleading nolo contendere* to criminal charges that he had recklessly operated his personal automobile while off-duty, a New York City police officer and the New York City Police Department "settled" the subsequent disciplinary action taken against the officer by entering into a "stipulated agreement." Under the terms of the settlement agreement the officer was placed on "disciplinary probation" for a specified period. This meant that the tenure he previously enjoyed was suspended for the duration of the disciplinary probationary period agreed upon and he could be summarily dismissed at any time during the probationary period by the appointing authority without notice and hearing.

Prior to the expiration of his disciplinary probationary period the police officer arrested on assault charges and later dismissed from his position. Later still, the assault charges were withdrawn. The officer then sued, seeking a court order directing his reinstatement to his former position, an awarded of back pay and an order directing the Police Department to give him a "name-clearing hearing." Supreme Court dismissed his CPLR Article 78  petition and the officer appealed the ruling to the Appellate Division.**

Addressing the police officer's contention that he was unlawfully terminated and therefore should be reinstated to his former position with back salary and benefits, the Appellate Division said that as a probationary employee the officer could be been dismissed without a hearing or a statement of reasons. Only in the event the officer demonstrated that his dismissal was made in bad faith or was for a constitutionally prohibited reason or was prohibited by statutory or case law could the officer claim wrongful discharge.

In contrast, in the event the stipulation establishing the employee's "disciplinary probation period" sets out the acts or omissions that could trigger the individuals termination, the employee may be summarily terminate without notice and hearing only in the event he or she is found to have violated the specified term or condition stipulated in the disciplinary probationary period agreement.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylorwas subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

Agreeing with the Supreme Court justice that Green failed to prove the existence of any basis for granting the relief he sought,  the Appellate Division dismissed his appeal.

* A plea by which a defendant in a criminal prosecution accepts conviction as though a guilty plea had been entered but does not admit guilt. A plea of "nolo contendere," has the same primary legal effects as a guilty plea.

** Robert Green, Jr.  v. New York City Police Department et al., 235 AD2d 475.  Rejecting the police officer demand for "a name-clearing hearing," the Appellate Division explained that a former employee is entitled to a name clearing hearing only if he or she can demonstrate that the employer publicly disclosed false and stigmatizing reasons for his or her termination.

The Taylor decision is posted on the Internet at:

https://www.leagle.com/decision/19861007122ad2d8852320