Audits issued by the New York State Comptroller during the week ending October 11, 2019

On October 9, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits and examinations have been issued. Click on the text highlighted in color below to access entire report.

Office of Children and Family Services (OCFS): Financial Oversight of the Advantage After School Program (Follow-Up) (2019-F-27)

A report issued in February 2018 identified a risk that providers could exceed their maximum cost per child if they were serving significantly fewer children and did not reduce their expenditures proportionately. Based on observations of program attendance at selected providers, the cost per child on five contracts ranged from $1,981 to $5,332. Auditors also identified $38,514 paid to six providers for program expenses that could not be supported or included errors. In a follow-up, auditors found OCFS has made progress in addressing the problems identified in the 2018 audit.

Department of Health (DOH): Medicaid Program: Claims Processing Activity October 1, 2018 through March 31, 2019 (2018-S-55)

Auditors identified over $5.7 million in Medicaid payments that require DOH’s prompt attention, including: $1.9 million that was paid for inpatient claims that were billed at a higher level of care than what was actually provided; $1.4 million was paid for newborn birth claims that contained inaccurate birth information; and $1 million was paid for practitioner, pharmacy, inpatient, lab, and clinic claims that did not comply with Medicaid policies.

Thruway Authority: Compliance With Payment Card Industry Standards (Follow-Up) (2019-F-14)

An audit issued in September 2017 found the authority did not have a developed information security policy that addressed all the requirements in the Payment Card Industry Security Standards Council. It could also improve certain other technical safeguards over the cardholder data it processes. In a follow-up, auditors found the authority made significant progress in addressing the issues identified in the initial audit. 

Department of Transportation (DOT): Collection of Special Hauling and Divisible Load Overweight Permit Fees (Follow-Up) (2019-F-24)

An audit, covering the period April 1, 2012through Feb. 5, 2015, found significant weaknesses in the internal controls over the special hauling permits issued by four DOT regional offices. This included poor accountability over permits issued and fees collected, a lack of segregation of duties for permit transactions, and minimal oversight by management at both the central and regional levels. In a follow-up, auditors found that DOT has implemented the recommendations from the original audit.

State University of New York, University at Buffalo: Procurement Practices (2018-S-37)

A review of $8 million in spending between April 2016 and September 2018 uncovered various issues within its procurement processes, leading auditors to question whether $895,839 was spent appropriately and in the best interest of the state. Buffalo’s poor monitoring of spending and contracting practices resulted in potential lost savings and cost avoidance, overcharges by vendors, and purchases that lack support for business need or reasonableness of price.

State University of New York: Upstate Medical University: Human Resource (HR) Practices (2018-S-57)

Insufficient HR monitoring and oversight and poorly enforced policies and procedures have contributed to questionable and weak practices that render Upstate vulnerable to misuse of funds and security risks. For example, Upstate paid 12 employees a total of $4.7 million in additional compensation for work beyond their regular job duties but did not maintain adequate documentation to support either the basis for the dollar amount or the additional duties that employees were tasked with. Upstate has not established policies or procedures for alternate work (off-campus) assignments. Additionally SUNY System Administration continued to pay a former president her presidential salary of $608,000 while she was on leave in the job title of special assistant to the president. 

Professor M. Stanley Whittingham joins other SUNY faculty members who have been awarded the Nobel Prize

On October 9, 2019 New York's Governor Andrew M. Cuomo congratulated SUNY at Binghamton Distinguished Professor M. Stanley Whittingham upon his receiving the 2019 Nobel Prize in Chemistry.

Professor Whittingham won the prize for his work leading to the development of the lithium-ion battery together with John B. Goodenough, Virginia H. Cockrell Centennial Chair in Engineering at the University of Texas at Austin and Akira Yoshino, an honorary fellow for the Asahi Kasei Corporation in Tokyo and a professor at Meijo University in Nagoya, Japan.

The Governor said "Professor Whittingham's work has far-reaching applications, including helping New York reach our goals to reduce carbon emissions and achieve 100 percent zero carbon electricity by 2040."

The names and vita of other SUNY faculty Nobel Laureates are posted on the Internet at https://www.rfsuny.org/rf-news/nobel-laureates/

Hearing officer recommends the dismissal of a food service manager found guilty of failure to properly supervise subordinates and other misconduct

A school food service manager was charged with failure to supervise her staff to ensure that potentially unsafe food was not served to students, and failure to ensure that kitchen equipment was clean and in working condition.

Supervisors on several occasions attempted to help the manager remedy these issues, but she continued to perform unsatisfactorily.

New York City Office of Administrative Tribunals and Hearings Administrative Law Judge Joycelyn McGeachy-Kuls found that the manager failed to take responsibility for exposing students to recalled food and failed to take responsibility for the condition of the school kitchens.

Given the seriousness and persistence of the conduct, Judeg McGeachy-Kuls recommended the manger be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-494.pdf

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A Reasonable Disciplinary Penalty Under the Circumstances

Providing disabled individuals access to the Internet

In Robles v. Domino Pizza, 913 F. 3d 898,*  the United States Court of Appeals held  that Title III of the American With Disabilities Act applies to websites maintained by entities having a physical place of public accommodation.

The United States Supreme Court [Docket 18-1539] denied Domino Pizza's motion for certiorari suggesting that the case will be returned to the District Court for a trial on the merits.

Many disability rights advocates view the Supreme Court's decision as signaling the importance of Internet sites established by governmental entities as well as entities in the private sector providing appropriate accommodations for disabled users even in the absence of guidelines having for this purpose been established by the United States Department of Justice or by Congress.

* The Robles decision is posted on the Internet at:
http://cdn.ca9.uscourts.gov/datastore/opinions/2019/01/15/17-55504.pdf

Do you employ temporary personnel to serve as election workers?

Each election year, thousands of state and local government entities hire workers to conduct primary and general elections. Compensation paid to election workers is income and may be subject to income tax and FICA taxes as well as reporting requirements.

IRS's booklet Election Workers: Reporting and Withholding will help employers  understand their unique reporting and withholding requirements and which election workers may be covered by a Section 218 Agreement.

The IRS will issue a CP2100 or CP2100A Notice if the payee’s name and Taxpayer Identification Number (TIN) on the information return filed does not match IRS records.

This notice informs payers they may be responsible for beginning backup withholding, if they haven’t already done so. Publication 1281, Backup Withholding on Missing and Incorrect Name/TIN(s) (PDF), contains all the information payers need to comply with backup withholding requirements.

Additional resources that may help employers avoid receiving a CP2100 include the following:

About General Instructions for Certain Information Returns helps you file correct Forms 1099

W-9 Saves Time and Money discusses the benefits of securing Form W-9 from service vendors

TIN Matching Video explains the free Taxpayer Identification Number (TIN) On-Line Matching program offered by the IRS

Social Security Number Verification Service

What you need to know about Backup Withholding

New York laws bar asking prospective employees about their salary history and expands the definition of "equal pay for equal work"

In a press release issued October 7, 2019, New York State Governor Andrew M. Cuomo reminded all employers - public and private - who do business in New York State that effective October 8, 2019  New York State law prohibits unequal pay for substantially similar work on the basis of an individual's protected class status, bars asking prospective employees about their salary history and compensation and expands the definition of "equal pay for equal work."

These new measures track two executive orders signed by Governor Cuomo in 2018 prohibiting state entities from evaluating candidates based on wage history and requiring state contractors to disclose data on the gender, race and ethnicity of employees to provide pay transparency and advance pay equity statewide.

In addition, Governor Cuomo called on businesses in New York to conduct internal reviews of their pay policies and make adjustments as necessary in accordance with these new laws. 

Relying on hearsay evidence in an administrative proceeding

Although the New York State and Local Police and Fire Retirement System [System] conceded that the injury suffered by an applicant for accidental disability retirement benefits was an accident within the meaning of the Retirement and Social Security Law, the System rejected a State Trooper's [Trooper] application for such benefits based on a finding that he is neither permanently disabled nor permanently incapacitated.

Following a hearing, a Hearing Officer upheld the System's the denial these  applications. The Comptroller adopted the Hearing Officer's findings and decision and Trooper filed a CPLR Article 78 petition filing the Comptroller determination.

The Appellate Division initially observed that an applicant for disability retirement benefits bears the burden of establishing that his disability arose from an accident within the meaning of the Retirement and Social Security Law [RSSL], and the Comptroller's determination in this regard will be upheld if supported by substantial evidence. However, this issue was moot as the System conceded Trooper had suffered his injury as the result of an accident within the meaning of the RSSL.

Trooper's board-certified, treating orthopedic surgeon testified that Trooper is permanently disabled and, in his opinion, Trooper "was unable to work as a state trooper."

In contrast the System's board-certified orthopedic surgeon conducted an independent medical examination of Trooper and after a physical examination of Trooper, a review of his medical records and consideration of Trooper's "subjective complaints" opined that Trooper is not permanently disabled or incapable of performing the duties of a state trooper.

In response to Trooper's contention that the hearsay evidence contained in the report of the Retirement System's surgeon "cannot prevail over the credible, sworn testimony of his witness," citing Matter of Haug v State Univ. of N.Y. at Potsdam, 32 NY3d 1044, the Appellate Division explained that "hearsay is admissible as competent evidence in an administrative proceeding, and[,] if sufficiently relevant and probative[,] may constitute substantial evidence even if contradicted by live testimony"

Further, said the court, "it is not the role of this Court to weigh the evidence and substitute its judgment for that of the administrative factfinder," and as the record as a whole contains substantial evidence to support the denial of Trooper's application, the Comptroller's finding that petitioner is not permanently incapacitated will not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07129.htm