Audits issued by the New York State Comptroller during the week ending March 5, 2021

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending March 5, 2021.

Click on the text highlighted in color to access the complete audit report.

Department, Authority, Program and Foundation Audits

Department of Health (DOH) Improper Fee-for-Service (FFS) Payments for Services Covered by Managed Care (Follow-Up) (2020-F-8)A prior audit identified over $36 million in improper Medicaid FFS payments for services that should have been covered by the recipients’ managed care plans. In a follow-up audit, auditors found DOH made some progress in addressing the problems identified. However, auditors still identified nearly $7 million in new improper payments.

Department of Health: Improper Payments for Sexual and Erectile Dysfunction (ED) Drugs, Procedures, and Supplies Provided to Medicaid Recipients, Including Sex Offenders (Follow-Up) (2020-F-15) An audit released in June 2019 identified $933,594 in improper payments for drugs, procedures and supplies to treat ED. Of that amount, Medicaid paid $63,301 for 47 sex offenders. Medicaid also made payments of $13.5 million for ED drugs that are approved to also treat other medical conditions. About $11.6 million of the $13.5 million in payments were made without verifying recipient sex offender status through DOH’s system, as required – consequently, auditors found Medicaid paid $285,641 on behalf of 14 sex offenders. In a follow-up, auditors found DOH made some progress in addressing the problems identified in the initial audit report; however, more improvements are needed.

Department of Health: Medicaid Program - Improper Medicaid Payments for Individuals Receiving Hospice Services Covered by Medicare (2018-S-71) Auditors identified about $50 million in actual and potential Medicaid overpayments, cost-savings opportunities, and questionable payments for services provided to certain patients enrolled in Medicare-covered hospice. Among the cost savings, auditors recommended DOH review the $5.9 million in actual and potential overpayments and ensure proper recoveries are made. They also recommended DOH improve controls to prevent improper payments in the future. Another $39.8 million was identified as questionable because these expenses may have been eligible for coverage by Medicare.

Homes and Community Renewal - Division of Housing and Community Renewal (DHCR): Administration of Mitchell-Lama Waiting Lists (Follow-Up) (2020-F-19) An initial report issued in August 2017 found that DHCR needed to improve its monitoring of the Mitchell-Lama developments to ensure that affordable units were awarded in compliance with New York Codes, Rules and Regulations. In a follow-up, auditors found DHCR has made some progress in addressing the problems identified in the initial audit report.

Department of Motor Vehicles: Enforcement of Article 19-A of the Vehicle and Traffic Law (Follow-Up) (2020-F-6) An audit issued in February 2019 identified deficiencies in DMV’s policies and procedures that could result in motor carriers operating out of compliance with requirements for school bus drivers with the associated risk that under or unqualified drivers were operating vehicles and potentially jeopardizing safety. In a follow-up, auditors found DMV has implemented four of the five recommendations from the initial audit report, and has partially implemented one recommendation.

New York State Health Insurance Program: CVS Health – Accuracy of Drug Rebate Revenue Remitted to the Department of Civil Service (Follow-Up) (2020-F-24) An audit issued in June 2019 found that CVS Health did not always invoice drug manufacturers for all rebates, collect all rebates from the manufacturers, or remit all rebate revenue to Civil Service. As a result, Civil Service was due $2,240,798 in rebates. In a follow-up, auditors found CVS Health addressed most of the problems identified in the initial audit.

Niagara Frontier Transportation Authority (NFTA): Use of Vendor-Supported Technology (Follow-Up) (2020-F-28) An initial audit determined that NFTA maintained its technology systems at vendor-supported levels. However, auditors identified unsupported systems used on 66 devices. NFTA officials did not develop policies and procedures to ensure that their systems were regularly reviewed and kept up to date, nor did they maintain a single clear inventory of IT assets to aid in tracking their systems. In a follow-up, auditors found NFTA officials have made significant progress in addressing the problems identified in the initial audit.

Olympic Regional Development Authority (ORDA): Compliance With Executive Order 95 (Open Data) (2020-S-36) ORDA did not begin to take steps to meet the requirements of EO 95 until after auditors started their work. Prior to the audit, ORDA did not have any data items published to Open Data. In addition, it did not designate a data coordinator, complete a comprehensive catalogue of publishable data, submit a master schedule of publishable datasets or incorporate Open Data into its ongoing core business planning and strategies. However, since then, ORDA has taken steps to comply with EO 95.

Research Foundation of the State University of New York (SUNY): Technology Transfer Program and Royalty Payments (Follow-Up) (2020-F-32) An audit issued in January 2020, found that the Research Foundation had taken steps to protect SUNY’s interest in the transfer of technology and royalties for projects developed at SUNY schools, but had not developed monitoring to determine whether licensees was accurately reporting net sales and paying the full royalty owed. Additionally, SUNY Downstate had accumulated $1,019,390 in campus royalty revenues, none of which had been reinvested to support SUNY research programs. In a follow-up, auditors found Research Foundation officials have made progress in addressing the findings identified in the initial report.

Rochester - Genesee Regional Transportation Authority (RGRTA): Compliance With Requirements to Maintain Systems at Vendor-Supported Levels (Follow-Up) (2020-F-30) An initial report found that RGRTA maintained its technology systems at vendor-supported levels. However, auditors did identify unsupported systems used on 14 devices. Additionally, RGRTA had not developed policies and procedures to ensure that its systems were regularly reviewed and kept up to date. In a follow-up, auditors found RGRTA made significant progress in addressing the problems identified in the initial audit.

State Education Department: Oversight of School Safety Planning Requirements (Follow-Up) (2020-F-17) An initial audit determined SED was not sufficiently monitoring school districts’ compliance with the requirements for school safety planning, and did not have assurance that the requirements were being met. In a follow-up, auditors found SED has made significant progress in addressing school safety issues. 

 

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Lawyers: Take a look at these two social media platforms

 

Seeking medical treatment under New York's Compassionate Care Act

A police officer [Claimant] had established two workers' compensation claims. Following years of treatment, which included physical therapy, surgeries and various prescription pain medications, and a subsequent diagnosis of chronic regional pain syndrome of the right upper extremity, a Workers' Compensation Law Judge [ALJ] classified Claimant as permanently partially disabled and apportioned liability for indemnity benefits and medications between the two claims. Claimant continued receiving treatment with varying degrees of success, and his use of prescription pain medications continued to increase.

Ultimately Claimant, after years of treatment with opiate pain medications, began being treated by a pain management specialist [Specialist]. Specialist continued Claimant on his regimen of, among other medications, Oxycontin and Oxycodone to treat his pain but subsequently certified Claimant for use of medical marihuana pursuant to Public Health Law Article 33, Title V-a, also referred to as New York's "Compassionate Care Act."

Specialist then filed a NYS Workers Compensation MG-2 variance form requesting authorization to use medical marihuana to treat Claimant's chronic pain resulting from his work-related injuries. The Employer and its workers' compensation carrier [Carrier] denied the request. Although the Workers' Compensation Board [Board] initially sustained the denial, in response to Claimant's request for further action, the Board rescinded its earlier decision and continued the case for a hearing.

Following a hearing the Worker's Compensation Law Judge approved the variance request for medical marihuana treatment as apportioned, and instructed Carrier to pay for such treatment. Upon administrative review, the Board, among other things, sustained the request for the variance. 

Employer and Carrier appealed the Board's decision,  contending that the requirement that Carrier provide insurance coverage for Claimant's medical marihuana expenses under the Compassionate Care Act conflicted with the Controlled Substances Act and, in light thereof, the Compassionate Care Act was preempted by federal law.

The Appellate Division disagreed, finding that the Board's decision to grant the requested variance to treat Claimant's chronic pain with medical marihuana was supported by substantial evidence and declined to disturb it.

The court explained that the federal preemption doctrine has its roots in the Supremacy Clause of the United States Constitution, and federal preemption of state laws generally can occur in three ways:

1. Where Congress has expressly preempted state law;

2. Where Congress has legislated so comprehensively that federal law occupies an entire field of regulation and leaves no room for state law; or

3. Where federal law conflicts with state law.

In the eyes of the court, the issue was one of "conflict preemption. Referring to Balbuena v IDR Realty LLC, 6 NY3d 338, the Appellate Division opined that "conflict preemption" occurs "when compliance with both federal and state law is a physical impossibility, or where the state law at issue ... stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."

Noting that neither the Compassionate Care Act nor Workers' Compensation Law §13(a) requires a workers' compensation carrier to manufacture, distribute or possess marihuana, the Appellate Division indicated that all that is required of the Carrier in this instance is its reimbursing Claimant's monetary costs associated with the medical marihuana obtained from his or her medical practitioner, an activity that is not expressly prohibited under the Controlled Substances Act. 

Moreover, opined the Appellate Division, reimbursing a claimant "does not serve to subvert, in any way, the principal purposes of the Controlled Substances Act in combating drug abuse and controlling 'the legitimate and illegitimate traffic in controlled substances,' particularly where, as here, [Claimant] was validly prescribed and authorized to use medical marihuana by his pain management specialist to both treat his chronic pain and reduce his reliance on opiates."

Addressing another conundrum, the Appellate Division pointed out that "even assuming, without deciding, that [Claimant's] procurement and possession of medical marihuana under the Compassionate Care Act is illegal under the Controlled Substances Act, any such criminal transaction in this regard is necessarily completed prior to any request being made for reimbursement from the carrier; thus, as 'one cannot aid and abet a completed crime' ... the [Carrier] cannot be said to be aiding and abetting a crime and/or engaging in a conspiracy to commit same." 

Holding that Carrier can comply with the State's statutory scheme without running afoul of federal law, the Appellate Divisions concluded that it could not find any conflict between the Controlled Substances Act and either the Compassionate Care Act or Workers' Compensation Law §1(a) with regard to Carrier's obligation to reimburse Claimant for his medical marihuana expenses.

Addressing and disposing of additional arguments raised by Employer and Carrier,  the court cited Public Health Law §3368(2), which provides as follows:

Nothing in this title shall be construed to require an insurer or health plan under [the Public Health Law] or the [I]nsurance [L]aw to provide coverage for medical marihuana. Nothing in this title shall be construed to require coverage for medical marihuana under [Public Health Law article 25 (maternal and child health)] or [Social Services Law article 5 (public assistance)].

However, said the Appellate Division, "[a]ccording to its express terms, the provided exemption from coverage for medical marihuana expenses pertains only to three chapters of law: the Public Health Law, the Insurance Law and the Social Services Law. No reference is made in the text of the statute to an exemption from coverage under the Workers' Compensation Law. 

The Appellate Division then observed that "If the Legislature intended for said exemption to apply to workers' compensation insurance carriers, it certainly could have included such language in the text of the statute; it chose not to."

Finding that the Board properly granted Claimant's request for a variance and that the Public Health Law and its accompanying regulations authorize the use of medical marihuana to treat certain enumerated and serious conditions, including - as relevant here - chronic pain, the court observed that the Workers' Compensation Law also requires that treatment be rendered in accordance with its Medical Treatment Guidelines. 

Citing 12 NYCRR 324.2[a], the court explained that in the event a medical provider determines that medical care that varies from the Medical Treatment Guidelines is warranted, he or she "shall request a variance from the insurance carrier" by submitting such request in the prescribed form. Although "the burden of proof to establish that a variance is appropriate for a claimant and medically necessary shall rest on the treating medical provider requesting the variance," if the Board's decision is supported by substantial evidence, the Appellate Division held that it would not be disturb.

In this instance the court determined that the Board's decision to grant the requested variance to treat Claimant's chronic pain with medical marihuana was supported by substantial evidence and sustained it.

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ClickHEREto access the Appellate Division's decision.

 

Resolving a challenge to the denial of an application for accidental disability retirement benefits resulting from a tie vote by the pension fund's Board of Trustees

The New York City's Police Pension Fund [Fund] Medical Board [Medical Board] concluded that the disability of an individual's [Applicant] for accidental disability retirement benefits [ADR] "stemmed from an unsuccessful spinal surgery and not from a line-of-duty incident." As the Fund's Board of Trustees [Trustees] review of the Medical Board's decision resulted in a tie vote, Applicant was denied accidental disability retirement [ADR] pension benefits and was awarded ordinary disability retirement [ODR] benefits instead. 

Applicant then filed a CPLR Article 78 petition seeking a Supreme Court order annulling the Trustee's action and the Medical Board's determination. Supreme Court dismissed the proceeding and the Appellate Division unanimously affirmed the lower court ruling.

Citing Meyer v Board of Trustees of N.Y. City Fire Dept., Art. 1-B Pension Fund, 90 NY2d 139, the Appellate Division explained that in the event the Fund's Trustees' determination is the result of a tie vote, the reviewing court may not set aside the denial of ADR benefits "unless it can be determined as matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Accordingly, said the court, in the event that there some credible evidence which supports the Medical Board's findings, a court may not substitute its judgment for that of the Medical Board, noting the decision by the Court of Appeals in Borenstein v New York City Employees' Retirement Sys., 88 NY2d 756 on this point.

Notwithstanding the Applicant's contentions to the contrary, the Appellate Division said that the record shows that the Medical Board reviewed all of the relevant evidence, including Applicant's medical records. Further, said the court, the Medical Board conducted three separate evaluations of the Applicant before reaching its final determination that ultimately resulting in her being awarded ODR benefits. 

Finding that there was credible evidence in the record to support the Medical Board's determination, the Appellate Division opined that the Trustees' denial of the ADR benefits sought by the Applicant should not be disturbed, affirming the Supreme Court's ruling in this matter.

Click HERE to access the Appellate Division's decision.

 

The Freedom of Information Law and Collective Bargaining

The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL. In other words, there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded. 

In Uniformed Fire Officers Association et al. v. de Blasio et al., Nos. 20-2789-cv, 20-3177-cv,  the United States Circuit Court of Appeals, Second Circuit, addressed a number of issues arising after the repeal of §50-a of New York State's Civil Rights Law. §50-a had for decades shielded the disciplinary records of sworn law enforcement personnel from public disclosure.

In addition, the Circuit Court noted the following:

1. Citing Matter of M. Farbman & Sons v. N.Y.C. Health and Hosps. Corp., 62 N.Y.2d 75, the Circuit Court noted that with respect to records that must be disclosed under FOIL, a public employer cannot bargain away its FOIL disclosure obligations; and

2. Citing Trump v. Deutsche Bank AG, 943 F.3d 10 627, vacated and remanded on other grounds, 140 S. Ct. 2019, the Circuit Court commented that a federal district court may grant a preliminary injunction where the moving party "demonstrates irreparable harm and meets either of two standards: (a) a likelihood of success on the merits, or (b) sufficiently serious questions going to the merits to make them a fair ground for litigation, and a balance of hardships tipping decidedly in the movant’s favor”. 

* The release of some public records pursuant to a FOIL request may be limited by statute such as Education Law §1127 - Confidentiality of records and §33.13 of the Mental Hygiene Law - Confidentiality of clinical records. 

Click HERE  to access the full text of the decision by the Circuit Court, which opinion, in particular, contains the two observations set out below.

  

 

An employer may rely on its medical expert's opinion if there are conflicting medical opinions as to an applicant's ability to perform the duties of the position

Supreme Court granted the New York City Fire Department's [NYFD] motion to dismiss Plaintiff's CPLR Article 78 petition challenging NYFD's decision disqualifying him for appointment the position of firefighter for medical reasons. Plaintiff's appeal from the Supreme Court's decision was sustained by the Appellate Division, which found that NYFD's decision was not arbitrary and capricious, or without a rational basis.

Citing Matter of Rivers v New York City Dept. of Sanitation, 49 AD3d 436, the court said that the record indicated that Plaintiff "had profound sensorineural hearing loss in his left ear," which, under the standards promulgated by the National Fire Protection Association (NFPA), was grounds to disqualify him from appointment to the position of firefighter

NYFD's physician had considered Plaintiff's medical submissions and letters from his former colleagues, but ultimately determined that his unequal hearing would interfere with his ability to perform search and rescue operations safely, as well as tasks requiring an ability to localize faint sounds in high-noise environments.

NYFD's physician also opined that Plaintiff's hearing loss in his left ear was progressive and would further impair his ability to serve as a firefighter. 

Although Plaintiff's physicians had reached a different conclusion, the Appellate Division said that these different conclusions on the part of Plaintiff's physicians  "does not render [NYFD's] medical examiner's conclusions arbitrary and capricious."

Click HERE to access the Appellate Division's decision.

 

Terminating the services of an employee during a probationary period

In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees before the completion of their required probationary period as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

Such may not the case where the individual is serving a disciplinary probationary period imposed as part of the "settlement of disciplinary charges" filed against the employee by the appointing authority.

Supreme Court had granted Plaintiff's CPLR Article 78 petition seeking [1] to annul a determination by the appointing authority [Employer] terminating Plaintiff from his position and [2] an order reinstating him to his former position with back pay. The Employer appealed the Supreme Court's ruling and the Appellate Division unanimously reversed the lower court's decision "on the law".

Plaintiff had contended that Military Law §243.9* controlled with respect his status as a probationary employee serving a "disciplinary probationary period" in this instance. The Appellate Division disagreed, holding that Plaintiff was not entitled to receive credit towards his "dismissal probationary period" for the time he was absent on military duty pursuant to §243.9 of the Military Law because "the statute is clear on its face that it applies only to probationary periods related to 'any position' to which [an individual] may ... be appointed or promoted."

Contrary to Plaintiff's argument, the Appellate Division opined that §243.9 does not, by its plain terms, apply to the dismissal of an individual serving a "disciplinary probationary period" imposed as part of a negotiated settlement agreement with an employer to resolve disciplinary charges filed against the individual. Further, said the court, "[i]f the legislature had intended the statute to apply more broadly, it would have so provided."

In addition, the Appellate Division's decision notes that "[b]ecause [Plaintiff] remained on dismissal probation at the time he was terminated, a hearing was not required."

Typically an individual serving a disciplinary probationary period may be summarily terminated from employment in the event a term or condition of the disciplinary probation is violated as demonstrated by the decision in Ramos v Coombe, 237 AD2d 713, leave to appeal dismissed 89 NY2d 981. 

In Ramos the Appellate Division held that an employee serving a disciplinary probationary period may be terminated without a hearing for violating the terms of the disciplinary probation.

In contrast, in Taylor v Cass, 122 AD2d 885, an employee won reinstatement with full retroactive salary and contract benefits after the court determined that the employee had been improperly dismissed while serving a "disciplinary probation."

The terms of the employee's probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his intoxication on the job during the next six months. The employee was subsequently terminated without a hearing for “failing to give a fair day’s work” and for “sleeping during his scheduled working hours.” 

The Appellate Division concluded that the employee's dismissal was improper because the employee had not been  terminated for the sole reason specified in the settlement of the disciplinary action: intoxication on the job.

* §243.9 of the Military Law, probationary service, provides as follows: If a public employee or other person enters military duty before the expiration of the probationary period in any position to which he may have theretofore been appointed, or to which he may thereafter be appointed or promoted pursuant to subdivision six of this section, the time he is absent on military duty shall be credited as satisfactory service during such probationary period.  

Click HEREto access the decision of the Appellate Division in the instant case.