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THE ARBITRATOR’S AWARD, REINSTATING NURSING HOME EMPLOYEES WHO WERE FIRED AND INDICTED FOR ALLEGEDLY IGNORING A RESIDENT IN RESPIRATORY DISTRESS, VIOLATED PUBLIC POLICY (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitrator’s award, reinstating the employees to their former positions as care providers at a nursing home, violated public policy. The employees were fired and indicted for allegedly ignoring an alarm indicating a resident on a ventilator was in distress:

… [T]he record reflects that after the employees were indicted, inter alia, on felony charges, OMIG [Office of Medicaid Inspector General] notified the employees that they were excluded “from participation in the New York State Medicaid program based on New York State regulations authorizing the immediate exclusion of a person who has been charged with committing an act which would be a felony under the laws of New York and which relates to or results from,” among other things, “the furnishing of or billing for medical care, services or supplies.” Pursuant to 18 NYCRR 515.5(c), “[a] person who is excluded from the program cannot be involved in any activity relating to furnishing medical care, services or supplies to recipients of medical assistance for which claims are submitted to the program, or relating to claiming or receiving payment for medical care, services or supplies during the period.” The regulations also preclude reimbursement for medical care, services, or supplies provided by an excluded person (see 18 NYCRR 515.5[b]), and the Department of Health’s published Medicaid Update instructs Medicaid providers “to ensure that they do not employ, or are affiliated with, any individual who has been excluded from either the Medicare or the Medicaid program” … . There is no evidence in the record that the exclusion was vacated. Therefore, the final result of the arbitrator’s award, reinstating the employees to their former positions, creates an explicit conflict with the subject regulations and their attendant policy concerns … . Civil Serv. Employees Assn., A.F.S.C.M.E. Local 1000, A.F.L.-C.I.O. by its Local 830 v Nassau Healthcare Corp., 2020 NY Slip Op 06777, Second Dept 11-18-20

 

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