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OIG Annual Report 2019: Policy and Government Division

Part IX of the Office of the Inspector General's 2019 Annual Report

Download the PDF version of the full OIG 2019 annual report.

Table of Contents

The dome of the Massachusetts State House

Overview

The Policy and Government Division:

1) Oversees the Office's policy, healthcare and legislative initiatives.
2) Reviews programs and practices in state and local agencies.
3) Identifies system-wide vulnerabilities and opportunities for improvement.

I. Healthcare Reviews

Each fiscal year, the state budget includes language requiring the Office to oversee review the Health Safety Net (“HSN”) and Medicaid programs.1 This may include:

  • Reviewing eligibility requirements
  • Utilization
  • Claims administration
  • Compliance with federal mandates

The budget language requires the Office to produce a report each March. Below are highlights from the Office’s reviews.

A. Personal Care Attendants

MassHealth is the state agency that oversees the HSN and Medicaid programs. In 2019, the Office examined aspects of MassHealth’s personal care attendant (“PCA”) program. Following the Office’s reviews of three parts of the PCA program, it provided MassHealth with recommendations to improve its program integrity in each part reviewed.

The purpose of the PCA program is to help MassHealth members with permanent or chronic disabilities maintain their independence, reside in the community and manage their own personal care.

The Office requested data from MassHealth and the three fiscal intermediaries (“FIs”) that assist in the administration of the program. The Office first alerted MassHealth as to the importance of obtaining the names of the PCAs and linking those names to the MassHealth member(s) for whom the PCA provides services.

MassHealth does not currently know the names of any of the PCAs and, as a result, it cannot conduct adequate program integrity for the PCA program. Although MassHealth’s contracts require the FIs to conduct program integrity, MassHealth is unable to sample the FIs’ work or provide meaningful oversight of the FIs’ efforts.

For example, MassHealth cannot identify PCAs who may be submitting improper or false bills. Nor can MassHealth verify if a PCA is a family member of the person for whom they are caring, which would violate MassHealth’s regulations.2 Similarly, MassHealth is unable to determine whether a PCA is working more than 50 hours per week, which also would violate MassHealth’s regulations.3 In short, without the PCA names, MassHealth is unable to verify if the PCA program is working within its regulatory framework.

The Office next notified MassHealth that the Office had reviewed de-identified criminal offender record information (“CORI”) and sex offender registry information for the people working as PCAs during the first quarter of calendar year 2018 and the third quarter of calendar year 2019. Both sets of background checks revealed that a substantial number of PCAs have had involvement in the criminal justice system, including for violent crimes and financial crimes.4 Currently, MassHealth does not conduct background checks on PCAs.

The Office recognizes that the PCA program is unique among MassHealth programs as it is a self-determination program, allowing members to select and oversee their PCAs. However, the lack of a background check is inconsistent with EOHHS regulations that require a CORI check for its employees, or employees of its constituent agencies or vendors, who will have unsupervised contact with EOHHS clients. It is also inconsistent with MassHealth’s requirement that other programs conduct CORI checks on employees, contractors and subcontractors before having potentially unsupervised contact with MassHealth members. It is also inconsistent with a state law requiring CORI checks by agencies that supply or refer personal care attendants to people with disabilities and the elderly.5 The Office is actively working with the PCA program on this issue.

Finally, the Office reviewed the amount of money that MassHealth is paying PCAs to travel from one member’s home to another member’s home (“travel claims”). The Office shared a number of observations and recommendations with MassHealth regarding its payment of travel claims.

For example, the Office identified inconsistencies in the data caused by incorrect zip codes, mistakes in formatting data and timekeeping practices that affected the accuracy of the travel claims. The Office also observed that MassHealth is reimbursing PCAs for traveling significant distances to care for members. The Office further noted that each of the three entities involved with travel claims – FIs, MassHealth’s travel claim vendor Annkissam and MassHealth – have different sets of information relating to travel claims. No one entity has all of the relevant information necessary to evaluate and conduct program integrity on travel claims.

In response to the Office’s findings, MassHealth and its vendor have taken steps to identify inaccurate travel claims and to recoup improperly paid claims. MassHealth also indicated that it will conduct an audit of PCA claims using all of the available data so that it can evaluate travel claim processing.

B. Adult Day Health

Adult day health is a community-based service that provides nursing care, supervision and health-related support services to eligible members in a structured group setting. After reviewing claims for approximately 100 adult day health providers, the Office found that certain providers:

  1. Billed for multiple days in a single claim without identifying the specific days the member attended the program.
  2. Billed too many 15-minute units in violation of Medicaid regulations and resulting in payments that exceeded the allowable daily rate.
  3. Included the same diagnosis for virtually all members attending a program.
  4. Submitted claims for complex care for members whose primary diagnoses did not appear to support that level of billing.

These issues are all indicators of potential fraud, waste or abuse of the adult day health program.

The Office recommended that MassHealth consider requiring providers to bill for adult day health services one day at a time, which would allow MassHealth to strengthen its program integrity activities by determining if a person received overlapping services on the same day as attending an adult day health program or if the person was actually present at the program on the day billed.

The Office also recommended that MassHealth evaluate how it processes 15-minute-unit claims to prevent providers from improperly using this procedure code rather than the daily procedure code. Finally, the Office recommended that MassHealth review claims to determine if providers are accurately presenting member diagnoses and the need for complex care.

In response to the Office’s recommendations, MassHealth:

  • Finalized a policy that requires adult day health providers to have documentation to validate the dates when services were provided, even if the adult day health provider bills for multiple dates of service in one claim.
  • Created a process that prevents providers from being able to submit and receive payment for claims that exceed the six-hour daily maximum.
  • Clarified clinical eligibility requirements for adult day health members. MassHealth also implemented prior authorization requirements for the provision of adult day health services. This means that providers now submit clinical documentation establishing a member’s eligibility for adult day health services.

In addition, MassHealth began identifying all adult day health providers who submitted more than 50 claims with a 40% or higher denial rate, and providing training to those providers and conducting audits as needed.

Also, MassHealth asked the Centers for Medicare and Medicaid Services for a temporary moratorium on the enrollment of new adult day health providers effective March 1, 2020. This temporary moratorium would allow MassHealth to address program integrity concerns and to focus on training and educating current adult day health providers.

C. Adult Foster Care

Adult foster care allows eligible members to live with a caregiver who provides assistance with activities of daily living, instrumental activities of daily living and other personal care.

The Office reviewed the claim histories for a large sample of providers from fiscal year 2018. As a result of that review, the Office identified providers that were submitting claims with the same diagnosis for many, if not most, members, as well as providers that were submitting claims for complex care for members whose primary diagnoses did not appear to warrant that level of care.

The Office recommended that MassHealth improve its current program integrity efforts. The Office also recommended that MassHealth improve its review of adult foster care claims for fraud, waste and abuse to determine if providers are engaging in questionable diagnosis practices, improper billing for complex care, or other billing activity that raises questions about the provision of adult foster care services. Finally, the Office recommended that MassHealth consider setting guidelines for the rate of compensation for the caregivers.

In response to the Office’s recommendations, MassHealth has:

  • Contracted with a new vendor that will oversee the providers and assist with and enhance MassHealth’s program integrity efforts.
  • Acknowledged that the adult foster care claims that the Office identified represented “impermissible billing by AFC providers” and put edits in place in its claim adjudication system to deny payment of claims for the following types of billing situations:
    • Two or more adult foster care claims for one member on the same date of service; and
    • Two adult foster care claims for one member, one for a regular caregiver and one for an alternative caregiver, with different levels of service on the same date of service.
  • Revised its prior authorization requirements to ensure that members are receiving the appropriate level of service to meet their clinical needs.
  • Conducted a review of adult foster care cost reports to determine the rate that caregivers should be paid and reiterated the standard rate adult foster care providers must pay caregivers.
  • Created an algorithm to identify all adult foster care providers that bill for Level II care for 80% or more of their members.

D. Dental Care

The Medicaid and HSN programs pay for dental care for some MassHealth members and HSN users. The Office reviewed certain aspects of the dental program over several years.

The Office determined that MassHealth does not audit DentaQuest, its dental program vendor, to ensure that it is processing claims accurately and complying with the terms of its contract. Instead, MassHealth allows the vendor to “self audit.”

The Office also determined that some paid dental claims in MassHealth’s data warehouse did not contain tooth numbers or letters, which hampers MassHealth’s ability to properly oversee its vendor’s claim adjudication. The Office further identified that dental providers were improperly billing certain oral evaluations on children under the age of three that occur in conjunction with a discussion with the child’s primary caregiver.

The Office recommended that MassHealth conduct its own audits of dental claims instead of relying on its vendor to self-audit. At a minimum, MassHealth must require the vendor to provide a list of the claims that it includes in its self-audit so that MassHealth can verify the results.

The Office also recommended that MassHealth work to address the miscommunication issue between its claim adjudication system and its data warehouse so that it can conduct robust analytics on its dental claims. Additionally, the Office recommended that MassHealth seek to recoup from providers who improperly billed a procedure code that paid them more than they should have received for evaluations of children under three.

Finally, the Office recommended that MassHealth analyze providers who billed this procedure code to determine whether the billing was intentional rather than accidental.

In response to the Office’s recommendations, MassHealth has:

  • Requested that DentaQuest, the vendor that manages the dental program, submit all claims included in its audit reports to MassHealth. MassHealth then uses those claims to validate DentaQuest’s claim processing.
  • Increased its sampling of dental claims to validate that DentaQuest is accurately editing and processing claims according to MassHealth regulations.
  • Instructed DentaQuest to create an automatic edit in the claim processing system to prevent improper billing for oral evaluations for children younger than three years old.
  • Validated DentaQuest’s claim processing to ensure that it complies with the benefit guidelines for MassHealth members.

 E. Optometry

MassHealth pays for its members to receive optometry care, including the diagnosis,  prevention, correction, management and treatment of optical issues.

MassHealth allows optometrists to bill for traveling to provide services to members living in long-term care facilities (such as nursing homes). MassHealth permits optometrists to bill for each member they treat in a care facility, even when they treat more than one member in a single visit.

The Office reviewed all travel claims that optometrists billed for services provided from  February 2007 to the end of December 2017. During this time, MassHealth paid 55 providers approximately $1.5 million for 177,108 travel claims. The Office identified one optometrist who billed for travel substantially more frequently than his peers did, thereby being paid substantially more for travel claims than his peers. In addition, the same optometrist used the same diagnosis for 75% of his travel claims, which was an anomaly compared to his peers.

The Office recommended that MassHealth review service providers’ billing patterns as part of its program integrity activities. This includes analyzing the number of travel claims that servicing providers submit as well as examining questionable patterns in the use of diagnosis codes.

The Office also recommended that the MassHealth optometry program consult with other MassHealth programs that serve members outside of the office setting and consider a standard payment methodology for travel across programs.6 As an alternative, the Office recommended that MassHealth consider:

  • Returning the optometry program to the pre-2007 practice of billing one travel code per location per day.
  • Adopting a reimbursement rate that would adequately compensate providers for the actual cost of traveling to provide services.

In response to the Office’s recommendations, MassHealth has:

  • Consulted with other MassHealth programs that serve members outside of the office setting to evaluate creating a standard payment methodology for travel across programs. However, MassHealth determined that because of the unique qualities of each program and their providers, it would maintain the individual payment methodologies.
  • Analyzed all optometrists’ utilization of travel codes. It found that, except for the one optometrist the Office identified, optometrists were correctly billing for travel.

Additional Resources

II. Public Design and Construction

Since its inception, the Office has helped develop policies and procedures related to the Commonwealth’s public design and construction laws.

To establish best practices in public construction, in 2019 the Office worked with:

  • The Department of Capital Asset Management and Maintenance (“DCAMM”)
  • The Massachusetts Department of Transportation
  • The Massachusetts Port Authority
  • The Massachusetts School Building Authority
  • The Massachusetts Attorney General’s Office
  • Other state and local entities

A. Alternative Construction

Pursuant to M.G.L. c. 149A, the Office reviews applications to use alternative delivery methods, including the construction management at-risk (“CM at-risk”) and design-build methods.7

In addition, before certain state agencies and authorities may use alternative delivery methods on construction projects, the legislature has charged the Office with reviewing and approving the procedures for utilizing those delivery methods. Consequently, the Office reviews and approves certain procedures for:

  • DCAMM
  • The Massachusetts Port Authority
  • The Massachusetts Department of Transportation
  • The Massachusetts Bay Transportation Authority
  • The Massachusetts Water Resources Authority
  • The Massachusetts State College Building Authority
  • The University of Massachusetts Building Authority

In 2019, the Office received 24 applications to use the CM at-risk delivery method, totaling over $2.4 billion in estimated project costs.

The projects included:

  • Five public high schools
  • Eight public elementary and middle schools
  • Two public charter schools
  • Two affordable housing developments
  • Two city hall renovations
  • A convention center
  • A department of public works facility
  • A library
  • A parking garage
  • A police station

Applicants included:

  • The cities of Beverly, Boston, Cambridge, Lowell, Springfield and Waltham
  • The towns of Arlington, Littleton, Marblehead, Sharon, Tewksbury, Wellesley, Westborough, Westport and Weymouth
  • Acton-Boxborough Regional School District
  • Brookline Housing Authority
  • Cambridge Housing Authority
  • Excel Academy Charter School
  • Seven Hills Public Charter School
  • The Massachusetts Convention Center Authority

B. Owner's Project Manager Review Panel

Each month, a staff member from the Office represents the Office at the Massachusetts School Building Authority’s (“MSBA”) Owner’s Project Manager Review Panel (“Review Panel”).

When a school district receives state funding to build a new school, it must use an owner’s project manager (“OPM”) to oversee the building project. The Review Panel, led by the MSBA, reviews each school district’s selection of an OPM, including the evaluation process the school district used.

As a member of the Review Panel, Office staff reviews each district’s process and evaluation of its OPM applicants. This review entails examining both the school district’s needs and the OPM’s qualifications, including the OPM’s project experience, managerial experience, backlog of other ongoing work and financial viability.

Staff then participates in the Review Panel’s meeting, listening to school district presentations. After considering the presentations and reviewing the materials, the Review Panel may either agree with the school district’s selection of an OPM or recommend further review and consideration.

III. Real Estate Transactions

Each year, the Office reviews a variety of public real property transactions, including dispositions, acquisitions and long-term leases, to ensure that the public’s interests are protected.

In addition, the legislature frequently mandates that the Office review and approve independent appraisals of real property that the Commonwealth, counties and municipalities propose to convey or acquire. The Office’s appraisal reviewers evaluate whether the analyses, opinions and conclusions in the appraisal are appropriate and reasonable.

The Office provides a report on each appraisal of Commonwealth real property to the Commissioner of DCAMM for submission to the House and Senate Committees on Ways and Means and the Joint Committee on State Administration and Regulatory Oversight.

The Office also generally recommends that all real property appraisal reviews conducted at the direction of the legislature follow the Uniform Standards of Professional Appraisal Practice.8

Below are examples of transactions that the Office reviewed in 2019.

A. Edward J. Sullivan Courthouse in the City of Cambridge

Chapter 304 of the Acts of 2008 (“Chapter 304”) authorized the sale of the Edward J. Sullivan Courthouse in Cambridge. In 2011, DCAMM obtained an appraisal, which the Office reviewed and approved.

To convey the property, DCAMM conducted a competitive request for proposals. As a result of that process, DCAMM will sell the courthouse without warranty to LMP GP Holding LLC, which submitted the highest offer.

The Office found that the terms and conditions of the sale, as reflected in DCAMM’s release deed, were consistent with Chapter 304. DCAMM will sell the property for $33,000,000. The Office determined that the opinions of the value of the land were adequately supported and therefore issued a letter approving the methodology and opinions of value.

B. Lynn Waterfront Redevelopment Project

In October 2019, the Office reviewed a proposed land disposition agreement (“LDA”) and 27 associated exhibits in connection with a waterfront redevelopment project in Lynn.

The developer plans to construct two apartment buildings, ground floor amenities, tenant parking, a public harbor walk, a linear park and a vehicle access road. The developer also plans to repair deteriorating coastal engineering structures along the Lynn waterfront.

The legislature authorized DCAMM, in consultation with the Department of Conservation and Recreation (“DCR”), to release an easement to the developer. DCAMM conducted an appraisal, which showed the project would result in a significant net financial benefit to the Commonwealth. DCAMM therefore did not require the developer to pay any additional money for the easement.

According to the LDA and exhibits, moreover, DCAMM and DCR will have significant involvement in the design and construction of the public elements of the project and will provide appropriate oversight to protect the Commonwealth’s interests. The Office therefore determined that the LDA was consistent with the terms of and conditions of the legislation.

 C. Boston Waterfront Development

Pursuant to Chapter 262 of the Acts of 2014, the Office reviewed an appraisal of two abutting parcels in the Brighton section of Boston to be conveyed to the Architectural Heritage Foundation (“AHF”).

One parcel will be leased to AHF for preservation and development of the historic Speedway Administration Building and its grounds (“lease lot”). The second parcel will be sold to AHF to build, possibly with an affiliate, a new multi-story building (“sale lot”). AHF plans to develop the sale lot and use those proceeds, along with other funds, to renovate the lease lot.

The appraiser determined that  the rental value of the lease lot after renovations is not sufficient to offset the costs of renovation. The appraiser therefore concluded the rental value is zero. The appraiser developed a market valuation of the sale lot as a stand-alone parcel and as if combined with another parcel. The Office approved the methodologies and opinions of value presented in the appraisal.

D. Former Camp in Taunton

In 1953, pursuant to legislation, the Commonwealth conveyed a parcel of land to the United American Veterans of the United States of America, Inc. (“AMV”) to use as a recreational camp for children from low-income and underserved families. The original deed contained a use restriction and a reverter clause, which required that the land be used as a recreational camp for children from low-income and underserved families and that if it ceased to be used as such it would revert to the Commonwealth.

Since the original conveyance to AMV, the property has been sold several times. One owner built a house next to the parcel and used the subject parcel for access. Moreover, the deeds for the sales after the original conveyance did not include a use restriction or reverter clause.

Chapter 188 of the Acts of 2018 (“Chapter 188”) authorized a release from the use restriction and reverter clause to clear the title; this would allow the current owner to sell the parcel. In accordance with Chapter 188, the Office reviewed the appraisal and found that the value opinion of the subject parcel was adequately supported. The Office therefore approved the methodology.

E. Easements

Pursuant to legislation, the Office reviewed appraisals of permanent and temporary easements in Grafton, Lanesborough, Medford, Sutton and Boston. The easements are across or under larger parcels and were granted for various purposes, including utility installations, private developments and  a bridge project.

In the separate reviews of each easement, the Office found that DCAMM’s appraisers used a comparable sales method of valuation to conduct the appraisals and that DCAMM appropriately analyzed the property rights associated with the grant of the easements. The Office therefore approved the appraisal methodologies and opinions of value.
 
F. Springfield Technical Community College Assistance Corporation

The Springfield Technical Community College Assistance Corporation (“Corporation”) must submit every contract requiring an annual expenditure of more than $100,000 to the Office for review and comment. In 2019, the Corporation submitted a proposed amendment to its management agreement for review.

The Corporation’s management agreement, which was set to expire in 2019, contained an option to extend the contract for two years (“original option”). The Corporation proposed to exercise that option and to add a second option to extend the contract for an additional two years (“new option”).

The Office did not object to the Corporation’s decision to exercise the original option to extend the management agreement. However, the Office recommended that the Corporation conduct a competitive procurement for the property management contract before the end of the original option.

The Office explained that other vendors did not have the opportunity to consider the new option when they bid (or decided whether to bid) on the contract in 2014. Furthermore, because management costs change over time, the Corporation may save money by putting the contract out to bid again. The Office also recommended that the Corporation protect its interests and ensure that the property manager documents important information and maintains adequate records in the event that the Corporation hires a new property manager in the future.

IV. Legislative Initiatives

Since it was established in 1981, the Office has reviewed and commented on proposed legislation during each legislative session. In addition, the Office regularly provides feedback to individual legislators who are developing both legislation specific to the districts they represent and legislation that affects the general operations of state and local government. The Office also responds to requests from the Governor’s Office to review legislation that the legislature has passed and that is awaiting the Governor’s signature.

The Office continued to provide these important services throughout 2019. For instance, the Office reviewed and commented on more than 100 pieces of legislation for the 2019-2020 legislative session. In 2019, the Inspector General and his staff also provided testimony and guidance to legislative committees on issues related to:

Training members of public boards and commissions

  • Real estate transactions
  • Fraud controls
  • Employee leave time policies
  • Post-retirement work policies
  • The procurement of public supplies and services

In all cases, the Office stressed the importance of transparency in government and the need for safeguards to ensure the appropriate oversight of taxpayer dollars.

Below are examples of legislation that the Office commented on in 2019.

A. Chapter 30B Threshold Increases

In 2019, the Inspector General opposed legislation that would increase the dollar threshold in Chapter 30B for acquiring supplies and services. Specifically, the legislation would allow jurisdictions to seek written quotations for purchases of up to $100,000. Currently, the threshold for written quotations is $50,000, after which jurisdictions must use more competitive and transparent procedures. 

Proponents of the threshold increase contended that the procedures in Chapter 30B are burdensome and time consuming. The Office strongly disagreed; Chapter 30B ensures jurisdictions receive the supplies and services they need at a reasonable price and in a fair and transparent manner.

The Office played a key role in the adoption of Chapter 30B; the dollar thresholds and procedures promote fair and open competition, thereby protecting public funds and ensuring that all companies have a fair opportunity to do business with the government. As of the date of this report, this bill remains in the Joint Committee on Education. 

B. Purchasing Art and Artistic Services 

The Office opposed legislation that would exempt cities, towns and other jurisdictions from following Chapter 30B’s transparent and competitive procedures when purchasing art and a wide range of services. Proponents of the exemption have stated that art is subjective and therefore that jurisdictions should not be required to follow procurement laws.

The Office opposed the legislation because the procedures in Chapter 30B are not burdensome and give jurisdictions the flexibility to choose art based on subjective criteria. In addition, the language in the bills was so broad that the exemption would apply to a wide range of supplies and services that are not subjective. For example, a local jurisdiction could use the exemption to design its website, to create and print brochures, to document the jurisdiction’s history, or to operate its social media platforms.

It is the opinion of the Office that these services require a fair, open and competitive process. As of the date of this report, these bills remain in the Joint Committee on Tourism, Arts and Cultural Development.

C. Public Employees and Post-Retirement Earnings

The Commonwealth permits public employees who retire (“public retirees”) to work in the public sector after they retire, subject to certain requirements, including limits on earnings and number of hours worked. The limits are spelled out in Section 91 of Chapter 32 of the Massachusetts General Laws (“Chapter 32”).

As part of its mission to prevent and detect the misuse of public money, the Office supported measures to strengthen the enforcement mechanisms in Chapter 32. Currently, public retirees who return to work in the public sector do not have to report their earnings and the hours worked annually to their local retirement boards. Without this basic information, retirement boards cannot enforce Chapter 32 or recover overearnings.

The Office therefore supported legislation that would require public retirees to report the number of hours worked and their earnings to both their current employer and their retirement board. This bill received a study order from the Joint Committee on Public Service.

D. Design and Construction of Public Housing

The Office submitted written testimony on legislation that would eliminate long-standing statutory safeguards for the procurement, design and construction of public housing. The Office cautioned that these proposals may lead to wasteful spending and risky transactions involving public funding.

One proposal would permit a local housing authority to transfer surplus land to a private developer. Subsequently, the housing authority and private development partner would be exempt from following public procurement, design and construction laws for a redevelopment project. The public procurement, design and construction laws are in place to ensure projects are completed fairly, accountably and in a cost-effective manner.

Under another proposal, local housing authorities would be permitted to borrow funds and retain proceeds from any sale of property, rather than returning the proceeds to the state or municipality that donated the land. Much of the land local housing authorities control was donated by a municipality specifically for affordable housing or was purchased with funds from the federal or state government. Therefore, sale proceeds should not necessarily be given to the local housing authority.

The Joint Committee on Housing reported these bills out favorably. As of the date of this report, these pieces of legislation remain in both the Senate and House Committees on Ways and Means.

E. Sick Leave Payouts for State Employees

The Office recommended that the Joint Committee on Public Service advance legislation to reduce the Commonwealth’s liability for state employees’ unused sick leave upon retirement.

Most state agencies and authorities pay employees 20% of the value of their sick leave when they retire. While the vast majority of public employees use their sick leave properly, this payout-upon- retirement creates an incentive not to report the use of sick time in order to increase the retirement payout.

Furthermore, the Office found that some high-ranking public employees received six-figure payouts for their leave time upon retirement. For example, in 2018, a professor at a public university received more than $185,000 for unused leave time. In another case, the executive director of a public charter school received nearly $100,000 upon retirement, for allegedly unused sick and vacation time.

Additionally, the Commonwealth carries a substantial liability for unused sick leave. The Comptroller estimates that the state’s current liability for unused sick and vacation leave exceeds $560 million.

The Office recognizes that sick leave is an important employment benefit and that employees must be able to accrue sick leave, including in case of a catastrophic medical event. Sick leave is not, however, a retirement benefit. In addition, the Commonwealth could reduce its financial liability for payouts without limiting a state employee’s ability to accrue sick leave.

The Office highly recommends that the laws governing sick leave be amended to permit a payout of 20% of a finite number of hours, such as 1,000 hours, upon retirement. Therefore, an employee could still accrue and use more than 1,000 hours for sick leave purposes.

All of the legislative proposals to amend the statute governing sick leave received a study order from the Joint Committee on Public Service.

Additional Resources

V. Proposed Legislation: 2019-2020 Session

Chapter 30 of the Massachusetts General Laws permits the Office to file legislation in the November of even years for the upcoming legislative session. In November 2018, the Office filed the following bills for the 2019-2020 legislative session.

A. House 8, An Act Relative to Higher Education Boards and Trustees

This proposal would require every member of a board of trustees for a public institution of higher education in Massachusetts to participate in training from the Department of Higher Education on such issues as fiduciary responsibilities, the open meeting law, conducting public procurements and state ethics requirements. The proposal also states that membership on a board of trustees would terminate if a member failed to complete the required training.

House 8 is an important step towards ensuring that board members understand the full extent of their roles and have the tools to oversee public institutions of higher education. This will help to protect universities and colleges from fraud, waste and abuse and will also assist in ensuring accountability, transparency and reliability in a system that serves to educate our children.

House 8 was included in a broad higher education stability bill signed by the Governor, Chapter 113 of the Acts of 2019, in November 2019.

Since passage of the legislation, the Office has been working with the Board of Higher Education and the other agencies named in the legislation to develop the training, including both in-person and online options.

B. House 9, An Act Relative to Chapter 12A

House 9 would amend the Office’s enabling statute in order to increase the Office’s ability to prevent and detect fraud, waste and abuse.

Modeled after the federal Inspector General Empowerment Act of 2016, Pub. L. No. 114-317, 130 Stat. 1595 (2016), the proposal clarifies that the Office has access to all records of a public body unless the General Court expressly limits that access.

The proposal would also allow the Office to refer a potential criminal matter to a district attorney in the same manner that it refers cases to the United States Attorney and the Attorney General.

Further, the proposal would allow a member or designee of the Inspector General Council to attend a private session where testimony is given under oath, at the request of the Inspector General, but it removes the attendance requirement. The role of the Inspector General Council otherwise would remain the same, including approving summonses to take testimony under oath.

Finally, the proposal would extend whistleblower protections to private employees. Any person who violates these whistleblower protections would be subject to a fine and may be liable for damages.

The Inspector General Council voted unanimously to support House 9. The Inspector General testified in favor of the bill before the Joint Committee on State Administration and Regulatory Oversight on April 1, 2019. The Committee reported this bill out favorably and referred it to the House Committee on Ways and Means.

As of the date of this report, it is in the House Committee on Ways and Means.

C. House 10, An Act Relative to Chapter 30B

House 10 would increase the fine for causing someone or conspiring with someone to solicit or award a contract in violation of the Uniform Procurement Act, M.G.L. c. 30B (“Chapter 30B”).

Based on the Office’s investigations and reviews, those who conspire to violate Chapter 30B can receive hundreds of thousands of dollars as a result of their misconduct while depriving the municipality of the appropriate goods or services. Consequently, the current fine – $2,000 – is an insufficient deterrent to violating Chapter 30B.

Raising the fine to $10,000 – as the Office proposes – would have a far greater deterrent effect. This proposal also would update Chapter 30B to include the correct statutory references to other recently amended statutes. The bill would also strike a section of Chapter 30B that is duplicative.

The Inspector General testified in favor of House 10 before the Joint Committee on State Administration and Regulatory Oversight on April 1, 2019. The Committee reported this bill out favorably and referred it to the House Committee on Ways and Means.

As of the date of this report, it is in the House Committee on Ways and Means.

D. House 11, An Act Revising Chapter 30B

House 11 would augment certain sections of Chapter 30B to promote best practices, fair competition and transparency.

Under the proposed revisions, awarding authorities would be able to use requests for proposals for procurements in the $10,000 to $50,000 range. The proposal also clarifies that an awarding authority cannot allow a vendor to modify quotations for goods and services after they are received. Further, awarding authorities that do not have written procedures for the disposal of surplus supplies would be required to use sound business practices to dispose of surplus supplies valued at less than $10,000.

The proposal also would require contractors to notify the Office when they have credible evidence of criminal conduct, civil violations or overpayments. Finally, the Office would be permitted to promulgate regulations related to the interpretation and enforcement of Chapter 30B.

House 11 would strengthen Chapter 30B’s provisions and provide local jurisdictions greater guidance and flexibility in selecting which procurement method to use without sacrificing the principles of good governance and accountability.

The Inspector General testified in favor of House 11 before the Joint Committee on State Administration and Regulatory Oversight on April 1, 2019. The Committee reported this bill out favorably and referred it to the House Committee on Ways and Means.

As of the date of this report, it is in the House Committee on Ways and Means.

Additional Resources

FOOTNOTES

1) The federal government created the national Medicaid program in 1965 to provide medical assistance to low-income individuals, particularly children, through a shared state-federal commitment. The Massachusetts legislature created the Health Safety Net to pay for medically necessary services that acute care hospitals and community health centers provide to eligible low-income uninsured and underinsured patients.

2) 130 CMR 422.404(A)(1)(d)(1).

3) 130 CMR 422.418(A)(1).

4) The information used was de-identified.

5) M.G.L. c. 6, § 172C.

6) Dental providers and podiatrists also treat members outside of their offices. Dental providers may bill for travel once per facility per day; podiatrists do not appear to receive any reimbursement for travel.

7) “Alternative delivery method” means a delivery method other than the traditional design-bid-build sequential method of construction required in M.G.L. c. 149 (building construction projects) and M.G.L. c. 30, § 39M (public works construction projects).

8) The Uniform Standards of Professional Appraisal Practice, promulgated by The Appraisal Foundation, sets out voluntary industry standards for licensed appraisers of property rights.

Image credits:  George Headley
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