Blair Horner's Capitol Perspective

Albany Is Once Again in Turmoil

Posted by NYPIRG on March 1, 2021 at 8:32 am

February was not a kind month to the governor.  Earlier, the state Attorney General issued a report that documented that the Administration had significantly undercounted COVID deaths in nursing homes.  That revelation and the Administration’s admission that they had withheld data from the Legislature and the public roiled the Capitol and became Albany’s focus. 

Last week, Health Commissioner Zucker was on the hotseat as he faced lawmakers who had been stewing over the Administration’s stonewalling on the nursing home data.  Legislators’ sensitivities had recently turned raw with Assemblymember Kim’s allegation that the governor threatened the lawmaker’s political career if he didn’t publicly back the Administration’s defense of its nursing home actions.  Instead, the Assemblymember from Queens launched his own effort to highlight the alleged bullying tactics of the governor’s office. 

As the month rolled on, more stories emerged claiming that the Administration had crossed the line even for rough ‘n tumble New York politics.  The month ended with two claims of harassment against the governor made by female former staffers of the Administration.  This past Sunday, the governor’s office requested that state’s Attorney General choose an independent lawyer to review those claims.

Everyone – from lawmakers to the media – has called for an independent investigation.  But those calls raised a serious question – why not rely on the state’s ethics watchdog – the Joint Commission on Public Ethics (JCOPE) – to launch the probe?

The reason is that no one believes that JCOPE is structured to be an independent referee.  Established a decade ago, the Commission’s membership consists of individuals who are directly appointed by the governor and the legislative leaders – the people that JCOPE supposedly monitors.  Throughout the decade, there have been allegations that Commissioners do, in fact, relay internal discussions back to their appointing authorities. 

Most recently, one member of the Commission quit over a call – supposedly from the governor’s office – to the Assembly Speaker’s office to intervene over an internal investigation being considered by JCOPE, despite a legal requirement that such internal conversations must remain secret.

But the lack of independent watchdogs in New York is not just about ethics.  When it comes to elections, the two major political parties call the shots.  That arrangement was to ensure that each of the parties monitors the other, but what happens when the parties collude?  Recently, in the race for the NY 22 Congressional seat, it emerged that the two parties grossly mishandled the vote. The two parties watching each other does not guarantee that the individuals the parties chose to run elections are competent.

In the nursing home case, the Administration felt no pressure to comply with state open records laws to release data requested by members of the public.  The Administration has a bad reputation when it comes to making public information available, yet the state’s Freedom of Information watchdog has no authority to force agencies to release data instead of foot dragging. 

The state’s budget is also hard to monitor.  While the state has a separately-elected Comptroller to oversee the its books, he can only do his job to the extent that the Administration cooperates.  A decade ago, the Cuomo Administration successfully limited the Comptroller’s review over government contracts – a change which may have contributed to the “Buffalo Billion” scandal that resulted in two top aides being convicted of corruption.

See a troubling pattern here?

Independent agencies are needed to monitor ethics, budgets, openness, and elections.  For example, New York City – and many other states – have a separate Independent Budget Office to keep an eye on city budgets, the state could use the same.  Leaving that power centralized not only can blind the public but leave public officials without an easy path to exoneration if they are indeed innocent. 

However the latest Albany controversies play out, there is one issue on which all policymakers should agree:  The state needs independent watchdogs that are free from partisan or political pressure, have adequate resources to do their jobs, and have a professional workforce based on excellence, not political connections.

Unless and until that occurs, New York will have to deal with a state government too often distracted by controversies, a distraction that keeps them from focusing on their jobs – to better the lives of the public.  The time to reform New York’s sleeping watchdogs is now.

Is NY Doing Enough to Regulate Health Care?

Posted by NYPIRG on February 23, 2021 at 6:42 am

The Cuomo Administration has been taking a beating in the media over its months-long refusal to disclose public information to reporters and watchdog groups about COVID-19 deaths in nursing homes and other similar non-hospital settings.  The Legislature, a co-equal branch of government, had also been stonewalled by the Cuomo Administration.  Republicans have called for the governor to be impeached and for a special session to be called to address the Administration’s failures.  Democrats have threatened to subpoena Administration officials and to hold public hearings on the issue.

This week’s public hearing on the governor’s proposed health budget is likely to produce significant fireworks as the Health Commissioner will face lawmakers for the first time since the Attorney General’s January report was released documenting 50 percent more nursing home deaths from COVID than had been reported by the Cuomo Administration.

While it is important for the legislative branch to get to the bottom of Administration’s apparent effort to sit on evidence of what may have been a tragic failure in COVID policy, an important additional issue should be explored as well.

In addition to identifying the previously undisclosed nursing home deaths, the Attorney General’s report found that nursing homes that scored poorly in federal reports on quality of care had the highest fatalities.  According to the AG, “Nursing homes that entered the pandemic with low U.S. Centers for Medicaid and Medicare Services (CMS) Staffing ratings had higher COVID-19 fatality rates.”

Of course, if the federal reporting is accurate, it would not be surprising that the nursing homes with the lowest scores – and therefore the poorest quality of care – would be the ones that had the worst performance in protecting residents from COVID. 

But if the feds had been reporting that performance, why hadn’t state regulators acted prior to the pandemic?  Why did it take COVID and the Attorney General’s report to bring it into the public spotlight?

Advocates for seniors and others in care facilities were well aware of this information and had long been complaining about poor quality of care.  As one advocate for nursing home residents commented, “There’s a lot of neglect in nursing homes in the best of times and these are not the best of times.”.  But those concerns, apparently, had been ignored by state health officials.  As a result, nursing homes residents and their loved ones suffered.

Where was the Cuomo Administration’s Health Department?  The governor has been in office for over a decade, yet it appears that too little was done to react to the federal government’s reports.

Struggles with infections – not just those from COVID – are a problem statewide.  This is deeply troubling in places designed to tend to those sick and frail.  New York State hospitals tend to perform worse than the national average when it comes to infections. 

Moreover, the federal government also reports on hospitals’ quality of patient care in the same way as it does for nursing homes.  A recent review of that federal data found that New York State’s hospitals, on average, tend to perform worst in the nation.

The Attorney General’s report stated that nursing homes with the lowest scores put their residents at the highest risk of contracting COVID.  It’s fair to assume that those residents are at risk of other illnesses as well.

The same logic should apply to the performance of New York’s hospitals.  If they too perform poorly, are patients at risk of substandard care?

This raises the biggest question: Where are the regulators?  The federal government has been reporting quality failures, yet the New York Health Department appears to have not adequately responded to the concerns – certainly in the case of nursing homes as reported by the Attorney General.  Is that true for hospitals as well?

Since a huge chunk of the state’s annual budget goes to health care, this week’s budget hearing is the right time to ask whether New Yorkers are getting quality oversight and healthcare services for their tax dollars.  When the Health Commissioner faces lawmakers at the hearing, he should not only be forced to explain the Cuomo Administration’s failures to be open and accountable with respect to COVID regulations for nursing homes, but he also should detail what the Department has done to respond to years of federal reports on the poor quality of care in nursing homes and hospitals.  The answer to that question is a matter of life and death.

Congressional District 22 Finally Has a Representative, Now NY Needs to Overhaul Its Elections

Posted by NYPIRG on February 15, 2021 at 7:00 am

Last week, more than three months after the November 2020 election, a winner was finally chosen in the nation’s only undecided Congressional race.  In Central New York’s Congressional District 22, Claudia Tenney was declared the winner with a razor thin margin of victory over incumbent Representative Anthony Brindisi.  In addition to a new Representative, the race brought disturbing news to New Yorkers: The close scrutiny of the ballots identified serious flaws in the way the state runs its elections.

Originally, the tightness of the election results triggered a legal review.  The declaration of a victor last week came after a state judge ruled that Tenney won the race for the sprawling 22nd Congressional District – which includes all or part of eight counties – by 109 votes.

The judge’s ruling came after three months of ballot challenges and the revelation of a series of problems with elections administration, voter registration and vote counting.  The vote counts ping-ponged almost daily from one candidate to the other as county election officials found counting irregularities across the Congressional district.  Here are some of the reported problems:

  • Oneida County failed to count votes cast by New Yorkers who had registered through the Department of Motor Vehicles.  BOE staff used sticky notes to keep track of the reasons why Brindisi and Tenney disputed dozens of ballots.  When the judge asked to review those ballots in his court, the election commissioners admitted that some of the sticky notes had fallen off ballots.  Oneida County election commissioners admitted they did not follow New York Election Law when they rejected about 1,500 affidavit ballots.
  • Oswego County election officials admitted that they failed to follow state Election Law with disputed absentee ballots. 
  • Herkimer County election officials admitted that they had miscalculated the vote tally for CD-22. 
  • Chenango County discovered 55 uncounted ballots and found 12 ballots stuffed in a drawer. 
  • Madison County lost track of disputed ballots.
  • Cortland County did not tell the candidates about rejected ballots. 
  • Broome County used a numbering system that did not work.  A Broome County deputy elections commissioner testified about several violations of the Election Law related to the counting of absentee and affidavit ballots.

While there is no way to know for sure, at least some of these actions resulted in voters not being able to cast their ballots, or if they did those votes were not counted.

It would be comical if it wasn’t so serious.  Why did this happen?  Since New York has voted consistently in support of the Democratic Party in statewide elections, none of the Presidential races have turned on the state’s outcome.  But the fundamental problems in the way that New York runs its elections has been a long festering problem.  It starts with who is in charge.

New York’s elections are run by the two major political parties through the State Board of Elections.  Democrats and Republicans run two essentially separate agencies at the state level and in each county that conduct and monitor elections.  This organizational structure was created so that both political parties would have equal ability to monitor the other and thus ensure fairly-run elections.  

Over the years, that system has fostered political patronage, collusion between the parties at the expense of the public, scandals, and incompetence.  Make no mistake: These failures came from the top, not from the civic minded poll workers who work long shifts on Election Day to greet and sign in voters.  If nothing else, the election of 2020 shows that the public is fed up with the long lines, disenfranchisement, lost ballots, and partisan arrogance.  They want reform.

The elections failures identified in the judicial review of the race for Representative of CD-22 cover multiple counties and not only resulted in a three-month delay in the result, but more importantly disenfranchised voters.  Moreover, these findings come on the heels of other voting problems in other parts of the state during the primary and general elections.

It’s clear that New York’s archaic system of patronage-controlled Boards of Elections has once again failed voters.  Given the number of counties involved and the sloppiness and incompetence of elections administrators in several jurisdictions, New Yorkers deserve a thorough review and the knowledge that the state’s leaders are taking these problems seriously. 

New York lawmakers are now considering the funding level of New York’s elections administration, as well as a host of reforms to improve voting.  Now is the time to take decisive action to both investigate the failures of the 2020 election and to begin to shift away from political party control over New York’s elections. 

The Governor’s Higher Education Budget Gets Scrutiny

Posted by NYPIRG on February 8, 2021 at 6:18 am

With over a decade in office, through his control of the budget process and state agencies, Governor Cuomo owns New York’s higher education policy.  As lawmakers considered his eleventh annual budget last week, there was a focus on the increasingly precarious financial situation for some of New York’s colleges and universities.

The governor’s proposals to limit support for community colleges and eliminate state support for independent colleges and universities were discussed by lawmakers and members of the Cuomo Administration, unions, faculty, and student representatives. 

In terms of support for private colleges, for decades the state has provided assistance through the Bundy Aid program.  Bundy Aid provides unrestricted financial support to independent colleges and universities in New York.  The program’s goals are to: (1) Maximize the total postsecondary educational resources; (2) Promote and foster the diversity of educational options; and, (3) Provide increased access to these programs by assisting institutions to minimize tuition increases.

For many of the smaller independent colleges without the enormous endowments of the large universities, Bundy Aid can make the critical difference in helping campuses to manage their budgets.  Despite these benefits, Governor Cuomo proposes to eliminate Bundy Aid.  The program has been funded at $35 million annually for many years.  In addition, the governor proposes not to restore any of the state support that was withheld from the campuses since the pandemic began. 

Unless lawmakers restore the aid, many private colleges will be facing serious financial difficulties.  And those difficulties are already showing up.  For example, recently Concordia College in Westchester announced that it is closing, and the College of St. Rose in Albany announced that it is eliminating 25 academic programs and laying off 20 percent of its tenured faculty.  

Financial problems are not confined to the independent sector.  Public colleges are facing hard times, too.  Community colleges are under extreme stress.  In an analysis released by the New York Public Interest Research Group, the state’s policy of stagnating support, coupled with rising tuition, has contributed to financial difficulties for these important community-based institutions.

The review examined the last decade of community college tuition increases and student populations at the campuses.  NYPIRG’s review found:

  • The rate of community college tuition hikes over the past decade far outstrips inflation.
  • There has been a significant shift in who bears the burden of paying for college education.
  • Over the past ten years, more than half of the SUNY community colleges (16 of 29) had tuition rate increases that exceeded the rate approved for the SUNY four-year public colleges and universities.

At last count, there were more than 50,000 fewer full-time SUNY community college students in AY 2019-20 than there were in AY 2010-11.  And without exception, every SUNY community college lost population, some with catastrophic enrollment declines.

Much of what ails the state’s community college system is the result of stagnating local populations, particularly among young adults.  However, there are steps that the state can take to bolster support for community colleges and offset the costs borne by college students and their families.  The new state budget should ensure that:

  • Full restoration of the 20% reduction in state aid that has been “withheld” since the pandemic began.
  • State support for community colleges must at least match the tuition costs borne by college students, on a full-time equivalent basis and to freeze the cost of tuition.
  • State aid should set a financial floor for covering the costs of community colleges.
  • New York’s TAP financial aid awards should be raised to ensure that the tuition needs of low-income students are covered by the state.

Of course, the budget debate this year is largely driven by anticipated revenues – a significant portion of which is supposed to come from the federal government. 

But shortchanging colleges and universities not only makes attaining a college education more difficult for some students, it also can devastate local communities.  Colleges employ lots of people, local businesses provide lots of services to colleges, and students who go to school provide significant sales tax revenues as they spend their money on local small businesses.

Undermining higher education options for students as well as creating job losses and depressed business activities while ignoring taxing investors who are making money hand over fist on Wall Street, is a wrongheaded policy.

As the budget season heats up, let’s hope that the Legislature can reset state priorities – one that is forward looking and one that invests in higher education.

Attorney General Issues Report on Nursing Home Covid Care

Posted by NYPIRG on February 1, 2021 at 8:42 am

The big news in Albany last week was the dramatic report released by the New York State Attorney General’s office.  The report examined the Cuomo Administration’s estimates on the number of nursing home patients who died due to COVID-19. 

Using data from the state and nursing homes, the report found that the Cuomo Administration had publicly acknowledged far fewer nursing home deaths than had occurred.  The report was the first outside look at the COVID death rate in New York nursing homes.  Governor Cuomo has repeatedly reported nursing home death numbers but had steadfastly refused to provide the detailed information to back up his claims.  Reporters and outside advocates have requested the public data through the state’s Freedom of Information Law but have been repeatedly blocked.  Indeed an advocacy group filed a lawsuit urging a court to order release of the state Health Department’s underlying data.

Until last week, that information had not been made public.

The state’s Attorney General, Letitia James, had launched an investigation into the situation and last week released her findings. 

The AG did not find that the number of New York’s total overall reported COVID deaths was undercounted, just the location of where those deaths occurred.  The state’s data collection methodology counted nursing home patients who died in hospitals as being hospital deaths, not nursing home deaths.  Why that matters is that if nursing home residents contracted COVID in nursing homes, reporting that they were among the others who died from COVID in the hospitals undermines confidence in state reporting and its oversight of nursing homes policies.

Hours after the AG’s report was released, the state Health Department finally issued its own – belated – report that essentially agreed with the AG’s conclusion that 50 percent more nursing home patients died than had been previously reported.

The following day the governor defended the state’s policies arguing that the total number of COVID deaths was unchanged.  The governor said that he believed “everybody did the best they could.  I believe the state Department of Health, they gave their best guidance and made the best decisions on the facts they had.”

The Attorney General’s report also highlighted the poor quality of care in many nursing homes, including failure to enforce infection control policies, the inadequate ratios of nursing staff to residents as well as failure to ensure proper personal protective equipment, and that the shift from non-profit ownership to effectively for-profit ownership contributed to these inadequacies. 

The report is likely to drive public debates at the state Capitol.  There are some sobering realities that the state policymakers must address:

  • If the AG’s report is correct about the poor quality of care and the inadequate numbers of nursing home staff, where were government regulators?  Nursing homes are licensed and regulated by the government; if the facilities’ performed in a substandard manner, why did it take a pandemic to bring light to these situations?
  • Why did it take the Attorney General of the state of New York to make this information public?  Requests for public access to the nursing home data has been pending for months.  The state dragged its feet and had the AG not acted; we might all still be in the dark.  How can the state’s Freedom of Information Law be improved to strengthen public access?
  • The wisdom of having a separately elected Attorney General (and for budget and state contracting matters a state Comptroller) could not be clearer.  Had the AG been appointed by the governor; would this investigation have occurred?

Now it’s up to the Legislature, which is a branch of government equal to the executive branch overseen by the governor, to do its job and dig deep into this issue.  The Legislature has been far too willing to cede its constitutionally-mandated power to oversee the executive branch.  And since the executive and legislative branches are now all controlled by one political party, this will be a test of where their loyalties lie – with the public or their political party.

In a healthy, functioning government hearings would be held, the Attorney General would testify, the state Health Commissioner would testify, nursing homes and hospitals would be questioned, reports would be written, and legislation prepared to respond to any policy failures – both with regard to the state’s response to the pandemic as well as any systemic regulatory failures that were identified in the AG’s report.

The Legislature is currently deliberating over the state’s budget.  At the end of this month, the Health Commissioner is scheduled to testify on the governor’s proposed health budget and related policy recommendations.  The quality of care offered in New York’s nursing homes, hospitals, and other health care settings should be at the top of the list when that hearing occurs.

Between now and then, lawmakers must get to work digging into the AG’s report and preparing for how best to respond.  Their response will be of critical importance – not only to have an accurate record of the state’s pandemic response, but also to ensure that our loved ones receive high quality care in nursing homes.