Mayor de Blasio, a ventilator, and two doctors (photo: Ed Reed/Mayor's Office)
As government officials anticipate a wave of coronavirus patients overwhelming the New York City hospital system within days or weeks, the question of how racial disparities in health care will impact who dies of COVID-19 and the disaster's long-term public health fallout loom large and, as yet, unaddressed.
Differences in access to quality care for African-Americans and other people of color are well-documented in virtually all aspects of the health-care system. With the apex of the COVID-19 outbreak approaching, experts fear structural inequality and implicit racial bias are impacting who receives critical treatment in a hospital, a chilling prospect in a scenario where survival will likely depend on the allocation of scarce medical resources.
Beleaguered emergency rooms -- serving both as the first site of care for many underserved communities and, now, as the epicenter of coronavirus management -- are a particular vector for differential treatment.
"I don't think we fully yet have a grasp as to the nature of the human rights tragedy that is about to unfold, particularly in spaces like New York City," said Lurie Daniel Favors, executive director of the Center for Law and Social Justice at Medgar Evers College in Brooklyn.
The extent to which the city's communities of color bear the weight of the coronavirus death toll and collateral health consequences will be influenced by two now-magnified factors directly related to hospital capacity. One is how doctors' and nurses' implicit biases manifest in decisions to allocate limited hospital space and other resources (explored in part one of this two-part series). The other is the disproportionate number of people of color, particularly black and Latino New Yorkers, who rely on emergency rooms as their primary source of medical treatment and whose access to sufficient care during the health crisis is severely limited (discussed in part two).
"This is going to be a long day and it's going to be a hard day, and it's going to be an ugly day, and it's going to be a sad day," Governor Andrew Cuomo said at a March 27 press briefing from the Javits Convention Center in Hell's Kitchen, which has been turned into a temporary hospital by the Army Corp of Engineers.
"The rescue mission is to save lives and, as hard as we work, we're not going to be able to save everyone," he said. Last week, the governor cited a projection from the Institute for Health Metrics and Evaluation predicting 16,000 people would die in New York State (as of April 6 it projected roughly 15,600 deaths in New York).
There have already been reports of city hospitals being overrun and turning people away. EMS workers, fielding record-high call volume, are being forced to make decisions about who to leave behind. As the outbreak rages, experts say biases are likely to factor into decisions, not only about who receives a life-saving ventilator in an Intensive Care Unit (ICU), but who is even admitted to the hospital.
“We just need to be very aware of the fact that biasing is going to happen right at the door," said Dr. Alison Bateman-House, a professor in the Division of Medical Ethics at NYU School of Medicine, which is part of the NYU Langone Health hospital network.
In numerous studies of differential treatment, black patients waited longer to be seen in the ER than white patients, and were less likely to be admitted. There is already evidence to suggest the coronavirus outbreak is having a disproportionate impact on communities of color, though city and state officials have not released racial or ethnic demographic data on positive cases, hospitalizations, intubations, or deaths.
There is "a striking overlap of where this virus is doing the most damage and where we've had historic health care disparities – a very, very strong overlap," Mayor Bill de Blasio said Sunday in response to a reporter's question about when the city would release a racial breakdown of cases and fatalities. "That overlaps also with where our public hospitals are in particular."
The neighborhoods with the highest rates of positive coronavirus tests largely coincide with zip codes with greater black and Latino populations, particularly in the Bronx, Queens, and Brooklyn.
In response to Gotham Gazette inquiries, officials at the state Department of Health, city Department of Health and Mental Hygiene, and New York City Health + Hospitals -- the city's network of public hospitals and other health care facilities -- each said "equity" was part of their mission to provide care, but did not answer specific questions on hospital safeguards against differential treatment based on race.
As of Monday, 16,837 people were hospitalized for COVID-19 and 4,758 had died statewide; with 2,738 of those fatalities in New York City. Over 4,500 people were in Intensive Care Unit (ICU) beds across the state, usually attached to scarce ventilators to breathe. Gaps in city and state reporting make it impossible to know the racial and ethnic breakdown of those patients, including those who have died.
In Michigan, which has released racial demographic data, at least 40 percent of the people killed by the new coronavirus have been black, despite making up only 14 percent of the population and 35 percent of positive cases.
Cuomo is attempting to rapidly expand hospital capacity to accommodate up to 140,000 patients, expected by mid-April, and 40,000 ICU beds, based on the most cautious estimates. The city and state are desperately trying to acquire 30,000 to 40,000 ventilators, the most essential piece of life-saving equipment, as the state moves toward an imminent shortfall. At a March 26 press briefing, de Blasio said the need for medical supplies "is going to be a day-to-day, hour-to-hour reality," as the city attempts to triple its hospital capacity and add the reserve workforce to staff it.
But officials have not yet given an answer to how they will save the most lives now of people whose health needs have never been adequately served, in a crisis where the reality of mass loss of life has already been acknowledged and begun to take place.
Implicit Bias in Medical Care
The problem of racism, both interpersonal and systemic, in United States health care long predates the new coronavirus. Falsehoods, dating to slavery and the Middle Passage, about the physiology of black bodies -- that black people experience less pain than white people, for example, or that they have lower lung-capacities -- and racial stereotypes -- that white people make "better," more cooperative patients, or that black people are less equipped to make decisions about their care or less prone to telling the truth about their conditions -- are pervasive. While explicit racial discrimination is now condemned in mainstream medicine, studies show a huge number of dangerous misconceptions and prejudices persist in the implicit biases held by health care professionals.
Those biases can lead to lower quality care and have the potential to be pushed to extremes in an overwhelmed medical system like New York City's is now. During a crisis compounded by scarcity, lower quality care could mean no care at all.
"When you're talking about access to medical resources, particularly when you're in a situation of scarcity there are always fears that there is going to be preferential allocation given to certain groups [over] other groups," said Bateman-House of NYU School of Medicine. "You're going to see a lot of judgments of relative value made."
Bateman-House said the way a patient looks or speaks, their perceived communicativeness and satisfaction, all impact clinical assessments. Studies have shown that assumptions that black patients may abuse care or squander treatment options impact doctors' decisions.
Much public attention has been focused on the difficult life-and-death decisions that doctors or government officials will have to make as hospitals begin running out of ventilators. But the impact of racial bias may be most acute at the front door as crowded emergency rooms become increasingly inundated with the sick and dying.
"I think...it feels more sort of poignant to think about two patients in the ICU ward and you have one ventilator...but you don't even get to that point until you get into the hospital," Bateman-House said. "Biasing has happened long before that choice about a ventilator happens."
Black patients are already less likely to be admitted as inpatients in the ER. One 2015 study published in the journal Medical Care found that black patients with severe abdominal pain were admitted 11 percent of the time, while white people expressing the same symptoms were admitted 17 percent of the time. Hispanic people were admitted in only 10 percent of such cases. The study also found the same black and Hispanic patients waited longer in the ER before being seen: 31 percent had a "prolonged" ER visit, defined as over six hours, compared with 23 percent of white patients who waited that long.
Unlike explicit racial bias, implicit bias is often unconscious and unintentional. In clinical studies, it is measured through an Implicit Association Test, in which doctors and nurses are asked to do word association pairings with black and white faces in a matter of milliseconds. Studies show doctors with higher implicit bias spend less time and are less communicative with black patients than white ones. Others show that racial biases can influence diagnoses and treatments in even the most serious circumstances, like for patients at risk of contracting HIV or people with heart disease in need of anti-clotting drugs.
Bateman-House said assessments of relative human value, inhumane as they are, have already played out publicly during the early stages of the current crisis. When people ignore guidelines out of a belief that only the elderly and people with pre-existing conditions are susceptible to the virus, "and hence [that it is] sort of more permissible for it to be a potentially deadly disease, you can see the sort of bias right there," she said.
In The Emergency Room
Under normal circumstances in the ER, patients are typically first seen by a triage nurse who assesses their condition and what level of care may be appropriate, according to Bateman-House. Right now, with hospitals overflowing, triage in many ERs may be limited to assessing who is likely to need intubation or to rapidly decline.
New York City Health + Hospitals, the city's network of 11 public hospitals, did not respond to requests for information about how triage procedures have changed during the outbreak.
While the profession requires adept practitioners of life-saving judgement, Bateman-House says, racial bias may be a persistent problem among triage personnel who are already in the position of turning people away.
According to the U.S. Department of Health and Human Services, black patients receive lower quality care than white patients in 40 percent of over 250 measures (the greatest disparity of any of the racial/ethnic groups analyzed). Hundreds of other studies over the last two decades show similar inequities in every setting from routine visits to palliative care.
Differential treatment finds a fertile home in the emergency room, where doctors and nurses are trained to make snap judgements and where continuity of care is by definition truncated.
The 2015 study also showed race was a factor in whether patients would be given pain medication. Another study from 2008 found ER doctors had a lower probability of ordering lab tests for acute coronary syndrome when black patients presented with chest pain than when white patients did.
Often treatments are rationed or withheld from black patients that are routinely given to white patients. Disparities like this exist even when factors like structural differences in access to care are controlled.
Research suggests implicit bias is heightened when doctors are under pressure, stress, or fatigue, or lack contextual information -- conditions found in abundance in ERs across the city today. (An executive order recently signed by the governor removed limits on working hours for physicians and trainees.)
"Both on the level of trying to decide who is in enough of a crisis to be admitted into the emergency room and then in terms of monitoring how a patient is doing, only so much of that is done on the interpretation of clinical signs," Bateman-House, the medical ethicist, said.
The ER at Elmhurst Hospital in Queens is already seeing thousands of people seeking care for flu-like symptoms every week, many times what it sees typically this time of year, as The City recently reported. Citywide, doctors, nurses, and paramedics are now working around the clock to see patients, and the state and city are seeking more surge personnel to support them. Last week, the city took steps to relieve Elmhurst, part of Health + Hospitals, with a "surge" of medical supplies and personnel.
The magnitude and urgency of life-saving decisions is astronomical. Mayor de Blasio said Sunday that citywide between 200 and 300 new patients are being intubated daily. He said the city has 135 ventilators remaining in reserves and needs to secure another 1,000-1,500 ventilators by next Sunday in order to meet the projected demand. The situation is most dire in public hospitals, where resources have always been spread more thin and which serve especially at-risk populations who do not have other access to healthcare.
"That level of discretion about who is owed care is being rolled out under these types of stressful circumstances, when the healthcare system is already going to be overburdened," said Daniel Favors of the Center for Law and Social Justice, referring to the life-and-death consequences of denying or limiting care for coronavirus. "We know that black and brown people are going to be the ones that bear the brunt of that."
The Official Response
Public officials have been silent on the issue of implicit bias and have barely acknowledged the potential for disproportionate mortality rates because of unequal medical attention or access.
City and state officials did not respond directly to questions about protections against bias and discrimination in coronavirus treatment, or to how city and state governments plan to mitigate the impact of historically disparate access to care. As Gotham Gazette first reported, neither the city nor state has adopted official policies for ventilator triage, and there is no indication that officials plan to.
In an emailed statement, a spokesperson from the New York State Department of Health said its primary focus was expanding hospital capacity statewide by ending elective procedures, reducing the current inpatient population, and building more bed space. "This will allow for all populations to be cared for eqitably [sic], irrespective of economic, social or demographic characteristics," the statement read.
“At NYC Health + Hospitals our patients will receive the care necessary to their diagnosis,” an Health + Hospitals representative wrote in a statement. “We are committed to our mission to care for all New Yorkers regardless of immigration status and ability to pay, and are focused on keeping all our patients and staff safe.”
"Equity is a foundational principle at the NYC Health Department and it is embedded in every guidance, strategy and decision we make as an agency," wrote Michael Lanza, spokesperson for the city's Department of Health and Mental Hygiene. "We are in the midst of an unprecedented health crisis and remain committed to treating every New Yorker equally."
NYU Langone Health has given ER doctors sole discretion around ventilator allocation in its emergency departments, the Wall Street Journal reported last week. But it is not clear there is an official city- or state-wide policy about who will have the authority to make decisions about life-saving care, either in terms of hospital admission or ventilator allocation. Officials did not answer questions about whether and how those decisions would be monitored.
Suspended Regulations
The mandate to expand New York's hospital bed space comes with a need to staff tens or even hundreds of thousands of new positions. As of Saturday, April 4, Cuomo reported the state had a volunteer hospital surge force of 85,000, including many recent med school graduates and retirees. To help get there, Cuomo signed a series of executive orders suspending dozens of laws and regulations around who is legally able to provide medical care and in what settings.
The orders relax a host of requirements related to licensure and registration for doctors, nurses, nurse practitioners, physician assistants, radiologists, respiratory therapists, pharmacy technicians, and medical students. They allow students who graduated from foreign medical schools to practice in New York hospitals without licensure. They also allow for "abbreviated medication administration training" in state-licensed facilities for people with developmental disabilities. The latest order, signed Saturday, allows medical students to practice medicine if they are set to graduate.
Meanwhile, the state has moved from regulating to underwriting the decisions of medical professionals.
Apparently anticipating a deluge at hospitals, one order removes important oversight and record-keeping requirements to allow more flexibility in providing rapid treatment, and eliminates certain civil and criminal liabilities for healthcare providers.
Registered nurses and physician assistants can now perform certain new functions without a supervising physician. As the death toll inevitably rises, doctors, nurses, and physician assistants will be immune from civil liability for any injury or death "sustained directly as a result of an act or omission" in the course of providing COVID treatment. This was largely codified in the Emergency Disaster Treatment Protection Act, which was passed Thursday in the state budget. The law extends liability protections to administrators and leaders of medical facilities.
To what extent safeguards against bias and differential treatment have been suspended under the lax regulations is not yet known.
The same order that loosens oversight also removes civil liabilities if a provider fails to comply with medical record-keeping requirements. Quality record-keeping is essential for maintaining adequate care and helps hold physicians accountable. The Department of Health's Office of Professional Medical Conduct, which oversees physician misconduct and discipline in New York State, publishes the outcomes of all adjudicated misconduct charges on its website including a boiler-plate description of the infraction. Clicking through the first 100 profiles shows a majority of doctors who were disciplined for misconduct that included failing "to maintain accurate medical records."
A state Department of Health spokesperson said they could only comment on fully adjudicated matters, not general complaints, and did not respond to a request for information on adjudicated charges related to racial bias.
The U.S.N.S Comfort
In many ways, the possibility of a disproportionate death toll in communities of color is a question of how ongoing inequities in medical care are reregistered at each joint of the enormous web of hospital infrastructure that has begun to solidify in recent days.
With city and state governments desperately trying to manage the growing demand for medical attention, Cuomo announced on March 30 an unprecedented new network of resource-sharing among all hospitals, public and private, throughout the entire state. The plan, coordinated by the state Department of Health, involves transferring patients, as well as supplies and personnel, from one hospital to another as facilities reach capacity.
The statewide distribution system mirrors a strategy that New York's public health officials have been pursuing for weeks: Cuomo, with the help of the federal government and local partners, is trying to rapidly find, build, and import space for additional hospital beds to serve as a release valve on the city's swelling system.
A key component of Cuomo's "rescue mission" is the U.S.N.S. Comfort, a 1,000-bed Navy hospital ship with a dozen operating rooms, which has been deployed to war zones and the sites of natural disasters. The Comfort arrived in New York Harbor on Monday and docked off of Manhattan's West Side. Along with the Javits Center, it makes up a bulk of the city's 2,500 new hospital beds.
The Comfort, until Monday, had not been authorized to receive COVID-19 patients. But even among non-COVID patients, federal officials had set up broad restrictions on who it will accept for treatment and had only admitted 20 patients as of last Thursday, according to a New York Times report.
The ship's promise has been squandered in the past, due in large part to the tangle of bureaucracy that can arise when multiple levels of government must respond to a disaster. In that scenario implicit and explicit bias were part of its failures.
During the 53 days that the Comfort was deployed to Puerto Rico in the aftermath of Hurricane Maria, which decimated the island's health system in 2017, it admitted only 290 patients (an average of six per day), the New York Times reported at the time -- due largely to the hurdles involved in transferring patients from the island's hospitals. In a discussion of the vessel's limitations, the Times reported one ship doctor was heard complaining about "social cases," which typically refers to patients who have no home or caregiver to be discharged to.
While the island's conditions posed different challenges, the episode gives a clue about how people can be denied care when a crisis obliterates health care infrastructure. And it speaks to the human element involved in that process, especially when the health care system can no longer attempt to provide the secondary supports, like locally-based discharge workers, that usually accompany hospital treatment in the United States.
In January 2010, the U.S.N.S. Comfort arrived in Port-au-Prince, Haiti, after an earthquake killed hundreds of thousands of people and crumbled the nation's roads and hospitals. Admission to the ship was coordinated largely by the American military, including the 82nd Airborne Division of the U.S. Army, first from the lawn of the National Palace and later from a site further inland. Images captured at the time show humvees and helicopters full of people on stretchers with head wounds and badly damaged limbs filing toward the ship.
One photograph taken by Getty Images photographer Joe Raedle in the ship's staging area near the Palace shows a young girl, not more than ten, in a hospital gown, lying on a stretcher, with braided hair and a laceration around one eye. Stuck onto her forehead is a piece of transparent tape with the word "Ship" written on it.
Christina Sharpe, a scholar of Black Diaspora Studies at York University, in her 2016 book In the Wake: On Blackness and Being notes that the tape could signal "medical necessity." It is hard to ignore the “imperative” of the piece of tape, and what she calls its "expedien[cy]." But the tape is also dehumanizing, which seems antithetical to the concept of a rescue mission, and Sharpe questions "the violence of someone placing the word Ship on the forehead of a young Black girl."
***This was part one of a two-part series. Read part two: A 'Human Rights Tragedy' Unfolding - Part II: The ER Was Their Only Source of Care Before the Pandemic Hit***
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by Ethan Geringer-Sameth, reporter, Gotham Gazette
@GeringerSameth @GothamGazette
Gov. Cuomo's budget presentation (photo: Darren McGee/Governor's Office)
Governor Andrew Cuomo and the state Legislature came to an agreement this past week on a $177 billion budget for the 2021 fiscal year, amid uncertainty about the state’s economy that has been devastated by the coronavirus outbreak.
The slightly late budget was given final approval by legislators in the early hours of Friday morning, a couple of days after the April 1 start of the fiscal year, and Cuomo signed the pieces he needed to by end of day Friday. And though the final spending plan is only $1 billion below what the governor proposed in his January executive budget, it also envisions state revenues decreasing by $10 billion during the fiscal year, which will have to be largely compensated for with emergency federal funds and short-term state borrowing.
The state also has a reserve of about $2 billion set aside for a fiscal crunch, and the budget gives the governor the ability to periodically adjust spending, though the Legislature would have 10 days to override him and pass its own plan in such instances.
As is the case each year, the state budget is not just a revenue and expenditure plan. It includes various policies related to criminal justice, reproductive rights, public health laws, environmental preservation, campaign finance reform, and more.
"This is a moment in history unlike any other, and government needs to function and deliver results for the people of this state now more than ever — and that's exactly what we did with this budget," Cuomo said in a statement on Thursday.
Despite the fact that various priorities fell by the wayside – chiefly, legalizing adult use of marijuana – and, among other things, changes to the state Medicaid program were broadly critiqued, the governor nonetheless claimed victory. “It would have been very easy to say, 'Oh, this is an extraordinary year; let's just do the bare minimum and go home.' We did the opposite. We said there is a lot of need and there are a lot of issues that need to be addressed, and we stepped up to the plate and we got it done,” he said.
Electric bikes and scooters were legalized, as were gestational surrogacy agreements; bail reforms passed last year were altered to ensure more defendants are jailed pre-trial; a new state campaign finance system with public matching funds was passed; a $3 billion environmental bond act was approved to go before voters; prevailing wage requirements on many construction projects receiving public funding were expanded; and much more.
Even before the coronavirus wreaked havoc on the state’s finances, New York City was bracing for an estimated $1.4 billion in cuts and cost-shifts, chiefly from the redesign of the state Medicaid program, though there was some disagreement on the exact value of the governor’s plan. Mayor Bill de Blasio had warned that the fiscal hit exacted by the state would eclipse the cumulative cuts and cost shifts from the previous six years combined.
On Thursday, the mayor reiterated some of his concerns about the state budget agreement at his regular coronavirus briefing. “I have been worried about that and I was worried about that obviously in normal times and we're not in normal times,” he said, noting that the state had been able to “tide itself over” with support from the federal government.
He continued, “Look there are some cuts in there I don't like one bit. We're still totaling them up, but you know, we don't have another $100 million to give, for example, to Access-a-Ride. And I've expressed real concerns about how that program is managed. I would like to have clearer goals for reform of that program before we ended up being put in a situation where we have to spend a lot of money. But, you know, the Governor and the Legislature, in their wisdom, did what they did. We will deal with it. I think in a perfect world it would have been, you know, the State holding the City harmless. We were not held harmless, but we will live to fight another day. That's the way I look at it.”
Medicaid Overhaul
Prior to the coronavirus outbreak, the state was already facing a $6.1 billion budget gap, of which $4 billion stemmed from growth in Medicaid costs. In order to close that gap, the governor convened a new Medicaid Redesign Team to overhaul the state’s program and find billions in annual savings. Though it was tasked with finding at least $2.5 billion in annual savings, it ended up instead finding closer to $1.6 billion for the 2021 fiscal year, with more outlined for out-years -- though the state may not implement the recommendations right away in order to access billions in newly-available federal money.
The Medicaid redesign plan includes $400 million in cuts to hospital spending that was approved in the budget, though the governor did report that Medicaid spending is set to still increase 3%, or about $500 million overall, in the new fiscal year (he had said 3% annual growth was the new goal, not the 6% or more that had exploded in recent years and needed to be reined in) and stressed that emergency coronavirus relief funds are earmarked to go to hospitals.
New York City is being raided for about $200 million in sales tax to cover some Medicaid costs, according to a New York Daily News report citing the Cuomo administration.
Cuomo had originally threatened to reject $6.7 billion in federal Medicaid funds, which would have preempted changes to the state’s Medicaid program and cost shifts to localities. Instead, it appears the state will delay the cost shifts so it can access the emergency funding.
Education Funding
New York City officials and education advocates have long argued that the state does not live up to its obligations under the Campaign for Fiscal Equity supreme court decision, which would require billions more in state foundation aid to the poorest schools across the state. The governor has repeatedly said that the state has indeed met its obligations and pushed for a new funding formula that he insists would be more equitable.
While there may have been some chance of changes to the state’s education aid formulas before the coronavirus crisis, that discussion disappeared and the new state budget is a close extension of the prior year’s, albeit with the major caveat that aid could change throughout the year if state revenue continues to fall short.
The budget includes $1.4 billion more in total education funding to localities (after warnings from the governor that he may have to make severe cuts), while foundation aid remained flat. This means New York City could face a roughly $136 million shortfall for its school aid target, according to de Blasio’s projections from February when he testified before the state Legislature.
The city is slated to receive roughly $11.3 billion from the state in education aid, which will account for about 41.5% of the city’s education spending, depending on the details of the upcoming city budget, which must be decided by July 1.
Other Funding Issues
The budget also commits the city to provide $3 billion in capital funding for the MTA, equal to the state’s $3 billion share, for the $51.5 billion 2020-2024 capital program, which Mayor de Blasio had repeatedly opposed. It also mandates that the city cover 50% of the operating expenses for Access-A-Ride, the MTA’s paratransit program, with its share not exceeding $215 million in 2020. The program’s costs have been rising over the years and the budget significantly increases the city’s obligations.
A variety of other funding details and potential cuts or reductions in aid from the state to the city are still being assessed -- the mayor’s office has yet to put out an analysis of the adopted state budget.
Bail Reform Changes
In January, a spate of criminal justice reform went into effect, including a massive change to the state’s bail system that eliminated cash bail for most nonviolent felonies and misdemeanors. But, after an uproar from law enforcement officials, police unions, and elected officials, including Mayor de Blasio (based on a small sample of data indicating some crimes increasing), the governor and state Senate Democrats agreed to revisit the law.
While Assembly Democrats resisted changes, in the final budget agreement a compromise was struck to alter the law, making many more crimes bail eligible. Examples include felonies such as sex trafficking, money laundering for terrorism, vehicular assault in the first degree, failure to register as a sex offender, to name a few.
Notably, adding more judicial discretion to consider defedants’ alleged “dangerousness,” as backed by de Blasio, Cuomo, and many others, was not added to the law.
The budget also extended deadlines for discovery (from 15 days to 20 if a defendant is in jail and 35 if they are not), whereby prosecutors must turn over evidence to defendants, another reform that was part of the criminal justice package last year. And funding will be provided to prosecutors to help with added discovery burdens from money to now be taken by law from Manhattan District Attorney Cy Vance’s pot of settlement funds.
The bail reforms passed last year were considered essential to the city’s plan to close the Rikers Island jail complex, and would have led to a more rapid decrease of the detainee population. But with the rollback, it’s unclear whether that plan will be delayed or may prompt a reconfiguration of the plan to meet the current closure timeline and its projected number of jail beds.
Campaign Finance Reform and Party Ballot Thresholds
The budget creates a new statewide campaign finance system, with a voluntary public matching program that encourages candidates to raise small-dollar donations. The system had first been established on the recommendations of a state-created commission in December but was subsequently struck down by a state Supreme Court decision in mid-March.
Under the new system, which begins for the 2024 legislative cycle, candidates will have to abide by drastically lower contribution limits (though New York’s will remain comparatively high to other states).
It also significantly raised the thresholds for automatic ballot access for political parties and the number of petition signatures required for candidates to get on the ballot. [Read more about the new campaign finance system and ballot threshold requirements.]
E-bikes and E-scooters Legalized
The budget legalized the operation of electronic bikes and scooters, a proposal that had languished for years despite criticism that criminalizing their use was adversely harming delivery workers, who tend to be low-income immigrants of color, and that delaying their use slows attempts to relieve pressure on mass transit and provide eco-friendly travel options.
The legislation establishes three categories of e-bikes with caps on speed – the maximum is 25 miles per hour for Class 3 – and helmet requirements and authorizes municipalities to create rules regarding their use. E-bike riders will also face penalties for riding while intoxicated. E-scooters are capped at 15 miles per hour.
Prevailing Wage Expansion
The budget establishes a prevailing wage requirement for workers on private development projects worth more than $5 million where 30% of funding comes from public subsidies such as grants and tax credits.
The new measure could have a significant impact on New York City’s housing program, which utilizes massive city subsidies to incentivize affordable housing development. However, it includes exemptions for some categories of affordable housing projects, including smaller, nonprofit developments and those that receive the state’s 421a tax benefit.
Hate Crimes and ‘Domestic Terrorism’
The budget creates a new class of felony for "domestic act of terrorism motivated by hate," which was a response led by Cuomo to skyrocketing hate crimes in the state last year, many of them anti-Semitic. The law was named the Josef Neumann Hate Crimes Domestic Terrorism Act, as a tribute to the rabbi who was one of the victims of a mass stabbing attack in Monsey during a Hannukah celebration. Rabbi Neumann passed away April 29 from his wounds.
The law is also particularly poignant during the coronavirus pandemic as there’s been an uptick in hate crimes against Asians.
Repeat Sex Offenders Banned from Mass Transit
The budget includes a measure that would allow judges to ban individuals from the city’s subways, buses, and rail systems for three years for repeated unlawful sexual conduct. It also allows judges to impose that punishment against anyone who assaults an MTA employee.
NYPD Manhattan Tow Pound Part of Hudson River Park
Cuomo pushed through a measure in the budget that gives the Hudson River Park Trust control over the NYPD’s 250,000 square-foot Pier 76 tow pound, to “integrate into the park complex, maximizing green space, recreation and community access and market potential.”
The NYPD has to vacate the tow pound by the end of the year, short of which the city will face a $15 million fine, followed by additional $3 million fines each month that the tow pound remains there. Cuomo first announced the proposal as part of his 2020 agenda in January, noting the limited amount of green space on the west side. The pier was meant to be transferred to the Hudson River Park Trust 20 years ago, a deal that was never completed. Mayor de Blasio and NYPD officials, however, pushed back against the governor’s “unrealistic” deadline, considering the lengthy land use process required in finding a replacement site in the city.
Suicide Prevention for Law Enforcement and Veterans
The budget allocates $1 million to suicide prevention initiatives for law enforcement officials, first responders and veterans. The funding was likely a response to a spate of suicides by NYPD officers over the last year, with the most recent occurring just three weeks ago. The budget also mandates a state campaign against the stigma around mental illness.
Other
There was also a slew of legislation in the budget that will have a statewide impact including the legalization of gestational surrogacy, closure of a loophole that allowed an individual to get a gun license even if they committed a serious offense in another state, significant new restrictions on e-cigarettes and vaping products, a prohibition against gender-based pricing discrimination (the so-called “pink tax”), a ban on single-use Styrofoam food containers and packing peanuts, and more.
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by Samar Khurshid, senior reporter, Gotham Gazette
@samarkhurshid @GothamGazette
Three of the leading 2021 mayoral candidates (photo: Gotham Gazette)
It took merely three weeks from the first case of the coronavirus being confirmed in the city to thousands of New Yorkers testing positive for the virus. The scale of the outbreak has presented an emergency of a scope that the city has perhaps never before faced. The aftermath of the crisis will be felt well into the future and in 2022, the effects it will have on the city’s people, its economy, and its politics will be inherited by whoever takes the helm at City Hall.
Next year, Mayor Bill de Blasio will in all likelihood be finishing his second and final term, attempting to heal the city and seal his legacy as a field of candidates runs to replace him. Among many other issues, it now appears that the coronavirus outbreak and its aftermath will be central to the race to be the next mayor, shifting the dynamics of a race already in its early stages.
Those considered the top contenders are already enmeshed in city government – City Council Speaker Corey Johnson, Comptroller Scott Stringer, and Brooklyn Borough President Eric Adams. The three have played different roles as the coronavirus outbreak has gripped the city, and while none has the awesome responsibilities of mayor, in their responses they may be giving some indication of how they would approach such a seismic event if elected the city’s leader.
Other exploring or declared candidates include Loree Sutton, a retired Army Brigadier General and former commissioner of the city’s Department of Veterans’ Services; Dianne Morales, a nonprofit executive in the Bronx; and Shaun Donovan, a former high-level aide to President Barack Obama and Mayor Michael Bloomberg. All three shared thoughts about the coronavirus crisis with Gotham Gazette.
As coronavirus was confirmed to have landed in New York City and as the fallout unfolded, there’s been some early criticism, or at least difference of opinion, between Mayor de Blasio and those who seek to replace him on how the city should have reacted and how it continues to operate in the face of the deadly pandemic.
Some of the candidates have proposed their own plans to save the city and its people from the outbreak’s devastation, which may not be political maneuvers but may serve that purpose when the campaigns relaunch after the crisis has subsided.
Understandably, the candidates -- all of whom are Democrats like de Blasio -- have been reluctant to critique the mayor amid a public health, social, and economic crisis of this scale. But that doesn’t mean they all agree with everything he has done or don’t have their own ideas for other actions to take.
Corey Johnson
Before the city at large grasped how acute the spread of coronavirus had become, elected officials at all levels were urging calm. Johnson was with Mayor de Blasio at early news conferences on the coronavirus, such as on March 2, after the administration held its second “tabletop exercise” to prepare for what may come.
“I want the public to continue to practice common sense and base decisions on science and public health information, not fear,” Johnson said, while maintaining that people who were not sick did not need to stay at home, echoing messages from the mayor and top city health officials. “We should be taking basic precautions...that means doing the things we know but not avoiding public places,” he said.
At another briefing on March 5, Johnson continued with his sanguine message. “As the mayor has done consistently, I think it is important that we urge the public to be guided by fact and not by misinformation, not by fiction. You can still ride the subway...you can still go to school...you can still go to work...and you can still go and enjoy a concert or a basketball game,” he said, noting that he’d ridden the subway earlier. The mayor, to drive the message home, took a rare subway ride himself that day.
Things would soon escalate quickly, and everything changed.
As the outbreak progressed, however, and the mayor hesitated to close the school system amid increasing public pressure, Johnson was among those who pressed him to take the major step (Stringer quickly followed suit, while then calling for a near-shutdown of the city shortly before de Blasio or Johnson did). The speaker’s plan to enforce social distancing is also more restrictive than what the mayor has pursued so far.
On March 5, days after the first positive case of coronavirus was confirmed in Manhattan, the Council quickly convened an oversight hearing to examine the administration’s preparedness for a larger outbreak. As the crisis escalated, Johnson chose to indefinitely postpone his State of the City speech scheduled for March 11.
On that day, March 11, days before the mayor, under pressure from Governor Andrew Cuomo, announced the closure of schools, and restrictions on bars and restaurants to takeout/delivery only, Johnson called for “limits on non-essential large gatherings.”
“I am not calling for New York City to be shut down. This is a balancing act. Children should continue going to school. The subways should remain in operation. Healthy New Yorkers should continue working, shopping at local businesses and taking part in city life,” he said at the time. Large gatherings were restricted by the mayor the next day.
On March 13, Johnson changed his tune and said schools should close. After resistance, deliberation, and pressure from Johnson, Cuomo, and others, the mayor announced on March 15 that schools would be shuttered starting the next day.
Just like de Blasio, Johnson has also been making regular appearances on TV and radio news shows. And he’s continued to advocate for policy decisions that will matter both during and after the crisis. He called on the NYPD to stop making arrests for low-level offenses, pushed the state Department of Corrections and Community Supervision to stop jailing individuals for technical parole violations, and urged district attorneys to ask for bail or remand only when absolutely necessary, among other criminal justice-related proposals.
Most notably, on March 19 Johnson released a $12 billion plan to provide relief to businesses and workers affected by the coronavirus. Though he said the federal government should pay for it, he also noted that the city could fund it through bonds if its request is refused. His plan would include one-time city payments of $550 for each adult and $275 for each child, on top of any relief funds given by the federal government. It also called for expanding unemployment insurance to freelance and gig workers, and for increasing benefits by 30%.
The speaker proposed deferring sales and use taxes, and the commercial rent tax and business taxes, called for deferring collection of city fees without penalties, and expanding the city’s small business loan programs with no-interest loans and possible loan forgiveness. “This is a crisis unlike any we’ve ever seen. However, the tools that have helped us in the past can be utilized again,” he said in a statement. “The difficult steps we’ve taken to protect ourselves and others are necessary, including social distancing and mandatory closures, but they are devastating our businesses and workers in every corner of the city...This plan will provide relief not just for our economy, but also for the small businesses and workers that are the heart and soul of New York City.”
This week, Johnson also joined with other elected officials and advocacy organizations to call for an immediate plan to house the city’s 80,000 homeless people, along with several proposals to provide them with sanitation equipment, food, and clothing, and to end sweeps of homeless people by the police.
On Friday, as part of budget negotiations with the de Blasio administration, Johnson and the Council called for $50 million for emergency food assistance programs.
In the last two weeks, Johnson has been making remote media appearances as he shelters indoors, at times using his active social media accounts to discuss the experience, and has not been appearing as he was earlier with the mayor at his regular briefings on the outbreak.
Scott Stringer
Comptroller Stringer was also pushing for a “city shutdown” of all except essential services prior to the mayor’s announcement, including schools. Prior to that, on March 12, he announced that all employees in his office, numbering several hundred, would begin working from home the next day.
After Johnson, following the lead of the Council’s education committee chair, Mark Treyger, had said schools should close on March 13, Stringer said similarly. “Many difficult decisions have to be made that have serious implications for our city, including the closure of schools. At this time I think the question is not if, but how, public schools should close,” Stringer said that day. He made his plea for a full shutdown on the morning of March 15 – later that day, the mayor announced closures of schools, bars and restaurants.
Prior to that, the comptroller issued new guidance that allowed schools to purchase tablets with capital funds in order to facilitate remote learning.
As would be expected, his office quickly examined how the outbreak would hurt the city’s economy, putting initial estimates at $3.2 billion in lost revenue over six months (which even he acknowledged is a conservative figure at best). In his analysis, he pushed the mayor to find savings in city agency operations (except at social service and health agencies) to prevent disruption of services for the most vulnerable New Yorkers. The mayor has since instituted a Program to Eliminate the Gap to cut about $1.3 billion in spending by agencies, and has said there’s more that will be needed as he prepares his executive budget plan for next fiscal year, which begins July 1.
“This is an unprecedented public health emergency, and we need all hands on deck at every level of government to tackle this crisis,” Stringer said in a statement to Gotham Gazette. “My office is doing everything in our power to support workers, help small businesses, secure the fiscal health of our city, and above all, protect the health and safety of New Yorkers. When we look back at this time, I want to be able to say that our city government stood up for our city, marshaled all resources at our disposal, and did everything we could to save lives. I am fully committed to assisting and supporting the pandemic response in every way I can.”
Stringer’s office has been busy approving hundreds of emergency contracts and monitoring how the tumult in the financial markets is affecting the city’s pension system.
He also had several policy prescriptions to offer. Like Johnson, he called for deferring sales tax collections and for expanded services and assistance for small businesses. Instead of deferring fines and fees, he suggested they be waived entirely. He also pushed for the city to give contractual relief to those city-contracted nonprofits that provide human services but cannot meet their obligations under the current situation, which it did.
Stringer also urged the federal government and private sector to take steps to mitigate the fallout of the coronavirus. He pushed for extending the in-person counting phase of the decennial census. He called on credit bureaus to put a moratorium on negative credit reporting and for the federal government to pass legislation to protect people’s credit scores. He also urged third-party food delivery companies to cap commissions at 10%.
Eric Adams
Though lacking the citywide purview that Johnson and Stringer hold, Brooklyn Borough President Adams has nonetheless been busy with his own borough-based response to the virus, including his typical focus on personal wellness.
Following the first case of coronavirus being confirmed in Brooklyn, Adams held an emergency briefing at Brooklyn Borough Hall on March 9, with Department of Health and Mental Hygiene Deputy Commissioner Daniel Stephens, and clergy and union leaders. He held a news conference right after to talk about best practices to deal with the outbreak, dispelling misinformation and urging against xenophobic reactions against the Chinese community.
Adams did come under some criticism for continuing to require Borough Hall employees to commute to work through at least March 18.
Adams wasn’t as ready as others to call for school closures and released a statement that hedged on the issue. “Our citywide leaders must be speaking in one voice at this time. I would support a call for citywide school closure that is unified, a unified plan of action for our healthcare and education professionals alongside our local and state leaders,” he said in a statement on March 15. “I would support a similar call for broader citywide closures in unison with our business community.”
Adams has called for a three-month universal moratorium on rent and utility payments, noting that the governor had already suspended mortgage payments for those affected by the outbreak. The borough president is a landlord himself and he acknowledged how a rent moratorium would affect him personally. “Though I have no illusions that this adjustment will be easy, I am confident it is the right thing to do given the current circumstances. No New Yorker should be at risk of losing their home while we contend with a public health emergency,” he said.
He also pushed for the mortgage payment freeze to apply universally to all rental properties – it was only given to single and two-family homes. He also called on the mayor to extend the city’s quarterly property tax deadline from April 1 to June 1. “It would be a cruel April Fool’s Day joke to ask struggling New Yorkers to meet this looming deadline in the face of such uncertainty,” he said. The mayor did not heed that call.
He was also among the proponents of a plan to help New Yorkers cover their rent in April. He joined with Manhattan Borough President Gale Brewer, City Council Members Robert Cornegy and Keith Powers, and CEO of Kairos, Ankur Jain, in releasing the $8 billion Renter’s Choice plan, which would require landlords to allow renters to use security deposits for their rent.
On March 22, Adams joined a number of local businesses and nonprofits to host a “Feed First Responders” initiative, personally distributing food to hospital workers at Maimonides Medical Center, and NYPD and FDNY members. Adams, who touts the benefits of healthy eating and living, even sought to allay people’s mental anxiety by inviting them to join him in remote guided meditation routines on Youtube. He’s also been posting videos making healthy meals at home and working out, doing jumping jacks, push ups, and pull ups.
After Dez-Ann Romain, a principal at Brooklyn Democracy Academy, passed away from the coronavirus, Adams hosted a videoconference candlelight vigil on Zoom on March 26.
On Wednesday, April 1, taking note of the increasing numbers of NYPD officers becoming ill with the coronavirus, Adams called on the mayor to unify all the city’s law enforcement agencies under the central command of Police Commissioner Dermot Shea.
Loree Sutton
As a retired Army Brigadier General who was the Army’s highest-ranking psychiatrist, Loree Sutton looked at the current outbreak and the official response to it, and likened it to nothing less than a war, language that has also been used by her former boss, Mayor de Blasio, among others.
“These are the times that test each of us as leaders, test our character, test our competence, test our ability to communicate and to even console and collaborate,” she said in a phone interview. “So it's also not the time during a situation like this to look backwards or to critique what's been done in the moment.”
In a March 20 op-ed in the New York Daily News, Sutton wrote on a suppression strategy to flatten the rising curve of coronavirus infections, utilizing the resources of the United States military. At the time, the U.S. Navy hospital ship USNS Comfort had been dispatched to the city by President Trump – the ship arrived on Monday.
“While President Trump is now embracing an ‘all of country’ approach by mobilizing military and other essential resources, this effort alone will be insufficient. We also need to mobilize an ‘all of community’ campaign,” Sutton wrote. She called for the creation of Health Safety Hubs in underutilized community facilities to test and monitor those who cannot safely quarantine at home and ease the burden on the hospital system. “Additional benefit would be derived from mobilizing medically screened community resources, including transportation assets, restaurant delivery, hospitality and entertainment services, volunteer opportunities and faith-based community support,” she wrote.
Sutton said in the phone interview that she’s advanced her idea to the governor’s team through General Patrick Murphy, who previously led the New York National Guard and who was a “battle buddy” of Sutton’s.
Sutton insisted that she was not second-guessing the decisions made by the city’s and state’s leadership, though she did say that the crisis has highlighted the “fractious” relationship that Mayor de Blasio and Governor Cuomo have had for years. (In the early months of her campaign, Sutton has repeatedly criticized de Blasio’s leadership of the city, regularly citing the feud with Cuomo.)
“In the military, when we're in the midst of combat, in the midst of action, there's a saying. We don't take the time to critique at that moment we ‘save it for the hot wash,’” she said. “So that's what I'll say...There has to be a hot wash and the next mayor of New York City will be in a position to lead that hot wash and to just fearlessly and clear-mindedly and with open eyes, view all that has gone well, all that needs to be repaired and all that needs to be planned for so that we will never ever be in this position again.”
But Sutton did say the city should take “extreme measures” to enforce social distancing, which the de Blasio administration has slowly come to embrace. While took pains not to criticize the mayor, she did mention his trip to the gym prior to when city-imposed restrictions were set to go into effect. “I would assume that if the mayor were reviewing that set of actions, I think he was trying to evoke in his own way, a sense of calm and routine and sort of ‘life goes on.’ But that's not what the situation is. That's not what it calls for. And we know that now,” she said.
Dianne Morales
Of all the candidates, Dianne Morales was particularly critical of the city’s slow movement towards stricter social distancing and the delay in closing schools and establishments where large crowds could gather. “I think that we should have actually had a much more aggressive response sooner,” she said. “I think we had the heads up in terms of what happened in China and in Europe. And I think that there was more that we could have done to prepare, including closing the schools sooner.”
“The leadership of the city and the state and definitely the country, we're walking this fine line between trying to maintain public calm and conveying the appropriate level of urgency around the situation,” she added. “And I think that they erred too much on the side of downplaying the imminent threat.”
She specifically criticized the fact that parks and playgrounds remain open, and that the city has chosen to close even a few streets to vehicular traffic in order to give people more space. “I think that there's a tension and a contradiction between opening streets for pedestrians and also telling people to shelter in place. I think those two things are not in alignment with each other. I understand that people need to be able to access fresh air but I think also right now we need to prioritize the safety of the city,” she said.
In terms of her own campaign, as a (recently-departed to campaign full-time) nonprofit executive involved in providing human services at the community level, Morales quickly pivoted her campaign infrastructure to work on direct assistance efforts, she said.
Shaun Donovan
Shaun Donovan has yet to launch his campaign and has not yet put out any public statements or materials. Asked for comment, Rick Fromberg, senior advisor to Donovan’s campaign, said in an email, “Shaun Donovan was a key member of President Obama's Ebola and Zika response teams and fully believes in following the direction of public health officials. He also played leading roles in guiding recovery from Sandy, Katrina, and the mortgage crisis. During the ongoing COVID-19 crisis, he has worked extensively to share his experience and expertise with leaders in New York and across the nation. He remains inspired by the bravery of our healthcare and other frontline workers fighting to keep us safe in the midst of this crisis."
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by Samar Khurshid, senior reporter, Gotham Gazette
@samarkhurshid @GothamGazette