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June 6, 2016
Farmers fear rising costs amid push for farmworker rights
New York’s Hospitals and Doctors Have the Nation’s Highest Medical Malpractice Costs—That Makes No Sense Despite fewer adverse events and scoring high on numerous quality measures, New York’s world-class hospitals and doctors spend billions annually on medical malpractice costs—by far the nation’s highest. It’s stark proof of a deeply flawed system. Let’s not make things even worse. We urge the NYS Legislature to reject any bills that would increase medical malpractice costs and weaken the ability of doctors and hospitals to deliver high-quality care.
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EDITOR’S NOTE / Contents When I was growing up in Nebraska, I spent a few summers working on a farm. A local farmer named Roger Poppert would pick me up before dawn in his beat-up truck, and we’d spend hours tending to his corn and soybean fields in the sweltering heat. At the end of the day, I’d return home exhausted. The experience doesn’t make me an expert on agricultural policy, but it did expose me to some of the underlying tensions between farmers and farmworkers. The job provided me with a decent paycheck, but it wouldn’t have been much to raise a family on. At the same time, Poppert often grumbled about how hard it was to keep farming, due to fluctuations in commodity prices and fickle weather. In recent weeks, farming fights have flared up in Albany, with some of these fundamental issues at play. In this week’s feature story, City & State’s Justin Sondel sheds light on the divide, from the minimum wage hike to a push for overtime and collective bargaining for farmworkers.
Jon Lentz Senior Editor
22. 6.
EVENTS Highlights from two recent City & State policy events, covering the future of health care and urban development.
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NURSING HOME NEGLECT In the conclusion of his series on the state of New York nursing homes, Frank Runyeon looks at allegations against the Hebrew Home, a top-rated facility in the Bronx.
SESSION COUNTDOWN, PART II We conclude our analysis of the issues state lawmakers will face before the end of the legislative session, including labor, energy, infrastructure, and ethics reforms.
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NEW YORK SLANT Tom Waters proposes a simple solution to the problem of rising rent, and Marcus Winters writes that New York City should restore letter grade ratings given to city schools.
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BACK & FORTH A Q&A with Jack Walsh, executive producer of BRIC Celebrate Brooklyn.
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City & State is the premier multimedia news organization dedicated to covering New York’s local and state politics and policy. Our in-depth, non-partisan coverage serves New York’s leaders every day as a trusted guide to the issues impacting New York. We offer round-the-clock coverage through our weekly publications, daily e-briefs, events, oncamera interviews, weekly podcast and more.
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Vol. 5 Issue 22 - June 6, 2016
Farmers fear rising costs amid push for farmworker rights
CITY & STATE REPORTS City & State Reports recognizes outstanding New York corporations and business leaders through a series of awards ceremonies, conferences and special publications.
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June 6, 2016
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DEFINING ‘VALUE’ IN VALUE-BASED CARE By MICHAEL GARETH JOHNSON
NYSNA’s Jill Furillo, EmblemHealth’s Karen Ignagni, Health + Hospitals’ Ram Raju and Assemblyman Richard Gottfried. FOR THE PAST FEW YEARS, the hot trend in health care reform has been the concept of “valuebased care”: a shift in focus toward quality of care instead of volume of patients treated. For many, this approach has been seen as a breath of fresh air. The idea that a patient’s experience could now play a bigger role in policy decisions and funding distribution was nothing short of revolutionary for an industry where bad customer service had few repercussions, because of the limited options available to most people. But there is a catch. “The question is, value for who?” That question was posed by Dr. Ramanathan Raju, the president and CEO of NYC Health + Hospitals, during an expert panel at City & State’s recent On Health Care event. Raju was joined by Assemblyman Richard Gottfried, New York State Nurses Association President Jill Furillo and EmblemHealth President and CEO Karen Ignagni.
The four panelists each brought their own perspective in answering Raju’s question, resulting in a dynamic conversation that shed light on the dilemma facing the entire health care industry. Under the current system, report cards are issued for hospitals and other health care facilities grading various factors, such as patient satisfaction and health outcomes, and whether they are readmitted to the hospital. These grades then have an impact on how funding is distributed. But what has not been clearly defined is which metric is most important – costs to hospitals, patient outcomes, or some standard determining overall good for society? “There must be a fundamental discussion in our country regarding what it means to be a part of (value-based care),” Raju said. “That is something we need to define, because accountability needs to come with value-based care.” Gottfried, the chairman of the Assembly Health Committee who has spent decades crafting health
care legislation in Albany, echoed that perception of a lack of accountability. His concern is that hospitals and other medical facilities currently have more incentive to keep costs down because they are unlikely to reap the benefits that better care will sow down the road. “If the payoff in savings comes 10 or 20 years later in the patient’s life when they probably moved to another city and the provider that put in a lot of effort keeping them healthy today gets none of the financial benefit, then having that provider ‘at risk,’ it doesn’t incentivize the provider to make that patient healthier,” Gottfried said. “It incentivizes the provider to spend less money today, without a whole lot of focus on what happens 10 years from today.” Furillo piggybacked on the assemblyman’s comments by raising concerns that the current system, and particularly the state’s “roadmap” for value-based care, does not consider social factors like poverty. She singled out Health +
Hospitals as an example of an institution that is providing quality care to patients, based on recent studies, but is not receiving appropriate funding because many of its patients are from poorer communities. “We have many people suffering from poverty-related diseases, in medically underserved communities that for many years went without access to care. … These are folks that need more health care, not less health care,” she said. “These people may need to be readmitted to hospitals and that hospital should not be penalized for that readmission.” Furillo went on to warn that failing to fund the public hospitals that serve the state’s most vulnerable populations could ultimately end up hurting private hospitals as well. “It is the existence of our public health system that allows the private system to be able to be profitable,” she said. Despite all the concerns about defining value-based care, Ignagni said the move toward value-based benefits and purchasing is a positive one overall because it is finally incentivizing physicians to do the right thing. “When we do value, we don’t start with the cost,” she said. “We map out what we want to happen for the patients. When we get to the hospital side, then if we are doing bundles with the hospital, we say, how can you make sure that that patient is well treated and doesn’t wind up back in the hospital? These are the kind of things that changing incentives, putting the health plan, the physicians and the hospital on the same side of the table, working together to put the patient at the center of this discussion, really does change things fundamentally.” Ultimately, as Raju pointed out, the discussion over defining valuebased care may be a microcosm of a larger debate over the direction of health care in the country. “The problem is that health care in this country is a rental car. Nobody takes a rental car for a car wash,” Raju said. “So, there is no accountability on anybody’s part.”
JULIA LECATO
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VITAL DISCUSSION With a new focus on value-based care, a new insurance environment, new technologies and even a new deputy mayor focused on health, the health care system is undergoing radical changes in New York. City & State brought together experts from all parts of the system for a series of talks at its On Health Care event on May 19 in Manhattan. Here’s some of what they had to say: HERMINIA PALACIO
NEW YORK CITY DEPUTY MAYOR FOR HEALTH AND HUMAN SERVICES ON HER NEW POSITION: “I have the responsibility of overseeing nine agencies and mayor’s offices, with a portfolio that counts to about $24 billion. That’s why it’s humbling to remember that New York City’s legacy as a national leader in health goes all the way back to 1736, where an infirmary with just six beds sat on the site now occupied by City Hall. So when I accepted the role, this incredible privilege and the challenge of guarding and continuing that legacy became even more real to me.” ON OPERATING IN THE CHANGING POLICY ENVIRONMENT AND HEALTH CARE MARKET: “Our public health system isn’t alone in facing these obstacles. Twenty-one hospitals in our city have closed since 2003, the majority of which were private institutions. Major hospital systems across America, both public and private, face similarly significant challenges. However, public institutions are often hit the hardest. And as the largest municipal health system in the country – a system that serves New Yorkers regardless of race, ethnicity, regardless of immigration status, regardless of ability to pay, the issues facing Health + Hospitals are simply greater in scale and magnitude and have gotten increasingly difficult in recent years.”
RON VIANU
CEO, SPREEMO ON OBSTACLES TO DEVELOPING NEW QUALITY-OF-CARE METRICS: “Adoption is the key obstacle. I find that both the payer and provider community are open to discussions regarding quality, but at the end of the day, (we need to) develop a ‘currency of quality,’ where all sides can respect the metric, where you’re not creating a metric that’s provider-centric that payers say this doesn’t provide me any value, or similarly a payer is saying this is what quality means and providers say this doesn’t equally provide us any value.”
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ALOYSIUS CUYJET
LUKE FORSTER-BROTEN
PRODUCT ANALYST, SURESCRIPTS ON CHANGES COMING TO HEALTH CARE DELIVERY: “I think automation is really something that we’ll see a lot of. So from a provider perspective, they feel like they’ve been forced to use all this technology, but they’re still interacting with it just as much as they did with their paper charts and maybe even more so. It’s confusing and they don’t know how to get the most out of it. In the future, when a doctor’s prescribing a drug, in the background they could be checking with a patient’s insurance to see if it’s covered. The insurance could be sending questions in a codified way, so the (electronic medical record) could be doing all of these things in the background that the doctor might not even be aware of and answering all of the things without any doctor or nurse intervention at all. So by the time the patient leaves the doctor’s office, everything’s approved or they can tell the patient that they need to wait a couple days.”
JOE BAKER
PRESIDENT, MEDICARE RIGHTS CENTER ON WHETHER NEW TECHNOLOGY IS HELPING: “One of my concerns is that we’re not bringing patients along with this discussion of value-based care. We’re not bringing patients along with what really is realistic about information technology. I have not seen the benefits of information technology in my health care at all. And in a situation where people with (Medicare) Part D get denied their drug at the counter and are not told why, they’re denied because the pharmacist says the computer won’t tell them. And these are (pharmacy benefit managers) – supposedly they have better computers than the Defense Department! We’ve got a long way to go on information technology.”
CHAIRMAN, DEPARTMENT OF MEDICINE, NASSAU UNIVERSITY MEDICAL CENTER ON KNOWING YOUR BIASES: “Our biases as providers come into play the minute you start that conversation, even though the conversation is limited to 12 minutes, on average, for the provider. And that’s something people need to be aware of, because that’s something that can be worked on. Maybe not fixed, but it can be improved. I used to tell my patients, when I was at Rutgers med school in Newark, don’t go to the (emergency department) and say my sugar’s up. Say, doctor, my diabetes is not well-controlled. That subtle difference in language sets up an entirely different conversation between the provider and the ER doc.”
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Millions of times a day, close to home and across the country, we’re helping people on their path to better health.
TODD ROGOW
CHIEF INFORMATION OFFICER, HEALTHIX ON WHAT INTRIGUES HIM ABOUT THE FUTURE: “If you look at IBM and the whole Watson program – they’re not the only company doing this – but artificial intelligence is really starting to take hold. It’s also a little scary. In health care, I think it can really add a lot of value. … As patients get more involved in their health care treatment – and this happens typically, when you get sick – more and more they go to the World Wide Web. I have two young kids, and that’s the first thing I do when they get sick, the first place I go is Google. I go out there, I learn as much as I can. I try and diagnose this. I’m not a doctor, I’m not a clinician at all, but I want to get some basic information to find out if I want to call a doctor. More and more we’re going to see some services through telemedicine, and other services that will become available without coming to a brick-and-mortar facility. So I think that’s going to be a huge shift. We could walk up to kiosks on the street. It could diagnose you, it could take your blood, it could run the lab test and give you a result, prescribe medication and maybe even hand it to you.”
To learn more, visit us at www.cvshealth.com LOUISE COHEN
PRESIDENT, PRIMARY CARE DEVELOPMENT CORPORATION ON WHAT’S A “VULNERABLE” POPULATION: “Vulnerability comes from a variety of different things. Some of it may come from the social determinants of health: whether you’re stably housed, have enough food to eat, a job or enough money coming in, whether you live in a healthy, stable neighborhood. It also has to do with your place in your lifecycle. I would argue that adolescence is an extremely vulnerable moment in people’s lives. Thinking about older adults where one day you are doing well and another day, for a variety of reasons, you may not be doing so well and really require a different relationship to the health care system. It’s your experience – have you been incarcerated recently, or for a very long time? Language, or cultural issues.”
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OFFICIALS, EXPERTS WEIGH IN ON STALLED STATE HOUSING MEASURES By JON LENTZ
State Sen. Liz Krueger, Greenberg Traurig's Ed Wallace, Nixon Peabody's Joseph Lynch and City Councilman David Greenfield. THE EXPIRED STATE 421-a program, which incentivized the construction of affordable housing units in New York City, may not get renewed this legislative session – and that’s just fine with some state lawmakers. “I don’t think anything will happen with 421-a in the next 10 days,” said state Sen. Liz Krueger, “and I think that’s fine.” Krueger, a member of the state Senate Committee on Housing, Construction and Community Development, weighed in on the controversial tax incentive program during a panel discussion on affordable housing at City & State’s recent On Urban Development conference. ther panelists countered that 421-a, which offered tax exemptions to developers for constructing affordable units, is essential to meeting affordable housing
targets. Ed Wallace, a former city councilman who now works at the law firm Greenberg Traurig, called the program “essential and vital.” New York City Councilman David Greenfield said that if Albany does not renew the program, the city will struggle. “We’re at a very significant disadvantage, because we modeled an entire program around the idea that we would have 421-a to supercharge it, for lack of a better term, and 421-a does not currently exist,” said Greenfield, the chairman of the council’s Land Use Committee. Earlier this year the New York City Council approved two major zoning changes, Mandatory Inclusionary Housing and Zoning for Quality and Affordability, which are part of Mayor Bill de Blasio’s strategy as he seeks to build or preserve 200,000 units of affordable
housing. Both were designed with the expectation that 421-a would be on the books. Krueger said that new incentives should be implemented now that 421-a has lapsed, but that steps should be taken to include lower affordability levels and to ensure that real estate developments that qualify ultimately benefit lowerincome residents, not wealthy luxury housing developers. “But 421-a as it existed gave away enormous amounts of taxpayer money to build a very small number of actual affordable units, to build an enormous number of luxury units that do not need taxpayer support at this point is history,” Krueger said. “Do I believe there should be a model for a tax subsidy to support building affordable housing? Yes. Do I think that we should call it 421-a? No. Because I think there’s too many bad associations with what 421-a has been and potentially could be.” The major sticking point for renewing or replacing the program, however, is whether to require a prevailing wage for construction workers on qualifying projects. Gov. Andrew Cuomo blocked a deal the mayor made with the Real Estate Board of New York, which represents real estate developers, insisting on more generous terms for unionized construction workers on 421-a projects. REBNY and the Building and Construction Trades Council of Greater New York, a union group, were tasked with reaching a compromise on the program, but they failed to do so by the deadline set this past January. Cuomo has insisted that any deal must protect labor. If no deal is reached this session, there are other existing programs that promote affordable housing. Joseph Lynch, a partner at Nixon Peabody, said that Article XI of the Private Housing Finance Law, which provides tax exemptions through a city agency, could “sort of mimic a 421-a-type program.” Greenfield also cited the 420-c and UDAAP housing programs, which also require certain levels of affordability. But the councilman
pointed out that “none of those vehicles actually create mixed-income rental housing,” which many developers prefer to build. Some observers have speculated that the standoff over 421-a has gotten tied up with another housing measure stalled in Albany: how to spend $1.9 billion earmarked for housing and homelessness in the budget this year. That funding allocation is the first installment of a five-year, $20 billion housing program Cuomo announced in January, but it came with a memorandum of understanding that postponed a decision on how the money would actually be allocated. Krueger said that there is “no structural reason” the funding and 421-a should be tied together. While renewing or replacing 421-a would require a vote by state lawmakers, the so-called three men in the room – Cuomo, Senate Majority Leader John Flanagan and Assembly Speaker Carl Heastie – could determine how to divide the nearly $2 billion. “It’s critical that we actually get an outline of what all those dollars are intended for,” Krueger said. “You all in this room can tell me far better than I know how important it is to know what’s going to go on in the five-year period in total for you to start in the pipeline anything you might be looking to accomplish with some of that money.” The other panelists pressed for action on 421-a. Wallace said that New Yorkers “expect our elected officials to do the people’s business, and that means find a way.” Greenfield said that the “X-factor” is the ongoing feud between Cuomo and de Blasio, which makes the outcome even more unpredictable. “It’s very difficult to say what is going to be the result of that,” Greenfield said. “But it’s certainly something that needs to be acknowledged and recognized as a factor in all of these conversations when it relates to the natural tug of war between the state that actually has the power and the city that would like the power.”
JULIA LECATO
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1 9 0 0 AT TO R NEYS | 3 8 LOCAT I ON S WORLDW I D E˚ Harold N. Iselin, Co-Chair, Government Law & Policy Practice Michael A. Berlin Albany & NYC Christopher A. Cernik Mark F. Glaser Hank Greenberg Robert M. Harding Albany & NYC Pamela A. Madeiros Michael J. Murphy Sam NeJame Joshua L. Oppenheimer
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Greenberg Traurig is a service mark and trade name of Greenberg Traurig, LLP and Greenberg Traurig, P.A. ©2016 Greenberg Traurig, LLP. Attorneys at Law. All rights reserved. Contact: Harold N. Iselin, 54 State Street, 6th Floor, Albany, NY 12207 at 518.689.1400. *Not admitted to the practice of law. °These numbers are subject to fluctuation. 27495
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DEVELOPING DISCUSSIONS How can New York City evolve and adapt while remaining a livable place for its 8.5 million residents? That question was answered in a number of ways at City & State’s On Urban Development event on May 26 in Manhattan. Here’s some of what our experts had to say: RAFAEL L. ESPINAL JR.
NEW YORK CITY COUNCILMAN ON BROOKLYN’S FUTURE: “I think we’re going to continue seeing the borough growing. There are a lot of neighborhoods in Brooklyn that are transit rich, and people have been living close to these lines, for example the L train, the J train, the A train. And those neighborhoods that are out in the outer boroughs will start becoming more populated. We’re going to be talking about neighborhoods like East New York in a few years and talking about how it’s one of the greatest neighborhoods in the borough. I believe it will be one of the most inclusive and diverse neighborhoods in the borough. The artists that helped the renaissance begin in Brooklyn the past few years will have a place to stay, the working class families, immigrants and I think we’ll start seeing Brooklyn as a more diverse neighborhood than what it has been in the past few years.”
RUBÉN DÍAZ JR.
BRONX BOROUGH PRESIDENT
CARL WEISBROD
CHAIRMAN, NEW YORK CITY PLANNING COMMISSIONS ON THE BENEFITS OF NEW ZONING REGULATIONS: “(Mandatory Inclusionary Housing) is the most rigorous program of its kind for any city in the United States and it exemplifies, I think, New York City’s leadership in addressing critical social issues across a broad front of urban concerns. … Maybe the most compelling reason behind MIH is that the evidence is fairly clear that poor children who grow up in economically diverse neighborhoods tend to do better than those who don’t. And we owe a path of upward mobility to all our kids.”
ON HIS OPPOSITION TO NEW ZONING REGULATIONS: “I respect their decision, I respect that vote but many of you know, I was concerned, I was against it. And part of that was process. I thought it was done in haste. I don’t know if we were really able to have a real in-depth conversation about how the city’s going to look 30, 40 years from now. You can zone, you can create density, but what’s that going to mean for sanitation locally? What is that going to mean for transportation? For police precincts, or schools in the surrounding area, or infrastructure? I thought there should have been more of a robust conversation – doesn’t have to be a debate – so that we can have different ideas as we move forward. Because we do need the density, because we need affordable housing.”
DAVID GILFORD
SENIOR DIRECTOR OF CLIENT STRATEGY, INTERSECTION ON LINKNYC COMING TO NEW YORK: “The city realized some time ago that, despite New York being a very modern city, there are areas of the city where relatively few people have access to high-speed broadband. In fact, it’s more than one in five New Yorkers who lack a broadband connection at home. When you think about more than 20 percent of the population being left out of some of the opportunities that high-speed internet brings, it really was a challenge for the city to think about how can we solve that problem. Like with any of these infrastructure issues, funding was one of the biggest constraints. Luckily the city recognized it had a tremendous aspect on its hands in the shape of the obsolete payphone infrastructure.”
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For more than 200 years, entrepreneurs have been creating jobs in Williamsburg. That tradition can continue at 25 Kent. Area businesses want to build a new center of innovation with offices and industrial space for innovative companies, as well as public plazas and neighborhood stores at the street level. Once fully occupied, the new building will be home to 1,500 well-paying jobs, many filled by area residents. For more information about 25 Kent and jobs for Williamsburg’s future, go to www.jobs4williamsburg.com.
DONOVAN RICHARDS
CHAIRMAN, NEW YORK CITY COUNCIL SUBCOMMITTEE ON ZONING AND FRANCHISES ON CONNECTING HIS DISTRICT TO JOBS MANHATTAN: “Ferry service returning to the Rockaways has been critical, but one of the things we’ve been critical about to this administration is the need to make sure that ferry access is for all of the peninsula, being that I represent 70 percent of the population of the Rockaways. But also the idea of Freedom Ticket, which is very important for those who take the LIRR everyday – and I just took it in. $20 to travel into southern Queens or to the Rockaways two ways in one day – our residents can’t afford that. So really working on the Freedom Ticket strategy to ensure that we can bring the price of an LIRR ticket for city riders down to the cost of a Metrocard, nearly, is a critical strategy for ensuring our residents can get into the city in around half an hour or 40 minutes without having to spend $20 and then on top of that, a Metrocard.”
DANIEL GARODNICK
CHAIRMAN, NEW YORK CITY COUNCIL ECONOMIC DEVELOPMENT COMMITTEE ON REQUIRING PUBLIC INFRASTRUCTURE INVESTMENTS FROM PRIVATE DEVELOPERS: “It’s an example of a way to use an opportunity of development to help to deal with some of the most obvious infrastructure challenges in the neighborhood. So much of the time we spend playing catch up. We have residential development and realize that our schools are overcrowded. Our water tunnels, they can’t close the valves and you need to spend 40 years building a new tunnel. In the context of East Midtown, what we’re trying to do, is be forward-looking and to say to the real estate world, ‘We understand that you need to modernize … but if we’re going to allow you to do that, we’re going to demand that you make some public improvements in the process."
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BEST OF A BAD LOT Reports of neglect at Hebrew Home, a top-rated Bronx nursing home Story and photos by FRANK G. RUNYEON
NESTLED AMONG STATELY colonial houses and hemmed in by rambling stone walls, the Hebrew Home at Riverdale sits on 32 acres of well-manicured land in the tony Bronx neighborhood of North Riverdale. The nonprofit nursing home holds a coveted five-star rating from the Centers for Medicare and Medicaid Services and wins perennial mentions in U.S. News and World Report’s list of best nursing homes. But this idyllic campus is the subject of worrying reports from former residents who say they were neglected and suffered under Hebrew Home doctors and nurses who failed to provide adequate care.
City & State examined dozens of lawsuits brought against the nursing home as well as other reports of neglect from former residents, their family members and lawyers. Since 2010, over two-dozen lawsuits were filed against Hebrew Home alleging medical malpractice or neglect that led to serious injuries or wrongful death – a red flag that may call into question its high ratings. Hebrew Home declined repeated interview requests from City & State. When asked to explain the allegations of neglect, the nursing home responded in a statement: “We cannot and will not comment
on litigation in which the Hebrew Home is a party.” The statement also noted that Hebrew Home has a resident council where complaints are discussed and that administrators do “respond directly to any and all resident and family concerns that warrant attention at that level.” “The Hebrew Home at Riverdale is proud of its near century history of providing the highest quality of care and compassion to countless older adults and their families,” the statement read. City & State identified and reviewed 26 lawsuits against Hebrew Home, most of which are ongoing. Six have been settled – most for undisclosed sums. Just one
case was dismissed based on the evidence. City & State did find that two other large nursing homes in the Bronx had similarly high numbers of neglect lawsuits, but resident advocates and industry representatives differ on what that might indicate. Industry representatives see elder abuse attorneys attacking an easy target in a litigation-friendly borough, while resident advocates see a sign of a systemic problem with neglect. Industry experts, advocates, and lawyers interviewed by City & State said Hebrew Home may still be one of the best nursing homes in the state – but considering the quality
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of nursing home care in New York, bad things can happen even at the best facility. Ultimately, they said, the numerous reports of neglect and abuse at Hebrew Home are an indication of failed state oversight. “What we’re seeing is that even in a supposedly good nursing home the care is generally not very good,” said Richard Mollot, executive director of the Long Term Care Community Coalition (LTCCC), a leading advocacy group for nursing home residents. “I think it’s very significant.” What’s more, inconsistencies between reports of neglect and official CMS star ratings, as seen at Hebrew Home, undermine the credibility of the nursing home ratings system, advocates argued. Living in a nursing home “that is purportedly a five-star facility doesn’t mean that you are necessarily safe,” Mollot said. “It’s possible to have significant problems and still be highly rated, because of the problems in oversight and monitoring.” REPORTS OF ABUSE and neglect in New York nursing homes have spiked over the last few years, as understaffed regulators struggle to function effectively. As City & State previously reported, the quality of New York nursing home care ranks among the worst in the nation, with the state attorney general’s office indicating that the state needs more manpower to police the problem. A recent state comptroller report noted short-staffing at the state Department of Health as a serious issue that led to delays of up to six years in fining nursing homes for violations after investigators identified problems. Other research suggests that health officials often fail to identify violations even when they are looking for them. The LTCCC issued a report last year noting that the state Health Department rarely cites nursing homes for pressure ulcers, a commonly used measure of neglect in nursing homes because they are easily preventable with proper care. The report also found that the state Health Department rarely cites nursing homes for staffing
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shortages even though New York is recognized as having low staffing rates. The state Health Department, which acts as the primary regulator of nursing homes, said the problems were being addressed. The state Health Department also stressed that it has a thorough process to investigate complaints, find deficiencies, give citations and fine offenders. The federally mandated Long Term Care Ombudsman program, which also plays a role in monitoring abuse and neglect in nursing homes, is charged with investigating complaints and seeking to resolve them by assisting residents in reporting complaints to the Health Department, the attorney general’s office, or the police. But they have no direct authority over nursing homes, and since funding is sparse and the workforce is almost entirely volunteer, there’s only so much they can do. With a state regulator that sparsely cites nursing homes and is slow to fine them, and an ombudsman program that is poorly funded, understaffed, and has largely stopped reporting complaints, nursing home residents and their families told City & State they feel they have no other recourse but to file a lawsuit. Now, even that avenue may be closing. Many nursing homes include forced arbitration clauses in their admission agreements, in which residents waive their right to a trial when they sign the paperwork admitting them to the facility. Any future dispute must then be mediated by a private contractor. A New York Times investigation last year found that arbitrators tend to favor repeat clients, like nursing homes. An appellate court decision last summer in the case Friedman v. The Hebrew Home for the Aged at Riverdale denied the Hebrew Home resident a civil trial, because an admission agreement with a forced arbitration clause was signed. Even though New York health law forbids such arbitration clauses, the judge echoed a U.S. Supreme Court ruling that the Federal Arbitration
Act supersedes state law. Lawyers are appealing the decision. Richard Abend, who represents the resident in that case, said that if the decision is upheld, “it will result in the denial of justice to nursing home residents that have been the victims of negligence” and will remove “a powerful incentive” for nursing homes to provide quality nursing care. BOTH IN COURT filings and interviews, former residents and
year, according to data provided to Caregiverlist by Hebrew Home – the family paid an outside nursing agency to come into the nursing home to care for her mother at night. The agency that provided the care for the Shuberts and other families described the practice as a common way families cope with inadequate care at understaffed nursing homes. Rebecca Rosenzweig, who owns TrueCare Home Health Care, the nursing agency that cared for
“ WHAT WE’RE SEEING IS THAT E VEN IN A SUPPOSEDLY GOOD NURSING HOME THE CARE IS GENERALLY NOT VERY GOOD. I THINK IT’S VERY SIGNIFICANT.” -RICHARD MOLLOT, executive director of the Long Term Care Community Coalition
their families said chronic understaffing at Hebrew Home was a key problem that led to neglect. They described inattentive or absentee nursing assistants and nurses or doctors who acted too late to identify and treat basic medical conditions that ultimately led to unnecessary suffering, injury or death. “Ironic, isn’t it, that they seem to lavish more care on the trees than on the humans inside?” Samantha Shubert wrote online. She told City & State that her mother Sherlee, then 84 years old, was neglected during a stay at the Hebrew Home’s sub-acute rehabilitation unit in July and August of 2013. Sherlee developed pressure ulcers – open wounds resulting from a lack of movement that state regulations say should never happen – while under the nursing home’s care, according to Shubert and her mother. Shortly after moving in, Shubert said, Sherlee called her at night weeping in pain, saying the nursing staff were ignoring her cries for help. Although the Hebrew Home is among the most expensive nursing homes in the country – with beds costing between $459 and $872 a day, or up to $318,280 a
Sherlee Shubert, said there’s more elder abuse by way of neglect in nursing homes. “You can get all sorts of infections because somebody wasn’t paying attention,” she said. Hebrew Home acknowledged that residents hire outside nursing agencies, but stressed that “such personnel are prohibited by law from providing any nursing care, which can only be done by Hebrew Home staff.” For nearly a year after leaving Hebrew Home, Sherlee Shubert remained bedridden because of the pressure sores, which doctors feared may require amputation. In at least two other instances reviewed by City & State, a patient did need an amputation. Other reports are even grimmer. Among the 26 lawsuits reviewed by City & State, 13 plaintiffs alleged Hebrew Home residents died a wrongful death as the result of negligence or medical malpractice. One court filing describes Concepcion Elias, a 102-year-old woman in “stable condition” who entered Hebrew Home to take advantage of its well-reputed physical therapy services. But after she
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was placed in a room with no heat in late winter of 2013, she fell ill with a respiratory condition that doctors failed to treat. Her grandson Carlos Elias tried to bring in a space heater, but the staff wouldn’t allow it. At nurses’ request, he brought in blankets and sweaters for his grandmother to insulate her from the large drafty window next to her hospital bed. But in less than three weeks, Concepcion Elias developed a “temperature” and was pronounced dead of “natural causes,” according to nursing home records and her death certificate. “They could have said, ‘Listen, take her home,’” Elias said. “I’m not going to live in peace for the rest of my life. It’s my fault – I trusted them.” Carlos Elias believes the nursing staff and doctors covered up what really happened to his grandmother. After her death, no one at Hebrew Home would speak with him, he said, and the state Health Department failed to discipline the nursing home. Now, he is bringing a lawsuit against the nursing home. “I am not looking for money,” he said. “I’m looking for justice.” ALTHOUGH HEBREW HOME officials would not comment on pending litigation, they appear to disagree with Carlos Elias on the purpose of neglect lawsuits against nursing homes, according to a copy of presentation slides co-authored by senior officials at Hebrew Home and their law firm, Wilson Elser Moskowitz Edelman & Dicker. In the May 2013 presentation, titled “Good Practices to Avoid Litigation in Nursing Homes,” an early slide asks: “What’s it all about?” The answer: “MONEY!! NOT JUSTICE.” Jim Clyne, president and CEO of LeadingAge New York, which represents nonprofit New York nursing homes and health care providers, holds a similarly dim view of former residents or their families suing nursing homes. Plaintiffs’ attorneys in these cases are capitalizing on aggrieved New Yorkers, he said. “They are the ambulance chasers
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of the nursing home world,” Clyne said. “For whatever reason – they would say for good reasons, we would say probably not,” there is a segment of lawyers who “actively solicit business for nursing home residents,” he said. Clyne said that Bronx County, where Hebrew Home is located, is known to be a good place to find sympathetic jurors for lawsuits. And with potentially thousands of residents cycling through larger nursing homes like Hebrew Home, which has 555 CMS-certified beds, the chances for litigation are increased. “Listen, no one is justifying if there really is a wrongful death or an injury. That’s a bad mistake,” Clyne said, adding that facilities should be held accountable. But, he said, nursing homes are vulnerable to lawsuits because they work with the sick and elderly. As a result, Clyne said, “everybody knows there’s going to be litigation.” According to his logic, these factors help explain why there have been two dozen lawsuits against Hebrew Home since 2010.
year – or about 8 times the national average for a single nursing home. But even if adjusted for the relatively large size of Hebrew Home, the nursing home still had 43 percent more negligence claims against it than the national average – at least. In computing the national average, the 2011 study included claims settled in arbitration. City & State was unable to include any arbitration claims in its tally of Hebrew Home cases. The nursing home did not provide that information on request. While researchers who conducted the study said the two-dozen lawsuits against Hebrew Home seemed high, they cautioned that a variety of factors could influence the number of lawsuits, including the litigation climate, as industry representatives noted. However, the sheer volume of claims begs serious questions, researchers said. “It raises red flags,” said David Stevenson, associate professor of health policy at Vanderbilt University and a co-author on the study. “Part of what I’d want to know is:
“IRONIC, ISN’T IT, THAT THE Y SEEM TO L AVISH MORE CARE ON THE TREES THAN ON THE HUMANS INSIDE? ” -SAMANTHA SHUBERT, whose mother stayed at Hebrew Home
But research indicates the number of claims brought against Hebrew Home may be unusually high compared with the national average. Although City & State could not find any comprehensive figures on lawsuits filed against nursing homes in New York, a 2011 study, published in the New England Journal of Medicine, analyzing the relationship between quality of care and negligence litigation in nursing homes, found that between 1998 and 2010 U.S. nursing homes generally received about one claim every two years. By contrast, Hebrew Home averaged more than four lawsuits every
How is this a five-star facility, if it has this many allegations of abuse and neglect? And this many litigation claims against it?” In particular, Stevenson said, it calls into question the nursing home’s five-star health inspection ratings from the state Health Department. “That’s a little puzzling to me,” he said, noting later that he was “baffled” that a nursing home with so many lawsuits filed against it had not been cited for any deficiencies from those incidents. Two other Bronx nursing homes, Workmen’s Circle MultiCare Center and Kings Harbor Multicare Center, that also have 5-star overall
CMS ratings and are comparable in size to Hebrew Home (but charge 30 to 40 percent less than their top-ranked neighbor) appeared to have similarly high numbers of negligence lawsuits filed against them. In a statement, Workmen’s Circle touted its five-star rating and explained that “lawsuits are an inherent part of this industry.” The administrator for Kings Harbor, Alex Stern, said that both the large size of his nursing home and the high turnover of its sub-acute rehabilitation unit help explain the numerous lawsuits. However, he said he takes the lawsuits very seriously. “Even one lawsuit is too many,” Stern said. CMS data also shows that Hebrew Home only has a two-star rating for nursing staffing, widely considered the most important indicator of quality care. In fact, the nursing home provided 18 percent fewer nursing hours per resident than the national average, or 3 hours and 24 minutes of nursing care per resident per day. This is based on information the nursing home itself submits to regulators. “I think that’s pretty disturbing that the facility itself is saying that they only have a two-star rating for staffing,” said Deborah Truhowsky, president of the board for LTCCC, the advocacy group for nursing home residents. A Hebrew Home spokesperson insisted that the nursing home “exceeds government measures,” contending that the CMS rating excluded some staff. The ratings are widely seen as imperfect, but are considered the standard way to compare nursing homes. “Many Hebrew Home staff members who play critical roles in the quality of life of our residents are not included in government staffing measures,” the spokesperson said. On-site physicians, therapists, “barbers and beauticians, wait staff, wellness center and aquatic therapy personnel, and the dozens of nursing students who are employed by or rotate in the Hebrew Home, are not included in government staffing measures, yet provide significant additional care
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to our residents.” Nevertheless, advocates said that it is the direct nursing care that matters most. “Things like bed sores, falls, and malnutrition potentially can happen as a result of inadequacies in daily caregivers. So not enough (nursing staff) to turn and position people or change (diapers on) people, then that is what’s most relevant,” Truhowsky said. “If there’s not enough staff for direct care, then residents are going to suffer.” ON A GUSTY hilltop overlooking the Hudson River one afternoon this spring, a public relations officer toured a City & State reporter around the Hebrew Home at Riverdale. Inside the main complex, she pointed out the Derfner Judaica Museum, an art studio, fish tanks, a friendly therapy dog, and walked through an impressive physical therapy space with a heated pool, ending at the Weinberg Center for Elder Abuse Prevention – touted as “the nation’s first comprehensive shelter for victims of elder abuse.” From all outward appearances, the residents were lucky to live in what many consider New York’s most elite nursing home. But what was most notable about the tour
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were the stories left untold – stories of mistreatment suffered inside the nursing home’s walls, and even stories of those who wandered away unnoticed. According to eyewitness accounts, police reports, and Health Department records, it appears that since 2010, several residents have left Hebrew Home undetected, which is called elopement. According to the state Department of Health, elopement occurs when “a resident leaves the Nursing Home building undetected or fails to return from a (preauthorized) pass.” This can be a serious violation of nursing home regulations, carrying high risks – research shows that after 24 hours, one in four eloped residents will be found dead. On Aug. 7, 2010, a 75-year-old female resident at Hebrew Home “left the residence by walking out of the main gate,” according to New York City Police Department records. The woman was not found until the next day, state Health Department officials said. The agency cited Hebrew Home for a violation, but stopped short of issuing a fine. Health officials explained that “a fine was not imposed in this instance because, based on the department’s investigation, the incident was isolated, the resident was not injured, and the facility had policies and procedures
in place to prevent elopements.” But there have been at least two other cases of nursing home residents who went missing from Hebrew Home since then. On July 4, 2015, a 71-yearold Hebrew Home resident with dementia named Sandra Dawson, wandered out Hebrew Home’s main gate alone, according to Dawson and her husband, Tom, who was shocked to find her in their Manhattan apartment that afternoon. Because of her dementia diagnosis, Tom said, Hebrew Home had placed Sandra in the Alzheimer’s unit, but then decided to move her into a less secure area. Taking the route she described, she appears to have walked at least two miles along Bronx roads before taking the subway into Manhattan. After her return to Hebrew Home that night, Tom never reported the incident to management for fear of losing a coveted spot at the facility. That evening, however, he did post about his experience on Yelp, the user review website, to warn others about the facility’s lack of security. In another incident early this year, on a frigid Feb. 7, New York City Police officials say a 53-yearold Hebrew Home resident was reported missing from the nursing home’s campus – police note only that he was found. When asked about elopements
from the facility, Hebrew Home issued a statement that “there have been no cases of elopement from the Hebrew Home for at least the last five years.” After City & State provided details of these events, Hebrew Home acknowledged the 2010 elopement but disputed the other incidents in a statement. The nursing home also said that it seeks to balance having a “secure environment” with residents’ right to “leave the campus if they wish” and to “move freely and safely.” But Hebrew Home refused to elaborate on the specific incidents beyond its statement, which noted it could not legally discuss details regarding the individuals, “However,” it read, “the facts as you have described them are patently incorrect. We reiterate that there have been no elopements from the Hebrew Home in the last five years, which includes these cases.” Tom and Sandra Dawson disagree, of course – Sandra told Tom she “escaped” more than once. After the incident, Tom looked into other nursing homes. But for now, he cares for Sandra himself. “Some of these places I wouldn’t take my dog to,” Tom said. But after visiting about 10 other facilities in the area, he conceded that Hebrew Home was, quite simply, “the best of a bad lot.”
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2016 - Part II CONTENTS 23 … LABOR An in-depth report on the push for farmworker rights, plus what’s ahead for the ridesharing economy, 421-a and the Scaffold Law 29 … ETHICS REFORM Albany mulls the LLC loophole and campaign finance rules 30 … ENERGY/ENVIRONMENT What New York is doing to ensure safe staffing in hospitals and to combat the opioid epidemic 33 … INFRASTRUCTURE $27 billion for state transportation projects, but where will it be spent? 35 … EXTRAS Other bills on the table address horse racing, fantasy sports and child abuse
The sun is shining. The grass is green. The bugs are all abuzz. As summer descends on Albany, everyone is itching to get out of town. But first, there’s two weeks of work to complete. Gov. Andrew Cuomo already notched victories with his minimum wage hike and paid family leave, but tough policy questions involving farmworkers, downstate construction workers and upstate Uber drivers remain unanswered. Lawmakers earmarked $2 billion in this year’s budget as part of the governor’s housing agenda and allocated a whopping $27 billion for upstate transportation projects, but it’s still unclear what it all will be spent on. And while every key player is calling for serious ethics reforms, whether they’ll arrive at a satisfactory compromise remains to be seen. In the second part of our annual Session Countdown, City & State reviews all these issues and more – from climate change to the Child Victims Act. Then, after a flurry of last-minute legislating … session’s out for summer!
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LABOR
Amid growing push for farmworker rights, farmers fear rising costs
Story by JUSTIN SONDEL, Photos by BRENDAN BANNON
UNDER A LATE afternoon sun, a half dozen workers carefully select and trim back the tree branches in a peach orchard and pile the branches in paths running between the crop rows. The workers, all of them Mexican nationals, earn a half dollar an hour above the state’s $9-an-hour minimum. They are provided a cell phone, housing and utilities, including cable television, all paid for by their boss, Jim Bittner, an owner of Bittner-Singer Orchards in the Niagara County town of Appleton. Bittner says his crew is happy and has been returning largely intact for years. “I like to think
we’re a preferred employer,” said Bittner, who serves as chairman of The New York Farm Viability Institute and is president of the Niagara County chapter of the New York Farm Bureau. “We have a long growing season. They can start working for me in March and go all the way to the first of November. And they have good housing. They love that.” Soon, though, things will become more complicated. A state minimum wage hike, the pending Farmworkers Fair Labor Practices Act, and a New York Civil Liberties Union lawsuit that would grant farmworkers the right to unionize – a challenge supported by Gov.
Andrew Cuomo and state Attorney General Eric Schneiderman, the two men with the most power to stop it – are combining to pose a threat to the way that Bittner and farmers across the state operate. New York farmers were already facing difficult decisions on which crops are worth the cost. The added labor expenses will phase out some crops more quickly – potentially making locally grown fruits and vegetables less available – accelerate the adoption of new technologies on some farms, and cause others to shut down, Bittner said. For his orchards, sweet cherries, a fruit with volatile pricing, will be the first to go.
Reducing the number of employees will become a more pressing goal, both to keep costs down and, should workers win the right to organize, to limit the potential damage from strikes or other labor organizing tactics. If workers were to strike during harvest time, an entire year’s worth of work could be lost. “The administration was looking at this to raise people out of poverty,” Bittner said. “Well that’s just fine, but there’s fewer jobs.” WHILE BITTNER AND other farmers in New York worry about how the added costs will
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impact their business, activists, organizers and politicians have long been voicing concerns that farmworkers, many of them migrants, are being exploited. The crux of this fight is founded in laws established in the 1930s. At the state convention in 1938, all employees were guaranteed the right to organize, with a provision added to the state’s bill of rights stating that labor not to be considered a “commodity.” But two years prior, the state Employment Relations Act was signed into law, a provision of which excludes farmworkers and other classes of labor from being considered employees, denying them the right to organize. The exemption also excluded farmworkers from labor laws that guarantee them overtime pay, a day off and other rights afforded to most other classes of workers. The logic from the farmers’ point of view was that since the work is seasonal, those workers need to get all their work for the year done in a short period and will be idle
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during winter months. Now, with the minimum wage hike passed and the NYCLU lawsuit going forward, workers rights advocates and legislators pushing the Farmworkers Fair Labor Practices Act feel as emboldened as they have in years. Last month, on the day the Cuomo administration announced its decision to not fight the lawsuit, workers, advocates and legislators rallied on the steps of the state Capitol. A week later, advocates and politicians began a march from Long Island to Albany to bring attention to the legislation. While the proposed legislation has existed in some form or another for decades, the current version, sponsored by Assemblywoman Cathy Nolan, whose district is in Queens, has been batted around the Legislature for six years. It has passed in the Assembly repeatedly, but the bill has failed to make it to the Senate floor for a vote. And with Republicans still in control of the chamber, the proposed law will likely have a
tough time again this year. It is now in the Senate Finance Committee, where it died last year. State Sen. Adriano Espaillat, the bill’s Senate sponsor, remains hopeful. If it were to make it to the floor, he believes it would have the necessary support to pass. By the senator’s count he has 29 confirmed “yes” votes. Additionally, Republican Sens. Joseph Robach and Carl Marcellino helped vote the measure out of the Labor Committee, and Senate Majority Leader John Flanagan sponsored a similar bill himself in his Assembly days. “We’re three votes away,” Espaillat claimed. Still, farmers and their advocates insist that the changes would have a negative effect on already overburdened businesses. State Sen. Rob Ortt, a Republican whose district spans the largely rural counties of Niagara and Orleans and a small part of Monroe County, opposed the state minimum wage hike, though he ultimately voted for it after his
conference was able to negotiate a slower implementation upstate. When the Cuomo administration announced it would not fight the NYCLU lawsuit, Ortt called the legal action a downstate attack on a way of life that New York City activists and politicians don’t understand. The Farmworker Fair Labor Practices Act – which Ortt says farmers call the “Farm Death Bill” – is another attack of the same kind. These actions, he says, represent a movement toward an environment that will drive many farmers to give up and retire or even cause their businesses to fail, he added. “I think it’s really misguided and I think it’s really designed by someone who doesn’t understand the nature of farming and farm labor and how farms are operated,” Ortt said.
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Photos: Farmworkers work in a peach orchard at Bittner-Singer Orchards in the Niagara County town of Appleton. A state minimum wage hike, the pending Farmworkers Fair Labor Practices Act, and a New York Civil Liberties Union lawsuit that would grant farmworkers the right to unionize are combining to pose a threat to the way that coowner Jim Bittner and farmers across the state operate.
But Espaillat said that it is Ortt and others like him who “don’t understand.” While farmers see their concerns as practical, Espaillat views the current laws as a stain on the state’s progressive image, as they are holdovers from a time when racist policies explicitly allowed for workers of color to be paid less than their white counterparts. “Five decades or more after the West Coast did away with this stuff, we’re perpetuating the last residue of Jim Crow,” Espaillat said. WHILE ANYONE WHO has driven through New York has seen its corn fields and dairy farms, the state’s large agricultural industry is frequently overlooked. New York farmers are responsible for more than $5 billion a year in economic activity,
according to figures from the state Comptroller’s office, but their output is dwarfed by agricultural behemoths like California and Florida. And so, Ortt says, that attitude is sometimes reflected in the way the Cuomo administration and Legislature view agriculture. “It’s such a huge part of our economy,” Ortt said. “Even though it’s often located or centered in less populated areas, the bottom line is it is one of the most important parts of our economy, not only across the state, but across the country.” The Cuomo administration has provided some support for farming. This year more than $300 million has been allocated for various grants, loans and other programs aimed at providing capital, preserving farmland and offering tax relief to farmers.
As the Legislature negotiated a higher minimum wage, farmers were granted a tax break as part of the deal. For each worker that logs more than 500 hours during the year, farms will receive an escalating tax break, starting at $250 per employee and ending at $600 per employee when the minimum wage reaches $12.50 an hour in areas outside of New York City in 2021. Abby Fashouer, an administration spokeswoman, said in an email that Cuomo believes he can protect farms and farm workers alike. “This administration is committed to the continued growth of the state’s agricultural industry, while at the same time ensuring equal rights and equal pay for our farmworkers,” Fashouer said. “It defies common sense that these employees
would be intentionally excluded from the legal and protected right to organize without fear of retaliation, which is afforded to other workers in New York.” Espaillat, too, pointed to the myriad programs available to farmers – he said he votes in favor of more than 60 bills a year that benefit agricultural businesses – arguing that the subsidies provide a way for them to stay competitive while also protecting the rights of workers. “The agro business is subsidized in a handsome way by New York state,” he said. Still, farmers argue, the new rules work to compound the evermounting challenges they face, government-fueled or otherwise. While New York’s $9 hourly minimum wage already exceeds its biggest nearby agricultural competitors – Michigan at $8.50,
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Ohio at $8.10 and Pennsylvania at the federal minimum of $7.25 – that gulf will only grow as the wage hike is phased in. Bittner said Pennsylvania apple packers are already calling to convince him it will be cheaper for him to ship his apples to and from their facility just across the state border than to have them packed in his regular packing facility one town over. “We’re not an island,” Bittner said. “I’ve got to compete against Pennsylvania, Ohio, Michigan everyday. You’re putting us at a disadvantage. They just don’t see that.” Efforts from the Cuomo administration to provide loans, grants and tax breaks to the industry and encourage young farmers to continue working their family’s business or start farms anew are not likely to be enough to offset the number of farmers getting out of the business, Bittner added, voluntarily or otherwise. California remains a major competitor for New York farmers, with West Coast fruit making its way via train from Walla Walla, Washington, to Rotterdam, New York, every day. “Our advantage is we have a little bit lower labor cost (than California) and we’re closer to market,” Bittner said. “That’s our advantage. You start bumping up our costs, all of a sudden we’re not going to compete.” ANOTHER POINT ON which the two sides sharply disagree is the treatment of workers. For years the Daily News has published stories of farmworker abuse. In 2014, one farmworker told Al Jazeera America that he had been abused, while several others described subpar living conditions, denial of medical treatment when injured and physical abuse. Crispin Hernandez, the lead plaintiff in the NYCLU lawsuit, claims he was fired from the Marks Farms dairy operation in the foothills of the Adirondacks after working with advocates and seeking to discuss labor issues with other employees. Advocates say they frequently
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meet with people who are not always receiving the full protection of the law. Carlos Gutierrez, a health and safety trainer at the Tompkins County Workers’ Center, says that while real abuse is going on at some farms, the larger problem is less extreme but more common. Simple steps like proper safety training and practices are often overlooked, he said, sometimes because the farmers feel like there is not time to go through all the training and safety measures. But farmers are also working under the understanding that their workers will not go to the authorities – and many times, they are right, with most migrant workers reluctant to interact with the greater public regardless of their immigration status, Gutierrez said. “They are basically staying away from anything that’s going to bring light to them,” he said. As part of his work, Gutierrez often goes to farms and asks workers to recount stories of injuries that they had suffered or
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that they had witnessed. While the many farmers operate with good intentions, Gutierrez said, the issues are real and in some cases serious abuse is occurring. “Not everybody is that way, but it is a prevalent problem,” he said. However, stories from both sides are difficult to corroborate. Most workers’ main focus is keeping their jobs, and for many of them that means staying out of public view. A visit to the hospital, with the worker’s name appearing in a news report, or a complaint filed with the state could very well end with a firing, or worse: jailing and deportation. Both farmers and advocates say that many workers are so desperate to avoid interactions with authorities or public scrutiny that they will pay people to cash their checks or buy their groceries. Around Bittner’s orchards, which abut Lake Ontario, his
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workers are particularly nervous, even though he says they are all here legally, with an abundance of border patrol agents in the area. “These guys don’t want to go to town,” Bittner said. “They’re going to get stopped and they’re going to get harassed every time.” Farmers, though, say that abuses are few and far between and that they are being painted in an unfair light when most have good relationships with their employees. County inspectors visit his workers’ housing at least a few times a year and farms are subject to regular labor inspections from the state. With laws in place to protect farmworkers, any of the abuses being described in the stories should be prosecuted, Bittner said. “If that’s true,” Bittner said, “somebody needs to go to jail or somebody needs to be charged.”
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LABOR
Rebuilding our Infrastructure the Right Way By Mario Cilento, President, New York State AFL-CIO
The $5 billion state budget surplus has It is Timespurred to goanBack theof True endless to supply creative ideas on how to spend New York’sLaw newfound Intent of the Prevailing Wage settlement windfall. Most of those proposals have centered on addressing physical infrastructure deficiencies, By Mario Cilento, which is certainly York State a necessary and worthwhilePresident, proposal. New But knowing what to spend AFL-CIO money on is not enough, we must rebuild our infrastructure the right way. The New York State Constitution
requires prevailing rate be paid to on public works– projects. This In investing public dollarsworkers into infrastructure both settlement basic be principle ensure that with money and beyond, we must sure istointended create togood jobs constitutional provisions protecting adequate labor protectionsthetied every labortorights of dollar workingspent. men andFrom prevailing rate to project labor agreements, theand public workers women are respected that and taxpayer alike need assurance that the best are skilled trained labor will be dollars usedand to create meaningful used.jobs that build our communities and strengthen our economy. Over the years, the prevailing wage law has been misconstrued
We must also ensure there are protections beyond the construction by the courts and others such that the law’s original intent has phase. should be Buy American requirements built into beenThere eroded. procurement, so that any iron and steel sourced from these projects Attempts to exempt projects that include investment in our creates jobs here at home. We must ensureprivate the infrastructure publicly owned and/or financed facilities along with families take to school and work every day is builtother withdisquality tractions designed to deflect prevailing rate requirements have American craftsmanship. We can never again allow a repeat of been worked into the process. This has created confusion and the Verrazano Bridge in which the MTA sent $34 frustration for both embarrassment, workers and employers. million to China for steel used in the bridge’s repair. It is time to go back to the true intent of the law which is why New York Statejobs AFL-CIO billprotected, (A. 10141 by S. 7861) Also,the any permanent createdsupports shouldabe ensuring that restores the purpose of the New York State Constitution that public services are staffed through civil service, and that any and ensures all projects receiving taxpayer resources are defined non-construction, private sector jobs that may result are subject to as “public works.”
adequate labor standards in terms of wages and benefits.
This bill will stabilize local economies and ensure that taxpayer dollars noton used by unscrupulous contractors who us exploit Finally, the are focus infrastructure should not distract from the workers to drive down wages and undermine community stanother budgetary needs. From education to public healthcare, New dards. It will create additional apprenticeship opportunities Yorkhelping must reinvest strong manymiddle-class of which have workinginmen and public womenservices, obtain solid beenjobs cut intosafer the bone in recent Public Services and those workplaces whileyears. ensuring quality workmanship who on provide are an asset that strengthens our community. publicthem projects. There is time in this legislative session for our leaders to do what is right for working people and the taxpayers of this state. This bill is good public policy that will benefit all New Yorkers.
For more information on the New York State AFL-CIO, visit www.nysaflcio.org
MAKING PROGRESS
DURING THIS YEAR’S STATE BUDGET NEGOTIATIONS, GOV. ANDREW CUOMO WAS ABLE TO ACCOMPLISH TWO MAJOR GOALS – PASSING A SUBSTANTIAL MINIMUM WAGE HIKE AND ONE OF THE MOST PROGRESSIVE PAID FAMILY LEAVE BILLS IN THE COUNTRY – TWO MAJOR MILESTONES THAT PLEASED THE LABOR MOVEMENT. MORE RECENTLY, CUOMO AND ATTORNEY GENERAL ERIC SCHNEIDERMAN ANNOUNCED THAT THEY WOULD NOT FIGHT A LAWSUIT SEEKING TO GIVE FARMWORKERS THE RIGHT TO ORGANIZE, ANOTHER VICTORY FOR LABOR. NOW, AS THE FINAL DAYS OF THE SESSION WIND DOWN, THERE ARE A FEW ADDITIONAL ISSUES ON THE TABLE – BUT IT REMAINS TO BE SEEN WHETHER UNIONS AND LABOR ACTIVISTS WILL BE ABLE TO KEEP UP THE MOMENTUM.
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The tax abatement program expired early this year after the real estate industry and construction unions could not work out a prevailing wage agreement, and remains a hot topic as the session winds down. The tax credit, widely considered essential to creating more affordable housing in New York City, will likely return in some form, but it is unclear whether enough pressure has built in the absence of the program to break the logjam. The fight has also been a part of the ongoing feud between Cuomo and New York City Mayor Bill de Blasio, with the mayor urging legislators and the unions to work out a deal and revive the program, which is critical to his affordable housing initiative. Cuomo, meanwhile, has insisted that construction unions should not accept anything less than prevailing wage on projects that receive the tax benefits. State Sen. Jack Martins, the chairman of the Senate Labor Committee, said this month that he is not aware of any progress in the negotiations, but he remains hopeful that there will be a breakthrough before session ends. “I think it’s a very positive thing for the city,” he said. “I think it’s a very positive thing for those investing in the city, but also for unions and building trades.” While the two sides seem to have dug in their heels, the fact that people on all sides of the argument agree that some kind of program is needed increases the chances of something getting done.
RIDESHARING
While ridesharing companies can currently operate in New York City, state insurance law prevents them from expanding to the rest of the state. While opposed by traditional taxi companies and advocates for the disabled, the chairmen of both the Assembly and state Senate Insurance Committees have introduced legislation that would pave the way for companies like Uber and Lyft to expand upstate. Lyft in 2014 was offering services in Buffalo and Rochester before it was ordered to stop by the state Attorney General’s office, which argued the company was violating insurance laws by failing to require its drivers to hold commercial licenses, carry adequate insurance and comply with local for-hire licensing rules. The companies have maintained they are technology companies, not livery or taxi companies. Last July, Cuomo also said there should be a “statewide regulatory framework” for ridesharing, signaling he would support a bill that came to his desk. In recent months, several upstate city mayors have launched a campaign to rally support around expanding ridesharing programs upstate, arguing the companies would spur economic growth. In the weeks leading up to the end of session, Uber and Lyft have accelerated their advertising push for laws that would allow them to operate upstate.
SCAFFOLD LAW
The perennial fight over the construction liability law that is unique to New York state has been quiet this year. After suffering losses with the passage of a higher minimum wage and paid family leave, a group of business advocacy organizations recently sent a letter to a panel set up by the Cuomo administration and legislative leaders earlier this year urging them to take up the Scaffold Law and a list of other priorities, but there has been little talk of the law at the Capitol, at least publicly. Last year, after former Assembly Speaker Sheldon Silver stepped down from his leadership post due to corruption charges, reform advocates thought there might be hope for new legislation, as Silver had been an unyielding champion of the law. But so far, their efforts failed to gain traction.
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ETHICS REFORM
ETHICAL QUANDARIES
Albany mulls the LLC loophole, campaign finance rules By ASHLEY HUPFL AFTER THE CORRUPTION convictions of two former state legislative leaders in the past year, both houses of the Legislature agree that something desperately needs to be done to reform ethics in Albany – they just can’t agree on what. A recent Siena College poll found that 81 percent of voters say that passing new ethics legislation before the end of the session is “very important.” Gov. Andrew Cuomo unveiled a long list of proposed ethics reforms in January, and in late May he introduced eight bills to close the so-called LLC loophole. The loophole treats limited liability companies as individuals under campaign finance laws and allows LLCs to anonymously contribute tens of thousands of dollars to campaigns, far exceeding the amount an individual can give. Cuomo even challenged lawmakers to implement the change for anyone running for governor.
“The people of New York are demanding change and it’s time we took action,” Cuomo said in a statement. “For years, I have proposed closing the LLC loophole – one of the most egregious flaws in our campaign finance system – and every year the bill has stalled. This year, I am introducing eight different bills to close the LLC loophole – one for each elected office in the state. Pass all of them, or as many as you’d like, but at a minimum, pass the one impacting anyone running for the office of the Governor.” The debate over ethics reform comes as U.S. Attorney Preet Bharara and state Attorney General Eric Schneiderman’s offices are investigating several of the governor’s close allies and associates. The Assembly has passed Assemblyman Brian Kavanagh’s bill to close the LLC loophole for the past two years.
DARREN MCGEE/OFFICE OF THE GOVERNOR
“By treating LLCs the same way we treat corporations, we can create greater transparency and put an end to the use of multiple LLCs as a means of working around campaign finance laws." —Assembly Speaker CARL HEASTIE
“The people of New York are demanding change and it’s time we took action to restore the public trust by closing the LLC loophole and bringing fairness to our campaign finance system.” —Gov. ANDREW CUOMO
“Limits on political contributions exist for a reason," Assembly Speaker Carl Heastie said in a press release after his house approved the legislation again this year. “With this legislation, we've closed a loophole that excluded limited liability corporations, otherwise known as LLCs, from the limits imposed on corporations. By treating LLCs the same way we treat corporations, we can create greater transparency and put an end to the use of multiple LLCs as a means of working around campaign finance laws." But state Sen. Daniel Squadron, a Democrat who is a co-sponsor of the legislation, has not been able to advance it from committee in the state Senate. In response to Cuomo’s bills, state Senate Majority Leader John Flanagan doubled down on his position against closing the loophole. “A proposal to close the LLC loophole is a red herring that fails to fundamentally address the root cause of the problems that exist within our campaign finance system, most notably a lack of enforcement, a lack of transparency, and a lack of full and honest disclosure,” Flanagan said in a statement. “If we are going to achieve real campaign finance reform and target corruption, you can’t close one loophole and declare the job done.” Instead, the state Senate Republican conference aims to prevent the funneling of major campaign donations through county organizations, which then direct where that money will be spent. Investigators have reportedly
“A proposal to close the LLC loophole is a red herring that fails to fundamentally address the root cause of the problems that exist within our campaign finance system, most notably a lack of enforcement, a lack of transparency, and a lack of full and honest disclosure.” —State Senate Majority Leader JOHN FLANAGAN
been looking into the accusation that such tactics were used during New York City Mayor Bill de Blasio’s unsuccessful efforts to help state Senate Democrats regain the majority in 2014. Additionally, Flanagan wants to bolster the state’s money laundering laws to move more aggressively against straw donors and nonprofits that donate unlimited sums directly in support of a politician’s agenda, by subjecting them to regulation under the state Board of Elections and the state Joint Commission on Public Ethics. Lastly, Flanagan proposed that lawmakers provide more frequent and timely financial disclosures. “If the Legislature and governor are serious about reforming our campaign finance system and restoring the public trust, it won’t be achieved by closing the LLC loophole, but rather through a comprehensive bipartisan approach that addresses the reality of the postCitizens United landscape and brings disclosure and sunlight to the Capitol,” Flanagan said. With the houses at an impasse, Blair Horner, the legislative director of the New York Public Interest Research Group, says the fate of ethics reform during the closing days of session rests solely on the governor’s shoulders. “If he decides to mobilize the public in the same way he did, for example, raising the minimum wage or paid family leave, then that broadens the policy possibilities that could occur,” Horner said. “It’s what the governor chooses to do, because both houses of the Legislature seem perfectly comfortably with their one-house ethics reform packages and they don’t feel like they have to do anything else. If the governor turns up the political heat, then I think more gets done. If he chooses to keep it on a low simmer, less gets done.”
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CityAndStateNY.com
ENERGY/ENVIRONMENT
ENERGETIC DEBATE
Lawmakers tackle renewables, electric cars and nuclear power
By ASHLEY HUPFL
AS THE END of the legislative session approaches, the Assembly is targeting climate change. The state Senate has several clean energy bills on the docket, too, but the Republican conference also hopes to address gas line safety and broadband and cable franchise agreements. The Assembly’s biggest environmental priority is passage of the New York State Climate and Community Protection Act. The bill includes mandates for ramping up the use of clean, renewable energy and reducing climate pollution while empowering the state Department of Environmental Conservation to take such steps as establishing demonstration sites within urban, suburban or rural settings for heat pumps powered by rooftop solar panels. Assemblyman Steve Englebright, chairman of the Assembly Committee on Environmental Conservation, said the goal of the legislation was to codify the governor’s renewable energy goals, adding that he has been in talks with members of the state Senate to increase support in the upper house. “It’s probably the one thing that is paramount among very important issues because climate change is dramatically affecting New York in adverse ways,” Englebright said. “Many of the things we do are replicated in subsequent states. So, it’s not like by ourselves we are going to have dramatic impact on the world climate, but I think we will be copied.”
The state Public Service Commission in January approved Gov. Andrew Cuomo’s 10-year, $5 billion Clean Energy Fund, which aims to grow New York’s renewable energy production enough to meet 50 percent of the state’s electricity needs by 2030. Englebright said he is also concerned that climate change is damaging the state’s shellfish industry, which he said generates more than $5 billion in sales annually for the state. “You can’t have shellfish if the ocean is too acidic for them to form shells,” he said. “This is a problem, and the issue is one that we believe that we have no choice but to act. So, we’ll be putting forth a bill to explore how to responsibly within the scope of our state address the ocean acidification issues.” State Sen. Joseph Griffo, chairman of the state Senate Committee on Energy and Telecommunications, said he would like to establish solar installation permit standards to cut down on wait times for solar installation projects. Griffo said he also will be passing legislation to facilitate the use of electric cars. “The issues that the Senate Energy and Telecommunications Committee deal with are incredibly diverse, from broadband and cable franchise agreements to gas line safety, clean energy generation and solar installation permit standardization,” Griffo said in a statement.
“We are simultaneously following the myriad PSC proceedings, FERC rulings and state and federal court decisions relative to emerging energy issues in this dynamic and rapidly changing energy world.” The state Senate will also continue to follow up on the implementation of the transfer of the Canal Corporation to the New York State Power Authority in order to maintain the “fiscal integrity” of NYPA. Additionally, the state Senate will introduce legislation to ensure that the “nuclear bridge” and Tier 3 of the Clean Energy Standard is completed by this summer to prevent premature closure of nuclear facilities in the state. Some experts argue
that nuclear power can be used as a “bridge” until renewable sources are more widely available. Both the Assembly and state Senate have introduced or plan to introduce legislation addressing gas pipelines in New York, but the two houses have diverging interests. The state Senate aims to expedite the repair of old and damaged natural gas pipes and establish a reporting and classification system, while the Assembly is exploring legislation to address environmental and siting concerns about gas pipelines. There are currently two natural gas pipelines proposed in New York – the Algonquin pipeline and the Constitution Pipeline. The Cuomo administration rejected a required
WHAT GOT DONE — Clean Energy Fund — Increased funding for the Environmental Protection Fund — Increased funding for water quality improvements WHAT’S ON THE DOCKET — The New York State Climate and Community Protection Act — Addressing ocean acidification — Establishing solar panel permit standards — Addressing concerns about gas pipelines — Facilitating the use of electric cars
permit for the Constitution Pipeline, but the developers are appealing that decision. In December 2014, Cuomo banned high-volume hydraulic fracturing, or fracking, a controversial method of extracting natural gas. “We’re very aware of the need to address concerns about the gas pipelines proposed in the state and they’re exploring that,” Englebright said. “I think there’s a very good chance you’ll see an initiative being put forward. We’re not entirely without some road hazards to craft such legislation, since there’s federal preemption involved. We have to make sure we don’t trip over it. There are roles for the state and that’s what we’re looking at.”
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INFRASTRUCTURE
LOW VISIBILITY Lawmakers seek more details, transparency on upstate transportation projects By JON LENTZ
WHEN GOV. ANDREW CUOMO reached an agreement on a state budget deal earlier this year, he announced that $55 billion would be allocated for transportation projects across the state. About half of the funding would go to the downstate Metropolitan Transportation Authority, but state officials did not specify where the nearly $28 billion would come from. Now, the other half of the funding – $27.14 billion for upstate roads and bridges – is raising questions, but in this case it’s unclear what exactly the money will be spent on. Since the state budget was approved at the end of March, no list of transportation projects from the state Department of Transportation has been made public. In contrast, the MTA laid out its five-year capital plan in the fall of 2014, as required by statute, and the detailed program of major infrastructure projects and everyday repairs and maintenance was finally approved last month. The relative lack of transparency with state Department of Transportation projects is even more striking because officials have spent months talking about “parity” in transportation funding for upstate and downstate, advocates say.
“There’s no way that you can discuss parity when you don’t have apples and oranges to compare between the MTA and roads and bridges,” said Nadine Lemmon, director of state and federal policy for the Tri-State Transportation Campaign, an advocacy group. “The MTA submitted their capital plan list of projects in 2014, because they are statutorily required to do that. But there is no similar requirement for the DOT.” In response to these concerns, lawmakers are pushing for legislation that would impose similar standards on the state Department of Transportation. The bill would require the agency to submit five-year and 20-year capital plans, submit a proposed list of projects each year, and make those documents public. The information would also have to be posted before the final state budget talks. Supporters say such legislation would provide an opportunity for input and improve the planning process by better prioritizing the most urgent projects. Keeping funding decisions secret has also resulted in potential opportunities for abuse, such as when then-state Sen. Malcolm Smith promised to
divert $500,000 in transportation funds to Spring Valley in exchange for help in fixing an election, among other questionable actions. Smith was later found guilty of corruption. A growing bipartisan group of lawmakers has signed onto the transparency and capital planning legislation, including more than 50 Assembly members and nine state Senators, but the bill has not advanced out of committee in either chamber. The prime sponsors are Assemblywoman Nily Rozic, a Queens Democrat, and state Sen. Andrew Lanza, a Staten Island Republican. Rozic said the legislation is one of her top priorities this session. “This bill is about increasing transparency and accountability so the public can have a sense of what improvements they might see in their own communities as a result of taxpayer-funded capital projects,” Rozic said in a statement. “Implementing reporting requirements that already govern the MTA’s planning process will go a long way in creating an efficient system that allows for more voices in the decision-making process.” However, it’s unclear how much
WHAT GOT DONE — $27.14 billion for the state Department of Transportation and Thruway programs — $27.98 billion for the Metropolitan Transportation Authority — Restored $1 billion for the Second Avenue Subway —State design and construction corporation established — Water Infrastructure Improvement Act WHAT’S ON THE DOCKET —Transparency in state transportation capital planning —Design-build authorization for New York City —East River tolls
of a priority the legislation is among legislative leaders or the executive chamber. The governor’s office did not respond to a request for comment on the legislation. Asked about the Assembly Democrats’ infrastructure priorities as the end of the legislative session approaches, Speaker Carl Heastie’s office emphasized legislation that has already been approved, including funding for local water quality infrastructure projects and “working with our partners in government to implement the recently announced $27 billion five-year MTA capital plan as well as the $27 billion road and bridges plan.”
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EXPERT OPINION
MARC HERBST Executive Director, Long Island Contractors’ Association, Inc.
CityAndStateNY.com
How do you separate contamination and corruption from construction and cost savings? That is the question Gov. Andrew Cuomo has presented to the New York State Department of Environmental Conservation (DEC) as it works to revise the state’s Construction & Debris (C&D) regulations on solid waste. Why should you care? Currently, corruption trials for contaminated dumping at local sites like Roberto Clemente State Park and a veteran housing complex in Islandia are all over the news. The damage done extends beyond the environmental and safety hazards they pose and the financial cost to remedy the sites is an obvious expense. But the cost to ensure that similar crimes do not reoccur will surely increase if the revisions made by the DEC are not carefully considered and clearly defined. Additional costs resulting from new regulations could be incurred by the taxpayer and legitimate law-abiding
contractors, rather than the unscrupulous perpetrators who commit these crimes. The highway and heavy construction industry offers suggestions to address two key issues: first, specifically pinpointing which materials should and should not be defined as solid waste, and second, developing a system to effectively monitor and track the safety and validity of source materials to hold the material owner accountable. The DEC’s C&D definition currently includes materials such as asphalt and concrete millings which are not materials of concern like those from the demolition of a commercial building. By omitting these nonevasive highway materials from the C&D definition, the DEC could focus its efforts exclusively on materials of true concern. It will also help curtail costs by reducing landfill needs and allowing environmentally sound recycling of these materials. Suffolk County, for example, with
a proposed $300 million sewer project to address water quality issues, would have to burden its taxpayers with additional costs to transport and dispose of the excavating clean fill and old roadway surfaces, rather than recycle some of the material in an environmentally friendly manner. Our industry agrees that nonhighway-related materials must be monitored to ensure accountability. But initial suggestions to hold the transporter responsible for its contents are ill-advised. We strongly echo the position of Assembly Environmental Conservation Committee Chairman Steve Englebright in calling for an effective manifest system which will hold the origination site responsible for the testing and validity of its materials. We look forward to working with the DEC to develop standards that protect our environment while also protecting our pocketbooks.
Since 2013, the number of people working at Industry City has more than doubled to 4,100. And approximately half of those who work here, live nearby. At Industry City, we call that a good start. Manufacturers, tech companies, creative firms and other innovative companies are reusing empty factories and storage warehouses. And community organizations, City Tech, CUNY and others who help prepare workers for new jobs are training area residents, helping local entrepreneurs and making sure opportunities stay close to home. If you’re looking for work, want help starting a business or just want to know more about what is happening at Industry City, go to www.industrycity.com.
INNOVATION AT INDUSTRY CITY IS OPPORTUNITY IN THE NEIGHBORHOOD
CityAndStateNY.com
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EXTRAS
… AND A FEW MORE BILLS session, the attorney general’s case is set to be heard in state appellate court in September.
CHERYL ANN QUIGLEY
CHILDHOOD VICTIMS
HORSE RACING IN 2012, Gov. Andrew Cuomo took the reins of the New York Racing Association, the operator of three major horse-racing tracks that had been plagued by operating deficits and a betting scandal. State control of the organization was scheduled to end in 2015, but the governor extended it another year. Now, business leaders at the Aqueduct, Belmont and Saratoga horse race courses want the state to re-privatize NYRA. The organization last year finished with a $4 million profit, and enjoyed a $1.6 million profit in 2014. Before 2014, the racing organization failed to make a profit for 13 consecutive years. In April, the NYRA board offered a privatization plan that would allow the present board members to continue to serve. The governor has maintained the state should still have a role in NYRA’s future and proposed a plan that would allow him to appoint five of the 15 members of the NYRA board and both the Assembly speaker and state Senate majority leader to each appoint one member. Cuomo would also have the power to appoint the new chairman of the board. NYRA officials have pushed back against the plan, and state Sen. John Bonacic intro-
duced legislation that would give the governor just two appointees.
DAILY FANTASY SPORTS SOME LAWMAKERS HOPE to pass legislation before the end of session to allow daily fantasy sports websites, such as FanDuel and DraftKings, to once again operate in the state. The two betting companies agreed to suspend operations in New York in March after they were sued by state Attorney General Eric Schneiderman for allegedly being in violation of the state’s gambling laws. The companies countered that fantasy sports does not violate the law, because the bets are games of skill, not chance. Now, two similar bills have been introduced by the state Senate and Assembly committee chairmen who oversee the wagering, and both said they can reach a compromise. One unresolved question between the two bills is the issue of licensing fees. The Senate bill had a licensing fee of $500,000 per company, while a newly introduced Assembly bill offers three licensing fees ranging from $5,000 to $100,000. The bills also include consumer and tax protections. If legislation is passed in the state Legislature, Schneiderman has said he would drop his lawsuit. If it fails to pass before the end of
ADVOCACY GROUPS HAVE amped up the pressure on state Senate Republicans this year to support or bring to the floor for a vote a bill that would eliminate the statute of limitations for cases of child sex abuse, and they have been bolstered by the Daily News, which championed the issue in its reporting and on its opinion page. Under New York law, victims of sexual abuse have until the age of 23 to bring criminal charg-
By ASHLEY HUPFL
es or a civil lawsuit against alleged abusers. Last month, a bill that would have given people sexually abused as children a one-year window to sue over decades-old incidents failed when the state Senate Democratic conference tried to force a vote. In 2007 and 2008, the Assembly passed two similar bills sponsored by Assemblywoman Margaret Markey, but has not voted on the issue since. The state Senate has never voted on the legislation. Advocates have repeatedly visited the state Capitol to try to meet with legislative leaders, but the Daily News has reported those efforts were unsuccessful. Cuomo has said he supports the legislation and will sign it if it comes to his desk.
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NYSlant.com
A fresh perspective on opinions / Edited by NICK POWELL
New York City Councilmen Brad Lander and Jumaane Williams and Assemblywoman Diana Richardson join tenant rights advocates as they march across the Brooklyn Bridge calling for more affordable housing. IN NEW YORK CITY, when economic times are good, both incomes and rents rise rapidly. When economic times are bad, incomes stagnate but rents continue to rise. And for low-income New Yorkers who earn less than twice the federal poverty line, rent rises faster than income no matter what. This is true in all kinds of neighborhoods and applies to both rent-regulated and unregulated tenants. That’s why the inflation-adjusted income per person left over after rent for low-income households was 8 percent less in 2014 than in 2005 – just $13 and change per day to cover all expenses
except housing. This is not just a gentrification story. Rents do tend to rise fastest in neighborhoods in Upper Manhattan and in Brooklyn and Queens near the East River waterfront, and also in a few neighborhoods further into Brooklyn, like Bushwick and Bedford-Stuyvesant, but the city’s affordability crisis is not confined to places like that. Rent burdens for lowincome people – the share of income that they pay in rent – are rising as fast in places like Morrisania and East New York as they are in Park Slope and on the Lower East Side. This is probably
because some of the families with the worst rent burdens in gentrifying neighborhoods move out, which tends to lower the average burden in those neighborhoods, and then move into poorer neighborhoods and continue to pay unaffordable rents, which tends to raise the average burden there. These patterns are spelled out in a recent report from the Community Service Society, “Making the Rent 2016: Tenant Conditions in New York’s Changing Neighborhoods,” and the NYU Furman Center found similar trends in its recent report, “State of New York City’s Housing and Neighborhoods in
By TOM WATERS
2015.” In the CSS report, we also focus on the city’s 1 million rent-stabilized apartments and try to understand how low-income families end up with such crushing rent burdens despite the protections of the rent laws. This enables us to propose a solution that could provide significant relief to hard-pressed families. By comparing average rents for various neighborhoods and apartment sizes in 2011 and 2014, and by considering whether the apartments had turned over during the period, we were able to dissect the total rent increase for most rent-stabilized apartments over the period. (We omitted rent-stabilized apartments in buildings built after 1974, because they are subject to regulation only because of subsidies and tax exemptions.) We found that the total increase in monthly rent for 935,000 rent-stabilized apartments from 2011 to 2014 was $83 million, after adjusting for inflation. Almost half of that increase – $40 million – came from a single source: the automatic increase that landlords can add to the rent whenever an apartment becomes vacant. That’s $480 million a year. Tenant advocates call this the “eviction bonus” because it provides an incentive to landlords to induce their tenants to move out. Increases in monthly rent
A KATZ
RISING RENT BURDENS ARE A CITYWIDE PROBLEM WITH A COMMONSENSE SOLUTION
NYSlant.com
based on the decisions of the Rent Guidelines Board came in second, at $23 million. What this means for low-income tenants is that whenever they must move within the city – perhaps because their household size changed or because conditions in their apartment deteriorated – they are likely
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to find new apartments with much less affordable rents. It is clear that moves, and therefore the eviction bonus, play a major role in raising rent burdens to their astronomical levels. A bill introduced by Assembly member Brian Kavanagh would end the eviction bonus, which would lower rents on vacant
apartments in low-income neighborhoods and over time halt or reverse the surge in rent burdens. This simple reform would do far more for low-income families than a continuation of the 421a tax exemption for developers, which costs $1.1 billion a year to produce perhaps $100 millio n in affordability benefits.
Our lawmakers in Albany should turn their attention away from costly tax boondoggles and toward commonsense rent reform.
Tom Waters is a housing policy analyst for the Community Service Society of New York.
CITY SHOULD RESTORE ACCOUNTABILITY TO ITS SCHOOL SYSTEM DEMETRIUS FREEMAN/MAYORAL PHOTOGRAPHY OFFICE
By MARCUS WINTERS
UNDER THE BLOOMBERG administration, New York City was a model for school accountability. The city’s Progress Reports evaluated schools based on a variety of factors, with an emphasis on student standardized test scores. The city then graded each school’s overall performance from A to F and widely publicized the results. And this strategy worked: struggling schools improved. Shortly after Mayor de Blasio took office, he and his Schools Chancellor Carmen Fariña took aim at this accountability system. They claimed that any single measure was too simplistic to classify the performance of an entire school. They also worried that classifying schools as “failing” discouraged schools, rather than motivating them to improve. In the fall of 2014, the administration stopped issuing school grades on its School Quality Reports. In a new study for the Manhattan Institute, I found that by eliminating the letter grades the administration also removed a positive effect that the policy was having on the city’s worst schools. My analysis first shows that schools that received
an F grade in 2013 improved more than they would have if they had instead received a D grade. This is consistent with prior evidence finding a similar positive effect from the F-grade sanction following the first letter grades given in the fall of 2007. In the first year of de Blasio’s system, the city stopped giving letter grades, but otherwise reported nearly identical information about school performance as was included under Bloomberg. This allowed me to effectively recreate the Bloombergera letter grades and show that the positive impact of receiving an F grade disappeared once the city dropped letter grades from their reports. By no longer singling out struggling schools, the city removed a real incentive for them to improve. Simply reporting the same data without a letter grade isn’t enough. The key to effective school accountability is to publish a simple summary measure that can be understood by everyone from parents to policymakers. To put the point crudely: Nothing says failure like an F. The previous system was
New York City Mayor Bill de Blasio, Congresswoman Nydia Velázquez, and Schools Chancellor Carmen Fariña tour a Brooklyn school earlier this year. not perfect, nor does the city’s current accountability system lack merit. Rather, what my analysis makes clear is that the city lost an effective aspect of its accountability policy when it stopped grading schools. When the city’s worst schools received a failing grade, on average they responded by making performance improvements. Today, schools are still struggling, but the city is failing to hold them accountable effectively. For the sake of students at these lowperforming schools, New York City should recommit itself to school accountability and go back
to grading schools. At the very least, the city should adopt some summary measure that clearly identifies the top and bottom performers.
Marcus Winters is a senior fellow at the Manhattan Institute and the author of two reports on school accountability, “Grading Schools Promotes Accountability and Improvement: Evidence from NYC, 201315” and “A Farewell to Reform: NYC’s EducationAccountability System.”
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CityAndStateNY.com
A Q&A WITH
CELEBRATE BROOKLYN’S JACK WALSH Brooklyn’s epicenter of cool since 1979, the BRIC Celebrate Brooklyn! Festival, returns for a summer of mostly free shows at the Prospect Park Bandshell on June 8 with a concert by Brooklyn’s own Sharon Jones & the Dap-Kings. City & State’s Jeff Coltin talked to the festival’s executive producer, Jack Walsh, about opening up the park, celebrating the borough and why concertgoers should thank the mayor.
C&S: Cuban trumpets, psychedelic rock, live orchestras – the festival always features such an eclectic mix of artists. What do you look for in a good show? JW: The festival is in its 38th year, so it’s New York’s longest-running performance festival. With that history comes a bit of curatorial perspective and a way in which we try to both honor our history and what the festival is and what the festival has done, and also keep it fresh and keep it unique and try to have some performances and some artists that you’re not going to see anywhere else. The first half of that is a history and mission-based approach to really celebrate Brooklyn’s diverse cultures and offer all Brooklynites an opportunity to come together in a safe, harmonious setting and explore and interact and experience each other’s cultures. And that’s kind of what we’ve done with the festival all the way back to 1979.
More recently, we’ve really been trying to go deeper and create some unique programming with artists. C&S: The mayor is a Brooklynite and from Park Slope, not far from the Prospect Park Bandshell. Has he supported the festival differently than past mayors? JW: Bill is very busy! He was the City Council member from Park Slope and represented the district that included the festival. Many years ago he was able to secure some funding for us that purchased us a new sound system, so every show that you hear at Celebrate Brooklyn sounds great because Bill helped us get a new sound system many years ago. More recently, since he’s become mayor, between him and the borough president’s office and the City Council, they were able to allocate some capital funding for further improvements and renovation of the bandshell and the
that mean for the arts in the city? JW: The reason for the festival, the mission, it had both a civic and an arts mission. The civic part of the mission back in ’79 was the words “Celebrate Brooklyn,” both its people and its culture and its artists. So the civic part was to bring people back into Prospect Park after the park had suffered years of neglect, activate the park, do it at night, which was kind of a radical idea at the time. And get people back into the park and utilizing this somewhat scuffed up gem that is Prospect Park. The arts side, there’s so many musicians and artists in Brooklyn, and we wanted to give them a platform to perform and share their work. Some of those very famous jazz musicians that were all in Bed-Stuy and Fort Greene at the time – Betty Carter, Randy Weston, Max Roach – they were all featured in the early years of the festival. And the third piece is really the people of Brooklyn. It’s for everybody. The idea is to gather as a community, celebrate each other’s culture, come together in a safe, harmonious setting, and really have all Brooklynites come together.
surrounding landscape. That project is in design now and we hope will begin construction in 2017. We have a $4 million allocation that probably happened because of the mayor’s support of the festival. The borough president, the City Council all approved it as well, so it’s kind of a collective effort, but he’s definitely a fan. He’s been attending the performances for many, many years, has been on stage many times. He’s truly a music fan, and I really have been surprised at how knowledgeable he is about the music. He’s come to our opening night show each year for the past three years and we hope he’ll be here this year. He’s a busy guy now, generally slips in while the show’s underway and catches some of it. And if he’s not being called away, he generally stays a little while and enjoys himself.
C&S: You’ve been with Celebrate Brooklyn for decades. A lot has been said of the demographic changes in Park Slope and Brooklyn as a whole. Has that changed your job, or is music universal enough where it’s the same? JW: I’m born and raised in Park Slope. I still live in the neighborhood, so I’ve seen it change many times. Waves of change over decades. We’re definitely cognizant of that, and I think we’re just more clearly focused about how we’re not only putting artists on stage that represent different cultures and artists of color and so on, but that we’re actually choosing artists that will attract diverse audiences. That’s something that we’re very intentional about. We’re hoping that each and every show finds its audience, attracts an audience. That could be specific. But the flip side of that, we’re hoping that when people look at the lineup, they may not know 80 percent of the names in the lineup. We think we’ve earned a place of trust with so many people that they look at it say ‘hey, that sounds interesting, it’s a no-risk evening, let’s check it out.’ And many times, the composition of the audience is quite diverse, and that’s very gratifying.
C&S: Most of the shows are free. Why is that so important to you? What does
To read the full interview, visit cityandstateny.com.
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Patients don’t deserve to lose their rights just because they didn’t find out about medical negligence until it was too late. Doctors never told Lavern Wilkinson about her cancer until it was too late, despite an x-ray that showed a mass. Lavern was not properly diagnosed until the disease had metastasized. Lavern passed away in 2013, leaving behind a teenaged daughter with special needs.
Lavern Wilkinson isn’t alone.
June Dreifuss never missed a mammogram, but her doctors missed the early signs of breast cancer. When her cancer was discovered it was too late; she passed away in 2008.
Lissy McMahon is a 41 year-old single mom. After surgery in 2012 Lissy’s doctors never told her that 10 out of 40 pathology slides showed evidence of cancer. By the time she found out about the cancer it was already at an advanced stage.
Under New York’s antiquated statute of limitations, by the time Lavern, June and Lissy found out about the mistakes that harmed them, it was too late for them to hold the negligent healthcare providers accountable.
SUPPORT LAVERN’S LAW Under current law, the victims of a misread test—such as a mammogram, PAP smear or prostate test—or a botched surgical procedure often face fatal consequences. Uncaught or misdiagnosed, a curable disease can become an untreated symptom-free killer. When the symptoms do appear, the disease may be so advanced that treatment is futile. New York is one of only a few states (AR, ID, ME, MN, SD) that shields negligent doctors whose mistakes are undisclosed.
Pass Lavern’s Law S.6596 DeFrancisco / A.285A Weinstein
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