In the midst of the constitutional showdown over his pandemic policies, Governor Cuomo made changes to a disputed Brooklyn ‘cluster zone’ that seemed to contradict his own declared guidelines.

The changes rolled back limits on religious gatherings, schools and businesses even though coronavirus metrics remained above the official limits. This seeming attempt to finesse a lawsuit over religious freedom gives credence to the perception that Cuomo enforces his cluster-zone policy arbitrarily.

If the governor was trying to head off an adverse ruling by the Supreme Court, his strategy did not work: In a 5-4 ruling on Thanksgiving eve, the justices struck down the cluster-zone limits on religious gatherings as a violation of the First Amendment’s protection of freedom of worship.

The episode adds to the confusion surrounding the Cuomo administration’s pandemic management as the state heads into the holiday season with a sharply rising infection rate.

The cluster-zone strategy, first announced on Oct. 6, imposes special restrictions on limited areas with especially severe coronavirus outbreaks. The tightest rules apply to “red” zones – including a limit of 10 people at religious gatherings, which was challenged in federal court by the Roman Catholic Diocese of Brooklyn and Agudath Israel, an Orthodox Jewish organization.

According to the guidelines, zones move in and out of the various color levels based on a variety of data points, including most prominently the “positivity rate” – the percentage of tests that come back positive in a seven-day period.

The Brooklyn zone was supposed to stay red until its positivity rate dropped below 3 percent for three consecutive days, and could move from orange to yellow only after its rate dropped below 2 percent for three days.

However, Cuomo switched the zone to orange on Nov. 9, and to yellow on Nov. 18, even though its positivity rate – as reported at the governor’s daily briefings – never dropped below 3 percent (see chart). The governor said the zone “has continued to demonstrate progress” but did not explain why he was disregarding the positivity thresholds.

In the midst of those transitions, on Nov. 12, the religious groups’ appeal arrived at the Supreme Court. On Nov. 19, the state’s solicitor general, Barbara Underwood, notified the court in a letter that the disputed limits on worship had been eased – effectively granting the plaintiffs the relief they had sought.

Given that development, the dissenting justices – including Chief Justice John Roberts – argued that there was no longer a need for the court to intervene. The majority ruled otherwise, noting that the limits they considered unconstitutional might be reinstated at any time so long as the cluster policy remained in place.

With or without the restrictions on worship, it was unclear that the cluster zone policy was working. In the two months it has been in force, the state’s autumn wave has gotten markedly worse. New York’s infection rate remains low compared to the national average, but it has risen more sharply than any other state’s over the past two weeks.

Nor can it be said that the autumn wave is any longer contained to isolated clusters. The statewide positivity rate has risen past 4 percent, and at least 16 entire counties were above the cluster-zone thresholds as of late last month.

Although Cuomo is standing by his strategy, he has acknowledged the worsening trend – and promised additional, yet to be specified measures to monitor and mitigate pressure on hospitals. It remains to be seen if this new approach will be more effective, and more consistently enforced, than what has gone before. 

 

About the Author

Bill Hammond

As the Empire Center’s senior fellow for health policy, Bill Hammond tracks fast-moving developments in New York’s massive health care industry, with a focus on how decisions made in Albany and Washington affect the well-being of patients, providers, taxpayers and the state’s economy.

Read more by Bill Hammond

You may also like

The Health Department’s FOIL Responses Signal an Indefinite Wait for Pandemic Data

The quest for comprehensive data on New York's coronavirus pandemic hit a bureaucratic roadblock this week Read More

A Study of COVID-19 in Nursing Homes Raises Doubt About New York’s Minimum Staffing Law

A newly published study of COVID-19 in nursing homes links larger numbers of employees to higher rates of infection and death for residents – raising fresh doubts about New York's recently enacted "safe staffing" law. Read More

Health Research Inc. Turns Over its Payroll Records Despite Claiming To Be Exempt from FOIL

The full payroll records of more than 2,400 de facto state employees are available to the public for the first time after being released by Health Research Inc. Read More

New York’s Medicaid Rolls Kept Pace with a Nationwide Surge During the Pandemic

New York's Medicaid and Child Health Plus programs added three-quarters of a million enrollees during the coronavirus pandemic, roughly matching the pace of a national surge in sign-ups. Read More

New York’s State Share of Medicaid Spending is Due to Jump 22 Percent This Fiscal Year

The state share of Medicaid spending is projected to jump 22 percent under the recently approved state budget, an unusually steep one-year jump for what is already one of New York's biggest expenditures. Read More

New York’s Hospital Industry Ranks Near the Bottom of Two Quality Report Cards

New York's hospitals remain near the bottom of two quality report cards. The state's hospitals received the lowest rate of any state except Nevada and DC. Read More

New York’s ‘Bluest’ Counties Have the Lowest COVID Vaccination Rates for Older Residents

New York's bluest counties are posting the lowest coronavirus vaccination rates for older residents, a striking contrast with the pattern in the U.S. as a whole. The disparity appea Read More

New York’s ‘Single Payer’ Health Plan Would Disrupt Coverage for Out-of-State Commuters, Too

Under the latest version of the single-payer bill – which has broad support on Democrats in the Legislature – hundreds of thousands of commuters from other states would face the replacement of their current health insurance with a Medicaid-like plan funded with tax dollars and managed by Albany. Read More

Subscribe

Sign up to receive updates about Empire Center research, news and events in your email.

CONTACT INFORMATION

Empire Center for Public Policy
30 South Pearl St.
Suite 1210
Albany, NY 12207

Phone: 518-434-3100

General Inquiries: Info@EmpireCenter.org

Press Inquiries: Press@EmpireCenter.org

About

The Empire Center is an independent, non-partisan, non-profit think tank located in Albany, New York. Our mission is to make New York a better place to live and work by promoting public policy reforms grounded in free-market principles, personal responsibility, and the ideals of effective and accountable government.

Empire Center Logo Enjoying our work? Sign up for email alerts on our latest news and research.
Together, we can make New York a better place to live and work!