State Bar Association’s Health Law Section Report Calls for Mandatory COVID-19 Vaccination, Standards for Allocating Ventilators and Personal Protective Equipment

State Bar Association’s Health Law Section Report Calls for Mandatory COVID-19 Vaccination, Standards for Allocating Ventilators and Personal Protective Equipment

5.28.2020

By Susan DeSantis

A COVID-19 vaccination should be mandatory for all New Yorkers except those whose doctors exempt them, the Health Law Section of the New York State Bar Association (NYSBA) recommends in a report issued today.

The report also calls on the state Department of Health (DOH) to adopt uniform standards for allocation of ventilators and personal protective equipment. These standards would be triggered whenever there are insufficient medical supplies, ICU beds or trained health care workers to meet the needs of all patients.

The report recommendations were debated at a virtual meeting of the association’s governing body, the House of Delegates, on June 13 but tabled for more study until the association’s November meeting.

The Health Law Section said a rapid mass vaccination plan should be launched in New York as soon as a safe and viable vaccine becomes available, citing Jacobson v. Massachusetts, a 1905 U.S. Supreme Court case that upheld the authority of states to enforce compulsory vaccination laws. The plan should also prioritize vaccines for essential health care workers and vulnerable New Yorkers who are at highest risk of infection, the report states.

“The current pandemic shows us how unsafe we all are when we face a virulent contagious disease without a safe and effective vaccine, widely administered,” said Hermes Fernandez, chair of the Health Law Section and attorney at Bond, Schoeneck & King.

“The report is a model of scholarship, brimming with expertise and erudition, and it provides analysis and recommendations on vitally important public health issues, at a critical moment in our history,” said NYSBA President Henry M. Greenberg. “It will serve as an indispensable resource for policymakers. I thank the task force’s members for producing a report that illustrates why NYSBA is a state and national thought leader on the great issues of the day.”

“These issues are very important to the New York State Bar Association,” said Scott M. Karson, president-elect of NYSBA. “The Association will undertake a thorough examination of the disparities exposed by the COVID-19 pandemic, and we will continue to advise policymakers on how best to protect vulnerable communities.”

The COVID-19 pandemic has raised complicated ethical questions regarding resource scarcity, from a lack of personal protective equipment to a shortage of trained health care workers, the report states. Weill Cornell Medicine bioethicist Joseph J. Fins, who served as an expert adviser to the task force, describes these shortages in an article in the upcoming issue of the NYSBA Health Law Journal.

“Despite public declarations to the contrary, there was scarcity and resort to crisis of standards of care in New York City during the COVID-19 surge,” writes Fins, who is also a faculty member in the Solomon Center for Health Law and Policy at Yale Law School. “To respond to this dire need, hospitals across the city increased their ICU capacity by over 200-300%… Although the attention was on the shortage of equipment and the built environment, the greater stressor was the lack of adequately trained personnel able to manage critically ill patients.

“Necessity is the mother of invention and New Yorkers benefitted immensely from the advocacy of state and local government, the generative creativity of hospital administrators who built surge capacity and valiant clinicians who answered the call,” Fins continues.

In its report, the Health Law Section calls for swift action by the state to adopt uniform ethics guidelines that all providers can follow when resources are scarce. The New York State Task Force on Life and the Law issued ventilator guidelines in 2015 that use a physiologic metric to inform decisions on how resources should be distributed in the event of shortages.

The NYSBA Health Law Section recommends that these guidelines be reviewed, amended as needed and adopted by DOH. It also states that DOH should issue emergency regulations mandating that all providers and practitioners follow the guidelines once they are in place.

In addition, the task force made recommendations relating to the disproportionate COVID-19 impact on African American and Latinx communities and on older adults, nursing home residents and essential health care workers.

“The cumulative disadvantage of race, ethnicity, age, gender, underlying conditions, and poverty have compounded the detrimental impact of the pandemic across Black/African American and Hispanic/Latinx groups including older adults, nursing home residents, persons who are homeless living in shelters or who are incarcerated, immigrants, and essential workers,” said Mary Beth Morrissey, chair of the section’s Task Force on COVID-19, a fellow at Fordham University’s Global Health Care Innovation Management Center and a faculty member in the graduate schools. “Nursing homes, in particular, largely segregated before the pandemic, have been crucibles of racialized suffering and racial disparities during the pandemic.”

The NYSBA Health Law Section recommends the following steps to ensure racial and ethnic disparities and inequities are being addressed as a moral obligation, and to reduce morbidity and mortality among these populations:

• Adequate and non-discriminatory allocation of resources to communities of color and vulnerable populations, including nursing home residents
• Equitable access to health and mental health services, including palliative care as an ethical minimum to mitigate suffering, especially when desired equipment or other resources are not available
• Provision of personal protective equipment to essential health care workers, and prioritizing health care workers in access to testing
• Monitoring conformity with federal laws barring discrimination.

The report is available at www.nysba.org/covid19report.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, NYSBA has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Susan DeSantis
sdesantis@nysba.org
201-575-5756