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Cuomo Keeps Up Vaccine Pressure on Hospitals, Downplays Fines

Jan. 6, 2021, 10:30 AM

New York Gov. Andrew Cuomo is pushing hospitals to speed up the pace of Covid-19 vaccine shots, even amid criticism from his own party and questions about the state’s legal right to fine facilities for the rate of their work.

“This is not about money,” Cuomo said Tuesday. “This is about saving lives. We’re not really interested in collecting fines.”

The Democratic governor on Monday had threatened the state’s public and private hospitals with fines of up to $100,000, and said they would risk not receiving further coronavirus vaccine shipments if they didn’t administer doses within a week of getting them.

“For those hospitals who now have the allocation and are slow, move the allocation, move it quickly,” Cuomo told reporters Tuesday. “We’re serious, and if you don’t want to be fined, just don’t participate in the program.”

Cuomo’s threat came after reports that more than half the doses received by hospitals across New York remained unused and that some hospitals had given out as little as 15 percent of their allocation.

But the governor’s pressure didn’t sit well with New York City Mayor Bill de Blasio (D), Cuomo’s frequent sparring partner during the Covid-19 pandemic

“Why don’t we stop talking about fines and start talking about the freedom to vaccinate?” de Blasio said during a Tuesday briefing.

Precedent Questioned

States generally have the authority to regulate hospitals and can impose fines on them for failing to protect patients’ health and safety, but there isn’t much precedent for using that authority to deal with implementation issues during a pandemic, according to Ana Santos Rutschman, a professor of law at Saint Louis University.

New York’s public health law specifically allows state health authorities to assess fines against hospitals for noncompliance with state regulations that could harm patients or hurt the quality of care. But the limit for fines under that provision is $10,000.

Around 300,000 state residents have received vaccine doses, according to Bloomberg data, but officials are pressuring hospitals to go faster as Covid-19 case numbers and hospitalizations rise.

Hospitals that aren’t using all their allocations can send them back to the state, which will relocate them, Cuomo said, though the transportation process can be difficult given vaccine storage requirements. The Pfizer Inc.-BioNTech SE vaccine needs to be kept at minus 70 degrees Celsius. The Moderna Inc. vaccine needs to be kept at minus 20 degrees Celsius.

Cuomo also said hospitals can opt out of the vaccination program. “We don’t have to use every hospital, and we’re going to have thousands of retail centers. So we want to use the hospitals that are better at doing it.”

‘Doing This Differently’

Other critics joined de Blasio in questioning Cuomo’s focus on fines and penalties. The slow rollout stems in part from the decision to provide the vaccine exclusively to health-care workers rather than just giving them priority over other groups, says Michael Botta, a health economist and co-founder of New York-based health-care startup Sesame.

“We should move from a focus on exclusivity to giving priority but opening up who can get a vaccine more quickly,” he said. “The expectation was that there wouldn’t be enough to go around, but because the rollout is happening slower than expected and there are 17,000 people dying every week in the U.S., we should start doing this differently.”

The Healthcare Association of New York, which represents the state’s hospitals, didn’t respond to a request for comment, and the American Hospital Association declined to comment.

The Pharmacists Society of the State of New York and the Medical Society of the State of New York also didn’t respond to requests for comment.

‘Chilling Effect’

Policy analysts also questioned the legal basis for fining hospitals and providers for failing to administer the vaccine quickly enough.

“As the public health authority, the state has the ability to step in and make corrective interventions to improve how things are being done during a pandemic, but I think the courts would be reluctant to condone large fines in a case like this,” Rutschman said.

Speaking of state laws in general, Rutschman said fining hospitals for vaccination slowness is “a legally murky area without precedents that are clearly on point.”

“It’s easy to imagine that the courts would be concerned that fines would have a chilling effect and lead providers to drop out of the program,” she said. Litigation over large fines would likely result, and be a needless waste of time.

To contact the reporters on this story: Keshia Clukey in Albany, N.Y. at kclukey@bloomberglaw.com; Christopher Brown in St. Louis at ChrisBrown@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com; Gregory Henderson at ghenderson@bloombergindustry.com; Meghashyam Mali at mmali@bloombergindustry.com

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