WEISS ZARETT WINS REVERSAL ON APPEAL AND DISMISSAL OF TORTIOUS-INTERFERENCE CLAIMS

By Michael D. Brofman, Esq. & Michael J. Spithogiannis, Esq.
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Imagine winning litigation after being a defendant in a contract dispute and then having the plaintiff start another suit arising out of the same contract but on a different theory.  That is essentially the issue that Weiss Zarett faced recently in its appeal to the Appellate Division Second Department.  The matter in question arose from two cases in the Supreme Court Nassau County.  In the first case, the plaintiff sought to foreclose on a mortgage arising out of a joint- venture agreement.  Weiss Zarett represented the new owner of the commercial real property in question, which it purchased after the foreclosure litigation had commenced.  Weiss Zarett successfully intervened for the new owner in  the pending foreclosure action and asserted a counterclaim to quiet title.  Ultimately, on appeal, the underlying foreclosure action was dismissed, and a judgment was entered in favor of the new owner cancelling and discharging  the mortgage of record.  Immediately thereafter, plaintiff again sued the same joint-venture parties under the same joint- venture agreement and added the new owner as a defendant, asserting  that it tortiously interfered with the joint venture agreement. The new case was assigned to a different Supreme Court Justice.  Weiss Zarett moved to dismiss the case as to the new owner, on the grounds (among others) that the plaintiff could not split its causes of action and was barred from asserting claims it could have asserted in the first action. The Supreme Court  denied the motion to dismiss. On appeal, the Appellate Division, Second Department, reversed and dismissed the case as to Weiss Zarett’s client, effectively reminding parties that they can’t have two bites at the apple!

Should you need the assistance of skilled and experienced counsel to assist you in litigation arising from commercial real estate transactions, do not hesitate to contact Michael D. Brofman, Esq. at mbrofman@weisszarett.com and Michael J. Spithogiannis at mspithogiannis@weisszarett.com.

Weiss Zarett Defeats Preliminary Injunction Application Related To Client’s 11 Year Use Of Trade Name

By Michael D. Brofman, Esq. & Joshua D. Sussman, Esq.
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The motion, called a preliminary injunction application, was heard Tuesday before the United States District Court for Eastern District of New York within three days of lawsuit being commenced. At argument before the Judge, after the Court noted that the competitor had not disclosed material facts to the Court about the trade name’s history and the parties’ relationship and dealings, the Court found that the competing business did not establish it would be harmed if the client continued to use the name and that the movant failed to convince the Court that it had any protectable interest related to the name. In citing to the lead Second Circuit case quoted in the Weiss Zarett memorandum of law, the Court also determined that the competitor’s lengthy delay in seeking to enforce its purported rights also precluded the Court from granting the preliminary injunction. The Court’s decision is a victory not only for our client, but for open and fair competition.

Should you need the assistance of skilled and experienced counsel to assist you in litigation, do not hesitate to contact Michael D. Brofman at mbrofman@weisszarett.com and Joshua D. Sussman at jsussman@weisszarett.com.

Weiss Zarett & the PAP (Physician Advocacy Program)

Weiss Zarett will continue to offer the PAP (Physician Advocacy Program) for 2022 and we will be providing the same services. The 3 programs offered by the 2022 PAP are as follows:

Premium Program

  • $949 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, OMIG, MAC, OIG, QIO, OSHA or OCR.  
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.
  • Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance. 
  • FREE review of your medical records by a certified coder and a conference call to discuss.
  • FREE 30-minute consultation on ANY legal matter within the scope of practice of Weiss Zarett.    

Comprehensive Program

  • $649 per year 
  • Legal representation in connection with a matter before the OPMC, OPD, QIO, OIG, OSHA or OCR. 
  • Providers WITH coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Comprehensive Program does NOT include a review of your medical records, a conference call between you and the coder and no 30-minute call. 

Basic Program

  • $349 per year 
  • Legal representation in connection with a matter before the OPMC or the OPD.
  • Providers WITH administrative coverage from their insurance company will receive legal representation pursuant to the PAP without additional cost until the later of the following: (1) the limits of the administrative coverage under their insurance policy are reached; or (2) through the initial interview/appearance before the applicable governmental authority.  
  • Providers WITHOUT administrative coverage from their insurance company receive legal representation without additional cost through the initial interview/appearance before the applicable governmental authority.  Legal representation pursuant to the PAP does not include subsequent services during any hearing process following the initial interview/appearance.  
  • *Please note that the Basic Program does NOT include a free review of your medical records by a certified coder and a conference call to discuss the findings related to your documentation and coding or representation in connection with matters before QIO, OIG, OSHA, OCR, MAC or OMIG, or the annual 30-minute consultation. 

If you are interested in enrolling in the 2022 PAP or have any questions, please contact Mathew Levy, Esq. at 516-926-3320 or MLevy@weisszarett.com.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

Mandatory Vaccination for Healthcare Workers Expanded by New Emergency Regulations

By Jessica Woodrow, Esq.
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On August 26, 2021, the New York State Department of Health’s Public Health and Health Planning Council in Albany voted to amend the Official Compilation of Codes, Rules and Regulations of the State of New York (NYCRR), significantly expanding the emergency Covid-19 vaccination mandate previously announced by former Governor Andrew Cuomo. Whereas the previous mandate applied only to healthcare workers at general hospitals and long-term care facilities (LTCFs), the amended regulations now require workers in nearly all categories of healthcare facilities in New York State to comply. The stated purpose of the expanded vaccine mandate is to prevent or reduce the transmission of Covid-19 by those “who engage in activities such that if they were infected with COVID-19, they could potentially expose other covered personnel, patients or residents to the disease.”

Under the newly-added NYCRR § 2.61, covered entities must “continuously require personnel to be fully vaccinated against COVID19, with the first dose for current personnel received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities absent receipt of an [allowed] exemption.” Significantly, the new regulations go on to provide that a covered entity “may terminate personnel who are not fully vaccinated and do not have a valid medical exemption and are unable to otherwise ensure individuals are not engaged in patient/resident care or expose other covered personnel.” Upon request by the Department of Health, all covered entities are required to report and submit documentation confirming the number and percentage of personnel who have been fully vaccinated, the number and percentage of personnel who have received medical exemptions, and the total number of covered personnel. 

In addition to general hospitals and LTCFs, “covered entities” now include: diagnostic and treatment centers, including community health centers, dental clinics, birthing centers, and rehabilitation facilities; certified home health agencies, including long term home health care programs and AIDS home care programs; hospices; and adult care facilities. “Personnel” includes all individuals “employed or affiliated with a covered entity, whether paid or unpaid, including but not limited to employees, members of the medical and nursing staff, contract staff, students, and volunteers.” However, physicians and dentists in private practice are not subject to the mandate, as the New York State Department of Health has primary regulatory jurisdiction only over the health care facilities it licenses.

Shortly after the Council voted, New York State Department of Health Commissioner Howard Zucker issued a Determination on Indoor Masking which states that, pursuant to NYCRR § 2.61, effective August 27, 2021, masks shall be required: in healthcare settings for personnel and all visitors, regardless of vaccination status; in adult care facilities (ACFs) regulated by the Department for personnel and unvaccinated visitors; in P-12 school settings for all teachers, staff, students, and visitors, regardless of vaccination status; in correctional facilities and detention centers for all incarcerated/detained persons and staff when social distancing cannot be maintained, and for all visitors (facilities may impose their own policies for private visitation); in homeless shelters (including overnight emergency shelters, day shelters, and meal service providers) for all clients, visitors, staff and volunteers, regardless of vaccination status; and on public transportation conveyances and at transportation hubs, for all persons regardless of vaccination status. Any applicable restrictions apply to all persons over the age of two who are able to medically tolerate a face covering.

Notably absent from the expanded mandate is the religious exemption, which was deliberately struck before the final vote. Religious exemptions have historically been granted to individuals belonging to religious organizations whose foundational beliefs and practices discourage or reject vaccination. Under NYCRR § 2.61, only medical exemption is available, and personnel seeking such exemptions must submit supporting documentation. The nature and duration of the medical exemption must be stated, either in the personnel employment medical record or other appropriate record, and must be in accordance with generally accepted medical standards, such as the recommendations of the Advisory Committee on Immunization Practices of the U.S. Department of Health and Human Services

The Council’s decision follows on the heels of an announcement by United States Supreme Court Justice Amy Coney Barrett on August 12, 2021, denying an emergency request to block Indiana University’s mandatory vaccine policy.  By rejecting the request without referring the application to the full court or asking the university for a response, Justice Coney Barrett appears to have sent a message that the Court is unlikely to revisit, let alone overturn, the landmark ruling in Jacobson v. Massachusetts (197 U.S. 11 (1905)). The Second Circuit has also upheld Jacobson in several cases in Connecticut and New York since the start of the pandemic. Given the courts’ demonstrated reluctance to revisit longstanding public health policy, it is unlikely a challenge to these regulations will succeed, especially since the circumstances here are factually similar to the policy at issue in Jacobson.

Since the new regulations do not include an enforcement provision, covered entities will be expected to self-enforce for the time being. The Department could impose financial penalties, but unlike the P-13 school mask mandate, which includes a $1000 fine per violation, NYCRR § 2.61 contains no penalty provision. It is unclear what consequences may result for covered entities that fail to comply and/or fail to terminate employees who refuse to be vaccinated. Although hospitals appear to be generally in favor of the new regulations, whether employers will actually terminate non-exempt employees who refuse vaccination could boil down to whether the employer will face a severe staff shortage. On the other hand, the latest Higher Education Research and Development (HERDS) survey indicates that a majority of healthcare workers are already vaccinated, with the lowest rates being reported by Dutchess and Wyoming Counties (63%). New York City is at 75% overall. Personnel who chose to be vaccinated before now will not enter into the calculus, so any turnover consequences may be limited. Covered entities may have to wait until after the initial Sept. 27 deadline passes to learn whether the Department intends to assume responsibility for enforcement.

NYCRR § 2.61 must be renewed by the Council every 90 days until emergency-basis renewal is deemed unnecessary or the Department issues a notice for proposed rule-making for permanent adoption.

Jessica Woodrow is an Associate Attorney in the litigation and administrative proceedings practice group, handling matters involving all aspects of civil litigation with a primary practice focus on healthcare law. She can be reached at jwoodrow@weisszarett.com or 516-627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a New York law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, employment counseling and controversies, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.

New York State’s Newly-Announced Vaccine Mandate Policy for Healthcare Entities

By Joshua D. Sussman, Esq., Beth E. Roxland, Esq., Jessica Woodrow, Esq. & Carla Hogan, Esq.
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On August 16, Governor Cuomo announced a new vaccine mandate for New York State healthcare workers. This announcement aligns with the Department of Labor’s OSHA June emergency temporary standard, the Center for Disease Control’s July guidelines urging employers to encourage its workers to get vaccinated, and the requirements of several other U.S. states, including California and Maine, that have introduced similar vaccine mandates. 

I. Scope of Newly-Announced NYS Vaccine Mandate Policy

Not surprisingly, the announcement’s fine-print is narrower and more nuanced than the attention-grabbing headline. The announcement states that the New York State Department of Health will implement this new mandate by issuing regulations and guidance pursuant to New York State Public Health Law (PHL) Section 16, specifically requiring hospitals, long-term care facilities (LTCF), and nursing homes to develop policies requiring their employees be vaccinated by September 27, 2021. 

Despite the breadth of the Governor’s pronouncement, the new policy appears to exclude private practices, health care groups, and in-home health care workers. However, the Governor alluded to – but did not define – “other congregate care settings,” which could open the door to a broad reading of the Executive Branch’s intent.  In addition, it is important to note that the Commissioner of Health is separately imbued with the authority to issue orders, regulations, or guidance that exceeds the scope of the Governor’s announcement, as PHL Section 16 empowers the Commissioner to order a person to act or discontinue activities that are a danger to public health, so long as the Commissioner provides that person with an opportunity to be heard at a hearing and to present proof that such condition or activity does not constitute a danger to public health. In short, although the stated focus of the new vaccine mandate is on hospitals, LTCFs, and nursing homes, it is foreseeable and within the powers provided to the Commissioner of Health that the vaccine mandate could extend to private practices, health care groups, in-home health care workers, private facilities or any type of employer entity that provides care to patients.

Per the announcement and consistent with the legal requirements of Equal Employment Opportunity Commission guidelines, all healthcare institutional policies must contain limited exemptions to a vaccine mandate for employees with religious objections or medical reasons.   

II. Mandates Aimed at Employers and Entities Rather than Healthcare Workers and Other Individuals

Importantly, and similar to other recently-enunciated policies by the State, this new pronouncement mandates that healthcare employer institutions require their employees to be vaccinated, rather than directly requiring healthcare workers themselves be vaccinated. There are several potential reasons why the State’s new vaccine policy is aimed at employers rather than health care workers. 

One possible reason New York State is putting the onus on employers rather than instituting a government-level mandate directed at healthcare workers is because the currently available vaccines have not been fully approved by the federal Food & Drug Administration (“FDA”), but instead are being made available under a mechanism known as an “Emergency Use Authorization,” which is a type of conditional approval rarely relied upon except in special circumstances, such as a public health emergency. See 21 U.S.C. 360bbb-3, 360bbb-3a, and 360bbb-3b, as amended by Pub. L. 113-5. There is much debate about whether the government or other entities can or should mandate an intervention that has not yet been fully approved by the FDA, and many individuals have expressed hesitation in taking an intervention for that reason. This objection has been the basis of several of the lawsuits challenging healthcare and academic institutions’ vaccine mandates for their workers and students. To date, however, courts have found this claim without merit and insufficient to invalidate any such vaccine mandates. Moreover, the FDA has recently posited that it may grant full approval to at least one of the mRNA vaccines for adult populations in the near future, which may moot this line of reasoning.

Another potential reason why the State’s new policy may be aimed at entities rather than individuals may rest with the limitations of PHL Section 16, which requires orders to be served and opportunities to be heard for each individual personally affected by decisions made by DOH under this Section. As such, the State may need to personally serve each affected healthcare entity if the State enforces compliance with any vaccine mandates issued pursuant to PHL Section 16. While that will be a difficult task, it is far easier than serving the approximately 450,000 hospital workers, 30,000 adult care facility workers, and 145,500 nursing home workers cited in the Governor’s announcement. Additionally, as proposed, only employer health care institutions would be entitled the opportunity to be heard to contest the validity of the Orders—not their employees.

III. Legality of Vaccine Mandate Policies

In addition to the long-standing Supreme Court precedent Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11 (1905), which upheld the legality of vaccine mandates, the legality of vaccine mandates set by private institutions for healthcare workers, university students, and others, has been the subject of several recent litigations – all of which have upheld such mandates. Notably, on June 16, 2021, a federal district court dismissed a challenge by 117 workers at Houston Methodist Hospital who refused to abide by the institution’s vaccine mandate. See Bridges, et al. v. Houston Methodist Hospital, et al., 21 CV 1774 (S.D. Tex. June 12, 2021). 

More recently, on August 12, 2021, the United States Supreme Court denied students’ challenge of the University of Indiana’s vaccine mandate, following the 7th Circuit’s refusal to issue an injunction pending appeal of the University’s vaccine mandate to students returning to campus. See Klaassen v. Trustees of Indiana University, No. 21-cv-2326 (7th Cir. Aug. 2, 2021). These decisions may be persuasive authority in denying other challenges to similar vaccine mandates. 

IV. Application of Government Mandates to Unionized Workers

Although courts have upheld vaccination mandates, it is unclear whether management in collectively bargained environments can unilaterally force union members to be vaccinated. That issue is currently being litigated in Illinois. Each collective bargaining agreement challenge is different, but employers should not unilaterally implement policies without first bargaining in good faith on certain issues related to such policies, such as: (i) implementation, including who is subject to vaccination unless specified, (ii) pay for time spent being vaccinated, (iii) timing of the vaccination, and (iv) consequences for an employee’s refusal to submit to vaccination.  

V. Penalties for Non-Compliance 

Thus far is it unclear how the State intends to enforce any Section 16 orders that issue, but the Department of Health already reviews vaccine policies related to grade schools and universities and delegates enforcement of those vaccine policies to local health departments. A transition to reviewing and enforcing these new policies may be seamless. Additionally, the Public Health Law contains powerful statutory enforcement tools, including imposition of a $2,000 penalty for each violation pursuant to PHL Section 12, and also authorizes the Attorney General to seek an injunction against any person who violates, disobeys or disregards such orders. 

As neither the Commissioner nor the Department of Health has issued regulations or guidance on the new vaccine mandate, however, it is unclear how or to what extent any noncompliance will be penalized. 

The healthcare and regulatory attorneys at Weiss Zarett will continue to provide updates about the issues presented by this new State vaccine mandate affecting healthcare workers, as well as by other Federal and State rules, regulations and policies developing in response to the quickly-evolving landscape of the Covid pandemic.

If you need guidance on compliance with the new vaccine policy, on other issues surrounding re-opening or operating your business, or on developing strategies in response to the Covid pandemic, please contact Joshua D. SussmanBeth E. Roxland, Carla Hogan or Jessica Woodrow at (516) 627-7000.

Weiss Zarett Brofman Sonnenklar & Levy, P.C. is a Long Island law firm providing a wide array of legal services to the members of the health care industry, including corporate and transactional matters, civil and administrative litigation, healthcare regulatory issues, bankruptcy and creditors’ rights, and commercial real estate transactions.

ATTORNEY ADVERTISING: PRIOR RESULTS DO NOT GUARANTEE FUTURE OUTCOMES.