COVID Risk Factors

[Regulations, statements]

New York’s COVID risk factors policies, e.g.

“Oral antiviral treatment is authorized for patients who meet all the following criteria:
• Age 12 years and older weighing at least 40 kg (88 pounds) for Paxlovid, or 18 years and older for molnupiravir
• Test positive for SARS-CoV-2 on a nucleic acid amplification test or antigen test; results from an FDA-authorized home-test kit should be validated through video or photo but, if not possible, patient attestation is adequate
• Have mild to moderate COVID-19 symptoms
o Patient cannot be hospitalized due to severe or critical COVID-19
• Able to start treatment within 5 days of symptom onset
• Have a medical condition or other factors that increase their risk for severe illness.
• Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19”

 

CASES

Here are 3 cases filed against New York State COVID risk factors policies:

Jacobson v. Bassett, No. 3:22-cv-33 (N.D. N.Y., filed Jan. 16, 2022)

Roberts v. Bassett, No. 1:22-cv-710 (E.D. N.Y., filed Feb. 8, 2022)

Foundation Against Intolerance & Racism v. City of New York, No. 1:22-cv-528 (S.D. N.Y., filed Jan. 20, 2022)

There were hearings on March 3 in the Roberts case and March 2 in the FAIR case.

A principal New York defense, at least at the injunctive-relief stage, is that there is no shortage of antiviral meds and so no current reason to allocate those meds in terms of COVID risk factors.

New York State post-argument letter, March 4, 2022

Roberts NYS post argument letter 3 4

DOH plans to imminently issue updated guidance via IHANS to inform health care facilities, providers, and practitioners that there is currently no shortage of the COVID-19 therapies at issue in this case, and every patient is eligible to receive the therapies if their practitioner determines the treatment is clinically appropriate. DOH will provide the updated guidance to the Court and parties as soon as it is issued.

====

Jacobson v. Bassett, No. 3:22-cv-33 (N.D. N.Y., filed Jan. 16, 2022)

Complaint

Jacobson class action complaint 1 16

Plaintiffs’ letter re filing for preliminary injunction, January 28, 2022

Jacobson pltf letter re filings 1 28

02/02/2022 27  TEXT ORDER granting 20 Pre-Motion Letter Request. It is hereby ORDERED that the plaintiff’s request for leave to file a motion for prelilminary injunction and Motion for Class Certification is GRANTED; Motions are due to be filed by 2/4/2022. Signed by U.S. District Judge Mae A. D’Agostino on 2/2/22. (ban) (Entered: 02/02/2022)
02/02/2022   TEXT Minute Entry for Telephone Pre-Motion Conference held on 2/2/2022 before U.S. District Judge Mae A. D’Agostino: Appearances by James Trainor, Esq. and J. Michael Connolly, Esq. for the plaintiff; Adrienne Kerwin, AAG for the defendant; Judge D’Agostino addresses counsel regarding the plaintiff’s pre-motion letter seeking leave to file a motion for preliminary injunction/class certification; Arguments are heard from both side; Judge D’Agostino questions counsel; The Court grants the plaintiff’s request for leave to make their motion for preliminary injunction and class certification – plaintiff’s motion shall be filed by 2/4/22; Defendant’s response will be due within 2 weeks (2/18/22); Plaintiff’s reply will be due by 2/25/22; Defense counsel requests leave to cross-move to dismiss, if necessary – The Court grants the defendant’s request, they may cross-move to dismiss, without a further pre-motion conference.(Court Reporter Lisa Tennyson, CRD Britney Norton [time 11:02 a.m. – 11:22 a.m.]) (ban) (Entered: 02/02/2022)

Motion to certify class, February 4, 2022

Jacobson class cert mo 2 4

Motion for preliminary injunction, February 4, 2022

Jacobson PI mo 2 4

02/07/2022   TEXT NOTICE re 34 MOTION for Preliminary Injunction filed by William A. Jacobson, 33 MOTION to Certify Class filed by William A. Jacobson: Pursuant to the telephone pre-motion conference held with counsel on 2/2/22, the response and reply deadlines are reset accordingly — Response to Motions/Cross-Motion due by 2/18/2022. Reply to Response to Motions due by 2/25/2022. The motions will be decided on the submission of the papers only, unless otherwise directed by the Court.(ban) (Entered: 02/07/2022)

Opposition [?], February 18, 2022

Jacobson NY op 2 18

Opposition to class cert [?], February 18, 2022

Jacobson NY class cert op 2 18

National Birth Equity Collaborative amicus, February 23, 2022

Jacobson National Birth Equity Collaborative amicus 2 23

Reply supporting preliminary injunction, February 24, 2022

Jacobson PI reply 2 24

Reply supporting class certification, February 24, 2022

Jacobson class cert reply 2 24

National Birth Equity Collaborative amicus, March 4, 2022

Jacobson N Birth Equity C amicus 3 4

State notice re Roberts decision, March 16, 2022

Jacobson notice re Roberts decision 3 16

Jacobson Jacobson response, March 17, 2022

Jacobson response to Roberts 3 17

Order dismissing case for lack of standing, March 25, 2022

Jacobson order dismissing action 3 25

Notice of appeal, April 1, 2022

Jacobson noa 4 1

Judgment, April 1, 2022

Jacobson judgment 4 1

Second Circuit No. 22-692

04/27/2022  25  ATTORNEY, Jonathan F. Mitchell for William A. Jacobson, in case 22-692, [24], ADDED.[3304434] [22-692] [Entered: 04/27/2022 10:50 AM]

Opening brief, May 17, 2022

2C Jacobson OB 5 17

Appellee brief, June 21, 2022

2C Jacobson State appellee br 6 21

AMA amicus, June 28, 2022

2C Jacobson AMA amicus 6 28

Jacobson reply brief, July 5, 2022

2C Jacobson reply br 7 5

Defendants’ motion to assign cases to same panel, September 15, 2022

2C Jacobson def same panel mo 9 15

Same panel orders, September 21, 2022

2C Roberts tandem order 9 21

2C Roberts Jacobson tandem order 9 21

===

Roberts v. Bassett, No. 1:22-cv-710 (E.D. N.Y., filed Feb. 8, 2022)

Complaint

Roberts complaint 2 8

Plaintiffs’ motion for pre-motion conference, February 11, 2022

Roberts letter for pre-motion conference, 2 11

02/17/2022   Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Pre-motion conference held on February 16, 2022. Counsel for Plaintiffs and counsel for Defendants present via videoconference. The court DIRECTED Plaintiffs to file their motion for a preliminary injunction by February 18, 2022, Defendants to file their response by February 25, 2022, and Plaintiffs to file their reply, if any, by March 1, 2022 at 12PM. The court DIRECTED the parties to to address Article III standing in the briefing. The court DIRECTED the parties to appear for oral argument on March 2, 2022 at 11AM in Courtroom 4D South. (Court Reporter Michele Lucchese) (Katz, Jennifer) (Entered: 02/17/2022)

Plaintiffs’ motion for preliminary injunction, February 18, 2022

Roberts PI mo 2 18

New York City opposition, and appendix, February 25, 2022

Roberts NYC PI op 2 25

Roberts NYC PI op appendix 2 25

New York State opposition, and appendix, February 25, 2022

Roberts State PI op 2 25

Roberts State PI op appendix 2 25

National Medical Ass’n et al amicus, February 28, 2022

Roberts National Medical Assn amicus 2 28

Plaintiffs’ preliminary injunction reply, with appendix, February 28, 2022

Roberts PI reply 2 28

Roberts PI reply appendix 2 28

03/03/2022   Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Oral argument on Plaintiffs’ 19 motion for a preliminary injunction. Counsel for Plaintiffs and counsel for Defendants present in person. The court DIRECTED the parties to promptly submit any supplemental materials requested by the court during the hearing. The court RESERVED decision on the motion for a preliminary injunction. (Court Reporter Avery Armstrong) (Katz, Jennifer) (Entered: 03/03/2022)

New York State post-argument letter, March 4, 2022

Roberts NYS post argument letter 3 4

03/04/2022   ORDER: The court is in receipt of Defendant Commissioner Bassett’s 30 Letter regarding information requested by the court during oral argument on Plaintiffs’ motion for a preliminary injunction. Defendant Commissioner Bassett is DIRECTED to promptly provide a date by which the new guidance will be issued and whether it will supersede the guidance Plaintiffs seek to enjoin. Ordered by Judge Nicholas G. Garaufis on 3/4/2022. (Katz, Jennifer) (Entered: 03/04/2022)
03/07/2022   ORDER: Defendant Commissioner Bassett is DIRECTED to provide a date by which the New York State Department of Health will issue new guidance and whether it will supersede the guidance Plaintiffs seek to enjoin by Tuesday March 8, 2022 at 12pm. Ordered by Judge Nicholas G. Garaufis on 3/7/2022. (Katz, Jennifer) (Entered: 03/07/2022)

NY update notice, March 7, 2022

Roberts NY update notice 3 7

Order dismissing case for lack of standing, March 15, 2022

Roberts order dismissing case 3 15

Notice of appeal, March 23, 2022

Roberts noa 3 23

Second Circuit #: 22-622

Roberts opening brief, May 12, 2022

2C Roberts OB 5 12

Corrected brief, May 17, 2022

2C Roberts OB corrected 5 17

New York City appellee brief, June 16, 2022

2C Roberts NYC appellee br 6 16

New York State appellee brief, June 16, 2022

2C Roberts NY State appellee br 6 16

AMA amicus, June 23, 2022

2C Roberts AMA amicus 6 23

Roberts reply brief, June 30, 2022

2C Roberts reply br 6 30

Defendants’ motion to assign cases to same panel, September 15, 2022

2C Roberts mo same panel 9 15

Plaintiffs’ opposition to assigning cases to same panel, September 19, 2022

2C Roberts pltf same panel op 9 19

Same panel orders, September 21, 2022

2C Roberts tandem order 9 21

2C Roberts Jacobson tandem order 9 21

===

Foundation Against Intolerance & Racism v. City of New York, No. 1:22-cv-528 (S.D. N.Y., filed Jan. 20, 2022)

FAIR complaint

Refiled complaint, January 22, 2022

FAIR complaint refiled 1 22

First amended complaint, February 14, 2022

FAIR first amended complaint 2 14

FAIR TRO/preliminary injunction paperwork, February 23, 2022

FAIR TRO OSC request

FAIR TRO PI mo 2 23

merged_93647_-1-1645904855

FAIR TRO cert re notice 2 23

Order for response 2/28 and hearing 3/2, February 25, 2022

FAIR TRO sched order 2 25

New York City response, March 1, 2022

FAIR NYC PI op 3 1

New York State response, March 1, 2022

FAIR NY State PI op 3 1

03/02/2022   Minute Entry for proceedings held before Judge Katherine Polk Failla: Temporary Restraining Order Hearing held on 3/2/2022. Attorney Ameer N. Benno representing Plaintiffs present. Attorney Melanie Vogel Sadok representing NYC Defendants present. Attorney Erin Ruth McAlister representing NYS Defendant present. The Court defers ruling on Plaintiffs’ motion for a temporary restraining order and preliminary injunction. Defendants’ deadline to respond to the Amended Complaint will be due 30 days after the Court issues a ruling on the PI motion. Plaintiff is to order a copy of today’s transcript. (See transcript.) (Court Reporter Khris Sellin) (tn) (Entered: 03/02/2022)

Morse declaration (from Roberts), March 2, 2022

FAIR NY dec 3 2

State notice re Roberts decision, March 15, 2022

FAIR def notice re Roberts decision 3 15

Plaintiff letter re Roberts decision, March 21, 2022

FAIR pltf letter re Roberts 3 21

State letter re issues, updated guidance, March 24, 2022

FAIR NY letter 3 24

State letter re additional authority (Jacobson), March 25, 2022

merged_48489_-1-1648400582

FAIR city request to adjourn 4/21 conference, April 5, 2022

27504220-0–3570

Order ? setting conference for 4/20, April 5, 2022

27504284-0–5850

Order adjourning 4/21 conference, April 6, 2022

file0.460340342522738

04/20/2022   Minute Entry for proceedings held before Judge Katherine Polk Failla: Telephone Conference held on 4/20/2022. Attorney Ameer N. Benno representing Plaintiffs present. Attorney Melanie Vogel Sadok representing NYC Defendants present. Attorney Erin Ruth McAlister representing NYS Defendant present. For the reasons stated on the record, Plaintiff’s motion for a temperorary restraining order is DENIED. Defendants’ answers or pre-motion conference letter is due by 5/22/2022. Plaintiff is to order a copy of today’s transcript. (See transcript.) (Court Reporter Carol Ganley) (tn) (Entered: 04/20/2022)

Letter motions to stay, city and state, May 20, 2022

file0.372113786443276

file0.217784893271652

FAIR oppositions to stay, city and state, May 25, 2022

FAIR stay op 5 25

FAIR state stay op 5 25

Order for stay, June 1, 2022

27791732-0–67346

===

Arizona rulemaking petition, January 31, 2022

HHS_Petition

 

++++

Olatunde C. Johnson & Kristen Underhill, Vaccination Equity by Design, 131 YALE L. J. F. 53 (2021)

Vaccination Equity by Design

Framework for Equitable Allocation of COVID-19 Vaccine, NAT’L ACADS. SCI., ENG’G & MED.
(2020)

Bookshelf_NBK562672

Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams,
Opinion, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?,
J. AM. MED. ASS’N (Oct. 14, 2020)

jama_schmidt_2020_vp_200221_1605821664.64384

Govind Persad, Allocating Medicine Fairly in an Unfair Pandemic, 2021 U. ILL. L. REV. 1085
(2021)

SSRN-id3699769

Michael Conklin, Racial Preferences in COVID-19 Vaccination: Legal
and Practical Implications, 5 HOW. HUM. & C.R.L. REV. 141 (2021)

HCR Volume 5, Issue 2, 2020-2021(1)

 

====

Jacobson v. Bassett, No. 3:22-cv-33 (N.D. N.Y., filed Jan. 16, 2022)

Complaint

Jacobson class action complaint 1 16

Plaintiffs’ letter re filing for preliminary injunction, January 28, 2022

Jacobson pltf letter re filings 1 28

02/02/2022 27  TEXT ORDER granting 20 Pre-Motion Letter Request. It is hereby ORDERED that the plaintiff’s request for leave to file a motion for prelilminary injunction and Motion for Class Certification is GRANTED; Motions are due to be filed by 2/4/2022. Signed by U.S. District Judge Mae A. D’Agostino on 2/2/22. (ban) (Entered: 02/02/2022)
02/02/2022   TEXT Minute Entry for Telephone Pre-Motion Conference held on 2/2/2022 before U.S. District Judge Mae A. D’Agostino: Appearances by James Trainor, Esq. and J. Michael Connolly, Esq. for the plaintiff; Adrienne Kerwin, AAG for the defendant; Judge D’Agostino addresses counsel regarding the plaintiff’s pre-motion letter seeking leave to file a motion for preliminary injunction/class certification; Arguments are heard from both side; Judge D’Agostino questions counsel; The Court grants the plaintiff’s request for leave to make their motion for preliminary injunction and class certification – plaintiff’s motion shall be filed by 2/4/22; Defendant’s response will be due within 2 weeks (2/18/22); Plaintiff’s reply will be due by 2/25/22; Defense counsel requests leave to cross-move to dismiss, if necessary – The Court grants the defendant’s request, they may cross-move to dismiss, without a further pre-motion conference.(Court Reporter Lisa Tennyson, CRD Britney Norton [time 11:02 a.m. – 11:22 a.m.]) (ban) (Entered: 02/02/2022)

Motion to certify class, February 4, 2022

Jacobson class cert mo 2 4

Motion for preliminary injunction, February 4, 2022

Jacobson PI mo 2 4

02/07/2022   TEXT NOTICE re 34 MOTION for Preliminary Injunction filed by William A. Jacobson, 33 MOTION to Certify Class filed by William A. Jacobson: Pursuant to the telephone pre-motion conference held with counsel on 2/2/22, the response and reply deadlines are reset accordingly — Response to Motions/Cross-Motion due by 2/18/2022. Reply to Response to Motions due by 2/25/2022. The motions will be decided on the submission of the papers only, unless otherwise directed by the Court.(ban) (Entered: 02/07/2022)

Opposition [?], February 18, 2022

Jacobson NY op 2 18

Opposition to class cert [?], February 18, 2022

Jacobson NY class cert op 2 18

National Birth Equity Collaborative amicus, February 23, 2022

Jacobson National Birth Equity Collaborative amicus 2 23

Reply supporting preliminary injunction, February 24, 2022

Jacobson PI reply 2 24

Reply supporting class certification, February 24, 2022

Jacobson class cert reply 2 24

===

Roberts v. Bassett, No. 1:22-cv-710 (E.D. N.Y., filed Feb. 8, 2022)

Complaint

Roberts complaint 2 8

Plaintiffs’ motion for pre-motion conference, February 11, 2022

Roberts letter for pre-motion conference, 2 11

02/17/2022   Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Pre-motion conference held on February 16, 2022. Counsel for Plaintiffs and counsel for Defendants present via videoconference. The court DIRECTED Plaintiffs to file their motion for a preliminary injunction by February 18, 2022, Defendants to file their response by February 25, 2022, and Plaintiffs to file their reply, if any, by March 1, 2022 at 12PM. The court DIRECTED the parties to to address Article III standing in the briefing. The court DIRECTED the parties to appear for oral argument on March 2, 2022 at 11AM in Courtroom 4D South. (Court Reporter Michele Lucchese) (Katz, Jennifer) (Entered: 02/17/2022)

Plaintiffs’ motion for preliminary injunction, February 18, 2022

Roberts PI mo 2 18

New York City opposition, and appendix, February 25, 2022

Roberts NYC PI op 2 25

Roberts NYC PI op appendix 2 25

New York State opposition, and appendix, February 25, 2022

Roberts State PI op 2 25

Roberts State PI op appendix 2 25

National Medical Ass’n et al amicus, February 28, 2022

Roberts National Medical Assn amicus 2 28

Plaintiffs’ preliminary injunction reply, with appendix, February 28, 2022

Roberts PI reply 2 28

Roberts PI reply appendix 2 28

03/03/2022   Minute Entry for proceedings held before Judge Nicholas G. Garaufis: Oral argument on Plaintiffs’ 19 motion for a preliminary injunction. Counsel for Plaintiffs and counsel for Defendants present in person. The court DIRECTED the parties to promptly submit any supplemental materials requested by the court during the hearing. The court RESERVED decision on the motion for a preliminary injunction. (Court Reporter Avery Armstrong) (Katz, Jennifer) (Entered: 03/03/2022)

New York State post-argument letter, March 4, 2022

Roberts NYS post argument letter 3 4

===

Foundation Against Intolerance & Racism v. City of New York, No. 1:22-cv-528 (S.D. N.Y., filed Jan. 20, 2022)

FAIR complaint

Refiled complaint, January 22, 2022

FAIR complaint refiled 1 22

First amended complaint, February 14, 2022

FAIR first amended complaint 2 14

FAIR TRO/preliminary injunction paperwork, February 23, 2022

FAIR TRO OSC request

FAIR TRO PI mo 2 23

merged_93647_-1-1645904855

FAIR TRO cert re notice 2 23

Order for response 2/28 and hearing 3/2, February 25, 2022

FAIR TRO sched order 2 25

New York City response, March 1, 2022

FAIR NYC PI op 3 1

New York State response, March 1, 2022

FAIR NY State PI op 3 1

03/02/2022   Minute Entry for proceedings held before Judge Katherine Polk Failla: Temporary Restraining Order Hearing held on 3/2/2022. Attorney Ameer N. Benno representing Plaintiffs present. Attorney Melanie Vogel Sadok representing NYC Defendants present. Attorney Erin Ruth McAlister representing NYS Defendant present. The Court defers ruling on Plaintiffs’ motion for a temporary restraining order and preliminary injunction. Defendants’ deadline to respond to the Amended Complaint will be due 30 days after the Court issues a ruling on the PI motion. Plaintiff is to order a copy of today’s transcript. (See transcript.) (Court Reporter Khris Sellin) (tn) (Entered: 03/02/2022)

Morse declaration (from Roberts), March 2, 2022

FAIR NY dec 3 2

 

===

Arizona rulemaking petition, January 31, 2022

HHS_Petition

 

++++

Olatunde C. Johnson & Kristen Underhill, Vaccination Equity by Design, 131 YALE L. J. F. 53 (2021)

Vaccination Equity by Design

Framework for Equitable Allocation of COVID-19 Vaccine, NAT’L ACADS. SCI., ENG’G & MED.
(2020)

Bookshelf_NBK562672

Harald Schmidt, Lawrence O. Gostin & Michelle A. Williams,
Opinion, Is It Lawful and Ethical to Prioritize Racial Minorities for COVID-19 Vaccines?,
J. AM. MED. ASS’N (Oct. 14, 2020)

jama_schmidt_2020_vp_200221_1605821664.64384

Govind Persad, Allocating Medicine Fairly in an Unfair Pandemic, 2021 U. ILL. L. REV. 1085
(2021)

SSRN-id3699769

Michael Conklin, Racial Preferences in COVID-19 Vaccination: Legal
and Practical Implications, 5 HOW. HUM. & C.R.L. REV. 141 (2021)

HCR Volume 5, Issue 2, 2020-2021(1)