Preview
FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023
NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/07/2023
EXHIBIT 5-Decision, Order and
Judgment in Serafin v. NYSDOH
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STATE OF NEW YORK
SUPREME COURT COUNTY OF ALBANY
OREGORY SERAF1N, on behalf of himself and on behalf
of all others similarly situated; AZIMA RASIWALA, D.O.,
on behalf of herself and on behalf of all others similarly situated;
KATHLEEN MCGOWAN, on behalf of herself and on behalf of all
others similarly situated; DEBORAH CONRAD, on behalf of herself
and on behalf of all others similarly situated; RENEE ROGERS, on
behalf of herself and on behalf of all others similarly situated; and
. DAVID DIPIETRO, MEMBER OF THE ASSEMBLY FOR NEW
147"
YORK'S ASSEMBLY DISTRICT, on his own behalf in his official
capacity and on behalf of similarly situated members of the New York .
State Legislature,
Petitioners/Plaintiffs,
DECISION, ORDER and
JUDGMENT
Index No. 908296-21
For Judgment Pursuant to Article 78 of the CPLR . RJI No. 01-21-ST1949
And the New York State Constitution, Art. I, § 6
-against-
NEW YORK STATE DEPARTMENT OF HEALTH; NEW YORK
STATE PUBLIC HEALTH AND HEALTH PLANNINO COUNCIL;
HOWARD ZUCKER, NEW YORK STATE COMMISSIONER OF
HEALTH,
Respondents/Defendants.
(Supreme Court, Albany County Article 78 Term)
Appearances:
TODD J. ALDINOER, ESQ.
Aetorney for Petitioners/Plaintiffs ("Petitioners")
441 Potomac Avenue Lower
Buffalo, New York 14213
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LETITIA JAMES
Attorney General of the State of New York
Attorney for Respondents/Defendants ("Respondents")
(Keith J. Starlin and Jonathan Reiner, Esqs., A.A.Gs., of counsel)
The Capitol
Albany, New York 12224
Roger D. McDonough, J.:
This proceeding is hybrid in nature, seeking relief under Article 78 and/or declaratory
relief. In their petition and complaint ("petition"), petitioners seek, inter alia, an Order and
Judgment: (1) declaring that 10 NYCRR § 2.61 ("§ 2.61") is void and a legal nullity not
authorized by statute; (2) declaring that § 2.61 is unconstitutional because it violates the
separation of powers inherent in the State Constitution; (3) declaring that § 2.61 violates
petitioners' petitioners'
substantive due process rights; and (4) declaring that § 2.61 violates
procedural due process rights. Respondents have moved for partial dismissal and served their
answer. In their answer they seek complete dismissal of the petition and the relief requested
therein. Petitioners have cross-moved for leave to file an amended petition and complaint
Petitioners'
. ("amended petition"). cross-motion papers included the proposed amended petition.
Respondents oppose the cross-motion and again stress that they are entitled to outright dismissal
of the proceeding.
Procedural Background
Petitioners, via Order to Show Cause, sought a temporary restraining order ("TRO")
restraining respondents from applying or enforcing the vaccination requirement in § 2.61 and
staying the effective dates of the requirements. This Court (Justice Ryba) partially denied the
TRO request, but did restrain respondents from enforcing any requirement preventing the
covered entities from considering or granting an application for a religious exemption from
§ 2.61's vaccination mandate. This Court heard oral argument as to the preliminary injunction
on September 30, 2021. Thereafter, the Court denied the request for preliminary injunctive relief
and lifted Judge Ryba's TRO. There is no record of petitioners appealing this Court's decision.
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Background/PartySubmissions
Petitioner Serafin is a registered nurse employed by the Erie County Medical Center.
Petitioner Rasiwala, D.O., is an emergency room physician who works as an independent
contractor at Sisters of Charity Hospital. Petitioner McGowan is a physician practice coordinator
employed by the Erie County Medical Center. Petitioner Rogers is a Licensed Nursing Home
Administrator employed by Absolut Care nursing home. Petitioner DiPietro is a Member of the
1476
Assembly for New York's Assembly District.
Respondent New York State Department of Health ("NYSDOH") is a state agency
responsible for, inter alia, public health. Respondent New York State Public Health and Health
Planning Council ("Council") is an entity within NY SDOH that is tasked with advising
respondent Commissioner on issues related to the preservation and improvement of public
health. The Council's functions also include the approval of regulations related to health codes.
Respondents adopted § 2.61 in late August of 2021. As an emergency rule, § 2.61 went
days.1 entities"
into effect immediately and is effective for 90 § 2.61 applies to "covered
including the hospitals and nursing homes where the petitioners work. The rule required certain
personnel to be fully vaccinated against COVID-19. § 2.61 further required that the first dose be
received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021
for all other covered entities.
The rule was promulgated under § 202.6 of the New York State Administrative Procedure
Act ("SAPA"). Said section constitutes the emergency rule procedures for SAPA. The notice
accompanying the rule cites the following statutes as authority: Public Health Law §§ 225(5),
2800, 2803(2), 3612 and 4010(4), and Social Services Law §§ 461 and 461-e.
Several of the petitioners have submitted affidavits in support of the petition. Petitioner
Serafin states that he worked in the COVID ICU during the pandemic and tested positive for
COVID-19. He notes that after quarantine he returned to working with COVID-19 positive
patients, but has not had COVID-19 again. Petitioner Serafin believes that this is due to his
.
1
By the Court's calculations, the 90 day period expired on or about November 24,
2021. The Court has not been provided with any information as to any steps respondents have
taken regarding the apparent expiration.
3
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natural immunity. Based on this belief he does not believe receiving the vaccine will provide
him with any meaningful health benefits. Conversely, he believes there are serious risks to
vaccinations. In support he cites personal knowledge of patients who had adverse reactions.
Petitioner Serafin indicates that he is unwilling to get the vaccination due to the adverse
vaccination reactions. He indicates that because of the.vaccine mandate and his position on
conipliance, he will: (1) be terminated without the possibility of collecting unemployment; and
(2) be precluded from working in his chosen profession where he has developed experience and
technical competence.
Petitioner Rasiwala is of Islamic faith and would pursue a religious exemption if one was
offered. Dr. Rasiwala also faces termination as well as a gap in medical cmployment that will
need to be explained in future pursuits for medical employment. Additionally, Dr. Rasiwala's
allergist has recommended against vaccination.
Petitioner Conrad indicates that she worked the front lines at the beginning of the
pandemic and often worked with insufficient personal protective equipment. She notes that she
personally reported 125 possible adverse vaccine reaction to the Vaccine Adverse Event
(VAERS)2
Reporting System conceming hospitalized patients. She further notes that she is
working on approximately 20 more reports to VAERS. Petitioner Conrad also describes
approximately 100 additional incidents of possible adverse reactions that went unreported to
VAERS from her place of employment. Due to the adverse vaccine reactions, she expresses an
unwillingness to get vaccinated and speaks of being terrified of the unknown side-effects of
vaccination. She indicates that the vaccine mandate will cause her to: (1) be terminated without
the possibility of collecting unemployment; and (2) be precluded from working in her chosen
profession where she has developed experience and technical competence; and (3) be a major
interruption of her medical professional career.
Petitioner McGowan states that she is unwilling to be vaccinated for both religious and
2
VAERS is a national early warning system for the detection of possible safety
problems in U.S. - licensed vaccines. The system is co-managed by the Centers for Disease
Control and Prevention and the U.S. Food and Drug Administration
(www·//vaers.hhs.gov/about.html).
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medical reasons. She expresses her concern with the U.S. Food and Drug Administration's
"rushed"
("FDA") approval process for the COVID-19 vaccines. She also notes that she worked
throughout the height of the pandemic without being vaccinated. Petitioner McGowan indicates
that the vaccine mandate will cause her to: (1) be terminated without the possibility of collecting
unemployment; and (2) be precluded from working in her chosen profession where she has
developed experience and technical competence; and (3) be a major interruption of her medical
. professional career.
Petitioner Rogers indicates that she was an essential worker when the pandemic started
and worked the front lines. She further indicates that she had COVID-19 in April of 2020 and
that she believes her natural immunity is, at a minimum, just as good as the vaccine, Her primary
care physician agrees and apparently advised her that she would not benefit from vaccination.
Accordingly, she has made the medical decision to not get vaccinated. Petitioner Rogers also
cites her concem about the unstudied potential long-term side etTects of vaccination. She
concludes that the vaccine mandate will cause her to: (1) be terminated without the possibility of
collecting unemployment; and (2) be precluded from working in her chosen profession where she
has developed experience and technical competence; and (3) be a major interruption of her
nursing home administration career.
Respondents provided an initial affidavit from NYSDOH's Medical Director of the
Bureau of Immunization. Dr. Rausch-Phung indicates that her affidavit was based on her
medical expertise, personal experience, review of NYSDOH's records, guidance from the
Centers for Disease Control & Prevention ("CDC"), the executive orders issued by New York's
Govemor, and studies and publications related to COVID-19. She indicates that § 2.61 was
adopted based on rational determinations from respondents that the mandate was necessary to
immediately address an ongoing and rapidly worsening public health crisis. In particular, she
notes the Delta variant's impact in terms of significantly increased and the 10-
transmissibility
fold increase in COVID-19 cases. Dr. Rausch-Phung also cites to CDC findings that the Delta
variant may cause more severe illnesses than previous variants in unvaccinated individuals. She
maintains that the Delta variant led respondents to act to avoid a return to the heights of the
pandemic when hospitals were overwhelmed.
S
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She contends that § 2.61 is necessary to protect New York's frontline healthcare workers
and the vulnerable patient populations in certain healthcare sectors like nursing homes. Dr.
Rausch-Phung also asserts that the regulation is tailored to focus on healthcare facilities that pose
a unique risk of COVID-19 transmission. She cites statistical findings that patient facing
healthcare professionals and their household members have threefold and twofold increased
risks, respectively, of contracting COVID-19. The Doctor also notes that these types of
healthcare workers tend to care for vulnerable individuals who are elderly, sick, possibly
immunocompromised, etc. She cites the significant support for vaccine mandates for health care
employees from such medical organizations a the American Medical Association, the American
Nurses Association, the American Academy of Pediatrics and the Association of American
Medical Colleges. In addition to certain federal vaccine mandates related to healthcare, she notes
that the CDC has recommended that healthcare personnel all receive COVID-19 vaccination,
particularly in vulnerable healthcarc settings.
She opines that any staffing shortages attributable to resignations over the vaccine
mandates pales in comparison to the potential staffing shortages that could be caused by a deadly
outbreak among unvaccinated healthcare personnel. Dr. Rausch-Phung also notes that New
York's.Governor has put measures in place to address potential healthcare worker staffing
shortages. She also notes that § 2.61 has already been successful, in terms of increasing
vaccination rates, as nursing home staff vaccination levels had risen to 92% (for at least one
.
27* 24*
dose) as of September as compared to 71% as of August (prior to the emergency rule).
27*
For adult care facilities the numbers were 89% as of September as compared to 77% as of
August 24*. Finally, the level for fully vaccinated hospital staff has risen to 85% as of
27*
September as compared to 77% as of August 245. She also advises that, based on
preliminary self-reported data, the percentage of hospital staff receiving at least one dose as of
27*
September is 92%. The Doctor stresses that time was and is of the essence in terms of the
fall and winter weather and the holiday seasons. Additionally, she notes the importance of
vaccination during the flu and cold season when similar Covid-19 symptoms could be mistaken
for cold and flu.
Dr. Rausch-Phung also points to CDC and FDA findings that serious side effects from
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the vaccinations bave been extremely rare despite the administration of nearly 380 million doses.
Similarly, she points to CDC's findings regarding vaccine effectiveness in protecting vaccinated
individuals against severe disease and death from the Deha variant and the other known variants.
In her affidavit she also focuses and discusses the rarity of specific side effects including: (1)
anaphylaxis; (2) vaccine induced thrombosis; and (3) Guillain-Barre Syndrome. Her affidavit
also addresses the consideration and rejection of altematives to the mandate including: (1)
acceptable face coverings; and (2) constant testing.
As to religious/philosophical objections, she relies on the AMA's position that such
. - nonmedical exemptions endanger the health of the unvaccinated medical care worker and those
with whom the medical care worker comes in contact. Dr. Rausch-Phung also notes that existing
regulations for hospitals, nursing homes and other medical entities already require that persons
working therein be immune to measles and rubella. Said regulations contain no religious
exemption. Additionally, she points to the absence of any religious exemptions from school
.
vaccination requirements.
Dr. Rausch-Phung also stresses that § 2.61 is specifically limited to only those medical
and healthcare personnel who have direct contact with other covered personnel, patients and
residents. Finally, she cites multiple medical studies that she claims refute the proposition that
natural immunity is equal to or greater than the immunity afforded by the vaccines.
After the Court issued its decision and order on the preliminary injunctive relief, the
parties agreed to a briefing schedule. Respondents have provided the Court with four new
affidavits.
Emily Lutterloh, MD, MPH is NYSDOH's Director of the Division of Epidemiology.
Dr. Lutterloh's responsibilities include coordinating NYSDOH's "efforts to investigate, reduce
diseases."
and prevent outbreaks and transmission of infectious She maintains that § 2.61 was
adopted based on determinations by respondents that it was necessary to immediately address a
rapidly worsening public health crisis. Dr. Lutterloh further asserts that § 2.61 was created after
considering data and research regarding COVD-19, the impact of the Delta variant and the
effectiveness of existing mitigation strategies. In support she cites a number of the statistics, data
findings and research relied upon by Dr. Rausch-Phung in her earlier affidavit In sum, Dr.
7
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Lutterloh contends that the various considerations provided a rational basis for the promulgation
of § 2.61 on an emergency basis.
Additionally, respondents provided a second affidavit from Dr. Rausch-Phung. The
second affidavit is predominantly repetitive of her first affidavit. However, updated and new
information was provided, including the following: (1) for the four-week period onding on
September 25, 2021, 99.4xa of New York's COVD-19 cases were Delta; (2) as of October 18,
2021, New York's positivity rate was at 2.43% as compared to 1,22% on October 18, 2020; (3)
as of October 17, 2021, respondents are aware of confirmed breakthrough cases in New York
State in .9% of the fully-vaccinated population; (4) as of October 17, 2021, respondents are
aware of confirmed breakthrough cases in New York State resulting in hospitalizations in .06%
of the fully-vaccinated population; (5) as of September 27, 2021, fully-vaccinated New Yorkers
had 77.9% lower chance of becoming a COVID-19 case and between a 89.7-95.2% lower chance
of becoming as compared to unvaccinated New Yorkers. Dr. Rausch-
hospitalized, Finally,
Phung discussed
Preview
FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/07/2023 EXHIBIT 5-Decision, Order and Judgment in Serafin v. NYSDOH FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 . -- NYSCEF DOC. . .--.NO. 20- -- -... - --.- --, ... -, ......- -- . - - -., RECEIVED NYSCEF: 12/07/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/G0/2021 STATE OF NEW YORK SUPREME COURT COUNTY OF ALBANY OREGORY SERAF1N, on behalf of himself and on behalf of all others similarly situated; AZIMA RASIWALA, D.O., on behalf of herself and on behalf of all others similarly situated; KATHLEEN MCGOWAN, on behalf of herself and on behalf of all others similarly situated; DEBORAH CONRAD, on behalf of herself and on behalf of all others similarly situated; RENEE ROGERS, on behalf of herself and on behalf of all others similarly situated; and . DAVID DIPIETRO, MEMBER OF THE ASSEMBLY FOR NEW 147" YORK'S ASSEMBLY DISTRICT, on his own behalf in his official capacity and on behalf of similarly situated members of the New York . State Legislature, Petitioners/Plaintiffs, DECISION, ORDER and JUDGMENT Index No. 908296-21 For Judgment Pursuant to Article 78 of the CPLR . RJI No. 01-21-ST1949 And the New York State Constitution, Art. I, § 6 -against- NEW YORK STATE DEPARTMENT OF HEALTH; NEW YORK STATE PUBLIC HEALTH AND HEALTH PLANNINO COUNCIL; HOWARD ZUCKER, NEW YORK STATE COMMISSIONER OF HEALTH, Respondents/Defendants. (Supreme Court, Albany County Article 78 Term) Appearances: TODD J. ALDINOER, ESQ. Aetorney for Petitioners/Plaintiffs ("Petitioners") 441 Potomac Avenue Lower Buffalo, New York 14213 FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 - --.-- NYSCEF . .--.NO. 20 DOC. ---... - --..... --, -,., ---- -- ..,- -, RECEIVED NYSCEF: 12/07/2023 NYSCEF DOC. NO. 189 RECEIVED NYSCEF: 12/S0/2021 LETITIA JAMES Attorney General of the State of New York Attorney for Respondents/Defendants ("Respondents") (Keith J. Starlin and Jonathan Reiner, Esqs., A.A.Gs., of counsel) The Capitol Albany, New York 12224 Roger D. McDonough, J.: This proceeding is hybrid in nature, seeking relief under Article 78 and/or declaratory relief. In their petition and complaint ("petition"), petitioners seek, inter alia, an Order and Judgment: (1) declaring that 10 NYCRR § 2.61 ("§ 2.61") is void and a legal nullity not authorized by statute; (2) declaring that § 2.61 is unconstitutional because it violates the separation of powers inherent in the State Constitution; (3) declaring that § 2.61 violates petitioners' petitioners' substantive due process rights; and (4) declaring that § 2.61 violates procedural due process rights. Respondents have moved for partial dismissal and served their answer. In their answer they seek complete dismissal of the petition and the relief requested therein. Petitioners have cross-moved for leave to file an amended petition and complaint Petitioners' . ("amended petition"). cross-motion papers included the proposed amended petition. Respondents oppose the cross-motion and again stress that they are entitled to outright dismissal of the proceeding. Procedural Background Petitioners, via Order to Show Cause, sought a temporary restraining order ("TRO") restraining respondents from applying or enforcing the vaccination requirement in § 2.61 and staying the effective dates of the requirements. This Court (Justice Ryba) partially denied the TRO request, but did restrain respondents from enforcing any requirement preventing the covered entities from considering or granting an application for a religious exemption from § 2.61's vaccination mandate. This Court heard oral argument as to the preliminary injunction on September 30, 2021. Thereafter, the Court denied the request for preliminary injunctive relief and lifted Judge Ryba's TRO. There is no record of petitioners appealing this Court's decision. 2 D nF "JQ FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/07/2023 NYSCEF DOC. NO. 180 RECEIVED NYSCEF: 12/Q0/2021 Background/PartySubmissions Petitioner Serafin is a registered nurse employed by the Erie County Medical Center. Petitioner Rasiwala, D.O., is an emergency room physician who works as an independent contractor at Sisters of Charity Hospital. Petitioner McGowan is a physician practice coordinator employed by the Erie County Medical Center. Petitioner Rogers is a Licensed Nursing Home Administrator employed by Absolut Care nursing home. Petitioner DiPietro is a Member of the 1476 Assembly for New York's Assembly District. Respondent New York State Department of Health ("NYSDOH") is a state agency responsible for, inter alia, public health. Respondent New York State Public Health and Health Planning Council ("Council") is an entity within NY SDOH that is tasked with advising respondent Commissioner on issues related to the preservation and improvement of public health. The Council's functions also include the approval of regulations related to health codes. Respondents adopted § 2.61 in late August of 2021. As an emergency rule, § 2.61 went days.1 entities" into effect immediately and is effective for 90 § 2.61 applies to "covered including the hospitals and nursing homes where the petitioners work. The rule required certain personnel to be fully vaccinated against COVID-19. § 2.61 further required that the first dose be received by September 27, 2021 for general hospitals and nursing homes, and by October 7, 2021 for all other covered entities. The rule was promulgated under § 202.6 of the New York State Administrative Procedure Act ("SAPA"). Said section constitutes the emergency rule procedures for SAPA. The notice accompanying the rule cites the following statutes as authority: Public Health Law §§ 225(5), 2800, 2803(2), 3612 and 4010(4), and Social Services Law §§ 461 and 461-e. Several of the petitioners have submitted affidavits in support of the petition. Petitioner Serafin states that he worked in the COVID ICU during the pandemic and tested positive for COVID-19. He notes that after quarantine he returned to working with COVID-19 positive patients, but has not had COVID-19 again. Petitioner Serafin believes that this is due to his . 1 By the Court's calculations, the 90 day period expired on or about November 24, 2021. The Court has not been provided with any information as to any steps respondents have taken regarding the apparent expiration. 3 FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 NYSCEF .....- DOC. . NO. 20 -., -..--.. - - --- --, - - , --- - .... . -- -., RECEIVED NYSCEF: 12/07/2023 NYSCEF DoC. NO. 180 . RECEIVED NYSCEF: 12/@0/2021 natural immunity. Based on this belief he does not believe receiving the vaccine will provide him with any meaningful health benefits. Conversely, he believes there are serious risks to vaccinations. In support he cites personal knowledge of patients who had adverse reactions. Petitioner Serafin indicates that he is unwilling to get the vaccination due to the adverse vaccination reactions. He indicates that because of the.vaccine mandate and his position on conipliance, he will: (1) be terminated without the possibility of collecting unemployment; and (2) be precluded from working in his chosen profession where he has developed experience and technical competence. Petitioner Rasiwala is of Islamic faith and would pursue a religious exemption if one was offered. Dr. Rasiwala also faces termination as well as a gap in medical cmployment that will need to be explained in future pursuits for medical employment. Additionally, Dr. Rasiwala's allergist has recommended against vaccination. Petitioner Conrad indicates that she worked the front lines at the beginning of the pandemic and often worked with insufficient personal protective equipment. She notes that she personally reported 125 possible adverse vaccine reaction to the Vaccine Adverse Event (VAERS)2 Reporting System conceming hospitalized patients. She further notes that she is working on approximately 20 more reports to VAERS. Petitioner Conrad also describes approximately 100 additional incidents of possible adverse reactions that went unreported to VAERS from her place of employment. Due to the adverse vaccine reactions, she expresses an unwillingness to get vaccinated and speaks of being terrified of the unknown side-effects of vaccination. She indicates that the vaccine mandate will cause her to: (1) be terminated without the possibility of collecting unemployment; and (2) be precluded from working in her chosen profession where she has developed experience and technical competence; and (3) be a major interruption of her medical professional career. Petitioner McGowan states that she is unwilling to be vaccinated for both religious and 2 VAERS is a national early warning system for the detection of possible safety problems in U.S. - licensed vaccines. The system is co-managed by the Centers for Disease Control and Prevention and the U.S. Food and Drug Administration (www·//vaers.hhs.gov/about.html). 4 a af 7m FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 - --...-. DOC.-...-.- NYSCEF NO. 20 ---...- ---- --,...-,---... --.-- _., RECEIVED NYSCEF: 12/07/2023 NYSCEF DOC. No. 180 RECEIVED NYSCEF: 12/G0/2021 medical reasons. She expresses her concern with the U.S. Food and Drug Administration's "rushed" ("FDA") approval process for the COVID-19 vaccines. She also notes that she worked throughout the height of the pandemic without being vaccinated. Petitioner McGowan indicates that the vaccine mandate will cause her to: (1) be terminated without the possibility of collecting unemployment; and (2) be precluded from working in her chosen profession where she has developed experience and technical competence; and (3) be a major interruption of her medical . professional career. Petitioner Rogers indicates that she was an essential worker when the pandemic started and worked the front lines. She further indicates that she had COVID-19 in April of 2020 and that she believes her natural immunity is, at a minimum, just as good as the vaccine, Her primary care physician agrees and apparently advised her that she would not benefit from vaccination. Accordingly, she has made the medical decision to not get vaccinated. Petitioner Rogers also cites her concem about the unstudied potential long-term side etTects of vaccination. She concludes that the vaccine mandate will cause her to: (1) be terminated without the possibility of collecting unemployment; and (2) be precluded from working in her chosen profession where she has developed experience and technical competence; and (3) be a major interruption of her nursing home administration career. Respondents provided an initial affidavit from NYSDOH's Medical Director of the Bureau of Immunization. Dr. Rausch-Phung indicates that her affidavit was based on her medical expertise, personal experience, review of NYSDOH's records, guidance from the Centers for Disease Control & Prevention ("CDC"), the executive orders issued by New York's Govemor, and studies and publications related to COVID-19. She indicates that § 2.61 was adopted based on rational determinations from respondents that the mandate was necessary to immediately address an ongoing and rapidly worsening public health crisis. In particular, she notes the Delta variant's impact in terms of significantly increased and the 10- transmissibility fold increase in COVID-19 cases. Dr. Rausch-Phung also cites to CDC findings that the Delta variant may cause more severe illnesses than previous variants in unvaccinated individuals. She maintains that the Delta variant led respondents to act to avoid a return to the heights of the pandemic when hospitals were overwhelmed. S FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 - --.... NYSCEF ---.- DOC. NO. 20 ......- - --- __, --, - --- __. - - _., RECEIVED NYSCEF: 12/07/2023 NYSCEF DoC. NO. 1s9 RECEIVED NYSCEF: 12/00/2021 She contends that § 2.61 is necessary to protect New York's frontline healthcare workers and the vulnerable patient populations in certain healthcare sectors like nursing homes. Dr. Rausch-Phung also asserts that the regulation is tailored to focus on healthcare facilities that pose a unique risk of COVID-19 transmission. She cites statistical findings that patient facing healthcare professionals and their household members have threefold and twofold increased risks, respectively, of contracting COVID-19. The Doctor also notes that these types of healthcare workers tend to care for vulnerable individuals who are elderly, sick, possibly immunocompromised, etc. She cites the significant support for vaccine mandates for health care employees from such medical organizations a the American Medical Association, the American Nurses Association, the American Academy of Pediatrics and the Association of American Medical Colleges. In addition to certain federal vaccine mandates related to healthcare, she notes that the CDC has recommended that healthcare personnel all receive COVID-19 vaccination, particularly in vulnerable healthcarc settings. She opines that any staffing shortages attributable to resignations over the vaccine mandates pales in comparison to the potential staffing shortages that could be caused by a deadly outbreak among unvaccinated healthcare personnel. Dr. Rausch-Phung also notes that New York's.Governor has put measures in place to address potential healthcare worker staffing shortages. She also notes that § 2.61 has already been successful, in terms of increasing vaccination rates, as nursing home staff vaccination levels had risen to 92% (for at least one . 27* 24* dose) as of September as compared to 71% as of August (prior to the emergency rule). 27* For adult care facilities the numbers were 89% as of September as compared to 77% as of August 24*. Finally, the level for fully vaccinated hospital staff has risen to 85% as of 27* September as compared to 77% as of August 245. She also advises that, based on preliminary self-reported data, the percentage of hospital staff receiving at least one dose as of 27* September is 92%. The Doctor stresses that time was and is of the essence in terms of the fall and winter weather and the holiday seasons. Additionally, she notes the importance of vaccination during the flu and cold season when similar Covid-19 symptoms could be mistaken for cold and flu. Dr. Rausch-Phung also points to CDC and FDA findings that serious side effects from 6 A nF 9Q FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 NYSCEF DOC. NO. 20 RECEIVED NYSCEF: 12/07/2023 NYsCEF DOC. NO. 180 RECEIVED NYSCEF: 12/80/2021 the vaccinations bave been extremely rare despite the administration of nearly 380 million doses. Similarly, she points to CDC's findings regarding vaccine effectiveness in protecting vaccinated individuals against severe disease and death from the Deha variant and the other known variants. In her affidavit she also focuses and discusses the rarity of specific side effects including: (1) anaphylaxis; (2) vaccine induced thrombosis; and (3) Guillain-Barre Syndrome. Her affidavit also addresses the consideration and rejection of altematives to the mandate including: (1) acceptable face coverings; and (2) constant testing. As to religious/philosophical objections, she relies on the AMA's position that such . - nonmedical exemptions endanger the health of the unvaccinated medical care worker and those with whom the medical care worker comes in contact. Dr. Rausch-Phung also notes that existing regulations for hospitals, nursing homes and other medical entities already require that persons working therein be immune to measles and rubella. Said regulations contain no religious exemption. Additionally, she points to the absence of any religious exemptions from school . vaccination requirements. Dr. Rausch-Phung also stresses that § 2.61 is specifically limited to only those medical and healthcare personnel who have direct contact with other covered personnel, patients and residents. Finally, she cites multiple medical studies that she claims refute the proposition that natural immunity is equal to or greater than the immunity afforded by the vaccines. After the Court issued its decision and order on the preliminary injunctive relief, the parties agreed to a briefing schedule. Respondents have provided the Court with four new affidavits. Emily Lutterloh, MD, MPH is NYSDOH's Director of the Division of Epidemiology. Dr. Lutterloh's responsibilities include coordinating NYSDOH's "efforts to investigate, reduce diseases." and prevent outbreaks and transmission of infectious She maintains that § 2.61 was adopted based on determinations by respondents that it was necessary to immediately address a rapidly worsening public health crisis. Dr. Lutterloh further asserts that § 2.61 was created after considering data and research regarding COVD-19, the impact of the Delta variant and the effectiveness of existing mitigation strategies. In support she cites a number of the statistics, data findings and research relied upon by Dr. Rausch-Phung in her earlier affidavit In sum, Dr. 7 FILED: SUFFOLK COUNTY CLERK 12/07/2023 09:13 AM INDEX NO. 602027/2023 - --- NYSCEF . ----- DOC. NO. 20 --,,., - - ----. --, -,,, -,, -- -- . -- -., RECEIVED NYSCEF: 12/07/2023 NYSCSF DOC. NO. 180 RECEIVED NYSCEF: 12/00/2021 Lutterloh contends that the various considerations provided a rational basis for the promulgation of § 2.61 on an emergency basis. Additionally, respondents provided a second affidavit from Dr. Rausch-Phung. The second affidavit is predominantly repetitive of her first affidavit. However, updated and new information was provided, including the following: (1) for the four-week period onding on September 25, 2021, 99.4xa of New York's COVD-19 cases were Delta; (2) as of October 18, 2021, New York's positivity rate was at 2.43% as compared to 1,22% on October 18, 2020; (3) as of October 17, 2021, respondents are aware of confirmed breakthrough cases in New York State in .9% of the fully-vaccinated population; (4) as of October 17, 2021, respondents are aware of confirmed breakthrough cases in New York State resulting in hospitalizations in .06% of the fully-vaccinated population; (5) as of September 27, 2021, fully-vaccinated New Yorkers had 77.9% lower chance of becoming a COVID-19 case and between a 89.7-95.2% lower chance of becoming as compared to unvaccinated New Yorkers. Dr. Rausch- hospitalized, Finally, Phung discussed