Health Plan Surcharge for Unvaccinated Employees: New Guidance Provides a Roadmap

Guideline addressing health plan surcharges for unvaccinated employees

Click HERE to access the article by Timothy J. Stanton and Jessica E. Kuester of Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

New York State Comptroller DiNapoli releases dashboard tracking federal covid funding and state relief programs

On October 13, 2021, New York State Comptroller Thomas P. DiNapoli announced today the launch of his new online tool to monitor spending of federal recovery aid and COVID-19 relief programs in the state, including funds for excluded workers, childcare providers, emergency rental and homeowner assistance, and small business recovery.

The dashboard explains each federal and state program, and how much has been received and spent to date. The data will be updated monthly and expanded to include additional programs and spending details as new information becomes available. New Yorkers can use the tool to understand how federal aid is used and to inform future conversations about budget priorities.

Funds received and spent through Sept. 30, 2021 are listed in the table below. Some insights from the tracker include:

• The Excluded Workers Fund has disbursed $968.5 million of $2.1 billion; the state budget forecasts it will be fully disbursed in the current fiscal year.
• The Emergency Rental Assistance Program is forecast to be fully disbursed in State Fiscal Year 2022-23; $696.4 million of the $2.85 billion has been disbursed.

For a specific breakdown of spending, contact the agency overseeing the program area. In some limited instances, the Comptroller’s office can provide more detailed information.

Dashboard = Interactive Federal Funding and Relief Programs Tracker

Appealing a federal district court's dismissal of civil rights complaints brought pursuant to 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964

In this appeal to the United States Court of Appeals for the Second Circuit, Petitioner challenged a federal district court’s dismissal of her claims under 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964 against the State University of New York at Albany [SUNY Albany] and several named SUNY Albany administrators [Administrators].  The district court had granted SUNY's motion to dismiss the Petitioner's lawsuit, ruling that SUNY Albany is immune from suit, that Petitioner’s due process claims could have been raised in an Article 78 proceeding in New York state court, and that Petitioner failed to plausibly allege an unlawful conspiracy, an equal protection violation, or a Title VI violation.

The district court did permit Petitioner to amend only her equal protection claim but Petitioner failed to file an amended complaint. The district court subsequently dismissed her equal protection claim with prejudice. Petitioner appealed the district court's ruling to U. S. Circuit Court of Appeals [Appeals], Second Circuit.

Noting that pro sesubmissions are construed liberally to raise the strongest arguments they suggest, Appeals observed that "a pro se complaint must nonetheless contain factual allegations sufficient to meet the plausibility requirement, citing Hill v. Curcione, 657 F.3d 116.

Addressing Petitioner's "Constitutional Claims", Appeals concluded that the district court correctly held that her constitutional claims against SUNY Albany are barred by the Eleventh Amendment, which precludes suits by citizens against states unless the state expressly waives its immunity or Congress abrogates that immunity. Here, said Appeals, “For Eleventh Amendment purposes, SUNY is an integral part of the government of the State of New York and when it is sued the State is the real party” and New York has not waived its immunity, nor has Congress abrogated it.

As to Petitioner argument that New York waived its sovereign immunity in §8 of the Court of Claims Act, Appeals explained that the §8 waiver Plaintiff relied upon applies only to actions against the State in the Court of Claims and thus the district court correctly dismissed Petitioner’s claims against SUNY Albany.

Turning to Petitioner’s due process claim, Appeals opined that the district court correctly held that Petitioner received due process in the face of allegedly random and unauthorized state conduct. Petitioner. said Appeals, "apparently availed herself of SUNY Albany’s internal complaint procedures" and could also have commenced an Article 78 proceeding in New York state court to challenge the denial of her grade-change program related request and her dismissal from the program. This satisfied "the requirements of due process" and thus Petitioner failed to state a claim.

Considering Petitioner’s equal protection claim, Appeal's decision notes that "To state an equal protection claim, a plaintiff must allege that the defendant discriminated against her on the basis of her membership in a protected class, such as race or national origin. Here, however, Appeals held that the district court correctly dismissed Petitioner’s equal protection claim as Petitioner failed "to plausibly allege that she was treated differently based on her membership in a protected class" and failed to allege the existence of similarly situated comparators.

Although Petitioner contended that SUNY Albany's treatment of her violated SUNY Albany policy, she does not adequately allege or argue that Administrators treated other students differently. Moreover, Appeals said this conclusory allegation fails to establish that the other students were “similarly situated” or, for a class-of-one claim, “prima facie identical.” Accordingly, Petitioner’s equal protection claim was properly dismissed.

Appeals also rejected the arguments advanced by Petitioner based on membership in "a protected class," her allegations that her treatment was motivated by discriminatory animus, her intellectual property claim and her Title VI claim. In addition Appeals found that the district court correctly dismissed Petitioner’s § 983 conspiracy claim, citing Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 and that "conclusory, vague, or general allegations” that the defendants engaged in a conspiracy fail to state a claim.

Finally, Appeals held that the district court did not err by denying Petitioner leave to amend as a district court properly denies leave to amend if the amendment would be futile. Here, said Appeals, "the existence of Article 78 relief barred her procedural due process" and her equal protection claims. Similarly, any amendment to Petitioner’s intellectual property, conspiracy, and Title VI claims would have been futile for the reasons stated above. As far as Petitioner’s challenge to the district court’s later dismissal of her equal protection claim with prejudice, "she failed to file an amended complaint as directed by the district court, and therefore failed to demonstrate that further opportunity to amend would not have been futile."

Click HERE to access the Circuit Court's ruling.

Possible SARS-CoV-2 Persistence: Further Expanding Covid-19 Booster Eligibility

Dr. Robert A. Michaels,NYPPL's science consultant, in an article posted on Research Gate, reports that in the Fall of 2021, the US FDA and CDC expanded eligibility for Pfizer Covid-19 booster shots but imposed inadvisable restrictions. 

Two issues support unrestricted booster eligibility:  SARS-CoV-2 is strongly selected for exploiting personal immunological weaknesses, resulting in weakened immune protection and slower immune response with increasing viral adaptation. Further, the virus might be persistent, which means that it might remain dormant in immune-privileged 'refugia' such as the central nervous system of previously infected people, even if their Covid-19 symptoms had been mild or non-existent.

Opportunistic re-activation of dormant viruses can cause severe illness, as in childhood chickenpox producing adult shingles decades later. External re-infection is unnecessary. Consistent with the 'precautionary principle', the overriding FDA and CDC public health priority should be to prevent as many SARS-CoV-2 infections as possible, not tolerate them, assuming optimistically that they will not impose major public health and associated economic burdens in the future.

Click HEREto access the complete text of Dr. Michaels' Research Gate article.

Appealing a federal district court's dismissal of civil rights complaints brought pursuant to 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964

In this appeal to the United States Court of Appeals for the Second Circuit, Petitioner challenged a federal district court’s dismissal of her claims under 42 U.S.C. §1983 and Title VI of the Civil Rights Act of 1964 against the State University of New York at Albany [SUNY Albany] and several named SUNY Albany administrators [Administrators].  The district court had granted SUNY's motion to dismiss the Petitioner's lawsuit, ruling that SUNY Albany is immune from suit, that Petitioner’s due process claims could have been raised in an Article 78 proceeding in New York state court, and that Petitioner failed to plausibly allege an unlawful conspiracy, an equal protection violation, or a Title VI violation.

The district court did permit Petitioner to amend only her equal protection claim but Petitioner failed to file an amended complaint. The district court subsequently dismissed her equal protection claim with prejudice. Petitioner appealed the district court's ruling to U. S. Circuit Court of Appeals [Appeals], Second Circuit.

Noting that pro se submissions are construed liberally to raise the strongest arguments they suggest, Appeals observed that "a pro se complaint must nonetheless contain factual allegations sufficient to meet the plausibility requirement, citing Hill v. Curcione, 657 F.3d 116.

Addressing Petitioner's "Constitutional Claims", Appeals concluded that the district court correctly held that her constitutional claims against SUNY Albany are barred by the Eleventh Amendment, which precludes suits by citizens against states unless the state expressly waives its immunity or Congress abrogates that immunity. Here, said Appeals, “For Eleventh Amendment purposes, SUNY is an integral part of the government of the State of New York and when it is sued the State is the real party” and New York has not waived its immunity, nor has Congress abrogated it.

As to Petitioner argument that New York waived its sovereign immunity in §8 of the Court of Claims Act, Appeals explained that the §8 waiver Plaintiff relied upon applies only to actions against the State in the Court of Claims and thus the district court correctly dismissed Petitioner’s claims against SUNY Albany.

Turning to Petitioner’s due process claim, Appeals opined that the district court correctly held that Petitioner received due process in the face of allegedly random and unauthorized state conduct. Petitioner. said Appeals, "apparently availed herself of SUNY Albany’s internal complaint procedures" and could also have commenced an Article 78 proceeding in New York state court to challenge the denial of her grade-change program related request and her dismissal from the program. This satisfied "the requirements of due process" and thus Petitioner failed to state a claim.

Considering Petitioner’s equal protection claim, Appeal's decision notes that "To state an equal protection claim, a plaintiff must allege that the defendant discriminated against her on the basis of her membership in a protected class, such as race or national origin. Here, however, Appeals held that the district court correctly dismissed Petitioner’s equal protection claim as Petitioner failed "to plausibly allege that she was treated differently based on her membership in a protected class" and failed to allege the existence of similarly situated comparators.

Although Petitioner contended that SUNY Albany's treatment of her violated SUNY Albany policy, she does not adequately allege or argue that Administrators treated other students differently. Moreover, Appeals said this conclusory allegation fails to establish that the other students were “similarly situated” or, for a class-of-one claim, “prima facie identical.” Accordingly, Petitioner’s equal protection claim was properly dismissed.

Appeals also rejected the arguments advanced by Petitioner based on membership in "a protected class," her allegations that her treatment was motivated by discriminatory animus, her intellectual property claim and her Title VI claim. In addition Appeals found that the district court correctly dismissed Petitioner’s § 983 conspiracy claim, citing Ciambriello v. County of Nassau, 292 F.3d 307, 324–25 and that "conclusory, vague, or general allegations” that the defendants engaged in a conspiracy fail to state a claim.

Finally, Appeals held that the district court did not err by denying Petitioner leave to amend as a district court properly denies leave to amend if the amendment would be futile. Here, said Appeals, "the existence of Article 78 relief barred her procedural due process" and her equal protection claims. Similarly, any amendment to Petitioner’s intellectual property, conspiracy, and Title VI claims would have been futile for the reasons stated above. As far as Petitioner’s challenge to the district court’s later dismissal of her equal protection claim with prejudice, "she failed to file an amended complaint as directed by the district court, and therefore failed to demonstrate that further opportunity to amend would not have been futile."

Click HERE to access the Circuit Court's ruling.