GARFUNKEL, WILD & TRAVIS, P



GARFUNKEL WILD, P.C.ATTORNEYS AT LAWMEMORANDUMFile No.:15312.01To:New York State Society of Plastic SurgeonsFrom:Roy W. Breitenbach, Esq.Barry B. Cepelewicz, M.D., Esq.Date:April 8, 2020Re:Governor Cuomo’s Executive Order on Allocation of Ventilators and Other Medical EquipmentOn April 7, 2020, Governor Cuomo issued Executive Order No. 202.14, entitled “Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency.”In relevant part, the Executive Order states: “I hereby issue the following directives for the period from the date of this Executive Order through May 7, 2020: . . . Any medical equipment (personal protective equipment (PPE), ventilators, respirators, bi-pap, anesthesia, or other necessary equipment or supplies as determined by the Commissioner of Health) that is held in inventory by any entity in the state, or otherwise located in the state shall be reported to DOH. DOH may shift any such items not currently needed, or needed in the short term future by a health care facility, to be transferred to a facility in urgent need of such inventory, for purposes of ensuring New York hospitals, facilities and health care workers have the resources necessary to respond to the COVID-19 pandemic, and distribute them where there is an immediate need.”We interpret this directive as requiring any person or entity in New York state who possesses any of the listed medical equipment – including physicians, ASCs, and health care private practices –to report their possession to the State Health Department. The Executive Order then gives the Health Department the ability to take possession of and transfer that equipment to any facility in the State that is in “urgent need.” of the equipment. Although vague, it is up to the Health Department to determine what constitutes “urgent need.” Thus, this Executive Order gives the State Health Department the right to take immediate possession of certain medical equipment owned by private parties. Under the law, the government can only take possession of private property for a public purpose, and it must provide the owner with just compensation for the taking. Specifically, the Fifth Amendment to the United States Constitution provides that no person “shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” Likewise, Article I, Section 7(a) of the New York State Constitution provides that “Private property shall not be taken for public use without just compensation.”We believe that the Executive Order proposes to take possession of the medical equipment for a public purpose, namely, to ameliorate the shortages medical equipment in the state and to get that equipment to COVD-19 patients who urgently needed.As for just compensation, the Executive Order goes on to state that the “DOH shall either return the inventory as soon as no longer urgently needed and/or, in consultation with the Division of the Budget, ensure compensation is paid for any goods or materials acquired at the rates prevailing in the market at the time of acquisition, and shall promulgate guidance for businesses and individuals seeking payment.” We believe that this likely complies with the just compensation requirement.Finally, the Executive Order provides a penalty for non-compliance. The Executive Order provides, in relevant part, that the “enforcement of any violation of the foregoing directives on and after April 7, 2020, in addition to any other enforcement mechanism stated in any prior executive orders, shall be a violation punishable as a violation of public health law section 12-b(2). . . .” Section 12-b(2) of the Public Health Law provides that “A “person who wilfully violates any provision of this chapter, or any regulation lawfully made or established by any public officer or board under authority of this chapter, the punishment for violating which is not otherwise prescribed by this chapter or any other law, is punishable by imprisonment not exceeding one year, or by a fine not exceeding two thousand dollars or by both.”Thus, if a person or entity violates the provisions of the Executive Order regarding medical equipment, the person or entity can be fined up to $2,000. Individuals can also be imprisoned for up to one year. And, since Public Health Law § 12-b(2) makes a willful violation of the Executive Order a crime, a licensed professional who violates the Executive Order has committed professional misconduct. See Education Law § 6530(9)(a)(i). ................
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