On October 22, the mandate that all health care workers with direct patient contact be vaccinated against the H1N1 flu and seasonal flu was suspended.  State Health Commissioner Richard Daines suspended the mandate, not because of the lawsuits described elsewhere on this blog, but rather because New York has only a limited supply of flu vaccine.

New York has received less vaccine than expected.  Governor David Paterson explains, “Over the last week, the Centers for Disease Control and Prevention (CDC) acknowledged that New York would only receive approximately 23 percent of its anticipated vaccine supply by the end of the month.  As a result, we need to be as resourceful as we can with the limited supplies of vaccine currently coming into the State and make sure that those who are at the highest risk for complications from the H1N1 flu receive the first vaccine being distributed right now in New York State.” A mandate, in combination with the vaccine shortage, “set[s] up a dynamic where health care personnel covered under the regulation might compete for vaccine with persons with underlying risk factors for adverse outcome of influenza infection.” By suspending the mandate, the Department of Health allows the available vaccines to be used for populations at the greatest risk (especially pregnant woment and children).

Under Secion 66-3.2 of the emergency regulation that created the mandate, Commissioner Daines has the authority to suspend the vaccination requirement if  he “determines the vaccine supplies are not adequate given the numbers of personnel to be vaccinated or vaccine(s) are not reasonably available, the commissioner may suspend the requirements(s) to vaccinate and/or change the annual deadline for such vaccinations(s).”  Commissioner Daines exercised that authority and determined (given the low supply, slow delivery of more vaccine, and need elsewhere) there is not enough vaccine available to vaccinate all health care workers before the November 30 deadline.

Although there is an insufficient supply of vaccine to enforce the current mandate, Commissioner Daines believes that, when feasible, requiring health care workers to get flu shots is important for patient safety. “Patients in hospitals and other health care settings have the right to expect that they will not be infected by their health care worker with a preventable disease which could be fatal. [He] believes that New York’s experience with mandatory influenza vaccination for health care personnel in 2009 will have a positive impact on the health of New Yorkers this year. The current emergency regulation mandating influenza vaccinations for health care workers will expire on November 11, 2009, and a second emergency regulation would not have the desired effect during the current H1N1 influenza season or the expected seasonal outbreaks expected later this year and in early 2010. Therefore, no new emergency regulations will be promulgated.”

The lack of new emergency regulations, however, does not mean the conflict over mandatory flu vaccinations is over; it may just be delayed.  Commissioner Daines writes that “the [Department of Health] is advancing a permanent regulation requiring health care personnel in these settings to be vaccinated. Draft regulations will be published soon for a period of public comment.”

– Kelly Lowenberg