Cuomo threatens to hold those who got coronavirus vaccine out of turn criminally liable

As the second wave of coronavirus sweeps New York, the state's governor has threatened legal action not only against a Brooklyn-based network of medical clinics that allegedly distributed the Moderna coronavirus vaccine out of sequence with state guidelines but those who received the first shot before their eligibility.

"We will not tolerate any fraud in the vaccination process. Anyone who engages in fraud is going to be held accountable," Cuomo said at a news conference Monday. "We want to send a clear signal to the providers that if you violate the law on these vaccinations, we will find out and you will be prosecuted."

As it stands, the state is only issuing the coveted vaccine to inoculate frontline healthcare workers and those in vulnerable aged-care facilities, and not yet to individuals with underlying health conditions despite ParCare's brazen advertisements that anyone in those three categories could receive the shot. 

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The threats from Albany – and the notion of targeting individuals who say they simply followed the clinic's protocol and submitted applications online – have several people concerned. 

"I would never have participated in something I thought was criminally wrong," one Manhattan professional who got the jab told Fox News. "Everything I filled out on my form was honest and truthful."

However, the source said that nobody questioned their underlying condition at the appointment and she never received any form of certification that they had received the shot. Moreover, the clinic is said to have taken several different insurances, but for those under plans that were not accepted, the cost was $150 out-of-pocket. 

According to criminal defense attorney Troy Slaten, the threats are akin to hot air, given that "guidelines" do not constitute law.

"It is unlikely because the people receiving the shot have not committed a crime unless they actively conspired to defraud somebody – which the end-user did not," he told Fox News. "People who administered the drug may have conspired to obtain it under false pretenses, which we don't know yet, but the patient did not do that."

Slaten emphasized that a guideline is a guideline, and if it were a law, it would have been called a law. 

"They [the state] want to scare people; to send a message to make less attractive for somebody to skip the line and scare providers into making sure the guidelines are followed," he noted. "Unless they have subpoenas, investigators are not entitled to patient records due to HIPPA and other patient protections."

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However, the legal and crime experts anticipate that New York – one of the states hardest hit by coronavirus – will overturn every stone to bring teeth to the case.

"I bet you will see charges brought about, given that there has been so much advertising on who so far is allowed to get the vaccine – first in line are the frontline medical workers," said crime analyst Rania Mankarious, CEO of Crime Stoppers of Houston. "Going forward, expect to see a loss of medical licenses, criminal liability, hefty fines, for anyone known to be getting the vaccine improperly."

David Bruno, a New Jersey trial attorney and former prosecutor, concurred that while "governors should not be legislating from the governor's mansion through executive orders," there are certainly fraud statutes in the New York code and the federal code to address and punish fraud. 

"It's done every day and was happening before COVID-19. The medical records and other documents important to the investigation will be secured using a New York state court grand jury subpoena," he surmised. "Those types of records can be compelled using grand jury subpoenas. Remember, ParCare has not been charged and is presumed innocent."

ParCare is said to have administered more than 850 initial shots to date. It remains unclear how many of those were given to individuals who qualify under the state's current guidelines.

On Saturday, New York Health Commissioner Howard Zucker announced the opening of a criminal probe as reports trickled in of vaccines being administered to members of the public outside the state's stipulation. Since then, Cuomo has vowed to sign an executive order and fine any health care providers $1 million and revoke health care licenses if found guilty of vaccine fraud. New York State Police will also refer the case to the New York Attorney General's Office. AG Letitia James has already announced her office is opening an investigation into ParCare.

However, ParCare has vehemently denied any wrongdoing and insisted that the state's accusation of potential "fraud" is without merit. A spokesperson for the company, which has five clinics in Brooklyn and one in Manhattan, told Fox News that it was issued contrary information by a DOH representative on Dec. 21, the day it received the Moderna shipment.

"There was nothing illegal here, no black markets transfer. The company was told – over the phone – it was allowed to redistribute the doses to other clinics in its network," the rep said. 

A ParCare spokesperson also affirmed it has since "proactively returned" its existing inventory of vaccines to the state "pending the department's review," leaving those who did receive it perplexed as to whether they will reap the full benefits and receive the follow-up jab. As it is formulated, the Moderna vaccine requires a booster shot 28 days after the first one.

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Some have already said they won't be going anywhere near the clinic, while some legal experts argue that they should be free to receive without any threat from the state – whether ahead of the line or not.  

"Even assuming they could identify every person who improperly obtained the vaccine, I believe it would be for purposes of criminal exposure for ParCare and not to stop the patient from getting a booster," Slaten added. "Unless the records show the patient was part of a fraud or improperly paid ParCare for the vaccine when they were not eligible, then patients are not likely to face adverse consequences. They shouldn't be punished by withholding the second shot, as that would be counterproductive to the whole notion of vaccinating as many people as possible. Even those convicted of crimes don't have medical care withheld."