But Provides No Legal Documentation Proving This
Our Investigation Moves to NYC Heath + Hospitals
by Michael Kane
New York City Department of Education (NYCDOE) General Counsel has responded to our attorney Michael Sussman’s second letter assuring us that all specimens from in-school COVID testing are disposed of after the test result is received and are not used for anything else. However that assurance is not a legaly binding guarantee.
Here is the response from Henry Bluestone Smith, Chief of Staff for the NYCDOE’s General Counsel:
Regarding your question about actual DNA specimen, the laboratory partners we work with use specimens for no other purpose than COVID-19 testing, and each specimen is destroyed as soon as a COVID-19 clinical result is successfully issued. This and additional information about testing is on our website: https://www.schools.nyc.gov/school-year-20-21/return-to-school-2020/health-and-safety/covid-19-testing
The problem is that there is no evidence that this assurance we’ve received is reflected in the contracts governing the collection of specimens during NYC in-school COVID testing. NYCDOE was unable to provide us with the Specimen Collection Agreement because they don’t have it. According to the DOE that contract is with NYC Health + Hospitals.
We are happy to have the assurance from Smith and the General Counsel’s office that specimens are disposed of and not used for anything but COVID testing, and that this assurance is published on the DOE website. However, since it has taken over 2 months to get this response – only obtainable when an attorney represented us – we maintain it is absolutely essential that we obtain the Specimen Collection Agreement. Perhaps Mr. Smith’s account is accurate and true as of today, but how do we know if it was always, and will always be true unless we are able to read the governing contract on the guidelines for how specimens are collected?
This is all crucially important for teachers (and students) who are being asked to consent to in-school testing. Since we still can not be sure of what will and will not happen with the DNA of collected specimens for in-school COVID testing we believe our refusal letter for testing is still valid, and we stand by it.
Michael Sussman is continuing to engage the DOE on possible remedies to our concerns. Nevertheless we must now turn our focus away from the DOE and towards another entity:
NYC Health + Hospitals
We have been told that NYC Health + Hospitals is the entity that has the Specimen Collection Agreement(s) governing in-school COVID testing. We will never know what will and will not happen to our specimens without reading this contract. Currently I am in touch with multiple professionals making various attempts to obtain this contract.
NYC Health + Hospitals is a corporation representing the largest healthcare system in the country. They recently made headlines when Mayor De Blasio announced they would be in charge of the city’s contact tracing program through Test & Trace Corp. instead of New York City’s Department of Health. NYC DOH has many decades of experience doing contact tracing work from HIV to Ebola, so it is certainly of interest that such a drastic change was made in the midst of a pandemic
In similar fashion, we now see that the NYC DOH has been left out of the contracts for in-school COVID testing. I know of one law firm who sent a FOIL request to the NYC DOH for in-school COVID testing contracts and they received a prompt response that DOH did not have any such contracts.
It is unclear to me who performs the oversight for the enormous NYC Health + Hospitals, but if I had to guess I would believe it is Governor Cuomo’s Department of Health headed by Dr. Howard Zucker; NY State DOH, not NYC.
Here are some questions I still have about NYC Health + Hospitals (H+H):
- Why did the mayor shift authority to H+H for contact tracing efforts and in-school COVID testing? Why not keep both of these under the Department of Health?
- Is the fact that H+H is a corporation, not a government agency, play any role in this?
- Since H+H is a corporation, is it easier for them to contract with outside vendors? For example, Fulgent Genetics is a California based Biotech firm. Was it “easier” for H+H to pen their contract for in-school COVID testing than it would have been for DOH?
- Who is in charge of H+H oversight? I suspect it is Governor Cuomo and his Health Commissioner Howard Zucker. If this is true, it takes authority for the Specimen Collection Agreement out of the hands of NYC and into the hands of NY State. – (update 11-5-20: Michael Sussman has sued H+H before and in a conversation with him he said the oversight is NYC DOH, not NY State)