In looking back upon the experience of the last year, it's also helpful to reflect upon debates about the values that drive public health policymaking. These debates echo Thomas Jefferson' metaphor of the “marketplace of ideas” (4) that would create a space where Jefferson envisioned that reason would counter the “error of opinion,” a notion of truth-seeking advanced by Justice Oliver W. Holmes in arguing for freedom of speech protections (4, 5). In these contexts, it is evident that the public's acceptance of an organized public health response to the pandemic has been tempered by deeply entrenched attitudes toward and opinions about the role of state government and its legal authority to impose restrictions on the public, as well as skepticism about the very nature of public health itself and public health goals in protecting populations and communities. The task of balancing the competing goals of protecting the public's health and safeguarding civil liberties has been a source of constant and polarizing conflict during the pandemic, playing out in open challenges to states' imposition of requirements such as mask wearing, isolation, and quarantine. The authority of the state to protect the public in the contexts of a pandemic that poses a serious threat to the population rests upon a well-established body of constitutional law upholding the state's exercise of its police powers in regulating public health (6). Notwithstanding U.S. Supreme Court jurisprudence, however, historical tensions in the United States between the competing values of individual liberty, the market and small government on the one hand, and communitarian values that give primacy to the collective good of the society and social welfare on the other, have been front and center in debates about the role of government (3). Yet these debates are essential to a democracy and provide a ripe opportunity for all citizens and advocates to be heard and influence policy deliberation.

To address a gap in the public health literature vis-à-vis policy deliberations concerning public health law and regulation in pandemics and implications for aging and health policy making, two public health attorneys share their first-person perspectives on the New York pandemic narrative. As chair of the New York State Bar Association Health Law Section COVID Task Force in 2020, Morrissey charts her experience leading the development of policy recommendations adopted by the statewide bar, including the challenges and conflicts encountered, as well as policy successes, and follow-up conversations with state legislators. Rivera-Agosto speaks to challenges in the hospital systems from the perspective of a clinical bioethicist, providing rich context from the ground. Informed by these first-person perspectives, this contribution discusses the implications of the Task Force recommendations for future aging and public health policy, particularly in view of the high suffering burdens and trauma older persons and older people of color have borne during the pandemic. The disproportionate impact of the pandemic on older adults suggests that the pandemic has heightened both pre-existing precarities of older adults and inequities in allocation of resources to older adults across all settings, including nursing homes. Finally, the promise of palliative care is highlighted as a philosophy of care, an integrated medical, social and spiritual care intervention, and a critical component of effective public health strategy in mitigating suffering and trauma and fostering resilience in pandemics.

The Report recommends major public health legal reforms in New York, including enactment of a state emergency health powers act and adoption of crisis standards of care (13). Drawing on the MSEHPA (8, 9), the Report recommends that clear statutory authority in emergencies is critically important. Such clear statutory authority would perhaps have avoided action taken by the legislature investing broad emergency powers in the executive branch of state government, and the reliance in New York State on executive orders and guidance during the pandemic (14). Similarly, adoption of crisis standards of care, drawing on the Institute of Medicine Model Crisis Standards of Care (10), would have provided clear guidance on decision making during the pandemic following widely accepted ethical principles. The Resolutions adopted (7) clarify that the recommendations made do not call for wholesale enactment or adoption of model acts and standards, but rather crafting of provisions that fit the needs of New York State and swift action to put these measures in place in the present pandemic, as well as for the purposes of preparing for future public health emergencies.

Extensive discussions not only within the bar, but with physicians and bioethicists in major hospital systems both upstate and downstate, were had regarding scarce resources during the pandemic, including allocation of ICU beds, PPE and staffing (15). Debate centered around not only who would get what resources when there was not an adequate supply to meet the needs of all patients, but who would decide how scarce resources would be allocated. Would such decisions be made at the bedside by practitioners, or would there be clearly articulated guidelines that practitioners on the ground could follow? Despite a strong consensus that it was the role of the state to issue triage guidelines and urging by bioethicists for the state to take action, no such guidelines were issued in New York, leaving many practitioners in the position of making decisions on their own. For example, great controversy surrounded whether physicians could make determinations not to resuscitate based upon their own clinical judgments even if such determinations ran counter to the express wishes of the family or surrogate (16). For example, the Report identifies and recommends adoption of certain procedural protections by health providers in the case of futility DNR Orders:

Questions about discrimination in allocation of scarce resources to older persons and persons with disabilities remained an ongoing concern throughout the pandemic, including explicit rationing decisions, as well as implicit forms of rationing, for example, in failures to equip nursing homes with adequate PPE and staffing during the pandemic (16).

It is now well-known that the pandemic imposed unforeseeable burdens on providers who were ill-equipped to meet the needs of patients. The long-term care systems in New York, and in other states, including psychiatric hospitals and other congregate care settings, were hard hit, but perhaps no population was more detrimentally impacted by the pandemic than those older persons residing in New York's nursing homes, especially older people of color. Research study findings suggest nursing homes with higher proportions of non-White residents were more likely to experience COVID-19 cases and/or deaths (17–19). Other facility characteristics have been positively associated with the high number of deaths in nursing homes, including ownership and low levels of staffing (20). However, the results of a targeted analysis of New York data made recently available through a FOIL request suggest that the evidence may be mixed and less than persuasive on the question as to whether low staffing or for-profit ownership contributed to New York's nursing home mortality (21).

From a more global policy perspective, while pre-pandemic and historical policy failures at the federal level of government left many nursing homes and nursing home residents more vulnerable to the pandemic (22), macro-level policy decisions at the state level of government in New York both before and during the pandemic also contributed significantly to the number of deaths, including: (i) historical underinvestment in New York's public health infrastructures and systems (23); (ii) historical underfunding of nursing homes and levels of reimbursement; (iii) failure to allocate adequate PPE to nursing homes during the pandemic (24); and (iv) issuance of Executive Orders and Guidance, including the March 25, 2020 guidance directing that COVID positive nursing home residents be transferred from hospitals to nursing homes (25, 26), that detrimentally affected under-resourced nursing homes, and most importantly, the nursing homes residents themselves who suffered the trauma of isolation.

The 2020 NYSBA COVID Report and Resolutions speak throughout to pre-existing inequities in social and economic determinants of health that have heightened suffering of older persons during the pandemic. In response to such historical inequities, recommendations have been made to ensure equitable access to care for all older adults and vulnerable populations, especially older communities of color who have been disproportionately impacted by the pandemic. Such recommendations call for older adults' and nursing homes residents' priority access to virus testing and vaccination. Older persons residing in correctional facilities and older immigrants are included in the scope of the recommendations. Importantly, the recommendations also call for strengthening palliative health and social services and supports as an ethical minimum of care during pandemics, consistent with the provisions of the Institute of Medicine Model Crisis Standards of Care (10). Reframing palliative care as essential integrated medical and social care (27) during a pandemic is critically important in mitigating pain and suffering, and in responding to experience of massive losses, trauma, and bereavement.