Feds’ COVID-19 Pandemic Response Unlawful, New Lawsuit Claims

The nation’s top two public health agencies have failed to meet federal requirements in their response to the COVID-19 pandemic, a new lawsuit against them claims.

The Pandemic and All-Hazards Preparedness and Advancing Innovation Act, which was reauthorized by Congress and signed by the president last year, requires the U.S. Department of Health and Human Services (HHS) to create a national testing and contact tracing program to monitor pandemics or potential pandemics.

According to the lawsuit, HHS has not fulfilled those “biosurveillance duties” prescribed by the law and instead deferred to the individual states to conduct the tracing — or not.

The act also requires HHS and the U.S. Centers for Disease Control and Prevention (CDC), an agency in the department, to give the public “near real-time information” on the progress of a pandemic and to do so according to a strict deadline.

Again, the lawsuit, brought by a collection of individuals from New York and a nonprofit health and housing organization, claims the agencies have failed to meet those requirements.

“The defendants react to the pandemic by shifting their responsibilities to local governments and private entities, refusing to empower the public with information and access it needs, and shutting their doors to experienced input that would produce a more resilient response,” the plaintiffs claim in their lawsuit. “In so doing, [they] unlawfully withhold and unreasonably delay the numerous duties mandated by Congress … the law is clear, however, these duties are mandatory.

“The Plaintiffs and the public are entitled to the information and participation that Congress granted to them and that defendants are unlawfully withholding.”

The lawsuit was filed in U.S. District Court for the Southern District of New York on Oct. 30 by the nonprofit Housing Works Inc. and its chief executive, Charles King, New York City Councilmember Mark Levine and Alexandra Greenberg, a medical student and public health researcher.

Also participating as plaintiffs are Coney Island Prep, a public charter school in Brooklyn, New York, and its chief executive officer, Leslie-Bernard Joseph. The school serves some of the neighborhoods most dramatically affected by the COVID-19 pandemic. It claims the federal health officials’ failures have made it necessary for Coney Island Prep to “ divert significant resources from its core educational mission to addressing Covid-19.”

The named defendants are the U.S. Department of Health and Human Services, HHS Secretary Alex Azar, assistant secretary Dr. Robert Kadlec, the Centers for Disease Control and Prevention and CDC director Dr. Robert R. Redfield.

According to reports by New York Daily News, Levine began voicing concerns about the lack of federal testing plans in April as the number of coronavirus cases surged in his city. Now, he told the Daily News, HHS and the CDC must be held to account and required to act.

“The continued failure to establish a national testing and contact tracing has had a very devastating impact on New York City,” Levine reportedly told the Daily News. “We were blind. We had no ability to track this virus … The ability of policymakers, myself included, has been severely limited by the federal government’s lack of ability to do their job.”

The plaintiffs are asking the court to issue a preliminary injunction requiring Azar and HHS to immediately begin a federal contact tracing program and to fulfill its public reporting duties, among other things.

“This court cannot ignore that Defendants’’’ misdeeds are part of a pattern of misconduct and neglect in response to a pandemic that has cost hundreds of thousands of lives in this country and has inflicted pain, suffering and illness upon millions more,” the lawsuit says. “The irreparable injury is clear.”

In 2018 and 2019, health experts warned Congress its decision to cut funding under the preparedness act would hamper the government’s ability to respond to a crisis like the COVID-19 pandemic, according to Politico. Lawmakers had been advised to budget more than $820 million for public health grants and $470 million for hospital preparedness in keeping with the mandates of the pandemic act, but ultimately reduced those budgets to roughly $675 million and $275 million.

Have you been personally affected by the federal government’s response to the COVID-19 pandemic? Tell us about it in the comment section below.

Coney Island Prep and the other plaintiffs are represented by Norman Siegel, Herbert Teitelbaum, Cary McClelland and Goutam Jois of Siegel Teitelbaum & Evans LLP; and Kahlil C. Williams, Michael R. McDonald and Marjorie J. Peerce of Ballard Spahr LLP.

The Federal Response to the COVID-19 Pandemic Lawsuit is Coney Island Prep, et al. v. United States Department of Health and Human Services, et al., Case No. 1:20-cv-09144-VM, in the U.S. District Court for the Southern District of New York.

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