December 21, 2021

Following Lawsuit, Federal Health Agencies Finally Deliver on Pandemic-Related Duties

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As a result of the first litigation matter filed under Ballard Spahr's pro bono Racial Justice and Equality Initiative (RJEI), the U.S. Department of Health and Human Services and the Centers for Disease Control and Prevention have delivered on numerous statutorily required duties of data collection, reporting, and public education, and are in the process of doing more.

Lawyers from Ballard Spahr, in partnership with Manhattan-based firm Siegel Teitelbaum & Evans, filed the federal lawsuit in October 2020 on behalf of nonprofit and public sector plaintiffs based in New York City: Coney Island Prep, a public charter school in Brooklyn, and its CEO; Housing Works, Inc., a community health organization, and its CEO; Mark Levine, a New York City Council member and Chair of Council's Health Committee; and Alexandra Greenberg, an officer of Right to Health Action, a national public health research and advocacy organization.

Each of the plaintiffs has responsibility for safeguarding the health and welfare of the constituencies they serve, largely comprising individuals and communities of color.

Filed in the Southern District of New York in October 2020 at the height of the COVID-19 pandemic, the suit alleged that the DHHS and the CDC failed to adequately prepare for and respond to the COVID-19 pandemic by neglecting to fulfill duties required by the Pandemic and All-Hazards Preparedness and Advancing Innovation Act of 2019 and other public health statutes. The suit asserted that the plaintiffs "suffer directly from the Federal government's failures" and that "Defendants' ongoing failure to perform their statutory obligations…have a disproportionate impact on Black and Latinx communities and exacerbate existing health disparities among minorities."

Both sides in the suit recently agreed to a stipulation of dismissal without prejudice, meaning that the plaintiffs can refile the action if they believe the defendants have not fulfilled their obligations.

"Plaintiffs wish to provide Defendants an opportunity to complete" the remaining duties "outside the pendency of litigation," the stipulation states.

According to the document, subsequent to the lawsuit's filing last fall, the DHHS and CDC have produced nine required reports, including the National Healthcare Quality and Disparities Reports, which address disparities in health care delivery related to racial and socioeconomic factors.

The stipulation states that the federal agencies "are in the process of completing" three additional required reports and scheduling a required meeting "regarding the application of technologies in service of the nation's public health." The document further states that the defendant agencies are "in the process of performing several duties relating to their responsibility to coordinate a national ‘biosurveillance network'" for testing and tracing in a pandemic.

The Ballard Spahr team that worked on the litigation was led by litigators Kahlil C. Williams and Marjorie J. Peerce, and includes Matthew E. Kelley, Michael R. McDonald, Fanta Freeman, Althea L. Daley, and Shawn F. Summers.

"Clearly, we accomplished a great deal by filing the litigation," Ms. Peerce said. "It obviously provided a kick-start to getting the information to our clients. This is crucial information for those on the frontlines, in particular in communities of color, which they need to fight the pandemic."

Ballard Spahr launched the Racial Justice and Equality Initiative in the summer of 2020 amid unrest that followed the murder of George Floyd. The initiative is staffed by lawyers from Ballard Spahr's Litigation Department, the firm's largest department, with more than 250 attorneys. Mr. Williams and Ms. Peerce serve on the Leadership Committee for the Initiative.

To date, Ballard Spahr attorneys have contributed more than 3,500 pro bono hours under the RJEI, encompassing nearly two dozen cases across the country addressing voting rights, education access, economic justice, and other issues of racial justice and equality.

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