By Kevin Stawicki

Law360 (November 2, 2020, 5:33 PM EST ) The federal government failed to swiftly provide critical information about COVID-19 testing and contact tracing that harmed the public's ability to adequately respond to the coronavirus pandemic, according to a lawsuit filed in New York federal court.

The U.S. Department of Health and Human Services and Centers for Disease Control and Prevention disregarded the All-Hazards Preparedness and Advancing Innovation Act of 2019, which required the agencies to create a database of information about key health information related to the pandemic, according to the lawsuit, which was filed Friday by a Brooklyn charter school, health nonprofit and others.

Instead, the government inadequately reacted 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," Coney Island Prep and Housing Works Inc. said.

"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," the groups said in the complaint. "The irreparable injury is clear."

By failing to hold public meetings in late 2019 to develop protocols for disseminating real-time biological information and epidemiological data to track the progress of the pandemic, HHS won't be able to develop a "biosurveillance network" by Dec. 24 as required under the law, the groups said.

The agencies also failed to properly report information about national health statistics, emergency plans and other public health threats, and they should have engaged the public in creating their public health response, according to the complaint.

Those failures "affect every single American in some form," the New York City-based nonprofit and Brooklyn charter school said, noting that they "predominantly serve Black and Latinx communities who have been hardest hit by the direct and collateral costs of this pandemic."

"But it is not too late to act," the groups said, urging a federal judge to order the agencies to immediately comply with the law.

"This is an important case that attempts to address the numerous failures of federal agencies to discharge their legally mandated duties during the ongoing public health crisis presented by COVID-19," the plaintiff's attorney Norman Siegel of Siegel Teitelbaum & Evans LLP said in a statement. "The time has come to have a federal court compel these federal agencies and officials to do what the federal law requires them to do."

Coney Island Prep, a public charter school in Brooklyn, said it suffered significant harm from not having more information from the federal government about COVID-19, particularly data about how the pandemic is affecting minority populations.

While the school said it has been held up as "an example of responsible pandemic preparedness and response," it said it needs more information to manage staffing and other protocol, especially considering a potential second wave in the winter and the national debate over reopening schools.

Housing Works, a New York City-based nonprofit that runs health clinics and housing centers, said that the lack of information from the government directly threatens their pandemic response.

"At a moment when health disparities across race and income are widening due to the pandemic, the federal government has effectively closed the door to the thousands of people Housing Works serves and represents — thousands who are presently suffering from the federal government's neglect," the nonprofit said in the complaint.

An HHS spokesperson defended the Trump administration's efforts to respond to the pandemic by developing Operation Warp Speed — the official name of the administration's COVID-19 vaccine development initiative.

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

Counsel information for the defendants was not immediately available.

The case is Coney Island Prep et al. v. U.S. Department of Health and Human Services et al., case number 1:20-cv-09144, in the U.S. District Court for the Southern District of New York.

--Editing by Haylee Pearl.

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