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NCD letter responding to HHS Office of General Counsel on COVID-19-related immunity from liability

Monday, April 27, 2020

This letter is in response to this letter from the U.S. Department of Health and Human Services Office of General Counsel

Robert P. Charrow
General Counsel
U.S. Department of Health and Human Services
Washington, DC  20201

Dear Mr. Charrow:

Thank you for your letter of April 16, 2020, responding to my letter of March 31 to Secretary Azar, which expressed NCD’s concerns about a statement in the March 28 “Bulletin: Civil Rights, HIPPA and the Coronavirus Disease 2019 (COVID-19),”  issued by HHS’ Office on Civil Rights (OCR), indicating immunity against enforcement of civil rights laws under the PREP Act.[[1]](

In your letter, you clarify that the PREP Act does not immunize anyone from federal enforcement action under civil rights laws, and that OCR has full authority to continue its normal enforcement activities. You also clarify that while the PREP Act replaces the right to bring a court action with a no-fault compensation system for certain injuries, it does not remove the right of anyone whose civil rights have been violated to bring a federal court action for injunctive relief under federal civil rights statutes.

The National Council on Disability (NCD) appreciates this important clarification, and because this information is critical to people with disabilities – and, indeed, everyone in a class protected under federal civil rights laws – we strongly encourage your office to quickly issue an explanatory notice, in plain language, clarifying the scope and exemptions of immunity under the PREP Act; the survival of private causes of action for injunctive relief and enforcement complaints; and the no-fault compensation system.

Thank you again for your response. If you wish to discuss this letter with me directly, I am glad to do so at your convenience. Your staff may also contact Joan Durocher, NCD’s General Counsel and Director of Policy at and Lisa Grubb, Executive Director at


Neil Romano


Cc: Roger Severino, Director, Office for Civil Rights

[[1]]( Pub. L. No. 109148, Public Health Service Act 319F-3, 42 U.S.C. 247d-6d and 42 U.S.C. 247d-6e

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