On October 15, 2019, Cohen Milstein, on behalf of the Center for Reproductive Rights, filed a lawsuit against the U.S. Department of Health and Human Services (“HHS”) for failing to produce records related to the Office for Civil Rights’ operations and enforcement of civil rights laws after two Freedom of Information Act (“FOIA”) requests went effectively unanswered.
Despite the clear statutory requirement that an agency respond to a FOIA request within 20 days, and despite the Center’s inquiries, HHS failed to provide a final determination or produce any documents in response to either of the Center’s two FOIA requests. The Center seeks to compel HHS to comply with its obligations under FOIA and promptly produce the requested records.
On August 30, 2019 the Center for Reproductive Rights submitted two Freedom of Information Act requests seeking budget and staffing details of the Department of Health and Human Services’ Office for Civil Rights’ Conscience and Religious Freedom Division (CRFD) and information related to the Office for Civil Rights’ Health Insurance Portability and Accountability Act (“HIPAA”) enforcement activities.
In 2018 the Trump administration created the CRFD within the Office for Civil Rights purportedly to “restore federal enforcement of our nation’s laws that protect the fundamental and unalienable rights of conscience and religious freedom.” Historically, however, only an extremely small fraction of the complaints received by the Office for Civil Rights are related to religious and moral refusal issues. Despite this, HHS sought to increase CRFD’s budget by over $1 million in Fiscal Years 2019 and 2020, while simultaneously reducing overall funding for OCR. The first FOIA request seeks more details on this discrepancy and reprioritization of funds.
The Office for Civil Rights is also responsible for enforcing the privacy provisions of HIPAA. Pursuant to its authority, the Office can collect funds obtained through HIPAA enforcement actions. A 2009 law enacted by the Obama administration specifies that any funds collected as a result of HIPPA violations must be used to enforce health data privacy and security regulations. The OCR’s budget justifications for FY 2019 and FY 2020 included the expenditure of settlement funds from unidentified enforcement actions. The Center’s second FOIA request seeks records relating to the allocation of funds recovered from actions concerning HIPAA enforcement.
HHS has failed to share any information or provide a final response within 20 days since the initial requests were submitted, which is required by law.
The Center previously filed a FOIA request seeking information to understand why HHS created the CRFD.