HHS Complaint on HICPAC

HICPAC is the subject of a Gross Misconduct complaint filed with the HHS Inspector General against HHS Secretary Xavier Becerra, CDC Director Mandy Cohen, and HICPAC Federal Officer Alexander Kallen

Background:

The membership composition of CDC’s Healthcare Infection Control Advisory Committee (HICPAC) currently stands in violation of the Federal Advisory Committees Act (FACA) and the Committee’s own Charter and has been in violation for a number of years.

The Committee has also failed under FACA and its own Charter to be properly transparent to the public.

As such, HICPAC is not legally constituted. Therefore, its recommendations have no legal standing and no place in the CDC’s process of updating the Agency’s guidance.

The HHS Secretary, CDC Director and HICPAC Federal Officer are responsible for ensuring the organizations under their authority comply with the law. It is a gross dereliction of duty to allow such organizations to conduct business year after year in clear violation of the law.

In summary, the complaint states:

HICPAC fails to have the requisite number of members required by mandatory language in its Charter that “The Committee shall consist of 14 non-Federal members.” “Shall” is a legal term that creates a mandatory duty. It does not mean “maybe.”
The Committee fails to have a “fairly balanced membership.” Since aerosols are a significant mode of transmission, guidance on such transmission is an important function of HICPAC. In order to reasonably provide such guidance, the Committee must have in its membership a significant number of experts in fields such as aerosol science, industrial hygiene, UV and HEPA filtration, ventilation engineering, respiratory protection and occupational health and safety. Yet, the Committee does not have even one such member.
HICPAC has refused to provide records to the public in violation of FACA and its Charter, and obscured its process of making updates.
By requiring a specific number of members, a committee fairly balanced in points of view, and a transparent committee process, FACA regulations and HICPAC’s own Charter seek to prevent precisely what has happened at HICPAC. For example, more than 900 experts joined by more than 1,000 members of the public signed a July 20, 2023 letter to CDC Director Mandy Cohen opposing HICPAC Draft Guidelines.
HICPAC could have known and should have known that the composition of its membership violated FACA and its own Charter, but instead closed its eyes to these legally fatal flaws. It thus seems to be guilty of what the law terms “Willful Blindness.” In the application of this principle, the law is not concerned with why one remains ignorant when one could and should have known better, only that one does remain ignorant. It is a principle for imputing intent to someone’s actions. From this point of view, HIPCAC had the intention to do precisely what it has done: limit the number of its Committee members, exclude from membership experts focusing on aerosol transmission, and develop Draft Guidelines in the shadows with as little transparency as possible.

Remedies Sought:

The CDC must immediately pause the process of updating its guidance “Isolation Precautions: Preventing Transmission of Infectious Agents in Healthcare Settings”. The process of developing the Draft Guidelines currently underway must immediately cease.
The Secretary must promptly correct the illegal composition of HICPAC’s membership to bring it into compliance with (1) its Charter requirement to have 14 non-Federal members, and (2) its FACA and Membership Balance Plan requirements to have a fairly balanced membership. In order to create a fairly balanced membership, the Secretary must appoint as voting members, a significant number of experts in aerosol science, industrial hygiene, UV and HEPA filtration, ventilation engineering, respiratory protection and occupational health and safety.
HICPAC must immediately adopt measures to increase transparency as required by FACA and its own Charter, such as opening working group meetings to the public.
A new set of Guidelines for the CDC Guidance must be developed by a fairly balanced HICPAC following a transparent process, which acknowledges the overwhelming body of scientific evidence and expert opinion that aerosols are a significant mode of transmission for the infectious agent, Covid-19.