EPPC and Boyden Gray & Associates Demand HHS Hold New Hampshire Accountable for Unlawful Racial Set-Asides in COVID-19 Vaccine Distribution

September 28, 2021

On September 28, 2021, the Ethics and Public Policy Center (EPPC) and the law firm of Boyden Gray & Associates filed a complaint with the Office for Civil Rights at the U.S. Department of Health and Human Services (HHS) on behalf of a New Hampshire resident whom the state prohibited from receiving a COVID-19 vaccine solely because of his race.

Earlier this year, New Hampshire established the use of racial and ethnic criteria to determine eligibility for COVID-19 vaccinations. Under the cover of “equity,” the state’s racial set-asides excluded vulnerable people from access to the COVID-19 vaccine because of their race, national origin, and skin color. These actions are destructive to public health and patently illegal under our bedrock civil rights laws.

As the complaint explains, in early April 2021, complainant, a white male at elevated medical risk to COVID-19 (who has asked that his identity be kept confidential to protect his privacy) called the Public Health Council of the Upper Valley in Lebanon, New Hampshire, to schedule a COVID-19 vaccination, but was told that they were only serving “people of color” at that time. New Hampshire’s published state policies show that this blatantly discriminatory practice was authorized by the state. And contemporary news reports confirm that the clinic in question provided vaccinations to young Asian college students, while denying vaccines to others of the “wrong” race despite, like complainant, their being at greater risk of severe complications from COVID-19.

HHS has granted New Hampshire more than half a billion dollars in COVID-19 relief funds, including $43 million for its vaccination efforts specifically. Title VI of the Civil Rights Act of 1964 and Section 1557 of the Affordable Care Act prohibit racial discrimination in HHS-funded programs, and HHS is therefore duty-bound to investigate this complaint. HHS’s Office for Civil Rights is charged with enforcing these federal nondiscrimination laws.

“No one seeking medical care should ever be sent to the back of the line because of their race, but that is exactly what the state of New Hampshire did with COVID-19 vaccinations. HHS must investigate and hold New Hampshire accountable for its blatantly illegal discrimination,” stated Rachel Morrison, an attorney and policy analyst for EPPC’s HHS Accountability Project.

“New Hampshire’s racially discriminatory vaccination program is a disaster. The health officials responsible have done grave harm both to the vulnerable people forced to wait for a life-saving vaccine because of their skin color and to the practice of medicine. New Hampshire’s guilt is gin clear, and HHS needs to take prompt and aggressive action to ensure that such illegal discrimination never happens again,” stated Michael Buschbacher, an attorney at Boyden Gray & Associates.  

The complainant is represented by Rachel Morrison of EPPC and Michael Buschbacher of Boyden Gray & Associates.

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