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February 16, 2022

HHS Issues New Guidance to Health Care Providers on Civil Rights Protections for People With Disabilities

On February 4, 2022, the Department of Health & Human Services (HHS) Office for Civil Rights (OCR) issued guidance to health care providers on civil rights protections for people with disabilities. HHS notes that the guidance is one of many comprehensive action steps taken to support President Biden’s National Strategy for the COVID-19 Response and Pandemic Preparedness to protect those most at risk, advance equity, and address disparities in rates of infection, illness, and death. The guidance clarifies that federal civil rights laws apply to health care providers, including those administering COVID-19 testing, medical supplies, and medication, and to entities providing hospitalization, long-term care, intensive treatments, and critical care. 

The Frequently Asked Questions (FAQs) outline the federal civil rights protections for individuals with disabilities, including Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act, and address the applicability of the protections to the COVID-19 public health emergency. According to the FAQs, Section 504 and Section 1557 apply during the COVID-19 public health emergency, regardless of the patient population served or type of service provided, including:

  • The provision of medical supplies
  • Administration of medication 
  • Hospitalization
  • Long-term care
  • Intensive treatments and critical care (such as oxygen therapy and mechanical ventilators)
  • State Crisis Standards of Care plans
  • Procedures for triaging scarce resources that hospitals are required to follow
  • Standards adopted or implemented by hospitals

Due to these laws, covered entities cannot deny or limit a qualified individual with a disability’s participation in its health programs and services on the basis of the person’s disability. Importantly, disability is defined broadly under the law, and includes an individual with a physical or mental impairment that substantially limits one or more major life activities. There must also be a record of the impairment, or the individual must be regarded as having the impairment.

Crisis Standards of Care

According to the FAQs, Section 504 and Section 1557 prohibit discrimination in the provision of health care to individuals with disabilities during a public health emergency and apply to Crisis Standards of Care. Key takeaways from the FAQs include: 

  • When allocating resources that may be scarce, health care providers are required to analyze the patient’s ability to benefit from the treatment sought, and this analysis must be free from stereotypes, bias, and quality-of-life judgments.
  • But for instances where the specific criteria is shown to be necessary, the use of assessment tools or factors that make resource allocation decisions that screen out, or tend to screen out, individuals with disabilities from fully and equally enjoying health care services, programs, or activities being offered is a violation of nondiscrimination laws.
  • Categorical exclusions in Crisis Standards of Care that deny services to individuals based solely on the type of disability violate nondiscrimination laws, and individuals with disabilities are generally entitled to reasonable modifications of assessment tools.
  • Crisis Standards of Care must be based on current medical knowledge or the best available objective evidence regarding treatment effectiveness, and nondiscrimination laws may be implicated if these standards are applied in a way that does not assess whether the specific treatment sought is likely to be effective for the individual patient.
  • During the COVID-19 public health emergency, providers may not refuse to admit a patient with a disability who may require more service or resources than other patients for COVID-19 treatment. Instead, providers may be required to provide more resources to individuals with disabilities as a reasonable modification.

Visitation Policies

The FAQs provide that Section 504 and Section 1557 apply to visitation policies, including restrictions on visitors, and limiting entrance to patients, residents, and personnel, with limited exceptions for end-of-life situations. Key takeaways regarding visitation policies include:

  • Restrictions on visitation policies are permissible if they are in place for safety reasons based on objective risks, but policies that do not account for the needs of individuals with disabilities may violate nondiscrimination laws.
  • But for certain specified exceptions, permitting patients or residents with disabilities to use a support person is a reasonable modification that generally must be provided. Whether the support person must be physically present, however, is dependent on a number of factors, such as safety issues and whether remote participation would be effective.
  • Providers may put legitimate requirements in place that are necessary for safe operation, so long as the requirements are based on actual risks. Support persons and interpreters can be required to comply with safety requirements and can refuse entry to individuals who refuse or fail to meet the requirements.

Vaccination, Testing, and Contact Tracing Programs

Finally, the FAQs make clear that Section 504 and Section 1557 apply to vaccination, testing, and contract tracing programs. Key takeaways from the FAQs include:

  • Civil rights obligations when administering a testing or contact tracing program are similar to those that are applicable to administering a vaccination program.
  • Providers must take appropriate steps to ensure that communications with individuals with disabilities are as effective as communications with others. These steps may include, for example, the use of appropriate auxiliary aids and services where necessary.
  • Applicable accessibility standards must be complied with, and individuals with disabilities may not be denied an equal opportunity to participate in and benefit from testing or vaccination programs due to accessibility barriers at testing and vaccination sites.
  • Modifications to policies, practices, and procedures must be made where necessary to allow individuals with disabilities safe access to testing and vaccination, including, for example, allowing individuals to enter a facility at a time or through an alternate entrance that will reduce their contact with others.

For more information and to review the FAQs in their entirety, HHS OCR’s FAQs for health care providers on federal civil rights requirements applicable to individuals with disabilities during the COVID-19 public health emergency can be found here.

If you have any questions regarding the content of this alert, please contact Dena DeFazio, associate, at ddefazio@barclaydamon.com, or another member of the firm’s Health & Human Services Providers Team.

We also have a specific team of Barclay Damon attorneys who are actively working on assessing regulatory, legislative, and other governmental updates related to COVID-19 and who are prepared to assist clients. Please contact Yvonne Hennessey, COVID-19 Response Team leader, at yhennessey@barclaydamon.com, or any member of the COVID-19 Response Team, at COVID-19ResponseTeam@barclaydamon.com.
 

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