Be Mindful of the Civil Rights Component of Your Coronavirus Response

Healthcare providers are under extraordinary pressure in these unprecedented times, and they are deserving of nothing less than our utmost support and gratitude.

Yet sadly, in the aftermath of natural disasters, it is not uncommon for civil rights litigation to follow in the wake of decisions made under intense pressure. Against this backdrop, it is worth emphasizing that healthcare systems should be mindful of the civil rights components of their coronavirus responses.

For this reason, the Office for Civil Rights at HHS recently issued a bulletin advising healthcare providers to consider adopting the following practices (subject to available resources and other circumstances) to serve all of their diverse patient populations. Specifically, HHS OCR advises that healthcare providers should consider:

  1. Employing qualified interpreter services to assist individuals with limited English proficiency and individuals who are deaf or hard of hearing;
  2. Making emergency messaging available in languages prevalent in the affected area(s) and in multiple formats, such as audio, large print, and captioning and ensuring that websites providing emergency-related information are accessible;
  3. Making use of multiple outlets and resources for messaging to reach individuals with disabilities, individuals with limited English proficiency, and members of diverse faith communities;
  4. Considering and planning for the needs of individuals with mobility impairments and individuals with assistive devices or durable medical equipment in providing health care during emergencies; and
  5. Stocking facilities with items that will help people to maintain independence, such as hearing aid batteries, canes, and walkers.

In the bulletin, OCR Director Roger Severino is thus quoted as saying: “HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal.”

Importantly, these civil rights issues have already surfaced. In particular, civil rights and disability advocates have filed a disability-discrimination complaint with HHS OCR concerning the State of Washington’s coronavirus response plan. The concerns expressed in the complaint are dire and essentially ask HHS OCR to intervene before discriminatory plans are enacted that ration care against persons with disabilities. The complaint can be read in full here.

In light of these important issues, healthcare providers should coordinate closely with their in-house counsel and compliance professionals on Federal nondiscrimination obligations. Providers should also continue to look to HHS OCR for additional guidance as our collective efforts escalate throughout the nation in the next several weeks.

Andrew C. Stevens is an associate at Arnall Golden Gregory LLP and counsels health systems on compliance with federal nondiscrimination law, including under Section 1557 of the Patient Protection and Affordable Care Act and Title III of the Americans with Disabilities Act. Drew also has experience defending health systems in investigations brought by DOJ under Title III of the Americans with Disabilities Act.