The United States Department of Health and Human Services Office for Civil Rights (HHS OCR) has issued new guidance on prohibiting racial discrimination in healthcare, and new enforcement actions show that HHS OCR remains active in enforcing federal civil rights laws during the COVID-19 pandemic.
New Guidance on Preventing Racial Discrimination During COVID-19
On July 20, HHS OCR issued new guidance on the application of Title VI of the Civil Rights Act of 1964 to the healthcare industry during COVID-19. This bulletin thus focuses on promoting compliance with federal prohibitions against race, color, and national origin discrimination in healthcare.
“To help ensure Title VI compliance during the COVID-19 public health emergency,” the bulletin states, “recipients of federal financial assistance, including state and local agencies, hospitals, and other health care providers, should:
- Adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.
- Ensure – when site selection is determined by a recipient of federal financial assistance from HHS – that Community-Based Testing Sites and Alternate Care Sites are accessible to racial and ethnic minority populations.
- Confirm that existing policies and procedures with respect to COVID-19 related services (including testing) do not exclude or otherwise deny persons on the basis of race, color, or national origin.
- Ensure that individuals from racial and ethnic minority groups are not subjected to excessive wait times, rejected for hospital admissions, or denied access to intensive care units compared to similarly situated non-minority individuals.
- Provide – if part of the program or services offered by the recipient – ambulance service, non-emergency medical transportation, and home health services to all neighborhoods within the recipient’s service area, without regard to race, color, or national origin.
- Appoint or select individuals to participate as members of a planning or advisory body which is an integral part of the recipient’s program, without exclusions on the basis of race, color, or national origin.
- Assign staff, including physicians, nurses, and volunteer caregivers, without regard to race, color, or national origin. Recipients should not honor a patient’s request for a same-race physician, nurse, or volunteer caregiver.
- Assign beds and rooms, without regard to race, color, or national origin.
- Make available to patients, beneficiaries, and customers information on how the recipient does not discriminate on the basis of race, color, or national origin in accordance with applicable laws and regulations.”
Importantly, the guidance reiterates explicitly that Title VI prohibits “both intentional discrimination and methods of administration that have a disproportionate and adverse impact on the basis of race, color, or national origin [i.e. unintentional disparate impact discrimination].” Roger Severino, OCR Director is thus quoted as saying: “This guidance reminds providers that unlawful racial discrimination in healthcare will not be tolerated, especially during a pandemic.”
In response to this guidance, hospitals and health systems should consider how best to operationalize nondiscrimination and health equity into their COVID-19 responses—with particular attention to the health disparities identified by HHS OCR in this most recent guidance. Particular attention should also be paid to preventing disparate impact discrimination: that is, facially neutral policies or practices that have a disproportionate and adverse impact on the basis of race, color, or national origin.
Two New Enforcement Actions Concerning Disability Discrimination
On June 9, HHS OCR announced an Early Case Resolution (ECR) with the State of Connecticut to ensure that people with disabilities are not denied reasonable access to needed support persons after the state issued an executive order regarding non-visitation policies for short-term hospitals, outpatient clinics, and outpatient surgical facilities. At the same time, HHS OCR announced that it had reached an ECR with Hartford Hospital in Connecticut after it agreed to grant a 73-year old woman with aphasia access to support persons to help her with communication and comprehension in her treatment.
These enforcement actions followed complaints from disability-rights groups in Connecticut, which alleged violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Patient Protection and Affordable Care Act. The complaints alleged that, without support persons, many patients with disabilities were being denied equal access to medical treatment, effective communication, and the ability to make informed decisions and provide consent.
As part of the resolution, Connecticut issued a new executive order to ensure persons with disabilities have reasonable access to support persons in hospital sections, consistent with federal disability-rights law. HHS OCR was also able to mediate and resolve the dispute with Hartford Hospital in particular, and it closed this complaint as satisfactorily resolved.
And on June 26, HHS OCR announced its fourth resolution with a state regarding disability discrimination concerns during COVID-19—this time with the state of Tennessee. Here too HHS OCR responded to complaints from disability-rights groups concerning the state’s “Crisis Standards of Care.”
In light of HHS OCR’s technical assistance to the state, Tennessee updated its Crisis Standards of Care and:
- Clarified that resource-intensity and duration of need on the basis of age or disability should not be used as criteria for the allocation or re-allocation of scarce medical resources. This protects patients who require additional treatment resources due to their age or disability from automatically being given a lower priority to receive life-saving care;
- Removed language permitting the use of a patient’s long-term life expectancy as a factor in the allocation and re-allocation of scarce medical resources, instead indicating that providers should consider only risk of imminent mortality;
- Added language stating that reasonable modifications to the use of the state’s primary instrument for assessing likelihood of short-term survival should be made when necessary for accurate use with patients with underlying disabilities. Such reasonable modifications ensure that people with disabilities are evaluated based on their actual mortality risk, not disability-related characteristics unrelated to their likelihood of survival;
- Removed categorical exclusion criteria that prohibited people with disabilities from receiving care on the basis of their diagnosis, and required individualized assessments of patients based on the best available objective medical evidence; and
- Incorporated language stating that hospitals should not re-allocate personal ventilators brought by a patient to an acute care facility to continue pre-existing personal use with respect to a disability. Under this language, long term ventilator users will be protected from having a ventilator they take with them into a hospital setting taken from them to be given to someone else.
In light of these enforcement actions, hospitals and health systems should re-evaluate their visitor policies to ensure that reasonable accommodations are available to individuals with disabilities who may need support persons to have equal access to medical care. And given the steady increase in the utilization of hospital and health resources, health systems should continue to be vigilant in training and educating staff on the importance of basing critical care decisions on objective medical evidence and individualized criteria without discrimination on the basis of disability.
Andrew C. Stevens is a litigator with Arnall Golden Gregory LLP and represents hospitals and health systems in connection 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.