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HHS Bulletin Offers Guidance and Updates on COVID-19 Outcome Disparities

July 22, 2020

The US Department of Health and Human Services (HHS) issued a bulletin on July 20, 2020 that not only reminds recipients of federal financial assistance that they must comply with federal civil rights laws during the COVID-19 Pandemic (and provides guidance on compliance), but also highlights federal and state data identifying disproportionate burden of coronavirus illness and death among racial and ethnic minority groups, including African American, Hispanic, and Native American populations.

In terms of guidance, HHS reminds recipients that Title VI prohibits both intentional discrimination, but also methods of administration that have a disparate and adverse impact on the basis of race, color, or national origin. Title VI’s regulations explain that federal fund recipients may not administer programs in a way that “ha[s] the effect of subjecting individuals to discrimination because of their race, color, or national origin, or ha[s] the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.”  HHS also stated that it is committed to prohibiting unlawful racial discrimination in healthcare, and enforcement actions may well follow, as we have seen during the pandemic on the basis of disability and religious discrimination. To ensure compliance with Title VI, HHS recommends that providers:

  • Adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.
     
  • If determining site selection, ensure that Community‐Based Testing Sites and Alternate Care Sites are accessible to racial and ethnic minority populations. Consider making walk‐in testing sites available in urban areas where racial and ethnic minority populations may not have access to vehicle transportation, or providing home visitation testing in rural areas where transportation is a challenge for racial and ethnic minorities.
     
  • 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 communications regarding COVID-19 related services comply with the language and accessibility requirements of the Affordable Care Act.
     
  • 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.
     
  • 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. For multi‐bed rooms, recipients should not grant a patient’s request to exclude a roommate of a particular race; and for single‐bed rooms, recipients should assign patients in a non­discriminatory manner.
     
  • If offered, provide 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.
     
  • 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.

In addition, the Centers for Disease Control and Prevention (CDC) has appointed a COVID‐19 Chief Health Equity Officer, which is the first time in CDC history that a member of the incident management team is solely focused on identifying and addressing health disparities. Elsewhere in the federal government, the National Institutes of Health (NIH) issued funding opportunities for urgent research to understand the social, behavioral, and economic health impacts of COVID‐19 on health disparity and other vulnerable populations; the NIH Rapid Acceleration of Diagnostics for Underserved Populations (RADx‐UP) Initiative announced support for implementation of science projects to provide access to diagnostic testing in underserved communities; and the HHS Office of Minority Health has entered into a cooperative agreement to build the “National Infrastructure for Mitigating the Impact of COVID‐19 within Racial and Ethnic Minority Communities Initiative,” to coordinate a strategic network to disseminate culturally and linguistically diverse COVID‐19 information nationwide, support linkages to testing, vaccination, healthcare and social services in communities hardest hit by the pandemic, and deliver COVID‐19 response, recovery, and resilience strategies to minority, rural, and socially vulnerable communities.

If you have any questions regarding the above guidance, or other steps to take to ensure compliance with Title VI and other laws and regulations prohibiting unlawful discrimination in healthcare, please do not hesitate to contact any member of the Health Law Practice Group at Shipman & Goodwin.

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