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OCR Resolves Civil Rights Complaints Amid COVID-19 Pandemic

April 18, 2020

The Office for Civil Rights (“OCR”) of the U.S. Department of Health and Human Services (“HHS”) has recently emphasized the importance of covered entities upholding their obligations under civil rights laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, exercise of conscience, and religion in programs or activities that HHS directly operates or to which HHS provides federal financial assistance.

Last month, OCR issued a bulletin reminding covered entities that such laws remain in effect during the COVID-19 public health emergency. In addition, during a teleconference hosted by the Office of Equal Rights (“OER”) of the Federal Emergency Management Agency (“FEMA”) on April 16th, OCR reiterated its focus on ensuring that all civil rights laws are being fully enforced during this turbulent time.

OCR has particularly stressed that covered entities are prohibited from unlawfully discriminating against people with disabilities, or based on a person’s age, when making decisions about treatment during the COVID-19 public health emergency. In fact, OCR has taken two enforcement actions since the publication of its COVID-19 Civil Rights bulletin last month.

First, on April 8th, OCR announced that it had investigated a complaint filed by the Alabama Disabilities Advocacy Program and The Arc of the United States, which alleged that the State of Alabama had incorporated discriminatory criteria regarding access to ventilator services as an annex to its Emergency Operations Plan. Specifically, the complaint alleged that the criteria authorized the denial of ventilator services to individuals based on the presence of intellectual disabilities and included categorical age cutoffs for ventilator access. Through its investigation, OCR learned that the criteria described in the complaint are no longer in effect. In exchange for Alabama’s agreement to clarify publicly that such criteria are no longer in effect and that it will not include similar provisions in future guidelines, OCR closed its investigation as satisfactorily resolved without a finding of liability.

Second, on April 16th, OCR announced that it had investigated a complaint from several disability rights advocates alleging that the Pennsylvania Department of Health (“PDH”) had issued Crisis Standards of Care for Pandemic Guidelines (“CSC Guidelines”) that did not require an individualized assessment to determine access to critical care and ventilators, but rather authorized the denial of treatment to individuals with disabilities when prioritizing such access. OCR closed its investigation as satisfactorily resolved without a finding of liability after the PDH agreed to receive technical assistance from OCR and revised its CSC Guidelines by requiring that triaging decisions be made on the basis of “the best available, relevant, and objective medical evidence” and removing criteria that prioritized access to care on the basis of the presence or absence of disabilities.

It may be a good time for all to review their internal policies to confirm that their policies and procedures are consistent with applicable law. If you have any questions regarding appropriate responses to COVID-19, please do not hesitate to contact any member of the Health Law Practice Group at Shipman & Goodwin.

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