By Minh N. Vu

Several weeks ago, we blogged about mask objectors presenting businesses with documents bearing the U.S. Department of Justice seal stating that they are not required to wear masks because of their disability.  Last week, the DOJ issued a statement that “[t]he Department of Justice has been made aware of postings or flyers on the internet regarding the Americans with Disabilities Act (ADA) and the use of face masks due to the COVID-19 pandemic, many of which include the Department of Justice’s seal.  These postings were not issued by the Department and are not endorsed by the Department.” This statement makes clear that the DOJ has not taken a position on whether businesses can lawfully deny entry to people who refuse to wear masks because of a claimed disability, but provides no guidance to business presented with this thorny issue.

To further complicate matters, jurisdictions such as New York City, Virginia, and Pennsylvania that have issued executive orders mandating the wearing of masks in public all differ slightly on how businesses should respond to people who cannot wear masks because of a disability or medical condition.

The New York City guidance suggests that a business may be able to exclude people who refuse to wear masks because of a medical condition or disability as long as the business offers alternatives to access the business’ goods and services.  The NYC guidance states:

Where a customer declines to wear a face covering due to a medical condition or disability, you cannot require the individual to provide medical documentation verifying the health issue. In addition, you must discuss with the individual whether there is a way you can provide a reasonable accommodation that will not cause you an undue hardship. You should try to provide alternative arrangements that are workable for your store, your staff, and your other customers. These arrangements will vary considerably based on each store’s ability to make accommodations without creating a hardship on the business.

Depending on the staffing and layout of the retail store, some examples of accommodations that may be reasonable and not cause undue hardship to you are:

  1. Have an employee bring the individual the items they want to buy and allow the individual to pay for them at the front of the store.
  2. Have the individual leave a list of items with the store and then deliver the items to their home.
  3. Inform the individual that they may order by telephone or online and have items delivered to their home.
  4. Suggest that the individual have a friend or family member do their shopping.

The Pennsylvania guidance, on the other hand, says “individuals who cannot wear a mask due to a medical condition (including children under the age of 2 years per CDC guidance) may enter the premises and are not required to provide documentation of such medical condition.”

The Virginia guidance takes an approach similar to Pennsylvania, stating:

Nothing in this Order shall require the use of a face covering by any person for whom doing so would be contrary to his or her health or safety because of a medical condition.  Any person who declines to wear a face covering because of a medical condition shall not be required to produce or carry medical documentation verifying the stated condition nor shall the person be required to identify the precise underlying medical condition.

All of these orders prohibit a business from asking a customer about his or her medical condition or disability once the customer has informed the business of the existence of the condition or disability that prevents them from wearing a mask.  The orders differ as on whether a business can lawfully exclude such individuals from the premises.

The fact that a jurisdiction exempts individuals with disabilities and/or medical conditions from its mask mandate does not necessarily mean that private businesses cannot impose more stringent mask requirements to protect their employees and customers.  However, such requirements may be challenged as unlawful under Title III of the ADA.  In fact, just last week, nine such lawsuits were filed in federal court claiming a retailer’s mask policy violated the ADA.  A business defending such a challenge would have to show that requiring masks to be worn by all individuals inside a facility is a legitimate safety requirement, and that making an exception for people with claimed disabilities is not a reasonable modification of the policy.  While it is difficult to predict how courts will rule on this novel issue, businesses can better position themselves for such a challenge by documenting the reasons for the policy at the time the business enacts the policy (e.g., governmental mandate, CDC guidance, etc.), as well as the business’ inability to modify the policy (including all possibilities for modifications considered), put in place alternative measures for providing goods and services to businesses that do not require entry into a facility, and train employees on the existence and appropriate communication of those alternatives.

Of course, businesses could avoid this litigation risk by allowing people claiming a disability or medical condition to enter their premises without a mask, although this heightens the risk of COVID-19 exposure for employees and customers and other potential liability outside of Title III of the ADA.  A rock and a hard place indeed.

By Kevin Fritz

Seyfarth Synopsis:The Northern District of New York sees far fewer ADA Title III lawsuits than its Eastern and Southern counterparts and apparently has no patience for serial plaintiffs with flimsy boilerplate filings. 

Judge Brenda Sannes of the Northern District of New York is apparently not going to let serial plaintiffs and their lawyers get judgments in their ADA Title III cases without doing some work.  Case in point:  Serial plaintiff Deborah Laufer filed at least 250 lawsuits since May 2019, 114 of which are in New York.  In a number of recent cases filed in the Northern District of New York, Laufer alleges that places of lodging have reservation websites that do not comply with the Americans with Disabilities Act or state law.

To bring any type of lawsuit in federal court, a plaintiff must establish that she has suffered an injury which gives her standing to assert a claim.  Because Title III of the ADA only allows private plaintiffs to seek forward-looking injunctive relief, plaintiffs must also establish that they face an imminent injury in the future.

In one recent decision, Judge Sannes sua sponte questioned whether Laufer had established standing to bring her lawsuit when Laufer requested a default judgment against the defendant hotel.  The court ordered Laufer to submit a brief addressing the specific question of whether Laufer has standing to sue.

One day later — Judge Sannes issued another order for Laufer to establish that she has standing in 27 other virtually identical cases before Judge Sannes.  Judge Sanne’s proactive and efficient handling of these many filings with a single sweeping order suggests that at least one judge in the Northern District of New York is not going to let serial ADA Title III plaintiffs overwhelm the court’s docket with boilerplate filings and will require plaintiffs’ attorneys to do some work on their cases.

Edited by Minh N. Vu and Kristina M. Launey

Today, Thursday, May 21, 2020, is the ninth annual Global Accessibility Awareness Day (GAAD).  The purpose of GAAD is to provide opportunities for conversing, thinking, and learning about digital access and inclusion for people with different disabilities.  There is a ton of useful programming, which may be of interest to businesses’ in-house counsel, accessibility program managers and employees, IT and marketing personnel, and more.  A list of the 177 events happening today can be found here: https://globalaccessibilityawarenessday.org/events/.

By Minh Vu

Seyfarth Synopsis:  Businesses get another win in a lawsuit demanding gift cards with Braille.

Yesterday, Magistrate Judge Stewart Aaron in the Southern District of New York issued a Report and Recommendation recommending that District Judge Gardephe grant Foot Locker’s motion to dismiss a boilerplate complaint in which the blind plaintiff alleged that the retailer had violated the Americans with Disabilities Act and New York State and New York City laws by failing to issue gift cards with Braille or some other accessibility feature.  If Judge Gardephe adopts the decision, he will be the second district judge in the nation to find that the ADA does not require gift cards to be accessible.  District Judge Gregory Woods of the Southern District of New York was the first to decide this issue, as we reported several weeks ago.  We hear that one or more of the Woods decisions will be appealed to the Second Circuit.

By Kristina M. Launey

Seyfarth Synopsis: Reopening businesses must quickly prepare for customers claiming the ADA exempts them from face mask requirements.

Business re-opening their doors to serve customers have many issues to consider, and now they must add to their list customers refusing to wear masks because of a claimed disability.

Many businesses are now requiring customers to wear masks at their places of business, either on their own accord or to comply with governmental mandates. There are now reports of customers refusing to comply with this requirement, claiming that their disability prevents them from wearing masks and a refusal to grant them an exemption violates the Title III of the ADA.  We have even seen a document which displays the Department of Justice (DOJ) seal stating that the ADA exempts individuals with disabilities from wearing masks and references penalties for ADA violations.  While it is apparent to us that the document is not issued by the DOJ, is there a basis under the ADA for the objection?

The ADA prohibits the imposition of eligibility criteria that tend to/do screen out individuals with disabilities, unless the business can show the criteria are “legitimate safety requirements” that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities. Requiring customers to wear masks to receive service is likely an eligibility criteria under the ADA, so the question is whether the policy is a legitimate safety requirement.  In places where there is a governmental mandate (e.g., state-wide like Connecticut or county-wide like San Francisco) that people wear masks in public, there is a very compelling argument that a mask policy is based on a legitimate safety requirement. Even where there is no governmental mandate, a business can point to guidelines from the Center for Disease Control or other governmental recommendations that masks are necessary for safe operation to support the business’s mask requirement. Under either scenario, the business should document all support for the requirement, in case it needs to defend its decision to impose a mask policy.

Unfortunately for businesses, demonstrating that a mask policy is justified by “legitimate safety requirements” is not the end of the inquiry because the ADA has a separate requirement that businesses make reasonable modifications to their policies and procedures where necessary to provide access to their goods and services to individuals with disabilities. Thus, a business must consider whether it can modify the mask policy or some other policy or practice so that the individual with the disability can gain access to its goods and services, and whether any such modifications are reasonable.

Governmental mandates and recommendations that masks be worn to protect the safety of employees and customers provide strong support for the unreasonableness of allowing customers to enter a business without a mask.  But the ADA also requires a business to consider reasonable alternatives to access that would not require the customer to wear a mask. For example, instead of allowing a mask-less customer shop in its store, a business may take a phone order which can be placed in/on a customer’s car or in an outdoor pick up area for a contactless exchange.  Businesses should consider alternate means of providing access to their goods and services in advance, so employees can be trained to offer those alternatives to individuals who ask to be exempt from mask requirements due to their claimed disabilities. We should also point out that businesses do not have to modify their normal policies, practices, and procedures if doing so would fundamentally alter the nature of the goods and services they provide.

Edited by Minh Vu

By Minh N. Vu and John W. Egan

Seyfarth Synopsis: Reopening businesses need to carefully consider how social distancing and other Covid-19 mitigation measures will impact customers with disabilities and be prepared to make adjustments.

Covid-19 has had a profound impact on the ways in which we use (or, more accurately, avoid) public accommodations spaces in recent months.  As businesses start to reopen in various parts of the country, they are implementing social distancing and other mitigation measures aimed to curb the spread of the virus among their employees and customers.  Businesses need to consider how these new measures impact customers with disabilities and adjust them accordingly.

           1. Screening Customers for Fever

Can businesses use temperature scanners or thermometers to screen customers for Covid-19 and refuse admission if they have a fever?  Title III of the ADA does not allow public accommodations to impose or apply eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any goods, services, facilities, privileges, advantages, or accommodations.  However, it also has a specific provision that allows public accommodations to “impose legitimate safety requirements that are necessary for safe operation. Safety requirements must be based on actual risks and not on mere speculation, stereotypes, or generalizations about individuals with disabilities.”

In cases where public accommodations have relied on the “legitimate safety requirement” defense, courts have carefully scrutinized the evidence that the businesses used to develop the eligibility criteria.  Thus, businesses that plan on screening customers for fever need to carefully document the case for the eligibility criteria and be prepared to defend them.

The ADA also does not “require a public accommodation to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of that public accommodation when that individual poses a direct threat to the health or safety of others.”  Unlike the “legitimate safety requirement” defense, the “direct threat” defense requires businesses to conduct an individualized inquiry into whether a specific person poses a direct threat.  Courts tend to be very stringent in their analysis of what constitutes a direct threat, so businesses again need to be very careful about excluding people with disabilities using this rationale.

          2. Enforcing Social Distancing Guidelines

Businesses are enforcing social distancing guidelines with a variety of measures, including changes to points of entry, creating queue lines, and requiring customers to wait outside to limit the number of people inside a facility. These measures can create a number of ADA compliance issues.

Accessible Routes.  The ADA requires the maintenance of accessible routes so that people who use wheelchairs and other mobility devices have access to public accommodations.  Thus, if a facility has two entrances, and only one is accessible, the accessible one must remain open.  If a business creates queue lines for entry, those lines must be 36” wide from the ground up, and wider if there is a U-turn.  If there is not enough space for the regular queue line to maintain a 36” width, an alternative is to provide a separate shorter accessible line for people who use mobility devices.  This line should be marked with an ISA.

Waiting Customers.  The ADA requires reasonable modifications of normal policies, practices, and procedures, where necessary to ensure access for individuals with disabilities.  Customers with physical disabilities who cannot stand for long periods may ask to go to the front of the line as a reasonable modification.  Businesses may be reluctant to allow this as the claimed disability may not be obvious and the request may be fraudulent.  Allowing those who have a disability parking placard to go to the head of the line would be one possibility, combined with the provision of small folding chairs or other seating for those who need it but don’t have a placard.

          3. Face Masks and Lip Reading

Many customers who are deaf or hard of hearing rely on lip reading to communicate.  Some have complained that they cannot do so when employees are wearing face masks or coverings.  Thus, businesses should consider alternative means of communication. This might include providing a sanitized white board and pens to both the customer or employee to exchange written communications.  The ADA allows for flexibility in providing an appropriate auxiliary aid which depends on the nature, complexity, and context of the specific communication and individual’s preferred method of communication.  For example, providing real-time captioning or an American Sign Language (ASL) interpreter is not required for simple retail or restaurant communications. However, businesses should explore other potential solutions that will not spread the virus, but are also practical and effective in their particular setting.

          4. Assisting Customers with Disabilities While Social Distancing

The ADA requires employees of public accommodations to provide assistance to customers with disabilities for a variety of tasks, such as retrieving out of reach products, reading written product or other information to those with sight disabilities, and guiding those with sight disabilities to locations within a facility.  This obligation has not changed, and most of these tasks can still be performed while maintaining a safe distance.   However, employees should be reminded of their obligation to provide assistance while maintaining distancing measures.  For example, instead of offering a blind person an arm to guide the person to a destination, verbal wayfinding directions can be used instead.

          5. Accessible Seating

The ADA requires public accommodations that offer work or dining surfaces to provide accessible work or dining surfaces.  Specifically, five percent of seats at such surfaces must have a work surface that is between 28” and 34” above the ground, with clear space underneath that is at least 27” high, 17” deep, and 30” wide.  To ensure there is enough space between tables, businesses may remove tables from their dining rooms.  In so doing, they must ensure that the required number of accessible tables remain in service.

          6. Accessible Digital Alternatives

Even as stay-at-home orders are lifted, many customers will still prefer shopping online.  This also applies to customers with visual, hearing, or physical disabilities who rely on assistive technologies like screen readers or captioning on videos to access the internet. Businesses should review the accessibility of their websites and mobile apps, and ensure they have a manner and means to provide assistance to patrons with disabilities who encounter difficulties using the website or mobile app.

*                       *                       *

Unlike the U.S. Equal Employment Opportunity Commission (EEOC) which has issued guidance to employers about how to protect employees in the workplace from Covid-19 in compliance with non-discrimination laws, the Department of Justice (DOJ) has not issued any guidance on how public accommodations should apply social distancing and safety measures while maintaining compliance with Title III of the ADA. Thus, we strongly recommend that businesses consult with experienced counsel in developing and implementing plans for reopening that address the needs and heath of their employees and customers, including those with disabilities.

Edited by Kristina Launey

By Kristina M. LauneyMinh N. Vu

We’ve sheltered in place and finished our tally.  The numbers are in for total website accessibility lawsuit filings in federal courts in 2019, they show a small decrease from 2018. The total number of website accessibility lawsuits filed in federal court (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) in 2019 was 2,256 — two fewer than in 2018.  In short, the number of suits appears to be leveling out after businesses saw an explosive 177% increase in these suits from 2017 to 2018.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2019: 2017: 814; 2018: 2,258; 2019: 2,256. *The number of cases that could be identified through a diligent search.]

In fact, the number of federal ADA Title III website accessibility lawsuit filings decreased in the fourth quarter of 2019, contrary to our prediction that the U.S. Supreme Court’s refusal to review the Ninth’s Circuit’s pro-plaintiff decision in Robles v. Domino’s would result in a surge of website accessibility lawsuits. Prior to the Supreme Court’s October 7, 2019 refusal to hear the Domino’s case, an average of 7 lawsuits were filed per day, as compared to 4 per day after that date for the remainder of 2019.   And as shown in the chart below, while the greatest number of suits were filed in July and August (258 and 270, respectively) monthly filings then decreased by nearly half for each of the last four months of the year.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 1, 2019 – Mar. 30, 2020): Jan. 2019 (239), Feb. 2019 (211), Mar. 2019 (183), Apr. 2019 (183), May 2019 (203), Jun. 2019 (181), Jul. 2019 (258), Aug. 2019 (270), Sep. 2019 (131), Oct. 2019 (140), Nov. 2019 (138), Dec. 2019 (119), Jan. 2020 (187), Feb. 2020 (174), Mar. 2020 (167).  *The number of cases that could be identified through a diligent search.]

The number of filings went back up for the first three months of 2020 but were still lower that the number of filings in the same months in 2019.  The tally was 187, 174, and 167 for January, February, and March 2020, compared to 239, 211, and 183 for those same months in 2019.

New York and Florida federal courts continued to be the busiest with 1,354 (down from 1,564 in 2018) and 526 (down from 576 in 2018) lawsuits, respectively, as shown in the chart below. California and Pennsylvania bypassed Illinois and Massachusetts for the distant third and fourth positions, even though lawsuits for all those states more than doubled in 2019 over 2018.  Pennsylvania had 92 lawsuits while Illinois had 91 lawsuits in 2019, more than double the 42 and 7 respectively in 2018.  The number of California lawsuits jumped from 10 in 2018 to 120 in 2019. This number does not account for the many demand letters sent out by California firms that never result in lawsuits and lawsuits filed in state courts which are much more difficult to track.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2019: NY 1,354, FL 526, CA 120, PA 92, IL 91, MA 33, WI 8, IN 6, CO 6, DC 5. *The number of cases that could be identified through a diligent search.]

The number of New York federal website accessibility lawsuits continues to be staggering but it is going down, compared to last year.  The New York surge began in 2017 after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys in 2017.  The modest decrease in the New York numbers is likely due to some New York attorneys turning their attention to filing hundreds of lawsuits regarding the accessibility of gift cards in late 2019 and early 2020.

***

About our methodology:  Our 2019 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2020 brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.  We also removed a number of lawsuits from the 2019 count brought against state and local government entities under Title II of the ADA for having inaccessible websites.

By Minh Vu and Michael Steinberg

Seyfarth Synopsis: In a first-in-the-nation decision, Judge Gregory Woods of the Southern District of New York ruled that Title III does not require public accommodations to manufacture or sell Braille gift cards.

It has been a gloomy month for businesses that (ordinarily) open their doors to the public, but there was a small bright spot yesterday:  U.S. District Court Judge Gregory Woods issued a decision holding that Title III of the ADA does not require public accommodations to make and sell gift cards with Braille.

The decision is significant because, at the end of 2019 and first few months of this year, a handful of plaintiffs represented by a small group of coordinated plaintiff’s attorneys inundated the New York federal courts with more than 200 boilerplate lawsuits claiming that retailers, restaurants, and entertainment venues violated Title III of ADA, New York State, and New York City non-discrimination laws by not offering gift cards with Braille.  Defendants fought back with motions to dismiss these lawsuits, and Judge Woods’ decision is the first to issue from the bench. Decisive and thorough, the decision provides a roadmap for other judges to reach the same conclusion in the many other pending cases, should they be so inclined.

In the case in question, as in the other cases, the plaintiff here alleged that he called the defendant and inquired whether the defendant sells gift cards with Braille.  The defendant answered in the negative and did not proactively offer some other auxiliary aid or service.  The plaintiff filed a lawsuit shortly thereafter.

Judge Woods first concluded that the plaintiff’s “all-too-generic” complaint was insufficient to establish standing to sue because the plaintiff had not demonstrated that he would be injured by the absence of Braille on the retailer’s card in the imminent future – a requirement for ADA Title III lawsuits, which only offer forward looking injunctive relief.  Specifically, the plaintiff provided no facts to suggest that he would be patronizing the defendant’s store in the future where he would need to use a Braille gift card.  Judge Woods could have ended the opinion there, but, because it could inform other pending cases, went on to address the merits of the plaintiff’s ADA Title III claim.

First, he concluded that Title III and its regulations do not require the provision of different goods or services to people with disabilities, but rather only require nondiscriminatory enjoyment of those that are provided. So, for example, a bookstore would not be required to sell books in both Braille and standard print. Likewise, the court found, the ADA does not require businesses to make or sell gift cards with Braille print.  The court wrote:  “A retailer need not alter the mix of goods that it sells to include accessible goods for the disabled.”

Second,  the court held that the gift card is not a place of public accommodation, as claimed by the plaintiff.  “[R]eading the words “place of public accommodation” to include small slabs of plastic requires more than just a broad construction of Title III—it requires a rewrite of Title III entirely.”

Third, the court found that the defendant did not deny the plaintiff access to a service by failing to provide him with an accessible gift card because the plaintiff never asked for an auxiliary aid or service in the first place.  The court said: “The recitation of facts in Dominguez’s complaint make it clear that he never even asked for one, even though Plaintiff acknowledges that no one specific auxiliary aid is mandated by the ADA.”

Fourth, the court rejected Plaintiff’s argument that gift cards are like U.S. paper money which the D.C. Court of Appeals has held must be made accessible to people who are blind or low vision. The court called this argument “a strange interlude in Plaintiff’s opposition,” and said “the analogy to cash falls apart under even modest scrutiny.” The court also found no privacy considerations were implicated by the use of gift cards, unlike ATMs, for example, which require the input of a personal identification number.

Judge Woods concluded with the following comment about the boilerplate nature of these lawsuits:

“Computers have made a lot of things in life easier. Copy-and-paste litigation is one of them. The pitfalls of such an approach is evident here where, among other things, Plaintiff’s opposition responds to arguments never made by its opponent in its motion and failed to even correctly identify what Defendant sells. See, e.g., Opp‘n at 3, 15, 16, 20 (referring to Banana Republic as a “food establishment”). Although it features the fruit in its name, Banana Republic does not sell bananas.”

This decision is only the first of many decisions, but it is certainly a good start. We expect to see more judges weighing in in the coming months and we will continue to report on these decisions as they come out.  Stay tuned for more updates.

UPDATE:  Shortly after the court issued the decision discussed above, Judge Woods issued decisions in a number of other nearly identical gift card cases which rely on the analysis in the Banana Republic case to dismiss the plaintiff’s claims.

Edited by Kristina M. Launey

By Minh Vu

Seyfarth Synopsis:  Miniature horses trained to perform work or tasks for a person with a disability must be allowed in public accommodations in most instances.

The news is not particularly uplifting these days, so we thought our readers would enjoy seeing clips of former California Governor Arnold Schwarzenegger’s miniature horse, Whisky (the clips also features Lulu, his mini-donkey) (see here and here). Under the ADA regulations, miniature horses that are individually trained to perform work or tasks for a person with a disability must be allowed in public accommodations just like a service animal as long as they are housebroken, not too large, under the owner’s control, and would not compromise legitimate safety requirements.  We have no idea whether Whisky is trained to perform any work or tasks for anyone, but (s)he is awfully cute.

For more information about service animals, which the ADA defines to only include dogs, check out this very helpful FAQ from the Department of Justice.

Seyfarth Synopsis: The U.S. Health and Human Services Department Office for Civil Rights issued a bulletin reminding healthcare and other entities receiving federal funds that their anti-discrimination obligations under Section 1557 and the Rehabilitation Act remain in place in this time of COVID-19 emergency.

By Kristina M. Launey and Minh N. Vu

In this unprecedented time of COVID-19 emergency, there have been reports on the news that healthcare providers may need to make tough choices between patients due to various factors, including the shortage of much-needed life-saving equipment.  On March 28, 2020, the U.S. Health and Human Services Department (“HHS”) Office for Civil Rights (“OCR”) issued a bulletin reminding entities receiving federal funds for programs subject to Section 1557 of the Affordable Care Act (“Section 1557”) and Section 504 of the Rehabilitation Act (“Section 504), that their anti-discrimination obligations under those laws remain in place and must continue to be observed.

The bulletin warned: “individuals with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence of absence of disabilities.”  Rather, covered entities, which receive federal funding for health programs or activities, should make decisions regarding whether an individual is a candidate for treatment “based on an individualized assessment of the patient based on the best available objective medical evidence.”

The bulletin is intended to help health care providers meet the HHS’s goal of “leaving no one behind” during an emergency, according to OCR Director Roger Severino, and that persons with disabilities “should not be put at the end of the line for health services during emergencies.”

To accomplish this, the bulletin reminded health care providers and other covered entities of some key obligations under Section 1557 and the Rehabilitation Act: providing effective communication with individuals who have hearing and vision related disabilities; making emergency messaging available in multiple formats, including audio, large print, captioning, and accessible websites; addressing needs of individuals with disabilities, including those with mobility impairments, using assistive devices or durable medical equipment, and immunosuppressed conditions in emergency planning.  Of course, the bulletin notes, some actions or accommodations may not be required, if they may fundamentally alter the nature of a program, pose an undue burden, or a direct threat.  While not required, the bulletin recommends covered entities “consider adopting” practices to make use of multiple outlets and resources for messaging to reach individuals with disabilities, and stocking facilities with items to help people maintain independence such as hearing aid batteries, canes, and walkers.

Significantly, though relegated to a footnote, the bulletin emphasized that it is more than just a recommendation; due to the COVID-19 public health emergency, it is a statement of policy not subject to the notice and comment requirements of the Administrative Procedure Act, over which the OCR will exercise its enforcement authority.

The OCR bulletin came on the heels of a complaint filed with the OCR by disability rights advocacy groups based in Washington State concerning a plan under development by the Washington State Department of Health and the Northwest Healthcare Response Network to ration health care during the COVID-19 pandemic.  The complaint alleges that the “rationing scheme places the lives of disabled people at serious risk” and “discriminates against people with disabilities in violation of … the Americans with Disabilities Act (ADA), Section 504 … and Section 1557.”

We cannot close without restating the bulletin’s reminder to us all to practice social distancing; clean your hands often; cover coughs and sneezes; and call your healthcare provider if you believe you may be infected. http://www.coronavirus.gov.