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.