Civil Rights and COVID-19
The resources below explain how civil rights laws assist patients in receiving the care they need during the COVID-19 public health emergency.
HHS and DOJ Guidance on Long COVID as a Disability
The U.S. Department of Health and Human Services and the Department of Justice jointly published a guidance document on “long COVID” as a disability under the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. The guidance, released as we commemorate the 31st anniversary of the ADA, provides additional clarity on how these disability nondiscrimination laws apply to people who may be newly covered under these laws because of the impact of the COVID-19 infection on their bodies and their lives. The document discusses when long COVID may be considered a disability under the ADA, Section 504, and Section 1557, and shares examples along with related resources that may be helpful.
- Read the Guidance (July 2021)
- Read the Press Release
- On Monday, August 2, 2021, the White House Office of Public Engagement, in conjunction with the Departments of Health and Human Services, Education, and Labor, hosted "A Conversation about Long COVID," to review the guidance, share information on how to access supports, and answer questions. If you missed it, you can watch the video here.
NON-DISCRIMINATION IN ACCESS TO THE COVID-19 VACCINE
At the beginning of the COVID-19 public health emergency, the HHS Office for Civil Rights (OCR) made clear that civil rights laws remain in effect during disasters or emergencies, including the COVID-19 pandemic. Non-discrimination is central to President Biden’s National Strategy for the COVID-19 Response and Pandemic Preparedness, including his Executive Order on Ensuring an Equitable Pandemic Response and Recovery and Improving and Expanding Access to Care and Treatments for COVID-19. The federal civil rights laws that OCR enforces also require non-discrimination in the Nation’s efforts to vaccinate the public against the COVID-19 virus regardless of race, color, national origin, disability, gender, age, or sex.
OCR has issued guidance outlining legal standards under the federal civil rights laws prohibiting disability discrimination and providing concrete examples of the application of the legal standards in the context of COVID-19 vaccine programs and how to implement them. OCR also issued a Fact Sheet setting out key actions to provide access to vaccination programs for people with disabilities. The OCR guidance and fact sheet are companion pieces to resources and information compiled by HHS agencies on best practices for ensuring vaccination accessibility.
- Disability Access in Vaccine Distribution Fact Sheet
- HHS Office for Civil Rights Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs
- Read the Press Release
OCR has issued a variety of guidance documents to provide additional information about civil rights protections during the COVID-19 pandemic, including:
- “Civil Rights Protections Prohibiting Race, Color and National Origin Discrimination During COVID‐19: Application of Title VI of the Civil Rights Act of 1964”, which you can read here.
- “Ensuring the Rights of Persons with Limited English Proficiency in Health Care During COVID-19”, which you can read here.
- “Ensuring Non-Discrimination based on Disability or Age”, which you can read here.
- OCR has also published guidance to ensure that persons with disabilities can access health programs offered through providers' websites, including vaccination registration websites, which you can read here. The U.S. Department of Justice has also issued general guidance about accessibility of state and local government websites, which you can read here.
In addition to OCR, other HHS agencies, including the Administration for Community Living (ACL), the Assistant Secretary for Preparedness and Response (ASPR), and the Centers for Disease Control and Prevention (CDC) and other federal agencies, including the Federal Emergency Management Agency (FEMA) and the Department of Justice (DOJ) have issued practical tools to help ensure non-discrimination in COVID-19 vaccination efforts. Those resources are listed below.
- HHS launched a first-of-its-kind national hotline to connect people with disabilities to information and services to improve access to COVID-19 vaccines. The Disability Information and Access Line (DIAL) connects callers to information about how to access the COVID-19 vaccine and related supports for people with disabilities. DIAL connects callers to vaccine sites and provides information related to barriers to vaccination by referring callers to local and national disability resources. To access DIAL, visit: acl.gov/dial or call 888-677-1199 from 9:00 AM to 8:00 PM ET.
- The ADA National Network is funded by the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR) within the Administration for Community Living (ACL). It provides information, guidance and training on how to implement the Americans with Disabilities Act (ADA). Recent COVID-related materials include “Accessibility at Drive-through Medical Sites” and “Healthcare and Face Coverings: Reducing Communication Barriers for Deaf and Hard of Hearing Patients,” which you can read here.
- The CDC has issued guidance to help jurisdictions ensure equitable COVID-19 vaccine access, which you can read here.
- The CDC has also issued specific guidance about non-discrimination in scheduling an appointment for a COVID-19 vaccine and at vaccination sites, including ensuring accessibility and effective communication, making vaccination locations accessible, and providing accommodations, which you can read here.
- The HHS Office for Preparedness and Response has issued “Promising Practices for Reaching At-Risk Individuals for COVID-19 Vaccination and Information”, which you can read here.
- A Civil Rights Vaccine Checklist to assist State, Tribal, and Territorial partners in understanding and fulfilling their obligations to provide access to COVID-19 vaccine related programs, activities, and services in a nondiscriminatory manner, which you can read here.
- “Ensuring Civil Rights in Multiple Disasters During COVID-19”, which you can read here.
- Statement, principles and resource guide to help Federal, state, and local governments, and recipients of Federal financial assistance to address civil rights challenges related to the COVID-19 pandemic.
- A primer for state and local governments about accessibility under the Americans with Disabilities Act, which you can read here.
- A primer on effective communication and accessible design, which you can read here.
- A website to help state and local governments understand and address the needs of limited English proficient persons can be found here.
- Joint Guidance to Help Emergency Preparedness, Response and Recovery Providers Comply with Title VI of the Civil Rights Act.
NON-DISCRIMINATION IN CRISIS STANDARDS OF CARE
At the beginning of the COVID-19 public health emergency, OCR made clear that civil rights laws are not suspended or waived in times of disaster, including COVID-19. As set forth in this March 2020 bulletin: "OCR enforces Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act which prohibit discrimination on the basis of disability in HHS funded health programs or activities. These laws, like other civil rights statutes OCR enforces, remain in effect. As such, persons 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 or absence of disabilities or age. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence."
As a result of complaints filed with OCR and requests for technical assistance, OCR has worked with states and within HHS to address non-discrimination in crisis standard of care plans and practices.
Examples of how OCR has worked with states, HHS components, and the Health Care Resilience Crisis Standards of Care Taskforce to operationalize these principles appear below, along with conference presentations and podcasts on this topic in which OCR has participated.
DISABILITY AND CRISIS STANDARDS OF CARE
Best Practices from OCR's Work with States and Other Entities on Crisis Standards of Care
- Resource allocation decisions should be based on individualized assessment of each patient using best available objective medical evidence concerning likelihood of death prior to or imminently after hospital discharge
- Such assessments should not use categorical exclusion criteria on the basis of disability or age; judgments as to long-term life expectancy; evaluations of the relative worth of life, including through quality of life judgments, and should not deprioritize persons on the basis of disability or age because they may consume more treatment resources or require auxiliary aids or supports.
- When using prognostic scoring systems with patients with underlying disabilities, reasonable modifications may be necessary for accurate use.
- Healthcare providers should not "steer" patients into agreeing to the withdrawal or withholding of life-sustaining treatment or require patients or their families to consent to a particular advanced care planning decision in order to continue to receive services from a facility. Patients must be given information on the full scope of available alternatives.
- Providers should not consider for re-allocation a ventilator or other piece of life-sustaining equipment that is brought to the hospital by a patient whose life is dependent on that equipment
AGE AND CRISIS STANDARDS OF CARE
On January 14, 2021, OCR announced it worked collaboratively with the State of NC, the North TX Mass Critical Service to revise each entity's crisis standards of care ("CSC") guidelines to reflect best practices for serving individuals with disabilities and the elderly. After OCR provided technical assistance to each entity through a collaborative process, they issued CSC plans that incorporated the following provisions:
- Prohibition on the use of a patient's long-term life expectancy as a factor in the allocation and re-allocation of scarce medical resources;
- Prohibition on the use of categorical exclusion criteria, instead requiring an individualized assessment based on the best available objective medical evidence;
- Prohibition on the use of resource-intensity and duration of need 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 being given a lower priority to receive life-saving care due to such need;
- Inclusion of language stating that reasonable modifications to the use of clinical instruments for assessing likelihood of short-term survival should be made when necessary for accurate use with patients with underlying disabilities.
- Inclusion of new protections against providers "steering" patients into agreeing to the withdrawal or withholding of life-sustaining treatment, clarifying that patients may not be subject to pressure to make particular advanced care planning decisions, must be given information on the full scope of available alternatives, and that providers may not impose blanket "Do Not Resuscitate" policies for reasons of resource constraint, or require patients to consent to a particular advanced care planning decision in order to continue to receive services from a facility; and
- Inclusion of 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 addition to the agency's work with covered entities regarding CSC guidelines, OCR recently worked collaboratively with the National Academy of Medicine (NAM) to advise on the development of a statement on CSC guidelines during COVID-19, issued by the NAM and nine other national organizations reflecting key best practices for CSC plans.
In the December 18, 2020 National Organizations Call for Action to Implement Crisis Standards of Care During COVID-19 Surge, several recommendations address resource allocation decisions based on age. In particular, the recommendations state:
- "Make resource allocation decisions based on individualized assessments of each patient, using the best available objective medical evidence concerning likelihood of death prior to or imminently after hospital discharge, including clinical factors relevant and available to such determinations, which may include age under limited circumstances.
- However, such assessments should NOT use categorical exclusion criteria on the basis of disability or age; judgments as to long-term life expectancy; evaluations of the relative worth of life, including through quality of life judgments, and should NOT deprioritize persons on the basis of disability or age because they may consume more treatment resources or require auxiliary aids or supports."
OCR is the statutorily designated federal agency responsible for coordination of all civil rights regulations promulgated by federal agencies under the Age Discrimination Act. Under OCR's regulations, explicit mention of age as a basis (even if one factor among many) for a denial or de-prioritization with respect to federally funded benefits is generally prohibited. 45 CFR 91.11. However, methods for resource allocation that may have a disproportionate negative impact correlated to age can be used if "the factor bears a direct and substantial relationship to the normal operation of the program or to the achievement of a statutory objective." 45 CFR 91.14. Under 45 CFR 91.13 of OCR's regulations, age can be explicitly considered if:
(a) Age is used as a measure or approximation of one or more other characteristics; and
(b) The other characteristic(s) must be measured or approximated in order for the normal operation of the program or activity to continue, or to achieve any statutory objective of the program or activity; and
(c) The other characteristic(s) can be reasonably measured or approximated by the use of age; and
(d) The other characteristic(s) are impractical to measure directly on an individual basis.
Under 45 CFR 91.15, the recipient of federal funds has the burden of proving that use of age falls within the exceptions. This means statements saying providers may use age distinctions are generally not appropriate because each provider has to justify such use individually.
OCR Resolutions with States and Others About Crisis Standards of Care, Disability and Age Discrimination
- OCR Provides Technical Assistance to the State of Arizona to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination - May 25, 2021
- OCR Provides Technical Assistance to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination - January 14, 2021
- OCR Resolves Complaint with UT After it Revised its Crisis Standards of Care to Protect Against Age & Disability Discrimination - August 20, 2020
- OCR Resolves Complaint with TN After it Revises its Triage Plans to Protect Against Disability Discrimination - June 26, 2020
- OCR Resolves Civil Rights Complaint Against PA After it Revises its Pandemic Health Care Triaging Policies to Protect Against Disability Discrimination - April 16, 2020
- OCR Reaches Early Case Resolution With AL After it Removes Discriminatory Ventilator Triaging Guidelines - April 8, 2020
IHS Interim Guidance on Critical Care Resources Allocation for Direct-Service IHS Hospitals
The IHS Interim Guidance on Critical Care Resources Allocation for Direct-Service IHS Hospitals (PDF) recognizes that protections against discrimination on the basis of age and disability still apply during the COVID-19 Public Health Emergency. To this end, the Guidance clarifies that:
- IHS hospitals will not allocate life-saving care using on the basis of disability or age through assessments of quality of life (both pre- and post-treatment), judgments about a person's relative "worth," or consideration of factors unrelated to near-term survival.
- Resource allocation decisions must be based on individualized assessments of a patient's ability to benefit from treatment, rather than categorical age or disability exclusions or estimates of long-term survival beyond hospital discharge.
- Reasonable modifications must be made where necessary to ensure individuals with disabilities have equal opportunities to benefit from treatment resources.
- Decisions whether or not to provide care will not be made based on resource intensity and IHS hospitals will not impose blanket Do Not Resuscitate policies for reasons of resource constraint.
- Personal ventilators brought by patients related to pre-existing disabilities will not be reallocated.
- Patients will not be steered or pressured towards refusing life-saving care or treatment based on protected characteristics such as age or disability.
Healthcare Resilience Crisis Standards of Care Taskforce Publications
- Information on Crisis Standards of Care and Civil Rights Laws
- Estándares de Cuidado en Crisis y Leyes de Derechos Civiles*
Long-term care facilities:
- COVID-19: Considerations, Strategies, and Resources for Crisis Standards of Care in Post-Acute and Long-Term Care (PALTC) Facilities
Panel Presentations and Podcasts on Non-Discrimination and Crisis Standards of Care in Which OCR has Participated
- International Conference on Non-Discrimination and Crisis Standards of Care - December 9, 2020
- Crisis Standards of Care During the COVID-19 Pandemic – Real-time Legal Issues & Solutions - January 7, 2021
- OCR Issues Guidance on Civil Rights Protections Prohibiting Race, Color, and National Origin Discrimination During COVID-19 - July 20, 2020
- OCR Director Roger Severino participates in the National Academies of Sciences, Engineering, and Medicine webinar on Best Practices for Patient-Clinician Communication for People with Disabilities in the Era of COVID-19 - June 19, 2020
- OCR Resolves Complaints after State of Connecticut and Private Hospital Safeguard the Rights of Persons with Disabilities to Have Reasonable Access to Support Persons in Hospital Settings During COVID-19 - June 9, 2020
- HHS Initiatives to Address the Disparate Impact of COVID-19 on African Americans and Other Racial and Ethnic Minorities - June 8, 2020
- HHS Awards More than a Half Billion Dollars to Help Vulnerable and Underserved Communities Gain Access to COVID-19 Testing - May 7, 2020
- Civil Rights Protections Prohibiting Race, Color, and National Origin Discrimination During COVID-19: Application of Title VI of the Civil Rights Act of 1964
- May 2020 Ensuring the Rights of Persons with Limited English Proficiency in Health Care During COVID-19 Bulletin *
- Boletín informativo: Garantizar los derechos de atención médica de las personas con dominio limitado del inglés durante la pandemia de COVID-19 *
- March 2020 Civil Rights, HIPAA, and COVID-19 Bulletin *
- Boletín informativo de marzo de 2020 - Derechos Civiles, la ley HIPAA y la enfermedad del coronavirus 2019 (COVID-19)
Other OCR Resources
For more information about how nondiscrimination laws apply during an emergency, please visit the Civil Rights Emergency Preparedness page.
To learn more about privacy flexibilities and guidance during COVID-19, please visit the HIPAA and COVID-19 page.
For more information on how HIPAA applies in in emergency situations, please visit the HIPAA Emergency Preparedness page.
Other HHS Resources for Civil Rights & COVID-19
Administration for Community Living (ACL) COVID-19 Resources
- ACL information for older adults and people with disabilities
Available in Spanish
- ¿Qué deben saber los adultos mayores y las personas con discapacidad?
Centers for Disease Control and Prevention (CDC) COVID-19 Resources
CDC Multilingual Content
- Stop the Spread of Germs
This poster describes how to limit the spread of respiratory diseases like COVID-19 by avoiding close contact with people who are sick; covering cough and sneeze; avoiding touching eyes, nose and mouth; and washing your hands with soap and water. Available in Amharic, Arabic, Burmese, Dari, English, Farsi, French, Haitian Creole, Korean, Nepali, Pashto, Russian, Simplified Chinese, Somali, Spanish, Swahili, Tigryna, Ukrainian and Vietnamese
- Symptoms of Coronavirus Disease 2019
This poster presents the symptoms of the novel coronavirus (fever, cough, and shortness of breath). Available in English, Simplified Chinese, Haitian Creole, Korean, Spanish and Vietnamese
CDC Fact Sheets
- Steps to Help Prevent the Spread of COVID-19 if You Are Sick
This Fact Sheet provides steps to help prevent the disease from spreading to people in your home and community if you are sick with COVID-19 or suspect you are infected with the virus that causes COVID-19. Available in Amharic, Arabic, Burmese, Dari, English, Farsi, French, Haitian Creole, Nepali, Pashto, Russian, Simplified Chinese, Somali, Spanish, Swahili, Tigryna, Ukrainian and Vietnamese
- What You Need to Know About Coronavirus 2019 (COVID-19 )
This Fact Sheet explains what COVID-19 is, how it spreads, what its symptoms and severe complications are, how to protect yourself, what to do if you are sick, and what to do if you recently traveled from an area with ongoing spread of COVID-19. Available in English, Simplified Chinese and Spanish
CDC Videos in Spanish
- 6 medidas para prevenir el COVID-19
- 10 cosas que puede hacer para controlar el COVID-19 en casa
- COVID-19: Lo que los adultos mayores necesitan saber
CDC Videos in American Sign Language
- COVID-19 Prevention Tips
- 10 Things You Can Do To Manage COVID-19 at Home
- What is my Risk for COVID-19
- What Older Adults Need to Know about COVID-19
- Symptoms of Coronavirus Disease 2019
- COVID-19 Social Distancing
- COVID-19 Do Your Part to Slow the Spread
- When To Get Medical Care for COVID-19
- Managing Anxiety and Stress
- Parents Supporting Children
- Caring for Someone at Home Who May Have COVID-19
CDC Demographic Data
Food and Drug Administration (FDA) COVID-19 Resources
Indian Health Services (IHS) COVID-19 Resources
Office of the Assistant Secretary for Preparedness and Response (ASPR) COVID-19 Resources
Other Federal Agency Civil Rights Information on COVID-19
COVID-19 Healthcare Resilience Working Group
- COVID-19: Considerations, Strategies, and Resources for Crisis Standards of Care in Post-Acute and Long-Term Care (PALTC) Facilities
Federal Emergency Management Agency (FEMA) COVID-19 Resources
- FEMA Vaccine Support
- FEMA Civil Rights Bulletin On Ensuring Civil Rights When Responding To Multiple Disasters
- FEMA Takes Action to Ensure Equity in Vaccine Distribution
- FEMA Supports Vaccine Distribution: COVID-19 Response Update (Feb. 9, 2021, Release No. HQ-21-027)
- FEMA Advisory: Civil Rights Considerations During COVID-19 Vaccine Distribution Efforts Checklist
- FEMA Advisory: Civil Rights Data Collection
- FEMA Civil Rights Bulletin
- FEMA Resilience Assessment Planning Tool (RAPT), supporting documents and User Guide
- FEMA, DHS and HHS COVID-19 Teleconference for Civil Rights Stakeholders (Transcript) - May 6, 2020 En Español
- FEMA & HHS Teleconference for Civil Rights Stakeholders (Transcript) - April 17, 2020
U.S. Commission on Civil Rights (USCCR) COVID-19 Resources
U.S. Department of Education (ED) COVID-19 Resources
U.S. Department of Housing and Urban Development (HUD) COVID-19 Resources
U.S. Department of Homeland Security (DHS) COVID-19 Resources
U.S. Department of Justice (DOJ) COVID-19 Resources
- DOJ Statement and Resource Guide re: Leading a Coordinated Civil Rights Response to Coronavirus (COVID-19)
* People using assistive technology may not be able to fully access information in these files. For assistance, contact the HHS Office for Civil Rights at (800) 368-1019, TDD toll-free: (800) 537-7697, or by emailing [email protected].