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Civil Rights and COVID-19

Coronavirus - 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.   

If you have questions or want to file a complaint with OCR, you can do so here. 

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.

ACL:

  • 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.

CDC:

  • 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.

ASPR:

  • 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.

FEMA:

  • 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.

DOJ:

  • 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

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

Hospitals:

Long-term care facilities:

Panel Presentations and Podcasts on Non-Discrimination and Crisis Standards of Care in Which OCR has Participated

COVID-19 Announcements

OCR Bulletins

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

Centers for Disease Control and Prevention (CDC) COVID-19 Resources

CDC Multilingual Content

CDC Posters

CDC Fact Sheets

CDC Videos in Spanish

CDC Videos in American Sign Language

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

Federal Emergency Management Agency (FEMA) COVID-19 Resources

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

* 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].

Content created by Office for Civil Rights (OCR)
Content last reviewed on August 5, 2021