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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.

For more information about how nondiscrimination laws apply during an emergency, visit the Civil Rights Emergency Preparedness page.

NON-DISCRIMINATION IN CRISIS STANDARDS OF CARE

At the beginning of the COVID-19 public health emergency, the HHS Office for Civil Rights 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: "The Office for Civil Rights 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 the HHS Office for Civil Rights and requests for technical assistance, the HHS Office for Civil Rights has worked with states and within HHS to address non-discrimination in crisis standard of care plans and practices.

Examples of how the HHS Office for Civil Rights 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 the HHS Office for Civil Rights has participated.

Indian Health Service 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 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.

AGE AND CRISIS STANDARDS OF CARE

On January 14, 2021, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced it worked collaboratively with the State of North Carolina, the North Texas 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."

The HHS Office for Civil Rights (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 the HHS OCR 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 HHS OCR regulations, age can be explicitly taken into account 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.

HHS Office for Civil Rights Resolutions with States

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

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

Administration for Community Living (ACL) COVID-19 Resources

U.S. Food and Drug Administration (FDA) 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 COVID-19 Resources

U.S. Department of Housing and Urban Development (HUD) 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 January 21, 2021