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
- OCR Provides Technical Assistance to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination - January 14, 2021
- OCR Resolves Complaint with Utah After it Revised its Crisis Standards of Care to Protect Against Age and Disability Discrimination - August 20, 2020
- OCR Resolves Complaint with Tennessee After it Revises its Triage Plans to Protect Against Disability Discrimination - June 26, 2020
- OCR Resolves Civil Rights Complaint Against Pennsylvania After it Revises its Pandemic Health Care Triaging Policies to Protect Against Disability Discrimination - April 16, 2020
- OCR Reaches Early Case Resolution With Alabama After it Removes Discriminatory Ventilator Triaging Guidelines - April 8, 2020
Healthcare Resilience Crisis Standards of Care Taskforce Publications
Hospitals:
- Information on Crisis Standards of Care and Civil Rights Laws
- Estándares de Cuidado en Crisis y Leyes de Derechos Civiles*
Long-term care facilities:
Panel Presentations and Podcasts on Non-Discrimination and Crisis Standards of Care in Which OCR has Participated
- American Society of Nephrology – David White Talks to OCR Director Severino About Protecting Civil Rights During COVID-19 - July 3, 2020
- 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
COVID-19 Announcements
- 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
OCR Bulletins
- 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
Centers for Disease Control and Prevention (CDC) COVID-19 Resources
CDC Multilingual Content
CDC Posters
- 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
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?
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
- 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 COVID-19 Resources
U.S. Department of Housing and Urban Development (HUD) COVID-19 Resources
U.S. Department of Justice (DOJ) COVID-19 Resources
- DOJ Coronavirus ResponseAttorney General Statement on Balancing Public Safety with the Preservation of Civil Rights – April 27, 2020
- Assistant Attorney General for Civil Rights Statement on Protecting Civil Rights While Responding to the Coronavirus Disease 2019 (COVID-19) - April 28, 2020
* 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 OCRMail@hhs.gov.