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Civil Rights and COVID-19

Coronavirus - Civil Rights and COVID-19

"We are empowering medical providers to serve patients wherever they are during this national public health emergency. We are especially concerned about reaching those most at risk, including older persons and persons with disabilities." – Roger Severino, OCR Director

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 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.

AGE AND CRISIS STANDARDS OF CARE

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 December 23, 2020