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Health Providers Warned Against Giving Biased Care During Crisis (2)

March 28, 2020, 1:08 PM; Updated: March 28, 2020, 6:01 PM

Health-care providers must ensure they don’t discriminate on the basis of disability as they make treatment decisions during the Covid-19 pandemic, the HHS said.

People with disabilities shouldn’t be denied care based on stereotypes or judgments about a person’s quality of life, the U.S Department of Health and Human Services’s Office for Civil Rights (OCR) said in a bulletin issued on Saturday. Rather, providers should make decisions about treatment on an “individualized assessment of the patient based on the best available objective medical evidence,” it said.

The bulletin follows two complaints filed by disability advocates with the OCR, which raised concerns that discrimination against disabled people could emerge as health-care resources dwindle due to Covid-19.

“HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal,” Roger Severino, OCR director, said in a statement. “Persons with disabilities, with limited English skills, or needing religious accommodations should not be put at the end of the line for health services during emergencies.”

The OCR enforces the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, among other anti-discrimination laws, according to the bulletin.

The office’s “goal is to make sure that our civil rights laws are enforced, even in times of crisis,” Severino said in a call with reporters on Saturday. He said that the OCR has received several complaints around crisis standards of care and has opened investigations into those complaints.

Civil Rights Compliance

The bulletin says that health-care providers should provide effective communication for people who are blind or deaf, ensure access to information for people with limited English proficiency, and provide emergency messaging in multiple formats, such as audio and large print.

The bulletin also says that an HHS declaration issued March 17, which shields manufacturers working to combat the coronavirus from legal liability, “may provide immunity from certain liability under civil rights laws” over claims related to Covid-19 countermeasures.

Severino told reporters that his office would “enforce wherever the facts and the law take us,” but declined to say how far the OCR could go in light of that immunity.

The decision about waiving civil rights liability will lie with the HHS Office of the General Counsel, not the OCR, Severino told Bloomberg Law.

The OCR is “committed to enforcing to the fullest extent” civil rights law, Severino said. But, “what that full extent is under the emergency circumstances” is a question for the OGC, he said.

The OCR is responsible for ensuring that health services are distributed without bias, and it has wide authority to cite violations. Enforcement actions can include fines, mandatory monitoring, and revoking health providers’ ability to bill Medicare and Medicaid.

(Updated with additional comments from Severino in the tenth and eleventh paragraphs)

To contact the reporters on this story: Alexis Kramer in Washington at akramer@bloomberglaw.com; Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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