Recent federal guidance waiving some civil rights protections while combating the coronavirus is confusing and needs to be clarified, lawyers and disabilities advocates said.
The questions that need answering range from who will be making the decisions to waive protections for disabled people and whether private parties will be in position to bring lawsuits to enforce those protections.
The confusion comes as some states have already made physical and mental disabilities criteria for making decisions on allocating scant resources to combat Covid-19, the disease caused by the coronavirus.
“HHS should provide states, providers, and the public more comprehensive guidance to protect people with disabilities from discrimination in the allocation of scarce medical resources,” Susan Mizner, director of the ACLU’s Disability Rights Program, said.
The federal government has “narrowed” criteria to say individuals can’t bring a private claim seeking damages over certain civil rights violations against disabled people, she said. “That’s a fairly narrow technical restriction, but we also don’t see any language in the PREP Act that would justify that,” she added.
The Department of Health and Human Services’ March 28 bulletin on the Public Readiness and Emergency Preparedness Act said the law “may, depending on the circumstances, provide some immunity from private rights of action under the civil rights laws.”
However, the Office of General Counsel within the Department of Health and Human Services has said the PREP Act “likely would not provide immunity from government enforcement,” causing confusion.
Officials with the HHS and the OGC declined to answer questions about under what circumstances civil rights protections would be waived for disabled people, who makes those decisions, and who is protected.
Many in the disability community remain concerned about the vague language and how it could influence the allocation of resources.
“The biggest concern is that states will think this is a loophole that means they don’t have to fully comply with civil rights law—but it’s not,” Mizner said.
And some lawyers agree there is room for the HHS to eliminate the confusion over the language in the recent bulletin.
“The law still applies, and the government has full enforcement authority” on civil rights matters, said Samuel Bagenstos, a professor at the University of Michigan Law School. “The ambiguity is over what kind of lawsuits private parties can bring.”
“If I were running a health system or I were a state health official, I wouldn’t take a lot of comfort in the PREP Act that I could violate civil rights laws,” he added. Parties “wouldn’t be immunized from a lawsuit by the government, which does pretty aggressively enforce civil rights laws, and they wouldn’t be immunized from a lawsuit over willful misconduct.”
While disability advocates are concerned about the latest language, some lawyers say the liability protection is not as problematic as it may seem.
The exception is “very limited,” said Iliana Peters, an attorney with Polsinelli in Washington, who formerly worked for the Office for Civil Rights within the HHS.
Specifically, it would protect manufacturers and distributors of products like ventilators and respirators, as well as program planners who assess need and deployment of resources, from liability—but only if discrimination against disabled people occurs because the key players are explicitly following government orders, Peters said.
During this national health emergency, the government is directing people charged with the distribution of life-saving resources. If, during that process, the government makes discriminatory decisions about which states and communities should get those resources first, the supply chain actors who are carrying out the government’s directives can’t be sued by private actors.
“The vast majority of civil rights protections under the law and pursuant to OCR’s authority are still in effect during this crisis,” Peters said.
However, “under the declaration, in cases where entities are working with the federal government on distribution of resources, there may be certain circumstances where there is immunity from liability,” she added.
Lawyers say any protection from liability doesn’t extend to health-care workers who are making front-line decisions about who will receive access to life-saving resources, including ventilators.
“Health providers must still comply with civil rights laws, and the federal government will enforce those laws,” said Jennifer Mathis, director of policy and legal advocacy for the Judge David L. Bazelon Center for Mental Health Law.