OCR’s View of Provider Obligations Under the Affordable Care Act and Rehabilitation Act

While hospitals are dealing with challenging equipment, space and workforce limitations, no HHS-funded program (Covered Entities) can deny patients medical care based on stereotypes, assessments of quality of life or judgments about that patient’s “worth” related to the presence or absence of disabilities. Per the OCR, “[d]ecisions 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.”

The March 28th Guidance comes on the heels of reports that some Covered Entities, struggling with resource and workforce scarcity, are considering rationing resources, such as ventilators, and implementing universal “do-not-resuscitate” orders. There are already complaints from advocacy groups about rationing programs in Alabama and Washington. OCR is reported to have opened investigations on the basis of complaints received from a variety of advocacy groups and members of Congress. While we note that most OCR investigations result in minor corrective actions at most, a very small percentage yield punitive outcomes, and all require a Covered Entity to spend time and resources on responding. In addition, the reputational harm arising from OCR investigations can be significant.

Consistent with the requirements of Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act, the March 28th Guidance states that Covered Entities cannot put a patient at the end of the line for treatment or attention based on that patient’s disability, limited English skills or need for religious accommodations, even during an emergency. OCR specifically warns against such “ruthless utilitarianism” in this guidance.

OCR expects that Covered Entities will continue to respect their patients’ civil rights and provide accommodations as required, including:

• Providing communication accommodations for those with communication limitations (deaf, blind, non-English speakers, etc.), such as interpreters and picture boards
• Disseminating information using varying media, including audio, video captioning and non-English options
• Addressing the needs of individuals with disabilities, including those with mobility impairments, those with assistive devices and those who are immunocompromised
• Respecting requests for religious accommodations.

Potential Flexibilities

Even as OCR reiterates its commitment to nondiscrimination during the COVID-19 emergency, the March 28th Guidance notes that OCR will be exercising its enforcement discretion in connection with the conditions outlined in this guidance. Additionally, some actions and accommodations that would otherwise be required, may not be required if they would fundamentally alter the nature of a program, pose an undue financial and administrative burden, or “pose a direct threat” (OCR does not clarify the subject of such a “direct threat”). Covered Entities may also have flexibility under the Public Readiness and Emergency Preparedness Act (PREP Act). On March 17, 2020, the Secretary of HHS issued a Declaration, pursuant to the PREP Act, which would limit tort liability from some private claims arising from the use or administration of certain covered countermeasures to combat COVID-19 and may provide immunity from certain liability under civil rights laws.

Key Takeaways

OCR is committed to ensuring Covered Entities meet their civil rights obligations to patients, even as these entities face mounting pressures from the COVID-19 emergency. Though OCR will be exercising its discretion in enforcing these obligations, hospitals and other Covered Entities should take all reasonable steps under the circumstances to consider the civil rights of all their patients when drafting contingency plans for resource and workforce shortages. In accordance with the March 28th Guidance, Covered Entities should consider adopting practices that make use of multiple outlets and resources for messaging to reach individuals with disabilities, individuals with limited English proficiency and members of diverse faith communities. Covered Entities also should consider stocking facilities with items that will help people to maintain independence—such as hearing aid batteries, canes and walkers—to the extent circumstances and resources allow, which will vary widely. In addition, Covered Entities should continually assess their policies and performance to ensure that they are accommodating the needs of their protected patient populations to the greatest extent reasonably feasible and, where necessary, contemporaneously documenting the circumstances that make it impracticable to do so.

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