HHS reinforces requirements for providers to give equal care to people with disabilities

The Department of Health and Human Services (HHS) emphasized to providers that barriers to care for people with disabilities is a violation of federal civil rights laws, as advocates worry about healthcare access for these individuals.

HHS issued guidance Friday to providers clarifying providers’ obligations for administering care even amid scarce resources as hospital finances remain strained due to the latest surge of COVID-19.

“The pandemic has shone a light on the disparities in our healthcare system and provided us with a new opportunity to address them in a meaningful way,” HHS Secretary Xavier Becerra said in a statement. “Protecting people with disabilities from being discriminated against in crisis situations is a critical part of this work and we are continuing to evaluate our operations department-wide to ensure accessibility.”

HHS’ guidance said disability rights apply to state crisis standards of care plans and procedures that detail how hospitals must triage scarce resources.

“During a public health emergency like the COVID-19 pandemic, biases and stereotypes may impact decision-making when hospitals and other providers are faced with scarce resources,” said Lisa Pino, director of HHS’ Office of Civil Rights (OCR), in a statement. “OCR will continue our robust enforcement of federal civil rights laws that protect people with disabilities from discrimination.”

The standards detail how hospitals can divvy up resources during emergency periods which many facilities have had to enter into after being overwhelmed by cases of COVID-19 fueled by the omicron variant. Some hospitals have had to pause nonessential procedures and face major staffing shortages.

“When allocating scarce resources or care in a public health emergency, covered entities must analyze the specific patient’s ability to benefit from the treatment sought, free from stereotypes and bias about disability,” the guidance said. This analysis must also not include any “prejudicial preconceptions and assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of the disabilities,” HHS added.

Any crisis standards of care should be applied to assess whether treatment is going to be effective for any individual patient.

“Hospitals may, however, deny care during a public health emergency on the basis that such care is unlikely to be effective for a particular patient, after analyzing that patient’s ability to respond to the treatment being sought,” the guidance said. “The patient’s pre-existing disability or diagnosis should not form the basis for decisions regarding the allocation of scarce treatment.”

The agency also emphasized that individuals cannot be denied equal opportunity for benefit from healthcare programs or services, even if they require more of a certain resource than an individual that doesn’t have disabilities.

Federal civil rights laws also apply to any entities providing hospitalization, long-term care and critical care such as oxygen therapy or mechanical ventilators, HHS said in a release.

The guidance comes after advocates have listed concerns over how people with disabilities are being treated. The American Association of People with Disabilities said in a statement that the pandemic has exacerbated “existing disparities faced by people with disabilities.”