The U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) has made clear that civil rights protections remain in full force and effect during disasters or emergencies, including the COVID-19 pandemic. These laws include Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the Affordable Care Act (Section 1557) which prohibit discrimination on the basis of disability.1 OCR is providing this FAQ guidance2 on Federal civil rights obligations under Section 504 and Section 1557 in light of the continuing public health and national emergency concerning the Coronavirus Disease 2019 (COVID-19).
To further help covered entities comply with civil rights laws and advise patients and consumers of their rights, OCR issued a series of guidance documents,3 provided technical assistance, and worked with covered entities to resolve complaints alleging discrimination on the basis of disability, race, color, national origin, sex, and age.
In a public health emergency, when resources can be scarce, individuals with disabilities may be subjected to stereotypes, bias, and other obstacles that may impede their access to healthcare. It is vital that individuals with disabilities are not prevented from receiving needed healthcare or health services because of discrimination in violation of Section 504 and Section 1557. Accordingly, OCR offers the following guidance.
Federal Civil Rights during the COVID-19 Public Health Emergency
1. What Federal civil rights laws prohibiting discrimination on the basis of disability apply to healthcare providers during a public health emergency and to whom do they apply?
Federal civil rights laws continue to apply during any public health emergency, including COVID-19, and OCR continues to enforce laws prohibiting discrimination on the basis of disability.4 Recipients of HHS funds are subject to Section 504 of the Rehabilitation Act (504).5 In addition, Section 1557 of the Affordable Care Act (1557) applies to any health program or activity, any part of which is receiving federal financial assistance from HHS.6
2. To what healthcare and health services do Section 504 and Section 1557 apply during the COVID-19 public health emergency?
Where one or both of these disability rights laws apply, they apply to all healthcare and health services, regardless of the patient population served or type of service provided. This includes provision of medical supplies, administration of medication, hospitalization, long-term care, and intensive treatments and critical care, such as oxygen therapy and mechanical ventilators. When these laws apply, they also apply to state Crisis Standards of Care plans and procedures for triaging scarce resources that hospitals are required to follow, and to hospitals adopting and implementing standards, whether by choice or because they are required.
3. Who is a qualified individual with a disability who is protected under Section 504 and Section 1557?
Under Section 504 and Section 1557, a covered entity may not deny or limit, on the basis of disability, the participation of a qualified individual with a disability in its health programs and services.7 These laws require the definition of “disability” to be construed broadly, in favor of expansive coverage.8 These statutes and the regulations implementing Section 504 and Section 1557 define a “disability” with respect to an individual as a physical or mental impairment that substantially limits one or more of the major life activities of such an individual, a record of such an impairment, or being regarded as having such an impairment.9 An individual with a disability is “qualified” if that person meets the essential eligibility requirements for receipt of services or participation in the program or activity with or without reasonable modification to rules, policies or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services.10 However, the fact that an individual with a disability is qualified to receive health care from a provider does not necessarily mean that the individual has a right to any particular health care service.
Application of Section 504 and Section 1557 to Crisis Standards of Care
4. How does the prohibition against discrimination apply to the provision of healthcare to individuals with disabilities during a public health emergency?
In general, Section 504 and Section 1557 ensure that individuals with disabilities are not excluded from participation in, or denied the benefits of, services, programs, or activities, or otherwise subjected to discrimination, on the basis of disability11 and have an opportunity to participate in, or benefit from, services equal to that afforded others.12 Programs must be accessible to and usable by individuals with disabilities.13
Stereotypes, bias and quality of life judgments
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, including prejudicial preconceptions and assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities.14
By ‘bias,’ OCR is referring to an unfavorable perception based on prejudice, assumptions, conclusions or beliefs about an individual or group of individuals with a specific disability or any disability that is not supported by current medical knowledge or the best available objective evidence. Use of assessment tools or factors for making resource allocation decisions that screen out or tend to screen out individuals with disabilities or any class of individuals with disabilities from fully and equally enjoying any healthcare service, program, or activity being offered, unless such criteria can be shown to be necessary for the provision of the service, program or activity being offered, would violate nondiscrimination laws.15
Categorical exclusions on the basis of disability
Categorical exclusions in Crisis Standards of Care that deny critical healthcare services to individuals based solely on the type of disability an individual has, when treatment would not be futile for individuals with that type of disability, violate disability rights laws. For example, a hospital is prohibited from having a categorical exclusion denying life-saving care to individuals with Down syndrome based on a judgment that people without Down syndrome would be a greater benefit to society or would experience a richer or fuller life than those with Down syndrome.
Resource allocation decisions
While covered entities may rely upon applicable Crisis Standards of Care in making resource allocation decisions that affect individuals with disabilities, those standards should be based on current medical knowledge or the best available objective evidence regarding effectiveness of treatment. To avoid disability discrimination, Crisis Standards of Care should be applied in a way that assesses whether the treatment sought is likely to be effective for each 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 patient’s pre-existing disability or diagnosis should not form the basis for decisions regarding the allocation of scarce treatment, unless that underlying condition is so severe that it would prevent the treatment sought from being effective or would prevent the patient from surviving until discharge from the hospital or shortly thereafter. Further, when mortality predictions are based on a patient’s underlying disability, and not the condition for which they need immediate care, the less grounded in objective medical evidence they are likely to be, as critical care providers are not likely to have expertise concerning the life expectancy of every underlying condition patients have.
Reasonable modifications for individuals with disabilities
In addition, Section 504 and Section 1557 require covered entities to make reasonable modifications to policies, practices and procedures where necessary to provide individuals with disabilities an equal opportunity to participate in covered health programs and activities, unless the modifications would work a fundamental alteration in the nature of the health program or activity or impose an undue financial and administrative burden.16 If, as part of its Crisis Standards of Care, a hospital is using an assessment tool that unnecessarily screens out or tends to screen out individuals with disabilities from the opportunity to benefit from an aid, benefit, or service, and alternative tools are not available, a hospital may need to make a reasonable modification in its use of the assessment tool unless doing so would cause a fundamental alteration or impose an undue financial and administrative burden. For example, the Glasgow Coma Scale considers whether a person’s speech is comprehensible and whether they obey commands for movement. Someone with cerebral palsy may have difficulty speaking or moving as part of their underlying disability, which is not the condition that caused them to seek treatment at a hospital. Adjustments must be made to ensure that such a person’s pre-existing condition, and the symptoms of that condition, are not considered when using the Glasgow Coma Scale to evaluate whether they qualify for treatment. Similarly, a covered entity may need to make reasonable modifications for individuals with disabilities when evaluating the effectiveness of a treatment. For example, in evaluating the effectiveness of ventilator treatment, a covered entity may need to allow an individual with a disability some additional time on a ventilator to assess likely clinical improvement, unless doing so would constitute a fundamental alteration of the ventilator trial or impose an undue burden.
5. I am a health provider and am concerned that an individual with a disability or an individual who is likely to have a disability after treatment will have lower quality of life or relative worth to society than an individual without a disability who also requires treatment. May I take this into account in prioritizing what healthcare or services to provide to an individual with a disability?
No. Under Section 504 and Section 1557, the decision to allocate scarce medical resources during a public health emergency, including pursuant to Crisis Standards of Care, may not be based on stereotypes, pre-conceptions, prejudice, or generalizations about the relative worth or quality of life or value to society of the individual based on his or her disability, pre-or post-treatment.
6. I am a health provider and am concerned that treating an individual with a disability who has COVID-19 may require more of a particular resource than treating individuals without disabilities for COVID-19. Can I make decisions about whether to provide healthcare or deny the resource to an individual with a disability altogether based on these concerns?
No. Individuals with disabilities may not be denied an equal opportunity to participate in and benefit from healthcare programs and services. During the COVID-19 public health emergency, a provider may not refuse to admit for COVID-19 treatment a patient with a disability who may require more services or resources than other patients with COVID-19, as such a denial would prevent the patient with a disability from having an opportunity to benefit from care that is equal to the opportunity provided to others, on the basis of a disability.
In some circumstances, covered entities may be required as a reasonable modification to provide more resources to individuals with disabilities than they provide to others. For example, a hospital may need to make reasonable modifications to a trial assessing whether ventilator treatment is effective for a patient to accurately assess its effectiveness for individuals with disabilities. In evaluating the effectiveness of mechanical ventilation, the hospital may need to provide some additional time to an individual with a disability, unless doing so would constitute a fundamental alteration or undue burden.
7. I am a health provider operating in the COVID-19 public health emergency and am concerned that an individual with a disability may not live as long as an individual without a disability after treatment. May I use this information when deciding whether and to what extent to provide healthcare or services to an individual with a disability?
No. Disability nondiscrimination laws and their implementing regulations prohibit covered entities, including those implementing Crisis Standards of Care, from imposing or applying eligibility criteria that screen out or tend to screen out individuals with disabilities, or any class of individuals with disabilities, from fully and equally enjoying a service, program, or activity, unless such criteria can be shown to be necessary for the provision of the service, program, or activity being offered.17 In the context of Crisis Standards of Care implementation, which is designed to address resource shortages in a temporary emergency, a patient’s likelihood of survival long after hospital discharge, which may depend upon many factors and may be difficult to predict, is unlikely to be related to the need to make allocation decisions about scarce resources on a temporary basis. It is also unlikely to be related to the effectiveness of the medical interventions being allocated. The further in the future a provider forecasts, the less likely survival has to do with the effectiveness of the medical intervention in the context of the public health emergency necessitating Crisis Standards of Care. Judgments about long-term life expectancy are inherently uncertain and may screen out or tend to screen out individuals with disabilities from access to care without being necessary for the safe provision of the healthcare being offered.
In contrast, a criterion based on a patient’s medical condition having a high likelihood of death in the short term, even with aggressive treatment, would be an acceptable basis for giving an individual lower priority for care under disability rights law, so long as the lower priority is applied to both patients with and without disabilities. For example, a patient experiencing multiple organ failure and who is not anticipated to survive to hospital discharge even with aggressive treatment could be given lower priority for access to critical care.
Application of Section 504 and Section 1557 to Visitation Policies
8. Many acute care and long-term care settings have restrictions on visitors, limiting entrance to patients, residents, and personnel with limited exceptions for end-of-life situations. How do Section 504 and Section 1557 apply to such restrictions?
During the COVID-19 public health emergency, some hospitals developed stricter visitation policies or started to enforce existing visitation policies they had not earlier enforced, because of a concern that anyone visiting the hospital could pose an additional risk of COVID-19 to patients and staff. In general, such restrictions are permissible under Section 504 and Section 1557 if those restrictions are in place for safety reasons based on objective risks. However, where these policies do not account for the needs of people with disabilities, they may result in unequal care and violate Section 504 and Section 1557. For example, when a patient’s disability prevents them from providing their medical history or understanding medical decisions or directions, the medical provider should explore whether a modification to its visitor policy may be safely carried out.
Reasonable modifications to visitation policies
Some people have disabilities that prevent them from providing their medical history or understanding medical decisions or directions. Permitting a patient or resident with a disability to use a support person when necessary to have an equal opportunity to obtain and benefit from healthcare services is a reasonable modification that generally must be provided unless it would fundamentally alter the nature of the service, program, or activity or impose an undue financial and administrative burden. For example, a hospital may be required to allow a support person to participate in a consultation so the support person can explain the information exchange in simple, understandable language to the patient, and ensure that the provider has the information necessary to treat the patient. Whether a covered entity must allow the support person to be physically present as a reasonable modification depends on a number of factors, including safety issues and whether remote participation would be effective.
In some situations, a covered entity will be able to meet its obligation to provide a reasonable modification by enabling a support person to communicate remotely with a patient (by voice or video phone calls) when needed by the individual with a disability. In others, the support person will not be effective unless present in person, because of the nature of the individual’s disability or the type of service provided by the support person, or for other reasons. Where the individual is entitled to an in-person support person, covered entities should take necessary steps to allow the support person to be present when needed. Such steps may include modifying visiting hours and visitation restriction policies.18
Legitimate safety requirements
Section 504 and Section 1557 allow covered entities to have legitimate requirements necessary for the safe operation of their services, programs, or activities. However, covered entities must ensure that their safety requirements are based on actual risks, not on mere speculation, stereotypes, or generalizations about individuals with disabilities.19 Covered entities can therefore require support persons and interpreters to comply with safety requirements, such as requiring them to participate in temperature checks and other screening measures and to use Personal Protective Equipment (PPE), and can refuse entry to individuals who refuse or fail to meet these requirements.
In addition, the use of a designated support person by an individual with a disability for decision-making and tasks other than effective communication does not eliminate the responsibility of the setting to ensure effective communication and provide appropriate auxiliary aids and services to individuals with disabilities when necessary to provide effective communication. Covered entities are required to take steps to ensure that their communications with people with disabilities are as effective as communications with others, except where a covered entity can show that providing effective communication would fundamentally alter the nature of the program or activity in question or would result in an undue financial or administrative burden on the covered entity. 20 Covered entities must provide appropriate auxiliary aids and services, such as alternative formats and sign language interpreters, where necessary for effective communication.21
Application of Section 504 and Section 1557 to Vaccination, Testing and Contact Tracing Programs
9. I am part of a covered entity managing a vaccination, testing, or contact tracing program for COVID-19. What should I keep in mind in order to comply with Section 504 and Section 1557 in undertaking these activities?
OCR has issued guidance outlining legal standards under Section 504 and Section 1557 and providing concrete examples of the application of the legal standards in the context of COVID-19 vaccine programs.22 OCR also issued a Fact Sheet setting out key actions to provide access to vaccination programs for people with disabilities.23 This information, in addition to other guidance about civil rights protections during the COVID-19 public health emergency, is available at https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html.
Civil rights obligations when administering a testing or contact tracing program are similar to civil rights obligations when operating a vaccination program.
Covered entities must take appropriate steps to ensure that communications with members of the public with disabilities are as effective as communications with others.24 This includes providing appropriate auxiliary aids and services25 where necessary to provide qualified individuals with disabilities an equal opportunity to participate in, and benefit from, COVID-19 vaccination, testing and contact tracing-related communications.26 This includes making information available through means accessible to individuals with disabilities, such as accessible information technology, braille, large print materials, audio description, sign language interpreters, Telecommunications Relay Service (TRS), a Video Relay Service (VRS), Video Remote Interpreting (VRI), and other tools to facilitate effective communication for individuals with disabilities at vaccination and testing site locations, through the testing and vaccination appointment registration process, and during testing and vaccination outreach activities.27
Similarly, covered entities must ensure that programs are accessible to and usable by individuals with disabilities and must comply with applicable accessibility standards. Covered entities may not deny individuals with disabilities an equal opportunity to participate in and benefit from the testing or vaccination program as a result of accessibility barriers at testing or vaccination sites. For example, where an indoor testing site is not accessible, the covered entity should consider offering mobile testing services for individuals with disabilities who are not otherwise able to obtain testing. Where necessary to allow individuals to safely access testing, covered entities must make modifications to policies, practices, and procedures where necessary to permit people with disabilities at a higher risk of contracting COVID-19 or at increased risk for severe illness or death from COVID-19 to safely access these services, so long as such modifications would not constitute a fundamental alteration of the testing program or service or impose an undue financial or administrative burden. This might include allowing such individuals to enter a facility at a time or through an entrance that will reduce their contact with others.
DISCLAIMER: This guidance document is not a final agency action and may be rescinded or modified in the Department’s discretion. Noncompliance with any voluntary standards or suggested practices contained in guidance documents not required by law will not, in itself, result in any enforcement action.
1. Other Federal civil rights laws, such as Titles II and III of the Americans with Disabilities Act (ADA) also protect individuals with disabilities and continue to apply during public health emergencies. While this document does not provide guidance on the ADA, it does include footnote citations to the ADA and its implementing regulations, where relevant. In interpreting Section 504, courts look to the ADA where that statute provides more specific guidance.
- back to note 1 2. The contents of this document do not have the force and effect of law and are not meant to bind the public in any way, unless specifically incorporated into a contract. This document is intended only to provide clarity to the public regarding existing requirements under the law.
- back to note 2 3. Guidance documents include U.S. Dep’t of Health & Human Servs., BULLETIN: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19) (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf and U.S. Dep’t of Health & Human Servs., BULLETIN: Ensuring the Rights of Persons with Limited English Proficiency in Health Care During COVID-19 (May 15,2020), https://www.hhs.gov/sites/default/files/lep-bulletin-5-15-2020-english.pdf.
- back to note 3 4. U.S. Dep’t of Health & Human Servs., BULLETIN: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19) (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf. Among other Federal civil rights laws, OCR enforces Federal civil rights laws that prohibit discrimination on the basis of disability, including: Section 504, Section 1557, and Title II of the ADA. More information on the laws and regulations OCR enforces and their applicability is available at https://www.hhs.gov/civil-rights/for-providers/laws-regulations-guidance/laws/index.html. The ADA, which protects individuals with disabilities from discrimination by state and local governments (Title II) and public accommodations (Title III), is outside of the scope of this guidance. The U.S. Department of Justice is charged with implementing Titles II and III of the ADA. For more information on the ADA’s protections, including its application during COVID-19, see www.ada.gov.
- back to note 4 5. 29 U.S.C.§ 794(a).
- back to note 5 6. 42 U.S.C. § 18116(a).
- back to note 6 7. 29 U.S.C. § 794(a); 42 U.S.C. §18116(a).
- back to note 7 8. 29 U.S.C. § 705(9)(B) (incorporating ADA definition); 42 U.S.C. § 12102(4)(A); 45 C.F.R. § 92.102(c) (incorporating ADA and Section 504 definition). Long COVID can be a disability under these laws; seeU.S. Dep’t of Health & Human Servs. & U.S. Dep’t. of Justice, “Guidance on ‘Long COVID’ as a Disability Under the ADA, Section 504, and Section 1557” (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html.
- back to note 8 9. 29 U.S.C. §705(9)(B); 42 U.S.C. §12102(1); 45 C.F.R. §84.3(j); 45 C.F.R. § 85.3; 45 C.F.R. § 92.102(c). Note that the Section 504 regulations use the term “handicap” instead of “disability.”
- back to note 9 10. 42 U.S.C. § 12131(2); 45 C.F.R. 84.3(l)(4) (using the term “qualified handicapped person”).
- back to note 10 11. 29 U.S.C. § 794(a); 42 U.S.C. § 18116(a).
- back to note 11 12. 45 C.F.R. § 84.4(b)(1)(ii).
- back to note 12 13. 45 C.F.R. 84.22.
- back to note 13 14. See U.S. Dep’t of Health & Human Servs., BULLETIN: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19) (Mar. 28, 2020), https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf.
- back to note 14 15. 28 C.F.R. § 35.130(b)(8).
- back to note 15 16. See Alexander v. Choate, 469 U.S. 287, 301 (1985); Southeastern Community College v. Davis, 442 U.S. 397, 413 (1979); 45 C.F.R. § 92.105.
- back to note 16 17. 28 C.F.R. § 35.130(b)(8).
- back to note 17 18. The National Center on Advancing Person-Centered Practices and Systems offers some potentially useful resources for developing a Health Care Person Centered Profile as part of the response to visitor restrictions due to COVID. The Profile is designed to communicate a person’s wants and needs if they are hospitalized without the direct support of their caregivers, family, neighbors, or friends. The Profile is available at https://ncapps.acl.gov/docs/COVID-19/Resources/Health%20Care%20Person%20Centered%20Profile_2021_FINAL.pdf, and instructions are available at https://ncapps.acl.gov/docs/COVID-19/Resources/Instructions%20for%20Health%20Care%20PC%20Profile.pdf.
- back to note 18 19. 28 C.F.R. § 35.130(h).
- back to note 19 20. U.S. Dep’t of Health & Human Servs., Office for Civil Rights, HHS Office for Civil Rights Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs (Apr. 12, 2021), https://www.hhs.gov/sites/default/files/federal-legal-standards-prohibiting-disability-discrimination-covid-19-vaccination.pdf.
- back to note 20 21. U.S. Dep’t of Health & Human Servs., Office for Civil Rights, HHS Office for Civil Rights Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs (Apr. 12, 2021), https://www.hhs.gov/sites/default/files/federal-legal-standards-prohibiting-disability-discrimination-covid-19-vaccination.pdf.
- back to note 21 22. U.S. Dep’t of Health & Human Servs., Office for Civil Rights, HHS Office for Civil Rights Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs (Apr. 12, 2021), https://www.hhs.gov/sites/default/files/federal-legal-standards-prohibiting-disability-discrimination-covid-19-vaccination.pdf.
- back to note 22 23. U.S. Dep’t of Health & Human Servs., Office for Civil Rights, Disability Access in Vaccine Distribution (Apr. 12, 2021), https://www.hhs.gov/sites/default/files/disability-access-vaccine-distribution.pdf.
- back to note 23 24. 45 C.F.R. 92.102(a); see also 45 C.F.R. §§ 84.4(b)(4), 84.52(a), 85.21 & 85.51.
- back to note 24 25. 45 C.F.R § 92.102(b); see also 45 C.F.R. § 84.52(d).
- back to note 25 26. 45 C.F.R. § 84.4(b)(1)(ii); 45 C.F.R. § 85.21(b)(1)(ii).
- back to note 26 27. 45 C.F.R. § 92.102(b)(1); for additional information on effective communication requirements, please see DOJ, “Effective Communication,” https://www.ada.gov/effective-comm.htm.
- back to note 27