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On March 28, 2020, the Department of Health and Human Services Office of Civil Rights (OCR) published a bulletin to health care providers (and others under OCR's authority) about the need for civil rights protections for patients during the COVID-19 pandemic. OCR's regulations, including those under Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act, protect patients and others from discrimination on the basis of race, color, national origin, disability, age, sex and exercise of conscience or religion in the administration of any programs funded by HHS (which includes Medicare and Medicaid).

In particular, OCR warned that, given the expected need to ration care (such as the use of ventilators), providers and other decision-makers could not employ "ruthless utilitarianism" to deprive individuals of care or treatment based on discrimination, such as determining that a person with disabilities had a lower quality of life or worth. OCR also reminded providers of the need to ensure that resources were in place to communicate with and grant access to individuals with disabilities or limited English proficiency, as well as respecting rights of conscience and the exercise of religion, for example, in granting access to clergy or faith practices.

Finally, OCR reiterated its earlier guidance about the application of HIPAA regulations during the pandemic crisis (see earlier alerts on these subjects here and here).

Because of the exigent circumstances created by the COVID-19 pandemic, and the strain and stress placed on health care professionals, it is foreseeable that some institutions or providers could fall prey to the temptation to dispense with certain formalities or processes regarding the civil rights protections. Providers and their institutions should place a review and update of these items in a prominent place on their agendas, including on the agendas of governing bodies, and ensure that all frontline personnel are trained on these procedures. Governing bodies and management should determine what additional resources, if any, are necessary to carry out these mandates, particularly in a crisis, and should review closely the organization's protocols for ethics and end-of-life decision-making, in anticipation of rationing decisions that may need to be made on an expedited basis.

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