On April 2, 2021, Pamela S. Karlan, the Principal Deputy Assistant Attorney General for Civil Rights at the U.S. Department of Justice Civil Rights Division (DOJ), issued a public statement regarding the Division’s intent to lead a coordinated civil rights response to the Coronavirus (COVID-19) pandemic. The statement, which attached a resource guide, is intended to assist Federal agencies, state and local governments, and recipients of Federal funds, including healthcare providers, in addressing ongoing civil rights challenges related to the COVID-19 pandemic.
The statement advised healthcare providers and long-term care facilities (LTCs), among other entities, that the DOJ intends to “vigorously enforce Federal civil rights,” and that civil rights obligations still apply during emergencies like the COVID-19 pandemic. The statement addressed the need to combat disability discrimination by ensuring that all people with disabilities have equal access to healthcare. The statement cited to the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act (Section 504) and the need for healthcare providers to comply with these laws “when making decisions about who will receive medical care, including vaccines and hospital beds.” Furthermore, the statement discussed that providers must comply with disability laws when “crafting and implementing policies such as crisis standards of care, visitation rules, and vaccine distribution plans.”
The statement highlighted the heightened risk that COVID-19 poses to LTCs, including the increased risk of infection and death, and the need for LTCs to prevent unnecessary institutionalization. The DOJ stressed that as COVID-19 restrictions are lifted and the world begins to reopen, healthcare providers will be expected to continue “providing reasonable accommodations and modifications, physical access, and effective communication” in compliance with the ADA and Section 504.
The DOJ’s statement also detailed that organizations should comply with nondiscrimination laws by monitoring, tracking, and ensuring equitable outcomes through data collection related to the care received by populations affected by longstanding disparities that further manifested during the COVID-19 pandemic, including Black, Indigenous, Latino, AAPI, and other people of color, and people with disabilities. The statement included a reminder that federal civil rights offices are authorized by law to use both qualitative and quantitative data to ensure that various institutions are complying with Title VI of the Civil Rights Act of 1964, and that “[c]omplete, consistent, and accurate data collection and reporting on race, ethnicity, disability, and limited English proficient status are essential to [their] ability to recognize and address disparities and inequality.”
The DOJ’s interest in whether people of color and people with disabilities received appropriate care and fair treatment from healthcare providers signals that the government will focus on whether those providers complied with regulatory requirements governing the collection of Race, Ethnicity, and Language (REaL) data. To stay in compliance with these requirements and state and federal nondiscrimination laws, healthcare providers and LTCs should ensure they are utilizing best practices for collecting patient data, and, to the extent practicable, reviewing and monitoring that data for indications of racial and ethnic discrimination and disparities in quality of care. Additionally, providers should keep records of their policies and training and monitoring activities as they pertain to the administration and outcomes of individual patient care.
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COVID-19: Impact & Insight
McGuireWoods has published additional thought leadership analyzing how companies across industries can address crucial business and legal issues related to COVID-19.