Federal officials are reminding the nation’s health care professionals that withholding treatment because a person has a disability is often illegal — even if resources are scarce.

In guidance issued late last week, the U.S. Department of Health and Human Services’ Office for Civil Rights is telling providers that civil rights protections for people with disabilities “remain in full force and effect” amid the COVID-19 pandemic.

“Our civil rights laws stand no matter what, including during disasters or emergencies, and it is critical that we work together to ensure equity in all that we do for all patients,” said Secretary of Health and Human Services Xavier Becerra. “The pandemic has shone a light on the disparities in our health care system and provided us with a new opportunity to address them in a meaningful way. 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.”

Health care providers covered by Section 504 of the Rehabilitation Act or Section 1557 of the Affordable Care Act may not deny or limit individuals from participating in programs or services on the basis of a disability, the guidance indicates. This can include hospitalization, long-term care, intensive treatments and critical care as well as the administration of COVID-19 testing, medical supplies and medication.

In addition, officials noted that federal civil rights laws apply to state crisis standard of care plans and other efforts to ration limited resources. Since the start of the pandemic, the HHS Office for Civil Rights has stepped in to address concerns from advocates in multiple states that crisis standards of care plans discriminated against people with disabilities.

The new guidance, which is presented as frequently asked questions, includes examples of scenarios that health care providers might find themselves in and explains how civil rights laws would apply.

When resources are scarce during a public health emergency like the pandemic, the guidance states that health care providers “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.”

However, individuals may be denied care if it is unlikely to be effective given their particular situation, according to the guidance.

“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 J. Pino, director of the HHS Office for Civil Rights. “OCR will continue our robust enforcement of federal civil rights laws that protect people with disabilities from discrimination, including when crisis standards of care are in effect.”

Maria Town, president and CEO of the American Association of People with Disabilities, said that disability advocates have been pushing for this type of guidance since the start of the pandemic.

“While we wish this guidance would have been issued sooner, the FAQs released by the department will provide health care providers and patients with disabilities alike with vital information to ensure that no person with a disability is denied necessary care during a crisis, a fear that continues to be all too real as we enter the third year of the pandemic,” she said.

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