Over the weekend, the Office for Civil Rights at HHS announced that it has opened several investigations into various states’ plans and guidelines related to the allocation of scarce resources amid the ongoing health emergency. According to the Director of HHS OCR, Roger Severino, the purpose of these investigations is to ensure that state-mandated plans are fully compliant with civil rights law.

At the same time, HHS OCR issued additional guidance to assist health systems and healthcare providers in navigating the crisis in compliance with federal nondiscrimination law. In its latest bulletin, OCR states that it “is particularly focused on ensuring that covered entities do not unlawfully discriminate against people with disabilities when making decisions about their treatment during the COVID-19 health care emergency.” “Decisions by covered entities concerning whether an individual is a candidate for treatment,” the bulletin states, “should be based on an individualized assessment of the patient and his or her circumstances, based on the best available objective medical evidence.”

Though the bulletin also states that OCR “is exercising its enforcement discretion” in connection with its guidance, the scope of that discretion remains uncertain. The latest bulletin also states that the Federal government’s March 17, 2020 Declaration under the Public Readiness and Emergency Preparedness Act may apply to some private claims “arising from the use or administration of a covered countermeasure and may provide immunity from certain liability under civil rights laws.” This pronouncement, however, has been met with concern from civil rights groups and is likewise far from clear.

Health systems should therefore continue to consider compliance with federal nondiscrimination law in connection with their emergency responses and take steps to ensure that care is provided on an individualized basis and based on the best available objective medical evidence.