On February 25, 2021, the U.S. Department of Health and Human Services (“HHS”) announced the resolution of three complaints alleging that MedStar Health Hospitals (“MedStar”) refused disabled patients access to support persons.  According to HHS Office of Civil Rights (“OCR”), a support person is “a family member, personal care assistant, similar disability service provider, or other individual knowledgeable about the management or care of the patient who is authorized to assist the patient in making decisions.”  Like many hospitals, MedStar implemented temporary visitor restrictions and policies to combat the spread of COVID-19, and specifically, infection control measures under the COVID-19 public health emergency.  Unfortunately, it appears MedStar’s policies and efforts went too far. 

According to OCR’s press release, three disabled individuals were negatively affected by MedStar’s visitor policies.  The three individuals did not have COVID-19, but all alleged that MedStar denied them access to their support person.  One patient with a neuro-cognitive deficit from a stroke, partial blindness, and cancer, allegedly was denied a support person while in the emergency department at MedStar St. Mary’s for seizure symptoms.  The second patient, who suffered hearing loss and brain dysfunction, allegedly was denied a support person while recovering from heart surgery at MedStar Washington.  The final patient had advanced neuro-muscular autoimmune disease with memory loss and physical impairments, and allegedly was denied a support person at MedStar Georgetown University Hospital.  According to the press release, “the complainants collectively alleged they were denied effective communication with their treatment teams, denied the ability to make informed decisions and provide consent, and were subjected unnecessarily to physical and pharmacological restraints.”  OCR and MedStar resolved the complaints using OCR’s early complaint resolution.  OCR provided technical assistance on disability law requirements, while MedStar updated its policy to distinguish between “visitor” and “support person.”

Since the beginning of the COVID-19 pandemic, various government entities have tried to balance care with individual rights.  In 2020, then OCR director Roger Severino warned healthcare providers that “[p]ersons with disabilities, with limited English skills, or needing religious accommodations should not be put at the end of the line for health services during emergencies.  Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism.”  Also, on March 28, 2020, OCR issued a bulletin to remind covered entities of “their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs,” despite the COVID-19 pandemic and related emergency orders.  

Healthcare providers of all sizes should consider their policies and ensure the policies do not violate various federal and state laws regarding discrimination – even during a pandemic.  For example, under Title II of the Americans with Disabilities Act, “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”  42 U.S.C. §§ 12131-12132.  Similarly, section 504 of the Rehabilitation Act and section 1557 of the Affordable Care Act also ban recipients of federal financial assistance from discriminating against disabled individuals.  29 U.S.C. § 794(a).  

The attorneys at Chilivis Grubman represent clients of all types and sizes in connection with government investigations, complaints, and criminal, civil, and administrative matters.  If you need assistance with such a matter, please contact us today.