March 31, 2020
Alex M. Azar II
United States Department of Health and Human Services
330 C Street SW
Washington, DC 20416
Dear Secretary Azar:
I write on behalf of the National Council on Disability (NCD) to thank you for the leadership of your office in publishing and distributing the March 28 “Bulletin: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19)” as well as the announcement of the civil rights investigations the Office for Civil Rights (OCR) is launching regarding state healthcare crisis protocols that may violate disability anti-discrimination provisions of major civil rights laws. I applaud your decisive actions at this critical time and are heartened to see the enforcement authority and activity of the OCR office continue during this time of pandemic.
We greatly appreciate the timing and content of the bulletin, particularly given the ongoing responsiveness of OCR in discussions with NCD regarding the concerns of people with disabilities in the healthcare arena, as outlined in NCD’s recent bioethics and disability report series. While I applaud the content of the March 28 bulletin as a strong first step, I further recommend that OCR speedily work to draft and disseminate more pointed guidance crisis standards of care to covered entities, reminding them of their civil rights obligations with greater specificity to healthcare realities and possibilities unique to the COVID-19 pandemic.
I am concerned, however, with a section of text in the bulletin, which comes on page 2, beginning with “In addition…” and ending with “Questions regarding the scope of PREP under this guidance document should be directed to the Office of the General Counsel.” From that language, it appears it is the view of HHS that civil rights are preempted in times of emergency. I am concerned that the language may confuse the public; potentially discourage individuals who believe they have been discriminated against from filing complaints; and has the potential to truncate the opportunity for OCR to fully enforce its mandate. I will direct further communication about this concern to the Office of the General Counsel directly in the days to come.
Especially due to the concerns I have with the aforementioned language, I further encourage several additional actions from your Department in the weeks and perhaps months ahead as we continue to weather the effects of the pandemic as a country. In particular, I encourage you to maintain robust enforcement activities, including investigations of complaints, and to remind the public in every one of OCR’s communications how they can file such complaints. In fact, I recommend that HHS, at every opportunity and through each one of its divisions and offices, include standardized language in each of its communications, no matter the topic, regarding civil rights obligations and the steps by which an individual may file a complaint if they believe their civil rights have been violated.
Thank you again for your Department’s ongoing work to ensure access to medical care for all people and your efforts to address disability discrimination in health care.
If you wish to discuss this letter with me directly, I am glad to do so at your convenience. If a member of your staff would like to discuss this with a member of NCD’s staff, please have them contact Joan Durocher, NCD’s General Counsel and Director of Policy at firstname.lastname@example.org, and Ana Torres-Davis, Senior Attorney-Advisor at email@example.com.
Cc:// Roger Severino, Director, Office for Civil Rights
Robert Charrow, General Counsel