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Guidance for Employers Receiving HHS Funding During COVID-19 on Civil Rights Protections

On July 20, 2020, HHS OCR issued guidance to help employers receiving federal financial assistance understand their requirements to comply with applicable federal civil rights laws and regulations that prohibit discrimination on the basis of race, color, and national origin in HHS-funded programs during COVID-19; specifically, Title VI of the Civil Rights Act of 1964 (“Title VI”). Title VI states that “[n]o person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 

This guidance applies to the various federal financial programs developed during COVID-19 including the Paycheck Protection Program, the HHS Provider Relief Funds, and the HHS Targeted Relief Payments. If your organization received any of these funds, you must comply with the requirements of Title VI. 

What Does Compliance Look Like? 

To be Title VI compliant, Employers receiving federal financial assistance, including state and local agencies, hospitals, and other health care providers, should: 

  1. Adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.
  2. Ensure – when site selection is determined by a recipient of federal financial assistance from HHS – that Community-Based Testing Sites and Alternate Care Sites are accessible to racial and ethnic minority populations.
  3. Confirm that existing policies and procedures with respect to COVID-19 related services (including testing) do not exclude or otherwise deny persons on the basis of race, color, or national origin.
  4. Ensure that individuals from racial and ethnic minority groups are not subjected to excessive wait times, rejected for hospital admissions, or denied access to intensive care units compared to similarly situated non-minority individuals.
  5. Provide – if part of the program or services offered by the recipient – ambulance service, non-emergency medical transportation, and home health services to all neighborhoods within the recipient's service area, without regard to race, color, or national origin.
  6. Appoint or select individuals to participate as members of a planning or advisory body which is an integral part of the recipient's program, without exclusions on the basis of race, color, or national origin.
  7. Assign staff, including physicians, nurses, and volunteer caregivers, without regard to race, color, or national origin. Recipients should not honor a patient's request for a same-race physician, nurse, or volunteer caregiver.
  8. Assign beds and rooms, without regard to race, color, or national origin.
  9. Make available to patients, beneficiaries, and customers information on how the recipient does not discriminate on the basis of race, color, or national origin in accordance with applicable laws and regulations. 

Hospitals and other health care providers receiving financial assistance under HHS-funded programs should also consider providing interpreters or translators for non-English speaking patients. Stressed New York hospitals, earlier this year, experienced issues with increased demand for non-English speaking healthcare providers. Such forward-facing planning ensures patients receive equal access to care and allows providers to avoid complaints. 

Why This Guidance, Now?

Roger Severino, OCR Director, stated, “[w]e are empowering medical providers to serve patients wherever they are during this national public health emergency. We are especially concerned about reaching those most at risk, including older persons and persons with disabilities.” Also, as part of the effort to better serve patients, Severino explained that, “HHS is committed to helping populations hardest hit by COVID-19, including African-American, Native American, and Hispanic communities.” Severino’s intention is to remind providers that, “unlawful racial discrimination in healthcare will not be tolerated, especially during a pandemic.” 

More Resources

Please contact a BMD healthcare attorney if you have any questions regarding the guidance above or any other healthcare questions.

For the new OCR Bulletin, please visit: Title VI Bulletin - PDF.

BMD Appellate Win Clarifies Waiver of Contractual Right to Arbitrate

Brennan, Manna & Diamond, LLC attorneys David M. Scott, Lucas K. Palmer, and Krista D. Warren prevailed before the United States Court of Appeals for the Sixth Circuit regarding if/when a party waives a contractual right to arbitrate. Borror Property Management, LLC v. Oro Karric North, LLC, No. 20-3146 (the “Decision”).

Relief for Ohio Under the Federal American Rescue Plan Act

On March 11, 2021, President Biden signed the American Rescue Plan Act (the “Act”) — a $1.9 trillion COVID-19 relief package — a significant portion of which will be directed to the State of Ohio to support economic recovery, as outlined below.

Cleveland Manufacturer Violated OFAC Sanctions By Allowing Shipments To Iran - Know Your Customer and Know Their Customer

UniControl, Inc., a Cleveland, Ohio manufacturer of process controls, airflow pressure switches, boiler controls and other instruments, agreed to pay the Office of Foreign Assets Control “OFAC,” the financial enforcement agency of the U.S. Treasury Department, $216,464 to settle its liabilities for violations of the Iran Sanctions Program. OFAC stated that “this enforcement action highlights the importance of identifying and assessing multiple warning signs that indicate a foreign trade partner may be re-exporting goods to a sanctioned jurisdiction.”

Ohio Breach of Contract Statute of Limitations Shortened to 6 Years

On March 16, 2021, Governor DeWine signed into law S.B. 13 which shortens Ohio’s statute of limitations for filing lawsuits based on breach of contract. A statute of limitation is the time period within which a party must file a lawsuit before its claim expires as a matter of law.

Chinese Product Tariff Challenge Causes Flurry of Importer Lawsuits

A lawsuit filed late in 2020 at the U.S. Court of International Trade (“CIT”) challenging the U.S. Trade Representative’s (USTR) implementation of Section 301 “List 3” and “List 4” duties on products from China, HMTX Industries LLC et al. v. United States (Court No. 20-00177), has resulted in the filing of thousands of additional lawsuits brought by other affected importers. There are now 3,700+ companies added to the list, including Ford, Home Depot, Target, Tesla, and Walgreens, along with many other smaller importers.