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

Client Alert
July 24, 2020

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.

COVID-19coronavirusCivil Rights Act of 1964Title VIHHSOCRDiscriminationCMS
Client Alert

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UPDATE - SBA Releases Rules and Guidance for Second Round PPP Funding

January 7, 2021Late yesterday (January 6, 2021), the U.S. Small Business Administration released rules and guidance for businesses wishing to take part in the long awaited second round of Paycheck Protection Program (“PPP”) funding. As most businesses are aware, the rules governing PPP loans have been updated as part of The Economic Aid to Hard-Hit Small Businesses, Nonprofits, and Venues Act (“Act”). The Act was just one section of the massive 2021 Consolidated Appropriations Act that was passed by Congress and signed into law by the President on December 27, 2020. To combat the ongoing disruptions caused by the COVID-19 pandemic, the Act generally provides (a) first time PPP loans for businesses that did not obtain a loan in the first instance, (b) PPP second draw loans for businesses that already obtained a loan but need additional funding, and (c) additional funding for businesses that returned their first PPP loan or did not get the full amount for which they qualified.Client Alert

UPDATE - Vaccine Policy Considerations for Employers

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Changes to FFCRA Paid Leave: Congress’ Revisions to Employment COVID-19 Leave Benefits Signals the Light is at the End of the Tunnel

December 28, 2020Late in the evening on December 27th, President Trump signed into law the government’s $900 billion COVID-19 relief package (the “Stimulus Bill”). Among other economic stimulus benefits, the Stimulus Bill contains the $600 stimulus checks that will be issued to eligible individuals as well as, relevantly, changes to the Families First Coronavirus Response Act (“FFCRA”). The FFCRA was implemented in April 2020 and provided benefits to individuals who missed work as a result of an actual or suspected COVID-19 illness or to care for a child when their school or childcare service was closed because of COVID-19. Importantly, the Stimulus Bill extends eligibility for employer payroll tax refunds for leave payments made to employees on or before March 31, 2021 under the FFCRA, signaling to the American people that Congress believes many of the employed public will be vaccinated by this time, the light at the end of the tunnel. However, the Stimulus Bill does contain a caveat that employers are no longer required to provide FFCRA leave benefits after December 31, 2020, but if they do, they will receive the payroll tax credits, up to the maximums provided in the FFCRA, for payments made prior to April 1, 2021. Below we provide a list of questions and answers we received to date following the passage of the Stimulus Bill. We expect the U.S. Department of Labor (“DOL”) to issue additional questions and answers as the Stimulus Bill is implemented, and we will update this Client Alert as these are received.Client Alert

Healthcare Speaker Programs: New OIG Alert

December 11, 2020In a rare Special Fraud Alert issued on November 16, 2020 (the “Alert”), the Office of Inspector General (“OIG”) urged companies who host speaker programs to reassess their programs in light of the “inherent risks” associated with these activities. The Alert reports that, in the last three years, drug and device companies have reported paying nearly $2 billion to health care professionals for speaker-related services.
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