Non-Discrimination during COVID-19 Pandemic
By Kelli Fleming
There have been a number of recent enforcement actions announced by the Department of Health and Human Services Office for Civil Rights ("OCR") regarding alleged discrimination during the COVID-19 pandemic. These enforcement actions vary greatly in terms of the alleged violation, but two recent actions serve as a good reminder to healthcare providers to be mindful of discriminatory activities.
On July 21, 2020, OCR announced the resolution of two discrimination complaints against healthcare providers. The first alleged violation involved a religious discrimination complaint against the University of Maryland Medical System. A husband and wife were involved in a serious car crash, with the husband being placed in the hospital's ICU. The wife asked a local priest to visit the husband and pray over him as he was declining in health. The hospital had adopted a visitor exclusion policy in light of the COVID-19 pandemic and refused to allow the priest to visit the husband in the hospital, despite the priest's willingness to wear any necessary personal protective equipment ("PPE").
At the time, CMS's guidance regarding hospital visitations during the COVID-19 pandemic stated that "facilities must ensure that patients have adequate and lawful access to chaplains or clergy." In response to the complaint and upon review of the CMS guidance, the hospital updated its visitation policy and allowed the priest to visit the husband and perform the Catholic religious sacraments of Holy Communion and Anointing of the Sick. The hospital's revised visitation policy allows patients in COVID-19 units to practice their religion with clergy visitations in compassionate care situations. Patients in non-COVID-19 units may receive clergy visitations at any reasonable time, as long as the visit does not disrupt patient care and is in accordance with hospital safety policies and procedures.
Also on July 21, 2020, OCR announced a second resolution involving the Staten Island University Hospital. A medical student who was completing rotations at the facility was informed that he would have to shave his beard in order to return to work and to be properly fitted for an N95 respirator mask. The student did not shave his beard due to his religious beliefs. After the complaint was filed, the facility granted the student's accommodation request and provided an alternate form of PPE allowing the student to keep his beard. As stated by Roger Severino, Director of OCR "Accommodations like these avoid forcing people to choose between following their profession or following their faith. Religious freedom and patient safety should both be preserved, even and especially during times of crisis."
These two OCR resolutions highlight the importance of avoiding religious discrimination even when facing a national health emergency. As a result of COVID-19, healthcare providers are implementing new policies and procedures very quickly in order to keep their patients and employees safe during these unprecedented, changing times. However, these OCR resolutions are a good reminder that, in doing so, providers must also be mindful of ancillary discriminatory actions that could result from such policies and procedures.
Kelli Fleming is a Partner at Burr & Forman LLP practicing exclusively in the firm's healthcare industry group.