Late last month, the Department of Health and Human Services (“HHS”) and the Department of Justice (“DOJ”) jointly published “Guidelines on ‘Long COVID’ as a Disability under ADA, Section 504 and Section 1557”. In short, the departments take the position that COVID can be considered a disability within the meaning of the statutes quoted.
In this warning, we address the health care implications of Section 1557.
Section 1557 of the Patient Protection and Affordable Care Act (“Section 1557”) prohibits discrimination based on race, color, national origin, disability, age, and gender in health programs and activities that receive federal funding. The law itself is a patchwork of non-discrimination laws – it borrows non-discrimination bans on a specific basis from existing civil rights laws. The prohibition on Disability Discrimination under Section 1557 results from reference to Section 504 of the Rehabilitation Act 1973 (“Section 504”).
The published guidelines make it clear that “long COVID” can be considered a disability according to § 1557. The Centers for Disease Control (“CDC”) has long defined COVID as “a wide range of new, recurring, or persistent health problems that people may have four or more weeks after they first become infected with the virus that causes COVID-19.”
Like symptoms of COVID-19, symptoms of long-term COVID are unpredictable or consistent. HHS lists the following as “common symptoms of long-term COVID”:
- Tiredness or exhaustion
- Difficulty thinking or concentrating (sometimes called “brain fog”)
- Shortness of breath or difficulty breathing
- Dizziness when standing
- Fast beating or pounding heart (known as palpitations)
- Chest pain
- to cough
- Joint or muscle pain
- Depression or anxiety
- Loss of taste or smell
The published guidance further states that the list is “non-exhaustive”.
In order to receive protection under the relevant laws, a person must live with “a physical or mental impairment that includes one or more of the[ir] essential life activities ”or must“ show evidence of such impairment ”or must be viewed as“ asserted as such an impairment ”.
A person who has lived with COVID for a long time is entitled to disabled-friendly protection if the symptoms manifest themselves in a way that severely restricts at least one of their most important life activities. It is noteworthy that HHS states that “[e]Even if the impairment comes and goes, it is considered a disability if, with active impairment, it would significantly restrict a vital activity in life. “ In short: COVID is not always a handicap for a long time – but it can be.
What does this mean for healthcare providers? The institutions covered must ensure that those who have long been living with COVID have full and equal access to their programs and activities. Because of the wide range of possible symptoms, it would be difficult, if not impossible, to predict what a patient or other person might need to restore and protect their access to health programs or activities. As a result, the facilities covered will likely need to make reasonable changes on a case-by-case basis for those living with long-term COVID.
The guide doesn’t provide much guidance regarding the nature of potential accommodations for long-term COVID patients, but the following two changes cited in the guidance are examples of the types of accommodations that may need to be considered by the facilities covered:
- Modify procedures so that a customer who finds it too tiresome to stand in line can announce their presence and sit down without losing their place in line
- Modified a policy so that a person who becomes dizzy while standing can be accompanied by their companion trained to stabilize them