June 20, 2021

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HHS Office for Civil Rights Issues Guidance on Non-Discrimination in Health Care During COVID-19 Pandemic


On July 20, the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) issued nondiscrimination guidance for recipients of federal funding, such as financial assistance from the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) to state and local agencies, hospitals, and other health care providers.

Discrimination and disparities among racial and ethnic populations in health care continues to be an issue during the Coronavirus Disease 2019 (COVID-19) pandemic, and in a report entitled Health Equity Considerations and Racial and Ethnic Minority Groups, the Centers for Disease Control and Prevention (CDC) found that “current data suggests a disproportionate burden of illness and death among racial and ethnic minority groups.” Furthermore, the CDC identified inequities in five areas that contribute to an increased risk of illness and death from COVID-19 among ethnic minority populations: (i) discrimination, (ii) health care access and utilization, (iii) occupation, (iv) educational, income, and wealth gaps, and (v) housing. As such, the OCR guidance focuses on the first factor by providing suggestions for compliance with Title VI of the Civil Rights Act of 1964 prohibitions on discrimination based on race, color, and national origin – prohibitions which apply to recipients of federal funding.

Non-Discrimination Recommendations

OCR recommends the following actions to help ensure Title VI compliance and begin to combat discrimination in health care during the COVID-19 pandemic:

  • Adopt policies to prevent and address harassment or other unlawful discrimination on the basis of race, color, or national origin.

  • Ensure – when site selection is determined by a recipient of HHS funds – that Community-Based Testing Sites and Alternate Care Sites are accessible to racial and ethnic minority populations. For example, to support this end, recipients may consider making walk-in testing sites available in urban areas where racial and ethnic minority populations may not have access to vehicle transportation, or providing home visitation testing in rural areas where transportation is a challenge for racial and ethnic minorities.

  • 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.

  • 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.

  • Provide ambulance service, non-emergency medical transportation, and home health services – if part of the program or services offered by the recipient – to all neighborhoods within the recipient’s service area, without regard to race, color, or national origin.

  • 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.

  • 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.

  • Assign beds and rooms, without regard to race, color, or national origin. For multi-bed rooms, recipients should not grant a patient’s request to exclude a roommate of a particular race; and for single-bed rooms, recipients should assign patients in a non-discriminatory manner.

  • 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.    

Agency Initiatives 

The OCR guidance also highlights efforts from health care agencies to address other social determinants of health. For example, the CDC has appointed a COVID-19 Chief Health Officer and implemented data collection efforts to track COVID-19 cases, hospitalizations, and deaths, by race and ethnicity. The National Institutes of Health (NIH) and the National Institute on Minority Health and Health Disparities have also instituted initiatives, including funding opportunities for relevant research, and developing the NIH Rapid Acceleration of Diagnostics for Underserved Populations Initiative to increase the availability of, and access to, COVID-19 testing. Additionally, the HHS Office of Minority Health entered into a cooperative agreement with Morehouse School of Medicine to build the National Infrastructure for Mitigating the Impact of COVID-19 within Racial and Ethnic Minority Communities Initiative, a three-year project designed to develop an information network to link communities to COVID-19 testing, health care, and social services and to share effective response and resiliency strategies.

Next Steps

While HHS, CDC, and NIH continue efforts to address the disparate impact of COVID-19 on minority populations, OCR’s guidance is an important reminder for health care entities and providers to continue to combat discrimination and address other disparities in the provision of health care in their organizations.

©2021 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume X, Number 217



About this Author

David Peck, Greenberg Traurig Law Firm, Fort Lauderdale, Corporate and Healthcare Law Attorney

David C. Peck is Co-Chair of the Life Sciences & Medical Technology Practice and works with emerging growth companies, established entities and private equity firms in executing their strategic plans. He assists companies beginning with corporate formation, obtaining and structuring both equity and debt financing, mergers and acquisitions, as well as the integration of acquired operations, undertaking initial public offerings, and continuing through to liquidity and exit strategies.

David understands the unique needs of high growth companies...

Nancy Taylor, Greenberg Traurig Law Firm, Washington DC, Health Care Law Attorney

Nancy Taylor is Co-Chair of the Health Care & FDA Practice and has advised clients on health and FDA related matters for more than two decades. She has broad experience in areas relating to the Affordable Care Act provisions, CMS reimbursement and policy issues relating to providers and plans, and she has done a significant amount of FDA regulatory work. Prior to joining Greenberg Traurig, Nancy served 10 years as Health Policy Director for the Senate Committee on Labor and Human Resources and worked on a number of significant health and FDA laws, including NLEA,...

Brittany E. Allison Associate Greenberg Traurig Fort Lauderdale Corporate Private Equity Health Care & FDA Practice Mergers & Acquisitions

Brittany E. Allison focuses her practice on health care and private equity transactions, including mergers, acquisitions, joint ventures, and other affiliations. She has wide-ranging experience working with clients across the health care continuum, including physician groups, health systems, and hospitals, as well as experience with trade associations and government agencies.


  • Asset purchase transactions

  • Stock purchase transactions

  • Membership substitution transactions