Late last month, the Department of Health and Human Services ("HHS") and the Department of Justice ("DOJ") jointly published "Guidance on 'Long COVID' as a Disability Under the ADA, Section 504, and Section 1557."1 In short, the Departments take the position that long COVID can qualify as a disability as defined under the cited statutes.2
In this alert, we address the healthcare implications under Section 1557.
Section 1557 of the Patient Protection and Affordable Care Act ("Section 1557") prohibits discrimination on the basis of race, color, national origin, disability, age, and sex in health programs and activities that receive federal financial assistance.3 The statute itself is a patchwork of nondiscrimination laws – it borrows prohibitions against discrimination on specific bases from existing civil rights laws. The prohibition against disability discrimination under Section 1557 flows from its reference to Section 504 of the Rehabilitation Act of 1973 ("Section 504").4
The published guidance makes clear that "long COVID" can qualify as a disability under Section 1557.5 The Centers for Disease Control ("CDC") defines long COVID as a "wide range of new, returning, or ongoing health problems people can experience four or more weeks after first being infected with the virus that causes COVID-19."6
Like the symptoms of COVID-19, the symptoms of long COVID are not predictable or uniform. HHS cites the following as "common symptoms of long COVID":
- Tiredness or fatigue
- Difficulty thinking or concentrating (sometimes called "brain fog")
- Shortness of breath or difficulty breathing
- Headache
- Dizziness on standing
- Fast-beating or pounding heart (known as heart palpitations)
- Chest pain
- Cough
- Joint or muscle pain
- Depression or anxiety
- Fever
- Loss of taste or smell
The published guidance goes on to note that the list "is not exhaustive."7
To qualify for protections under the relevant statutes, an individual must be living with "a physical or mental impairment that substantially limits one or more of the[ir] major life activities," or must have "a record of such an impairment," or must be "regarded as having such an impairment."8
Someone living with long COVID is entitled to disability-based protections if the symptoms manifest in such a way that substantially limits at least one of their major life activities.9 Of note, HHS explains that "[e]ven if the impairment comes and goes, it is considered a disability if it would substantially limit a major life activity when the impairment is active."10 In short: long COVID is not always a disability – but it can be.
What does this mean for healthcare providers? Covered entities will need to ensure that those living with long 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 individual might need to restore and protect their access to the health program or activity. As a result, covered entities will likely need to address reasonable modifications for those living with long COVID on a case by case basis.
The guidance does not provide much guidance with respect to the character of potential accommodations for long COVID patients, but the following two modifications cited in the guidance are examples of the types of accommodations covered entities may need to consider:
- Modifying procedures so a customer who finds it too tiring to stand in line can announce their presence and sit down without losing their place in line
- Modifying a policy to allow a person who experience dizziness when standing to be accompanied by their service animal that is trained to stabilize them
We recommend that covered entities take steps to notify individuals living with long COVID of the appropriate point(s) of contact for discussing requests for reasonable modifications.
Footnotes
1. Guidance on "Long COVID" as a Disability Under the ADA, Section 504, and Section 1557, HHS.gov (July 26, 2021), https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/guidance-long-covid-disability/index.html (last accessed July 29, 2021).
2. Id.
3. Section 1557 of the Patient Protection and Affordable Care Act, Nondiscrimination Requirements, 45 C.F.R. § 92.2 (2020).
4. Id.
5. Guidance on "Long COVID" as a Disability, HHS.gov.
6. Post-COVID Conditions, CDC.gov (July 12, 2021), https://www.cdc.gov/coronavirus/2019-ncov/long-term-effects.html (last accessed July 29, 2021).
7. Guidance on "Long COVID" as a Disability, HHS.gov.
8. Id.
9. Id.
10. Id.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.