On April 13, 2021, the U.S. Department of Health and Human Services Office for Civil Rights (“OCR”) published a press release with resources, including from the Administration for Community Living (“ACL”) and the Office of the Assistant Secretary for Planning and Evaluation (“ASPE”), to improve access to vaccinations for individuals with disabilities and older adults.  OCR states that the resources “clarify legal requirements , illustrate some of the barriers to vaccine access faced by people with disabilities and older people, and provide strategies – and examples of how the aging and disability network can help employ them – to ensure accessibility.”

In guidance entitled HHS Office for Civil Rights Guidance on Federal Legal Standards Prohibiting Disability Discrimination in COVID-19 Vaccination Programs, OCR reiterates that civil rights laws remain in effect during emergencies.  In general, “[n]o qualified individual with a disability, may, based on disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a covered entity, or otherwise be subjected to discrimination by a covered entity.”  OCR also reminds covered entities that eligibility criteria that would screen out individuals with disabilities may not be employed unless such criteria are necessary for the service, program, or activity being offered, and must make reasonable accommodations when necessary to avoid discrimination.  Appropriate steps must also be taken to provide effective communication with individuals with disabilities, such as providing auxiliary aids and services.  Finally, a covered entity must ensure the site of a facility should not exclude, deny participation to, or otherwise discriminate against a qualified individual with a disability.  OCR also provides this helpful Fact Sheet.

The ACL released a strategies and best practices for assisting older adults and individuals with disabilities to access COVID-19 vaccines.  The guidance acknowledges that the pandemic has “disproportionately affected older adults, people with disabilities, and people with underlying health conditions” and that many states continue to struggle with vaccinating these populations.  ACL provides insights on improving access with: outreach and education; facilitating vaccine appointments; improving vaccine site accessibility and accommodations; and meeting people where they are.

An April 6, 2021 brief from ASPE entitled Characteristics of Homebound Older Adults: Potential Barriers to Accessing the COVID-19 Vaccine addresses the challenges facing older, homebound adults that wish to receive the COVID-19 vaccine.  In particular, older Americans “may lack internet access, be unfamiliar with online scheduling, and lack transportation” as well as not having a social network to help with obtaining an appointment or helping with transportation.  The issue brief includes the following findings:

  • Hispanic older adults are more likely to be homebound;
  • Homebound adults often have multiple chronic conditions that increase their risk for COVID-19;
  • The majority of homebound older adults need assistance with daily living;
  • Half of homebound older adults have at least one barrier to accessing vaccines;
  • Homebound older adults have fewer economic resources; and
  • 47% of homebound older adults receive assistance “including rehabilitative care, food stamps or other food assistance, Meals-on-Wheels, and gas/energy assistance.”

The brief concludes by stating that “[i]ncreased attention to this population will help ensure that these vulnerable adults have the opportunity to be vaccinated against COVID-19.”

Norton Rose Fulbright lawyers will continue to provide relevant updates on the COVID-19 PHE on the Health Law Pulse.