White House chief medical advisor Dr. Anthony Fauci reported in late April that the U.S. is out of the pandemic phase despite a continuing uptick in COVID-19 cases driven by the growth of the Omicron subvariant BA.2. In May 2022, the New York Times is reporting a “threefold” increase in new cases since early April, with case reports in much of the Northeast and Midwest higher than they were during the summer of 2021’s peak Delta surge. Although COVID-related hospitalizations have also increased significantly since the beginning of May, they remain far lower than they have been in any prior surge.

Still, whether cases and hospitalizations are surging or in decline in our “new normal” transitional phase of living with COVID, hospitals and healthcare providers must continue to be vigilant about how resources such as medical supplies, medications, hospitalization, and long-term or critical care are allocated to avoid claims of disability discrimination in violation of Section 504 of the Rehabilitation Act and Section 1557 of the Affordable Care Act.

Earlier this year, the Department of Health & Human Services (HHS) Office of Civil Rights (OCR) issued important guidance to covered healthcare entities regarding civil rights protections for persons with disabilities. An overview of this guidance with related recommendations can be found in the Client Alert we published at that time.