As health care facilities consider their allocation of scarce resources, they need to keep this recent bulletin from the Office of Civil Rights (OCR) in mind.
The bulletin reminds entities covered by civil rights authorities of their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs, including in the provision of health care services during the COVID-19 (coronavirus) pandemic.
OCR is particularly focused on ensuring that covered entities do not unlawfully discriminate against people with disabilities while making decisions about their treatments during the COVID-19 public health emergency. The bulletin states that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities or age. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”
OCR issued the bulletin after reaching a resolution with the State of Alabama after an investigation into the state’s authorities on ventilator rationing guidelines that allegedly discriminated on the basis of disability and age. Alabama had developed new guidelines in response to COVID-19, however, an older document was still publicly available as part of the state’s Emergency Operations Plan. The older document, called “Criteria for Mechanical Ventilator Triage Following Proclamation of Mass-Casualty Respiratory Emergency,” allegedly allowed for denying ventilator services to individuals based on the presence of intellectual disabilities, including “profound mental retardation” and “moderate to severe dementia.” A disability advocacy group filed a complaint that led to a compliance review by OCR.
OCR reported that it was concerned that if the 2010 guidelines were used, it could result in “discrimination against persons with disabilities by denying or stopping ventilator services simply because an individual has an intellectual disability” or “to impose blunt age categorizations, such that older persons might automatically be deemed ineligible for life-saving care without any individualized assessment or examination and based solely on missing a strict age cutoff.” Alabama reached an “early resolution agreement” with OCR in which Alabama agreed to remove all links to the 2010 document from its websites and to publicly clarify that the 2010 document’s guidelines are not in effect and will not be used in the future.
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