Today, the U.S. Department of Health & Human Services Office for Civil Rights (OCR) announced the resolution of a federal complaint filed against Tennessee, one of nearly a dozen complaints filed by CPR, together with a coalition of national disability advocates that includes The Arc of the United States, Bazelon Center for Mental Health Law, Autistic Self Advocacy Network, Disability Rights Education and Defense Fund, and Samuel Bagenstos, challenging states’ plans for rationing medical care during the COVID-19 pandemic as discriminating against people with disabilities.
Medical rationing policies have disproportionately impacted Black people with disabilities, who have higher rates of COVID-19 infection and hospitalization. Today’s resolution sets a national precedent, with OCR building off earlier resolutions of complaints regarding Alabama’s and Pennsylvania’s plans and weighing in for the first time on the discriminatory impact of a number of provisions common in many states’ rationing plans.
The complaint against Tennessee, brought by the coalition of national disability advocates, together with Tennessee advocates led by Disability Rights Tennessee and the Civil Rights Enforcement and Education Center (CREEC), alleged that Tennessee’s plan illegally excluded certain people with disabilities from accessing life-saving treatment like ventilators based on their disabilities and deprioritized others based on their disabilities. In response to the complaint and engagement with OCR, Tennessee has revised its “Guidance for the Ethical Allocation of Scarce Resources During a Community-Wide Public Health Emergency” to comply with federal disability rights laws and ensure that people with disabilities are not discriminated against even when public health emergencies, such as the COVID-19 pandemic, necessitate the rationing of scarce medical resources.
The following are key precedent-setting changes in Tennessee’s policy to avoid discrimination against people with disabilities:
- No Categorical Exclusions Based on Disability or Resource Intensity: An individual can no longer be excluded from medical treatment based solely on a diagnosed disability or the fact that an individual might require more time or resources to recover because they have a disability. This is the first time OCR has addressed resource intensity as a factor. Rather than making assumptions about a patient’s ability to respond to treatment based solely on stereotypes, medical personnel must perform an individualized assessment of each patient based on the best objective current medical evidence.
- No Long-Term Survivability Considerations: Due to this resolution, Tennessee is now the first state to explicitly eliminate longer-term survivability as a consideration in treatment decisions, changing its Guidance to allow medical personnel to consider only “imminence of mortality.” Survivability is a factor that can be fraught with speculation, mistaken stereotypes, and assumptions about the quality of life and lifespan of people with disabilities.
- Reasonable Modifications Required: Tennessee’s Guidance now requires hospitals to make reasonable modifications to the assessment tool used to prioritize access to medical treatment, the Sequential Organ Failure Assessment (SOFA), to ensure that it is utilized in a way that does not discriminate against people with disabilities. This is the first time OCR has weighed in on modifications to assessment tools.
- Reallocation of Personal Ventilators Prohibited: Medical personnel may not reallocate the personal ventilator of a patient who uses a ventilator in their daily life to another patient whom the personnel deem more likely to benefit from the ventilator in receiving treatment. This is the first OCR resolution addressing this issue.
“Today’s OCR resolution makes clear that policies common in many states’ medical rationing plans – such as denying care based on the belief that disabled people take longer to recover or by using tools that penalize people for having disabilities that do not impact their ability to survive COVID19 – constitute illegal disability discrimination,” said Alison Barkoff, CPR’s Director of Advocacy. “We hope that states will revisit their policies in light of today’s resolution.”
Read the full press release on today’s resolution here.
More information on medical rationing during the COVID-19 pandemic and its impact on disabled people can be found here.