The Department of Health and Human Services (HHS) is reminding federally-funded health providers that they cannot ration health care based upon the disabilities of patients.
“In this time of emergency, the laudable goal of providing care quickly and efficiently must be guided by the fundamental principles of fairness, equality, and compassion that animate our civil rights laws,” the HHS Office of Civil Rights (OCR) stated in a bulletin on Saturday.
“As such, 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,” the bulletin states.
The document outlines existing civil rights protections in health care for people with disabilities, in particular Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act. These are both in force, HHS said, and they prohibit discrimination on basis of disability in federally-funded health programs.
On a conference call with reporters on Saturday, the HHS OCR director Roger Severino said that “we’re doing everything we can to inform health care providers of their obligations under the law,” and that the bulletin “is the first step.”
He said that his office had received “several” complaints about state crisis standards of care being developed in response to the new coronavirus pandemic. The office was in the process of starting investigations into those complaints he said.
As there are now more than 100,000 confirmed cases of the new coronavirus (COVID-19) in the U.S., states are considering “triage” plans in the event that their hospitals and health care systems are overwhelmed by an expected surge in new coronavirus patients.
Such plans would detail how critical care, such as ICU beds and ventilators, would be rationed in such a crisis. However, advocates are sounding the alarm that the plans could be used to deny care to people with disabilities and the elderly, based upon their supposed likelihood of survival.
Severino on Saturday clarified the existing civil rights protections for people with disabilities, and said that they were grounded in fundamental American principles.
“Part of the greatness of America is not simply our military might or our economic power, but the beauty of our character in how we treat the most vulnerable among us,” he said.
“We are not a society that is guided by some sort of ruthless utilitarianism, but one guided by compassion, justice, and fairness. And those principles are embodied in our civil rights laws.”
Last week, disability rights groups in Washington state said they had filed a complaint with the HHS OCR over a triage plan being developed by state health officials that they said posed a danger to persons with disabilities.
“While discussions about the details of the plan may be evolving, it is clear that it will discriminatorily disadvantage people with disabilities,” the groups’ letter stated, citing guidance by the state’s health department that reportedly “recommends that triage teams consider transferring hospital patients with ‘loss of reserves in energy, physical ability, cognition and general health’ to outpatient or palliative care.”
This week, 30 members of Congress wrote HHS Secretary Alex Azar and Attorney General William Barr, requesting that they issue guidance to states on the civil rights protections.
Severino said on Saturday that he was “concerned” that state crisis standards of care might be based on “value judgements” and “stereotypes” about the worth of someone’s life.
“This is about fairness, equality, inclusion, and justice under our civil rights laws,” he said.
Religious health providers objecting to state standards of care could also be protected under federal law, Severino said.
For example, a religious hospital might wish to preserve the life of a patient with down syndrome, contrary to state standards of crisis care mandating that ventilators be given to patients with the supposed highest likelihood of survival.
“That could be an issue that could arise that is included in these questions of resource allocation,” Severino said.