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Alabama Takes Down Allegedly Discriminatory Ventilator Guidance (1)

April 8, 2020, 8:17 PM; Updated: April 8, 2020, 8:56 PM

Alabama will take down criteria around ventilator rationing from 2010 that allegedly discriminated against disabled and elderly people after a resolution with the HHS Office for Civil Rights.

The document allegedly allowed ventilators to be denied to people based on “profound mental retardation” and “moderate to severe dementia.”

The Department of Health and Human Services’ OCR said it was concerned that the criteria could result in discrimination against people with disabilities or older people.

Alabama agreed to publicly clarify that the 2010 criteria aren’t in effect, take down all links to the criteria, and not include similar provisions in future crisis standards of care guidelines.

“The allocation of care cannot discriminate based on race, color, national origin, disability, age, sex, exercise of conscience or religion,” Scott Harris, the state health officer at the Alabama Department of Public Health, said in a statement. “This includes the use of ventilators during medical emergencies in addressing the needs of at-risk populations in Alabama.”

The OCR is investigating other states based on complaints, OCR Director Roger Severino told reporters during a telephone call. He declined to provide specifics. States, he said, should have already reviewed their plans to make sure they comply with federal law.

New York’s plan is “very thoughtfully crafted and takes into account a lot of concerns in regard to disability discrimination and age,” Severino said, and could serve as a model for other states on their crisis standard of care guidelines.

Alabama released new guidelines Feb. 28. However, the OCR said “it was not clear whether any of their potentially problematic provisions could still be applied under the new Guidelines.”

The office “commends Alabama for quickly disavowing problematic triage plans and coming into compliance with federal civil rights laws within days of being contacted by our office,” Severino said in a statement. “Alabama and other states are free to and encouraged to adopt clear triage policies, but they must do so within the guardrails of the law.”

The OCR issued a bulletin March 28 that health-care providers must have to ensure they don’t discriminate on the basis of disability as they make treatment decisions during the Covid-19 pandemic.

The review was spurred by a complaint by the Alabama Disabilities Advocacy Program and The Arc of the United States.

(Adds new 6th, 7th paragraphs to update with information from press call )

To contact the reporter on this story: Shira Stein in Washington at sstein@bloomberglaw.com

To contact the editors on this story: Melissa Robinson at mrobinson@bloomberglaw.com, Fawn Johnson at fjohnson@bloomberglaw.com

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