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Alabama’s Virus Ventilator Plan Latest to Draw Ire of Disabled

March 25, 2020, 4:22 PM

A group of nonprofits advocating for the disabled filed a federal complaint over Alabama’s new plan to ration ventilators in the wake of Covid-19.

The complaint outlines concerns that the Alabama Department of Public Health’s Emergency Operations Plan for addressing ventilator rationing in the event of a health emergency will discriminate against those with intellectual, developmental, and physical disabilities.

The groups, including the Alabama Disabilities Advocacy Program and The Arc of the United States, filed the complaint on Tuesday with the U.S. Department of Health and Human Services Office for Civil Rights.

The plan orders hospitals to “not offer mechanical ventilator support for patients” with “severe or profound mental retardation,” “moderate to severe dementia,” and “severe traumatic brain injury.” The policy also applies to children.

The groups allege the plan violates federal disability rights laws, including the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act.

The Alabama public health department didn’t immediately respond to a request for comment.

Growing Trend

The complaint echoes one filed earlier this week over similar policies that the state of Washington has prepared in response to Covid-19. Minnesota, Colorado, Alabama, Tennessee, and Utah have all introduced guidelines, criteria, or crisis plans that would allow for allocation—or reallocation—of finite health-care resources based on physical and/or mental health.

The groups call for Roger Severino, director of the OCR, to immediately intervene with guidance instructing hospitals and health-care providers that such discrimination is illegal—regardless of a pandemic.

Severino has previously said that HHS will leave no one behind during the pandemic, adding, “Persons with disabilities, limited English skills, or patients needing religious accommodations should not be put at the end of the line for health services during emergencies.”

Urgency

A spokesperson for HHS said that the OCR is already working on related guidance, though disability advocates say time is of the essence.

“If OCR fails to act swiftly to clearly and firmly articulate the violation of civil rights implicated by the Alabama ventilator rationing plan, there will be no way to undo the lethal outcome of the plan should it go into effect,” said James Tucker, director of the Alabama Disabilities Advocacy Program.

“It is cruel that our constituents in Alabama seeking medical treatment during this pandemic may not receive the care they need or they may be left to suffer or die because they are seen as less than or other,” he added.

To contact the reporter on this story: Valerie Bauman in Washington at vbauman@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Andrew Childers at achilders@bloomberglaw.com

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