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Virus Stokes Discrimination Concerns From Disability Groups (2)

March 23, 2020, 5:17 PMUpdated: March 23, 2020, 7:25 PM

A group of nonprofits in Washington state have filed a complaint with the federal government, raising “grave concerns” about discrimination against disabled people that could emerge as health-care resources dwindle due to Covid-19.

The organizations filed their complaint on Monday with the Office for Civil Rights within the Department of Health and Human Services. They said they’re afraid that patients with physical, developmental, and intellectual disabilities will become a lower priority when it comes to treatment rationing and access to ventilators.

The advocacy groups focused on Washington state, where they allege that the state’s Department of Health and the Northwest Healthcare Response Network, a coalition of hospitals, are developing a plan to ration health care during the Covid-19 pandemic.

The Washington State Department of Health distributed guidance last week recommending that triage teams consider transferring hospital patients with “loss of reserves of energy, physical ability, cognition and general health” to outpatient or palliative care. Advocates said that the plan will prioritize treating younger, healthier people, leaving the older, sick, and disabled to die.

The Washington health department, and hospital coalition didn’t immediately respond to requests for comment.

“HHS is committed to leaving no one behind during this emergency,” Roger Severino, director of the Office for Civil Rights at HHS, said. “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.”

Rationing Resources

“Health care professionals in the United States are already developing protocols for responding to COVID-19, including treatment rationing that will determine who will and will not have access to life-saving treatment,” the nonprofit groups, including Self Advocates in Leadership, Disability Rights Washington, and The Arc of the United States, wrote in the complaint.

“While we recognize the need to plan and be prepared for this potential reality during these extraordinary times, the guiding principles that are adopted must be consistent with federal civil rights law,” they added.

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 say such measures would violate the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act. They called on Roger Severino, director of OCR to act fast.

“I know already that intellectually disabled people get denied care because of being seen as lacking value,” said Ivanova Smith, chair of Self Advocates in Leadership and a signatory to the letter.

“I deserve the same rights as anyone else,” the Tacoma, Wash., resident added. “These policies discriminate against me and put my life at risk.”

The U.S. has a history of discrimination against disabled people in medical settings, Sam Crane, the legal director and director of public policy for the Autistic Self Advocacy Network, said. Advocacy groups recently had to challenge hospital policies that precluded the disabled from obtaining organ transplants, she said.

Guidance Needed

The complaint asks the federal government to intervene by sending out guidance to hospitals and medical professionals reiterating the legal protections that disabled people are entitled to. An HHS spokesperson said the OCR is currently working on additional guidance on the issue, though advocates say time is of the essence.

According to the complaint, the federal government “has a very brief moment to intercede. If OCR fails to act swiftly to clearly and firmly articulate the violation of civil rights implicated by the rationing plan about to be unveiled in Washington, there will be no way to undo the lethal outcome.”

“We implore you to enforce the obligations of the health care professionals in Washington to develop non-discriminatory approaches to the delivery of care before it is too late,” the complaint said.

The Office for Civil Rights “is in a great position, because they are in both worlds of medical providers and operating within a rights based analysis,” said David Carlson, director of advocacy for Disability Rights Washington. “They get health care and they get civil rights and they know how they interact with each other, so his [Severino’s] office can act quickly and authoritatively.”

Protecting vulnerable populations during a pandemic is a civil rights issue, Ari Ne’eman, co-founder of the Autistic Self Advocacy Network and a visiting scholar at the Lurie Institute for Disability Policy at Brandeis University, said.

“When Congress passed the ADA it didn’t do so out of charity. It did so as an act of civil rights. You can roll back charity, but you can’t roll back civil rights.”

(Updates with comment from Roger Severino in the sixth paragraph.)

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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