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Pennsylvania Reverses Guidance on Disability Care During Covid-19

April 16, 2020, 5:33 PM

Pennsylvania’s response to the Covid-19 pandemic will now comply with federal civil rights laws that prohibit discrimination based on disability, resolving a complaint filed against the state’s Department of Health.

The changes ensure providers in the state can’t make decisions based on disability as they determine who will receive life-saving treatment and access to things like ventilators.

The Office for Civil Rights at the U.S. Department of Health and Human Services announced Thursday that state officials had revised the Interim Pennsylvania Crisis Standards of Care for Pandemic Guidelines, which previously listed specific impairments or disabilities that would put those people lower on the priority list for care.

“Triage decisions must be based on objective and individualized evidence, not discriminatory assumptions about the prognoses of persons with disabilities,” said Roger Severino, director of the OCR. “We must ensure that triage policies are free from discrimination both in their creation and their application, and we will remain vigilant in achieving that goal.”

Disability rights advocates, including Disability Rights Pennsylvania, filed a complaint April 3 alleging the state’s guidelines weren’t in compliance with Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and Section 1557 of the Affordable Care Act.

The complaint alleged the state’s guidelines unlawfully singled out and authorized the denial of treatment to individuals with disabilities when prioritizing access to critical care. That’s contrary to direction from the OCR outlined in a March 28 bulletin reminding hospitals and health care providers that civil rights laws still apply in the midst of a pandemic.

Pennsylvania officials have agreed to change state guidelines to remove criteria that automatically made people with particular disabilities a lower priority. They also agreed to ensure that no one is denied care based on stereotypes, assessments of quality of life, or judgments about a person’s worth based on the presence or absence of disabilities.

The state is also eliminating guidelines that—in lieu of an individualized patient assessment—used “preexisting conditions that are disabilities” to determine a priority score for patient care.

The OCR closed the complaint investigation as satisfactorily resolved without a finding of liability because Pennsylvania officials were responsive and agreed to revise the guidelines.

This is the second enforcement action OCR has taken on disability civil rights laws during the COVID-19 public health emergency.

Earlier this month Alabama complied with direction from the OCR to take down criteria around ventilator rationing from 2010 that allegedly discriminated against disabled and elderly people. The document allegedly allowed ventilators to be denied to people based on “profound mental retardation” and “moderate to severe dementia.”

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

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; Cheryl Saenz at csaenz@bloombergtax.com

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