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Tennessee Updates Virus Plan After Disability Groups Protest

June 26, 2020, 8:32 PM

Health workers in Tennessee can no longer prioritize patients who don’t have disabilities after the state agreed to change its Covid-19 response plan, resolving a complaint before the HHS.

The resolution with the Department of Health and Human Services’ Office for Civil Rights, announced Friday, marks the fourth time that the agency has reached a deal with a state over alleged discrimination during the pandemic. The OCR is the arm of HHS that enforces federal antidiscrimination laws.

The agency took the case after receiving a complaint from Disability Rights Tennessee and other advocacy organizations.

The state’s new plan states that health workers can’t make someone who is older or disabled a lower priority for care just because they may need greater resources for a longer period of time to recover from Covid-19.

Tennessee also deleted language that would have allowed medical professionals to use a patient’s long-term life expectancy as a factor when deciding how to allocate scarce medical resources. Instead, a patient’s immediate risk of mortality will be weighed in making those decisions.

“The revised guidance includes disability-related accommodations, and continues to provide a framework for providers to address public health emergencies while making clear that health care treatment decisions are to be made on an individualized basis based on the best available medical evidence, even during an emergency,” Tennessee Health Commissioner Lisa Piercey said in an emailed statement.

The new crisis plan prohibits hospitals from re-allocating ventilators being used by long-term care patients to someone else.

The state also agreed to eliminate criteria from the plan that would have allowed health workers to exclude people with disabilities from receiving care based on their diagnosis. Instead, each patient must receive an individualized assessment of their needs based on the best objective medical evidence available.

OCR’s intervention also led Tennessee officials to add language to the plan to ensure that people with disabilities are evaluated based on their actual mortality risk rather than factors unrelated to their likelihood of survival.

“People with disabilities are at a higher risk during these types of crises and should not have to worry whether they will be denied lifesaving treatment due to discriminatory policies, said Sherry Wilds, senior attorney at Disability Rights Tennessee. ‘The improvements to Tennessee’s guidelines will literally save lives.”

As a result of the changes, the OCR closed the complaint as resolved to the satisfaction of all parties involved without any finding of liability.

“Our civil rights laws reflect the principle that we are all created with equal dignity and worth,” Roger Severino, director of the OCR, said in a statement.

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; Alexis Kramer at akramer@bloomberglaw.com

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