The Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) released a bulletin (https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf) on March 28, 2020 reiterating that discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs is prohibited.
The bulletin stated: “The Office for Civil Rights enforces Section 1557 of the Affordable Care Act and Section 504 of the Rehabilitation Act which prohibit discrimination on the basis of disability in HHS funded health programs or activities. These laws, like other civil rights statutes OCR enforces, remain in effect. As such, persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”
The bulletin stressed the prohibition on disability discrimination as growing concerns have been raised (“Opinion | How the Coronavirus May Force Doctors to Decide Who Can Live and Who Dies,” The New York Times, March 12, 2020, https://www.nytimes.com/2020/03/12/opinion/coronavirus-hospital-shortage.html) ; (Yale Journal Forumhttps://papers.ssrn.com/sol3/papers.cfm?abstract_id=3559926) that the COVID-19 pandemic could lead to rationing of care, with providers withholding treatment to certain categories of patients. Advocacy groups had filed complaints with the OCR that such discriminatory decisions in rationing care were already occurring in certain areas of the United States (Complaint from Washington state: https://www.centerforpublicrep.org/wp-content/uploads/2020/03/OCR-Complaint_3-23-20-final.pdf?link_id=2&can_id=598dadf8054bb175e034c9962c09805e&source=email-complaint-filed-over-wa-covid-19-treatment-rationing-plan-2&email_referrer=email_758489&email_subject=complaint-filed-over-wa-covid-19-treatment-rationing-plan.) The complaint cites Guidance distributed by the Washington State Department of Health (WA DOH) and the Northwest Healthcare Response Network (NHRN), a coalition of hospitals which is developing a plan to ration health care during the COVID-19 pandemic, recommending that triage teams consider transferring hospital patients with “loss of reserves in energy, physical ability, cognition and general health” to outpatient or palliative care. This would mean that if resources and ventilators are limited, preference would be given to people who are younger and healthier and would leave those who are older and sicker to die.
The Consortium for Citizens with Disabilities (CCD) Rights and Health Task Forces, of which the Center for Medicare Advocacy is a member, wrote a letter to HHS on March 20, 2020 urging that HHS ensure that, if the current pandemic results in government decisions to ration treatment, decisions about how medical treatment is allocated are made without discriminating based on disability. (http://c-c-d.org/fichiers/Letter-re-COVID-19-and-Disability-Discrimination-final.pdf)
April 2, 2020 – K. Kertesz