HHS Investigating Complaints Over Ventilator Rationing in Disabled

Alicia Ault

March 28, 2020

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The federal government is investigating complaints from advocates that some states are formulating plans to ration ventilators and other crucial treatments for COVID-19 that they say discriminate against people with disabilities.

"We're in the process of opening investigations right now," said Roger Severino, director of the Health and Human Services (HHS) department's Office of Civil Rights (OCR), in a briefing with reporters today.

Severino would not discuss details of the complaints. A handful of groups, including the Arc of the United States, have publicly said they've filed complaints with OCR about plans in Washington state, Alabama, and Tennessee.

The Washington plan, the complaint said, "gives priority to treating people who are younger and healthier and leaves those who are older and sicker — people with disabilities — to die." 

The Alabama Department of Public Health's Emergency Operations 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," according to the complaint.

The move comes as hospitals, states, and healthcare providers continue to express concerns that the US does not have enough ventilators to meet what is expected to be an overwhelming demand. President Donald Trump invoked the Defense Production Act yesterday, ordering General Motors to speed up production of ventilators.

Severino said it appears that the ventilator supply is sufficient, but acknowledged that could change. To anticipate potentials and "what-ifs," said Severino, the OCR issued a six-page bulletin outlining civil rights statutes.

The bulletin is meant "to inform states and healthcare providers that civil rights laws will still apply in this context, especially when it comes to persons with disabilities or older persons," Severino said, in the bulletin.

The bulletin states that people 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," and that treatment decisions "should be based on an individualized assessment of the patient based on the best available objective medical evidence."

Severino said that despite the pandemic, healthcare decisions still need to protect the rights of those with disabilities, those with limited English skills, or who are older.

People who need religious accommodations — whether a health practitioner or a patient — are still protected under the law, said Severino. He noted, for instance, that some people have not been able to see a clergy member for last rites while dying.

Additional Guidance Coming

Meanwhile, in the absence of a federal policy or recommendations on how to allocate resources, many state health departments and health systems are continuing to formulate their own policies.

Detroit, Michigan-based Henry Ford Health System's contingency plan — which says help should go to those who have the best chance of survival and to deny ventilators to people with cancer and other chronic diseases — caused an outcry when it was leaked to social media. The system told CNN that the letter was a worst-case scenario that it hoped not to put in place.

In a JAMA viewpoint published yesterday, ethicists Douglas B. White, MD, MAS, of the University of Pittsburgh School of Medicine, and Bernard Lo, MD, of the University of California, San Francisco, said that categorical exclusions of groups of patients from critical care beds, ventilators, or other resources was too rigid and likely discriminatory. They suggested a framework for evaluating who should get resources during a time of crisis.

When asked whether the federal government would be providing some sort of policy to address resource allocation, Severino said, "We've heard the requests for additional guidance and we will certainly make ourselves available for any state who wants to get technical assistance before they implement any of their own guidelines with respect to crisis standards of care."

He also said OCR would be issuing "additional guidance in the coming days."

White and Lo report that their work was funded by a National Institutes of Health–National Heart, Lung, and Blood Institute grant.

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