Review: OCR reaches early case resolution with Alabama after it removes discriminatory ventilator triaging guidelines

Home/Review: OCR reaches early case resolution with Alabama after it removes discriminatory ventilator triaging guidelines

Review: OCR reaches early case resolution with Alabama after it removes discriminatory ventilator triaging guidelines

Review: OCR reaches early case resolution with Alabama after it removes discriminatory ventilator triaging guidelines

This press release from the Office for Civil Rights (OCR) at the U.S. Department of Health and Human Services (HHS) announces the resolution of a complaint against Alabama based on the state’s 2010 ventilator allocation guidelines, which were challenged as discriminating on the basis of disability and age. Among other actions, Alabama has agreed to remove all links to the 2010 guidelines from state websites.

OCR enforces several federal civil rights laws, including the Americans with Disabilities Act and the Age Discrimination Act. Advocacy groups filed a complaint arguing that Alabama’s 2010 ventilator allocation guidelines discriminated on the basis of disability because potential exclusion criteria included “profound mental retardation” and “moderate to severe dementia.” OCR review the guidelines on this basis as well as for discrimination on the basis of age due to additional references to age as a potential exclusionary category.

OCR concluded that the state’s 2010 guidelines could result in discrimination on the basis of disability and age. While Alabama released new Crisis Standards of Care (CSC) guidelines in 2020, the 2010 document remained available on state websites, and OCR noted that it was unclear whether provisions of the older guidelines were applicable under the updated CSC guidance. Alabama has agreed to remove all links to the 2010 guidelines from state websites and publicly clarify that those guidelines are no longer in effect. The state has also agreed not to include categorical age cutoffs or single out persons with disabilities for unfavorable treatment in future policies or to interpret current guidelines to do so.

The press release explicitly notes that states are “free to and encouraged to adopt clear triage policies,” but that such policies must comply with federal anti-discrimination laws. OCR’s director specifically emphasized that “[p]ersons with disabilities have equal worth and dignity and should not be deprioritized for health care based on a supposedly lower ‘quality of life’ compared to persons without disabilities.”

|2020-04-09T15:35:36-04:00April 9th, 2020|COVID-19 Literature|Comments Off on Review: OCR reaches early case resolution with Alabama after it removes discriminatory ventilator triaging guidelines

About the Author: Daniel Orenstein

Daniel Orenstein
Daniel G. Orenstein, JD, MPH, is Visiting Assistant Professor of Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. He teaches in the areas of administrative law, public health law, and health care law and policy. His research focuses on public health law, policy, and ethics, and he was previously Deputy Director of the Network for Public Health Law Western Region, where much of his work centered on emergency preparedness and response, including resource allocation and government authority during declared emergencies, as well as vaccination policy.

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