State removes discriminatory ventilator triage guidelines after civil rights review

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Cropped shot of hospital machines being stored in an empty room in a modern hospital

The State of Alabama and the federal government resolved a case where the state was accused of having policies that could be used to deny ventilators to people based on their age or disabilities in a health emergency.

The U.S Department of Health and Human Services (HHS) announced the resolution after a review of state policy on rationing ventilators in a mass-casualty respiratory emergency.

The policy, published by the Alabama Department of Public Health (ADPH) in 2010, allowed for denying ventilator services to individuals based on the presence of intellectual disabilities, including “profound mental retardation” and “moderate to severe dementia” during a public health emergency.

The Office for Civil Rights (OCR) handled the review, which included questions of both disability and age discrimination — because the 2010 guidelines appeared to reference age as a potential category for exclusion.

The OCR agreed with the complaint that the 2010 Criteria could result in discrimination against people with disabilities or to impose strict age cutoffs for potentially life-saving treatment.

The state agreed to do the following: remove all links to the 2010 policy from its websites, comply with civil rights laws, publicly clarify that the 2010 policy is not in effect, and agree to not create similar policies in the future that single out certain disabilities for unfavorable treatment or use categorical age cutoffs.

Based on those actions, OCR said it is closing the review and commended Alabama for what it described as “quickly disavowing problematic triage plans and coming into compliance with federal civil rights laws within days of being contacted by our office.” HHS says this is the first enforcement action taken by OCR since it issued a bulletin reminding states of the continued applicability of civil rights laws during the COVID-19 public health emergency.

OCR Director Roger Severino said, “Persons 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. Older Americans in Alabama can take solace knowing that their state will not impose blunt age cutoffs for ventilator allocation if, God forbid, there is a shortage.”

In a press release from ADPH, State Health Officer Dr. Scott Harris said, “All people deserve compassion and equal respect, and with this in mind, the allocation of care cannot discriminate based on race, color, national origin, disability, age, sex, exercise of conscience or religion. This includes the use of ventilators during medical emergencies in addressing the needs of at-risk populations in Alabama.”

The state released updated guidelines on Feb. 28.

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