OCR Pushes Back Against Discriminatory State Triaging Guidelines

Two recent decisions of the Department of Health and Human Services Office for Civil Rights (OCR) illustrate that age and disability status cannot be used as blanket criteria for denying access to health care services, even during a pandemic. This should serve as a warning to healthcare providers about the risks in making triage decisions while treating COVID-19 patients.

A complaint was filed on March 24, 2020, by two advocacy organizations in Alabama about the state’s 2010 Criteria for Mechanical Ventilator Triage Following Proclamation of Mass-Casualty Respiratory Emergency. Although Alabama had released updated guidance in 2020, it remained unclear if the 2010 criteria were still valid. The 2010 criteria allegedly allowed for denying or stopping ventilator services to individuals based on the presence of intellectual disabilities, including “profound mental retardation” and “moderate to severe dementia,” and referred to age as a potential exclusory factor. OCR was concerned that the 2010 criteria encouraged discrimination against individuals based on disability and age by denying them ventilator services simply based on their status. After OCR’s review, Alabama responded by removing all links to the 2010 criteria and publicly stated that the 2010 criteria were not in effect.

Similarly, in Pennsylvania, OCR began its investigation after complaints from disability rights advocates, including Disability Rights Pennsylvania, about the state’s Interim Pennsylvania Crisis Standards of Care for Pandemic Guidelines. Pennsylvania’s guidelines listed specific impairments or disabilities that would deprioritize patients in a triage situation. In response to OCR’s action, Pennsylvania has revised its guidelines by removing the deprioritization based on disabilities and by requiring that individual patient assessments be made using objective medical evidence instead of a priority score.

OCR had initially issued a bulletin on March 28, 2020, reminding states and healthcare facilities of the prohibition against discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs, even during a pandemic. OCR stated that ”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.” Specifically in relation to disability status, “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 or age.”

States and healthcare providers should be cautious moving forward on how triaging decisions are made, to prevent unlawful discrimination. Please contact your attorney for counsel on whether your existing triage policy needs to be updated.