New OCR Settlement Highlights Challenges of Implementing COVID-19 Triage Policies
The Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) announced this week that the agency has resolved a complaint filed against the Pennsylvania Department of Health (PDH) about PDH revised Interim Pennsylvania Crisis Standards of Care for Pandemic Guidelines (CSC Guidelines).
This is the second enforcement action OCR has taken since OCR issued a Bulletin reminding covered entities of the continued applicability of civil rights laws during the COVID-19 public health emergency. OCR enforces federal civil rights laws, including Section 504 of the Rehabilitation Act of 1973, Title II of the Americans with Disabilities Act, and Section 1557 of the Patient Protection and Affordable Care Act, among others.
On April 3, 2020, OCR received a complaint from several disability rights advocates, including Disability Rights Pennsylvania, alleging that Pennsylvania’s CSC Guidelines were not in compliance with Section 504, Title II, and Section 1557. The complaint alleged that the CSC Guidelines unlawfully singled out and authorized the denial of treatment to individuals with disabilities when prioritizing access to critical care and ventilators. The CSC Guidelines listed specific impairments or disabilities that would lead to greater deprioritization. The complaint also alleged that the guidelines did not require an individualized assessment, but instead used “pre-existing conditions that are disabilities” to determine a priority score.
OCR has reviewed the complaint and determined that, as a recipient of HHS funds, Pennsylvania is required to comply with the civil rights statutes listed above. OCR has been in communication with PDH, which has agreed to accept technical assistance from OCR and has revised its CSC Guidelines by:
- Removing criteria that automatically deprioritized persons on the basis of particular disabilities
- Requiring individualized assessments based on the best available, relevant, and objective medical evidence to support triaging decisions, and
- Ensuring that no one is denied care based on stereotypes, assessments of quality of life, or judgments about a person’s “worth” based on the presence or absence of disabilities.
OCR reports that, based on Pennsylvania’s responsive actions and the revisions the state has made to its guidelines, OCR is closing its complaint investigation as satisfactorily resolved without a finding of liability.
This result does not, however, preclude future OCR enforcement in cases of potential discriminatory implementation of Pennsylvania’s policies by any covered health care provider.
OCR emphasizes that:
- Triage decisions must be based on objective and individualized evidence, not discriminatory assumptions about the prognoses of persons with disabilities.
- Triage policies must be free from discrimination both in their creation and their application.
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