The Office for Civil Rights at HHS has announced the resolution of its first civil-rights investigations concerning the COVID-19 public health emergency. First, on April 8, HHS OCR announced a resolution of its review of the State of Alabama’s ventilator triaging guidelines following complaints from civil-rights groups in the State. As noted by HHS OCR, the State of Alabama had incorporated into its triaging guidance a certain document from 2010, which may have permitted the denial of ventilator services to individuals “based on the presence of intellectual disabilities, including ‘profound mental retardation,’ and ‘moderate to severe dementia.’” As such, HHS OCR’s investigation concerned allegations of both disability and age discrimination.

To resolve the investigation, the State of Alabama 1) removed all links to the 2010 document from its website; 2) agreed to publicly clarify that the 2010 guidance was not in effect; 3) agreed that it will not include similar provisions in future guidance; and 4) confirmed that it will not interpret its current guidelines in a similar manner.

Shortly thereafter, on April 16, HHS OCR announced the resolution of a second investigation concerning the Pennsylvania Department of Health. This investigation, too, followed complaints by local civil-rights groups within the State. To resolve the investigation and to bring its Crisis Standards guidelines into compliance with federal civil rights law, the Department agreed to revise its 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.

In the announcement, Roger Severino, Director of HHS OCR, was quoted as saying: “Triage decisions must be based on objective and individualized evidence, not discriminatory assumptions about the prognoses of persons with disabilities.  We must ensure that triage policies are free from discrimination both in their creation and their application, and we will remain vigilant in achieving that goal.”

Conclusion

In light of these enforcement actions, health systems and healthcare providers should continue to ensure that their triaging decisions are likewise free from discrimination, in creation and in application. This means that decisions concerning critical care should be based on objective and individualized medical evidence, and not, by contrast, on any generalized or stereotypical views about any particular group or classification of patients.