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HHS OCR just announced an Early Case Resolution with Utah about their rationing plan, fixing components that discriminated on the basis of disability and age. https://www.hhs.gov/about/news/2020/08/20/ocr-resolves-complaint-with-utah-after-revised-crisis-standards-of-care-to-protect-against-age-disability-discrimination.html
The new plan, which resolves a complaint brought by @public_rep, @autselfadvocacy, @TheArcUS, @BazelonCenter and others, offers a national model for how states can ethically and legally triage care when need overwhelms availability.
https://www.centerforpublicrep.org/news/resolution-of-federal-complaint-filed-by-cpr-and-partners-sets-national-precedent-against-blanket-dnrs-medical-discrimination-on-the-basis-of-disability-during-the-covid-19-pandemic/
https://www.centerforpublicrep.org/news/resolution-of-federal-complaint-filed-by-cpr-and-partners-sets-national-precedent-against-blanket-dnrs-medical-discrimination-on-the-basis-of-disability-during-the-covid-19-pandemic/
Utah's new plan prohibits providers from imposing blanket "Do Not Resuscitate" policies to conserve resources or requiring patients to agree to the withholding of treatment in order to continue to receive services.
Like OCR's resolution with Tennessee, it also removes language present in the previous plan rationing care based on a person's likelihood of long-term survival or the intensity of resources they'll require.
It removes categorical exclusions from care on the basis of diagnoses like cystic fibrosis, neuromuscular disease, dementia and other disabilities, as well as similar exclusions on the basis of age.
It also applies a crucial protection from the ADA/504 - the right to reasonable modifications - to clinical instruments, like the Sequential Organ Failure Assessment used to assess short-term mortality risk.
Patients should be evaluated based on their actual risk of mortality, not based on the inappropriate application of instruments designed for acute injuries, not stable long-term impairments.
OCR's resolution with Utah also includes language protecting chronic ventilator users against having their personal ventilators re-allocated by a hospital.
As I wrote in April, disability rights law prohibits more than just irrational prejudice. These resolutions acknowledge that, and recognize that treating people equally doesn't necessarily mean offering everyone the same thing. https://www.thehastingscenter.org/when-it-comes-to-rationing-disability-rights-law-prohibits-more-than-prejudice/
