COVID-19 cases increase, the experience in other countries and predictions of
U.S. health officials is that there will not be enough acute care services or
equipment, such as ventilators, to meet the demand of patients with the virus
who require intensive treatment.  Health
care professionals in the United States are already developing protocols for
responding to COVID-19, including treatment rationing that will determine who will and will not have access
to life-saving treatment.   

Self Advocates in Leadership (SAIL), Disability
Rights Washington (DRW), and The Arc of the United States (The Arc) filed a complaint with the U.S. Department of Health and Human
Services Office of Civil Rights (OCR) about their grave concerns that the plans being put in place
discriminate against people with disabilities in violation of federal
disability rights laws, including the Americans with Disabilities Act (ADA),
Section 504 of the Rehabilitation Act (Section 504) and Section 1557 of the
Affordable Care Act (ACA) and place their lives at serious risk.  We call for OCR to take immediate action to
address this discrimination and assist local jurisdictions and providers to
develop non-discriminatory approaches before there are lethal consequences to
application of these illegal policies.

The complaint focuses specifically on
the plan released Friday by the Washington Department of Health and the Northwest
Healthcare Regional Network that even those who developed the plan admit “is
not going to be pretty.”

“I know already that intellectually disabled
people get denied care because of being seen as lacking value,” said
Ivanova Smith, Chair of Self Advocates in Leadership and individual complainant
in the letter filed today with HHS OCR. “I deserve the
same rights as anyone else. These policies discriminate against me and put my
life at risk.”

Published descriptions of the goals and
flow charts in the WA DOH and NHRN plan mirror the existing policy of the
state-run University of Washington Medical Center (UWMC), which gives priority
to treating people who are younger and healthier and leaves those who are older
and sicker—people with disabilities—to die.    

A Seattle area patient of the
University of Washington Medical Center explained that “I am concerned that a
doctor will see my diagnosis of cystic fibrosis in my chart and make lots of
erroneous assumptions about me. Cystic fibrosis often comes with significant
breathing difficulties and a life expectancy of 30 years,” said Rose, not her
real name due to fear of retaliation. “However, tests show that I have better
breathing capacity than most people without cystic fibrosis and although I’m 28
years old, I have never been hospitalized and I am not anywhere close to dying.
If I get COVID-19 and need intensive treatment like a ventilator, I fear the
person making decisions about who gets treatment and who doesn’t will see my
file among dozens or even a hundred or more people all competing for limited
spots and my diagnosis will stand out and be used to exclude me from getting
treatment despite what my individual medical tests and record say.”

Rose’s case shows how this plan
will have a heavy impact on people with disabilities.  While medical knowledge of COVID-19 is
constantly evolving, it is known that having an underlying medical condition
heightens the effect of the virus. The conditions frequently mentioned include
compromised immune, respiratory, cardiovascular and endocrine systems. All of
these are common symptoms of many different physical disabilities and when
significant enough form the basis of the disability on their own.

disability community is a broad, inclusive community where individuals with a
variety of unique life experiences join forces to fight the many ways they are
similarly discriminated against. We will not sit by as members of our community
are left for dead. We stand up for those with preexisting disabilities and
those with newly acquired disabilities who are impacted by COVID-19. We implore
OCR to rein in and provide urgently needed guidance to the health care
professionals who are prepared to relegate members of our community to die,”
said David R. Carlson, Director of Advocacy, Disability Rights Washington.

“As COVID-19 sweeps our country, we are reminded once again that for far too long, the lives of people with disabilities have been undervalued. It is cruel that a person with a disability seeking medical treatment during this pandemic may not receive the care they need or they may be left to suffer or die because they are seen as less than or other. It is urgent that the federal government make very clear right now, on the front end of this health emergency, that it will swiftly enforce federal laws that protect against medical rationing plans discriminating against people with disabilities. We know this is just the beginning, and that there are many more days and months to come. The federal government must get it right, now, from the start. The lives of millions of people with disabilities across the nation are at stake – and those lives do have value,” said Peter Berns, CEO, The Arc.

The complaint stresses that OCR
has a very brief moment to intercede. “If OCR fails to act swiftly to clearly
and firmly articulate the violation of civil rights implicated by the rationing
plan about to be unveiled in Washington, there will be no way to undo the
lethal outcome of the discriminatory plans that have been formulated without
OCR’s guidance. We request that you enforce the obligations of the healthcare
professionals in Washington to develop non-discriminatory approaches to the
delivery of care before it is too late.”

“Even in the midst of the
current crisis, Washington State must abide by its obligation to not
discriminate against people with disabilities. The complainants are on the
front lines of a vital civil rights struggle. Their lives are at stake. I urge
the HHS Office of Civil Rights to take swift action to protect them,” said
Ari Ne’eman, Visiting Scholar with the Lurie Institute for Disability Policy at
Brandeis University.

are represented by their counsel who are available for comment:

David Carlson, Disability Rights Washington

Shira Wakschlag, The Arc of the United States

Sam Crane, Autistic Self Advocacy Network (ASAN)

Jennifer Mathis, The Bazelon Center for Mental Health Law

Cathy Costanzo and Alison Barkoff, Center for Public Representations;


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