Alabama agreed to eliminate its ventilator rationing guidelines after HHS' Office for Civil Rights found that they could result in patient discrimination based on age or disability, OCR said Wednesday.
Following a complaint from the Alabama Disabilities Advocacy Program and The Arc of the United States, the agency investigated and found concerns that the state's 2010 criteria for ventilator triage might discriminate against older adults and people with intellectual disabilities. Under the guidelines, providers could deny a patient ventilator services "based on the presence of intellectual disabilities, including 'profound mental retardation' and 'moderate to severe dementia.' "
Alabama published new emergency guidelines to address the COVID-19 outbreak in February. However, the 2010 guidelines were still available on state websites, and OCR wasn't sure whether the old criteria could be used under the new instructions.
The state also agreed not to include similar criteria in future guidance.
"Alabama and other states are free to and encouraged to adopt clear triage policies, but they must do so within the guardrails of the law," OCR Director Roger Severino said. "Older Americans in Alabama can take solace knowing that their state will not impose blunt age cutoffs for ventilator allocation if, God forbid, there is a shortage."
Providers should base their resource allocation decisions on an individual assessment of each patient, not a blanket policy, Severino said during a call with reporters. New York's guidelines could serve as a model for other states, although OCR doesn't endorse it entirely.
"One thing we don't want to see is other states becoming less transparent," Severino said. "Clarity allows people to know what the rules of the road are and does not allow for misinterpretation on the spot by our first responders and our frontline medical staff."
The agency has received complaints about policies in other states and is investigating them. Some states don't have any guidance on how to allocate resources. For states that do, they vary considerably in terms of comprehensive and detail.
The OCR reminded states and providers last month that they shouldn't violate civil rights laws during the haze of the coronavirus pandemic, signaling that the agency would step up enforcement. The agency's agreement with Alabama is the first enforcement action since then.
