The Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) issued a bulletin to ensure that entities covered by civil rights authorities keep in mind their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs, including in the provision of health care services during COVID-19.

The OCR announced that it is “particularly focused on ensuring that covered entities do not unlawfully discriminate against people with disabilities when making decisions about their treatment during the COVID-19 health care emergency.”

The office recognized that during the current emergency, the quick and efficient provision of care must be guided by the fundamental principles of fairness, equality, and compassion. Its response followed reports of a number of state considering plans to ration care and the establishment of “bioethics” panels designed to create treatment protocols for who would or would not be deemed “eligible” for COVID-19 treatment.

US disability advocates, including parents of children with Down syndrome, have been especially disturbed by guidelines published by the state of Alabama which state that “persons with severe mental retardation, advanced dementia or severe traumatic brain injury may be poor candidates for ventilator support” and that “persons with severe or profound mental retardation, moderate to severe dementia, or catastrophic neurological complications such as persistent vegetative state are unlikely candidates for ventilator support.”

OCR Director Roger Severino explained the rational for the bulletin:

 “Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism. HHS is committed to leaving no one behind during an emergency, and helping health care providers meet that goal. Persons with disabilities, with limited English skills, and older persons should not be put at the end of the line for health care during emergencies.” 

A bipartisan bicameral letter to protect individuals with disabilities during the pandemic was led in the House by congressional pro-life caucus co-chair Rep. Chris Smith (R) and Rep. Jim Langevin (D) and signed by twenty-seven members of the House of Representatives and five Senators. They called upon Secretary of the Department of Health and Human Services (HHS) Alex Azar and U.S. Attorney General William Barr to expeditiously issue guidance to states that they cannot authorize or promote any form of disability discrimination that violates the Americans with Disabilities Act.

“Our nation cannot leave behind Americans with disabilities or pre-existing conditions during this crisis. The Department of Health and Human Services should immediately clarify that states may not respond to the coronavirus emergency by denying individuals life-sustaining treatments solely on the basis of disability. As a nation, we have to stick together, and this includes the disability community and their families,” said Rep Smith.

“The coronavirus pandemic has presented unique challenges for Americans with disabilities. Patients must never be denied care on the basis of a disability, and I’m proud to join my colleagues in urging HHS to take immediate action to help prevent disability discrimination during this public health emergency,” said Rep Langevin.

“We are at unique time in our nation’s history as we work together to combat the global COVID-19 pandemic….Especially during times of crisis, we cannot abandon our moral duty to protect vulnerable communities and stand for the value of life. I’m grateful to work with my colleagues to ensure this commitment to every life is upheld as we work to respond rapidly and effectively to this pandemic,” said Senator Lankford.

“In times of crisis our communities must band together to help and protect each other. The United States has a responsibility to uphold our landmark civil rights laws, and we must honor our commitment to anti-discrimination laws for people with disabilities, even as we combat the coronavirus outbreak,” said Senator Gillibrand. 

Complaints about violations can be filed at the OCR.