Case: HHS-OCR Complaint of Disability Rights Washington Against Washington State Department of Health

As COVID-19 cases increase, U.S. health officials predict that there will be shortages in ventilators and other medical resources needed to treat patients with COVID-19 requiring intensive care. In response, many states and hospitals are developing policies for how to ration care and determine who will have access to lifesaving treatment. As groups develop these plans to ration care, there is concern that the protocols discriminate against people with disabilities in violation of federal disability rights law and places the lives of people with disabilities at serious risk.

On March 23, 2020, disability advocacy organizations Self Advocates in Leadership, Disability Rights Washington, and The Arc of the United States, along with an individual complainant with a developmental disability, filed this complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) challenging Washington state's rationing scheme as illegal discrimination against those with disabilities. The complainants alleged that the Washington State Department of Health, the Northwest Healthcare Response Network (a coalition of hospitals in Washington), and the state-run University of Washington Medical Center’s plans to ration healthcare violates federal disability rights law, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and Section 1557 of the Affordable Care Act (ACA). The complainants are represented by counsel from the three disability advocacy organizations, alongside the Bazelon Center, the Autistic Self Advocacy Network, Center for Public Representation, and Sam Bagenstos, a civil rights lawyer and professor at the University of Michigan Law School. A similar complaint (available on the Clearinghouse here) was filed in Alabama the next day on March 24.

Under the developing plan of Washington State Department of Health and the Northwest Healthcare Response Network, it is reported that the plan "will assess factors such as age, health, and likelihood of survival in determining who will get access to full care and who will merely be provided comfort care, with the expectation that they will die.” Descriptions of the plan mirror the policy of the University of Washington Medical Center, which gives priority to young and healthy patients over older and debilitated patients—people with disabilities. The complainants argue that such plans violate federal disability rights law because the state is planning to make decisions that will deny medical treatment to individuals based on their underlying disability. This denial would occur without an individualized inquiry into the efficacy of treatment for that person.

The complainants requested that OCR act quickly to investigate and issue findings and guidance on how physicians and hospitals can refrain from violating the ADA, Section 504, and Section 1557 of the ACA in making treatment decisions. They urged HHS-OCR to take immediate action: “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 implore you to enforce the obligations of the health care professionals in Washington to develop non-discriminatory approaches to the delivery of care before it is too late.”

Prompted by this and other similar complaints, OCR on March 28, 2020 issued guidance explaining that disability discrimination was illegal and that hospitals and doctors cannot put people with disabilities or older people at the back of the line for care. The director of OCR also indicated that his office has opened or is about to open investigations of complaints in multiple states.

More to come.