Case: HHS-OCR Complaint of Alabama Disabilities Advocacy Program Against Alabama Department of Public Health

No Court

Filed Date: March 24, 2020

Closed Date: April 8, 2020

Clearinghouse coding complete

Case Summary

COVID-19 Summary: This is a complaint, dated March 24, 2020, made to the U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR); it alleges that Alabama's particular protocols for rationing ventilator access in the event of over-demand bars access to ventilators to people with intellectual and cognitive disabilities, in violation of federal anti-discrimination law. Alabama withdrew its ventilator rationing policy and instructed hospitals that they could not discriminate …

COVID-19 Summary: This is a complaint, dated March 24, 2020, made to the U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR); it alleges that Alabama's particular protocols for rationing ventilator access in the event of over-demand bars access to ventilators to people with intellectual and cognitive disabilities, in violation of federal anti-discrimination law. Alabama withdrew its ventilator rationing policy and instructed hospitals that they could not discriminate against people with disabilities in accessing treatment on April 8, 2020. OCR found the actions satisfactory and closed its review on May 9.


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, including Alabama, are developing policies for how to ration care and determine who will have access to lifesaving treatment. The Alabama Department of Public Health’s Emergency Operations Plan instructs that when cases of ventilator rationing arise during health emergencies, hospitals are not to provide ventilators to people with certain intellectual and cognitive disabilities.

On March 24, 2020, two disability advocacy organizations—Alabama Disabilities Advocacy Program and the Arc of the United States—filed this complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) alleging disability discrimination in Alabama’s rationing protocol. The complainants claimed that the current ventilator rationing policy denies medical treatment based on underlying disabilities and puts the lives of those with disabilities at risk. Specifically, the complainants alleged that Alabama’s particular healthcare rationing plan 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 two disability advocacy organization alongside the Bazelon Center, 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 against Washington State on March 23.

The complainants requested that OCR act quickly to investigate this complaint of disability discrimination and detail what Alabama health care providers must do to comply with federal disability rights law during the COVID-19 pandemic.

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 opened an investigation of the complaint in Alabama. OCR and Alabama reached an early case resolution. Alabama withdrew its ventilator rationing policy and instructed hospitals that they cannot discriminate against people with disabilities in accessing treatment on April 8, 2020. In addition, Alabama put in place new Crisis Standards of Care Guidelines that contained important nondiscrimination provisions. On May 9, OCR found the Alabama Department of Public Health's actions satisfactory and closed its review.

Summary Authors

Emily Kempa (3/25/2020)

Averyn Lee (6/13/2020)

People


Attorneys(s) for Plaintiff

Bagenstos, Samuel R. (Michigan)

Brownstein, Rhonda C. (Alabama)

Costanzo, Cathy E. (Massachusetts)

Mathis, Jennifer (District of Columbia)

Wakschlag, Shira (District of Columbia)

Attorneys(s) for Plaintiff

Bagenstos, Samuel R. (Michigan)

Brownstein, Rhonda C. (Alabama)

Costanzo, Cathy E. (Massachusetts)

Mathis, Jennifer (District of Columbia)

Wakschlag, Shira (District of Columbia)

Documents in the Clearinghouse

Resources

Docket

Last updated May 11, 2022, 8 p.m.

Docket sheet not available via the Clearinghouse.

Case Details

State / Territory: Alabama

Case Type(s):

Disability Rights

Special Collection(s):

COVID-19 (novel coronavirus)

Key Dates

Filing Date: March 24, 2020

Closing Date: April 8, 2020

Case Ongoing: No

Plaintiffs

Plaintiff Description:

Two disability advocacy organizations

Plaintiff Type(s):

Non-profit NON-religious organization

Attorney Organizations:

NDRN/Protection & Advocacy Organizations

Bazelon Center

Public Interest Lawyer: Yes

Filed Pro Se: No

Class Action Sought: No

Class Action Outcome: Not sought

Defendants

Alabama Department of Public Health, State

Defendant Type(s):

Hospital/Health Department

Case Details

Causes of Action:

Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.

Section 504 (Rehabilitation Act), 29 U.S.C. § 701

Special Case Type(s):

Out-of-court

Availably Documents:

Complaint (any)

Outcome

Prevailing Party: Plaintiff

Nature of Relief:

None

Source of Relief:

None

Issues

General:

Disparate Treatment

Reasonable Accommodations

Reasonable Modifications

Discrimination-basis:

Disability (inc. reasonable accommodations)

Disability:

Mental impairment

Mental Disability:

Intellectual/developmental disability, unspecified

Medical/Mental Health:

Medical care, general

Medical care, unspecified

Mental health care, general

Mental health care, unspecified

Type of Facility:

Government-run