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OCR Provides Technical Assistance to Ensure Crisis Standards of Care Protect Against Age and Disability Discrimination

Today, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) is announcing it has worked collaboratively with the State of North Carolina, the North Texas Mass Critical Care Guidelines Task Force, the Southwest Texas Regional Advisory Council, and the Indian Health Service to revise each entity’s crisis standards of care (“CSC”) guidelines to reflect best practices for serving individuals with disabilities and the elderly. This builds on OCR’s prior work regarding discrimination concerns during COVID-19.

OCR enforces a number of federal antidiscrimination laws, including Title VI of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, the Age Discrimination Act of 1975, Title II of the Americans with Disabilities Act, Section 1557 of the Patient Protection and Affordable Care Act, and conscience and religious freedom laws.

After OCR provided technical assistance to each entity through a collaborative process, they issued CSC plans that incorporated the following provisions:

  • Prohibition on the use of a patient’s long-term life expectancy as a factor in the allocation and re-allocation of scarce medical resources;
  • Prohibition on the use of categorical exclusion criteria, instead requiring an individualized assessment based on the best available objective medical evidence;
  • Prohibition on the use of resource-intensity and duration of need as criteria for the allocation or re-allocation of scarce medical resources. This protects patients who require additional treatment resources due to their age or disability from being given a lower priority to receive life-saving care due to such need;
  • Inclusion of language stating that reasonable modifications to the use of clinical instruments for assessing likelihood of short-term survival should be made when necessary for accurate use with patients with underlying disabilities.
  • Inclusion of new protections against providers “steering” patients into agreeing to the withdrawal or withholding of life-sustaining treatment, clarifying that patients may not be subject to pressure to make particular advanced care planning decisions, must be given information on the full scope of available alternatives, and that providers may not impose blanket “Do Not Resuscitate” policies for reasons of resource constraint, or require patients to consent to a particular advanced care planning decision in order to continue to receive services from a facility; and
  • Inclusion of language stating that hospitals should not re-allocate personal ventilators brought by a patient to an acute care facility to continue pre-existing personal use with respect to a disability. Under this language, long-term ventilator users will be protected from having a ventilator they take with them into a hospital setting taken from them to be given to someone else.

In addition to the agency’s work with covered entities regarding CSC guidelines, OCR recently worked collaboratively with the National Academy of Medicine to advise on the development of a statement on CSC guidelines during COVID-19, issued by the NAM and nine other national organizations reflecting key best practices for CSC plans.

Roger Severino, OCR Director said, “We commend our colleagues at the Indian Health Service and partners in North Carolina and Texas for defending people’s right to non-discriminatory access to medical resources during this crisis.” Severino concluded, “These plans will help ensure older persons and persons with disabilities are not excluded from health care based on judgments that their lives are somehow less worthy of saving.  Everyone should be treated with equal dignity and respect, and these plans reflect these foundational principles.”

To see the North Texas Mass Critical Care Guidelines Task Force’s new guidelines, please visit: https://www.dallas-cms.org/tmaimis/dcms/assets/files/communityhealth/MCC/NTMCCGuidelines011121.pdf

To see the Southwest Texas Regional Advisory Council’s new guidelines, please visit: https://www.strac.org/files/Incident%20Specific/2019nCoV/STRAC_Crisis_Guidlines_v1.5_Jan_2021_OCR_Seal.pdf

To see the Indian Health Service’s new guidelines, please visit: https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/ihs-interim-guidance/index.html

To see North Carolina’s new guidelines, please visit: https://files.nc.gov/covid/documents/guidance/North-Carolina-Protocol-for-Allocating-Scarce-Inpatient-Critical-Care-Resources-In-a-Pandemic.pdf

To see the National Academy of Medicine joint statement, please visit: https://nam.edu/national-organizations-call-for-action-to-implement-crisis-standards-of-care-during-covid-19-surge/

For more information about how OCR is protecting civil rights during COVID-19, please visit https://www.hhs.gov/civil-rights/for-providers/civil-rights-covid19/index.html.

To learn more about non-discrimination on the basis of sex, race, color, national origin, age, and disability; conscience and religious freedom; and health information privacy laws, and to file a complaint with OCR, please visit www.hhs.gov/ocr.

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Author: HHS Press Office

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