US Department of Health and Human Services will uphold human rights in relation to health care resource allocation.

Alex Schadenberg
Executive Director, Euthanasia Prevention Coalition

The US Department of Health and Human Services (HHS) issued a bulletin on March 28 concerning the provision of healthcare during the Covid-19 crisis.
 
Disability rights groups, and others, challenged the healthcare orders that have been issued by several states, including Alabama and Washington State, denying human rights and equality of people with disabilities, if healthcare rationing is deemed necesary during the Covid-19 crisis.

The healthcare rationing debate is not limited to the United States. Fritz Rosendaal, an epidemologist in the Netherlands is quoted in an article by Salvador Aragonés published by Aleteia.org as stating (google translated):

“In Italy, the ICU capacity is managed very differently [from the Dutch]. They admit patients that we would not include because they are too old. The elderly have a very different position in Italian culture." He does not understand how in these southern European countries they admit “old people to the ICU”. The Netherlands does not hospitalize the weak and the elderly in order to make room for young people. He attributes it to a “cultural difference” between the Netherlands and the Latin countries.

Sheri Fink, writing for the New York Times, wrote an excellent article on the HHS bulletin and the healthcare protocols that led to complaints by the disability community. Fink quotes Roger Severino, the director of the HHS office responding to the release of the bulletin, as stating:

“Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism,”.. “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.”

Fink writes that Severino was responding to several complaints. She states:

Mr. Severino said in an interview that in response to multiple complaints, his office was opening the investigations to ensure that state-mandated rationing plans “are fully compliant with civil rights law.” He said his office had heard from “a broad spectrum of civil rights groups, pro-life groups, disability rights groups, from prominent members of Congress from both sides of the aisle, from ordinary people who are concerned about their civil rights in this time of crisis.”

Ari Ne'eman

Ari Ne'eman, a disability rights scholar who comments on the HHS bulletin. Ne'eman states that there was “urgent need for comprehensive guidance.” Fink quotes Ne'eman as stating:

Some (State) plans instruct hospitals not to offer mechanical ventilators to people above a certain age or with particular health conditions.

In Alabama’s plan, people with “severe or profound mental retardation” as well as “moderate to severe dementia” should be considered “unlikely candidates for ventilator support” during a period of rationing. Washington’s guidance recommends that triage teams consider transferring hospital patients with “loss of reserves in energy, physical ability, cognition and general health” to outpatient or palliative care.

In defense of the Washington State rationing plan, Fink quotes Dr Kathy Lofy, the health officer of Washington State:

“The guidance in Washington around managing scarce resources during emergencies was largely designed to avoid discrimination during the allocation of scarce resource and involves a regional team to ensure resources are being allocated in a fair way,”

The Alabama Health Department is quoted by Fink as stating:

the state’s ventilator triage guidelines had been “greatly misunderstood” and were “solely intended as a tool for providers” making difficult choices. The statement said the document, which remained on its website on Saturday, was over a decade old and had since been replaced by a more comprehensive set of guidelines for health care emergencies. Those newer guidelines did not address ventilator triage, but said that the allocation of care should not be discriminatory.

Fink explains that disability rights groups were concerned because people who required long-term use of a ventilator might have been removed from the ventilator based on these state protocols. She writes

The plans typically include protocols for removing ventilators from people after a certain time period if they do not appear to be improving. In some states, including New York, people who required ventilators long-term, such as those who have certain spinal cord injuries, could be subject to having their ventilators reassigned under the protocol if they were admitted to hospitals during the crisis.

Many of the plans, even if they do not include outright age restrictions, consider stage of life as a factor in assigning ventilators or critical care beds. The civil rights office’s new statement might put that into question.

Fink quotes Severino's, who assures Americans that human rights laws will be upheld during the Covid-19 crisis:

If the country reached a point where health care rationing standards would be applied, “those standards must comply with civil rights laws.”

“Ultimately the question as to resource allocation is not a scientific or medical one,”

“It is ultimately a moral and legal one.”

Ne'amen is quoted as stating:

“enforcement of our civil rights laws should never be called into question, even in the context of an emergency.”

Fink ends her article with a promise from Severino:

“I want to make sure in this time of crisis, we don’t forget the foundational principles that are part of what makes America so special,”

“That we do care for everybody, that every person in America deserves equal dignity and respect.”

“Our response will be a reflection of our national character.”

Even in a crisis, human rights and equality must be maintained.