Oregon’s crisis health care guidelines leave room for discrimination against people with disabilities, according to a federal civil rights complaint filed by a coalition of organizations on their behalf.
Disability Rights Oregon, the state-designated protection and advocacy system for people with disabilities, is leading the statewide effort to ensure that state policies do not discriminate against people with disabilities.
It says that the guidelines “may jeopardize the lives of people with disabilities, older adults, individuals from communities of color, prisoners and others with morbid conditions in violation of Title II of the Americans with Disabilities Act.”
Discrimination concerns arise out of quality-of-life determinations, such as who is encouraged to sign do-not-resuscitate orders or who would qualify to receive a respirator.
Nearly two dozen organizations signed on to the complaint, filed May 8 with the U.S. Department of Health and Human Services’ Office for Civil Rights. They include the ACLU of Oregon, Coalition of Communities of Color, Latino Network, and Native American Youth and Family Center, along with national civil rights organizations.
This complaint is one of several filed in states across the country, including Washington, Tennessee, Kansas, Utah, New York, Massachusetts, Pennsylvania and Alabama.
At issue is Oregon’s Crisis Care Guidance framework, which addresses how to administer care during a public health crisis like the current COVID-19 pandemic. The guidelines were crafted with input from workgroups that included frontline health care workers, administrators, professional organizations, volunteer response organizations and “experts in law, ethics and other disciplines.”
Advocates say the guidelines are about rationing health care and lack any statement about non-discrimination or any commitment to not exclude people because of disability or age. They want the guidance updated before the next surge of the pandemic, which could happen after stay-at-home restrictions are loosened and businesses reopen.
“We understand that public officials and health care institutions must make difficult choices about how to allocate care, but it is critical that (Office of Civil Rights) take immediate steps to ensure that life-saving care is not illegally withheld from people with disabilities, people of color, older adults and others with co morbid conditions in Oregon, due to discriminatory triage criteria endorsed by the state,” the complaint states.
The complainants want to see clear language stating that disability discrimination will not be tolerated. In the complaint, Disability Rights Oregon states it first reached out to the governor’s office in April after receiving reports of people with intellectual disabilities who had been diagnosed with COVID-19. These individuals claimed they were asked to sign do-not-resuscitate orders to obtain treatment and that wording in the state guidelines is not clear, allowing for discrimination. The complaint calls on the language to be brought in line with Health and Human Services guidelines and established legal protections against discrimination.
The complainants also call for the elimination of categorical exclusions. The state guidelines currently allow for categorical exclusions for critical care treatment for people with certain conditions, including liver disease, neurological disease and heart failure. But the complaint argues these categories are too broad and do not take into consideration individual evaluations, objective medical criteria or individual survival determinations. Likewise, the complainants say state guidelines should expressly prohibit preemptory do-not-resuscitate and do-not-incubate orders.
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