March 26, 2020

Gillibrand Leads Bipartisan, Bicameral Call To Protect Civil Rights For People With Disabilities Amidst COVID-19 Pandemic

As Nation Responds to Coronavirus Outbreak, Bipartisan Coalition Urges HHS to Ensure States Adhere to Existing Disability Anti-Discrimination Laws

U.S. Senator Kirsten Gillibrand, alongside U.S. Senator James Lankford, led a bipartisan, bicameral call on the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) to protect against disability discrimination in state and health provider responses to COVID-19. In a letter to HHS Secretary Alex Azar and Attorney General William Barr, the bipartisan coalition called for HHS to notify states of their obligations to adhere to anti-discrimination laws — including the Americans with Disabilities Act and Section 504 of the Rehabilitation Act — as they review and develop their “crisis standards of care.” As the public health crisis due to the coronavirus outbreak grows and strains America’s health care system, life-sustaining treatments must not be denied to people with disabilities.

“In times of crisis our communities must band together to help and protect each other,” said Senator Gillibrand. “The United States has a responsibility to uphold our landmark civil rights laws, and we must honor our commitment to anti-discrimination laws for people with disabilities, even as we combat the coronavirus outbreak. I’m proud to lead this bipartisan coalition fighting to protect against disability discrimination during this pandemic.”

Recent reports from the National Council on Disability — an independent federal agency specializing in policy matters affecting the lives of people with disabilities — demonstrate prolific examples of disability bias and discrimination within medical decision-making, even in the absence of a crisis. As Italy experiences the effects of widespread coronavirus infection ahead of the United States, people with disabilities have already shouldered a large portion of the health care rationing response. Media reports have suggested that states around the United States are considering similar decision-making formulas.

Recent reports from the National Council on Disability — an independent federal agency specializing in policy matters affecting the lives of people with disabilities — demonstrate prolific examples of disability bias and discrimination within medical decision-making, even in the absence of a crisis. As Italy experiences the effects of widespread coronavirus infection ahead of the United States, people with disabilities have already shouldered a large portion of the health care rationing response. Media reports have suggested that states around the United States are considering similar decision-making formulas.

The push for disability protections in response to COVID-19 is joined by Senators Margaret Wood Hassan (D-NH), Steve Daines (R-MT), and Richard Blumenthal (D-CT); and led in the U.S. House of Representatives by Reps. Chris Smith (R-NJ-04) and Jim Langevin (D-RI-02). The letter is endorsed by nearly 30 leading disability and patient rights organizations. The request in this letter was recommended by the National Council on Disability (NCD). 

Full text of the letter can be found here and below.  

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March 25, 2020

 

The Honorable Alex M. Azar

Secretary

Department of Health and Human Services

200 Independence Avenue, S.W. 

Washington DC 20201

 

The Honorable William Barr

Attorney General

Department of Justice

950 Pennsylvania Avenue, NW, Room 1145

Washington, DC 20530

Dear Secretary Azar and Attorney General Barr:

As COVID-19 spreads across our communities, medical resources, including hospital beds, supplies, and personnel, have been overwhelmed. With media reports suggesting that rationing of care may be inevitable, we urge the Department of Health and Human Services (HHS) to remind States of their obligation to adhere to existing anti-discrimination laws when responding to COVID-19.

In Italy, which is further along in its experience with widespread COVID-19 infection, the rationing response has been borne in part by the population of people with disabilities. This is true even in instances in which those people with disabilities are well-positioned to benefit from being treated.[1] Media reports in both The Washington Post and The New York Times have suggested that states around the U.S. are already considering similar decision-making formulas.[2]

The National Council on Disability, an independent federal agency specializing in policy matters affecting the lives of people with disabilities, recently released a series of reports demonstrating that, even in the absence of a crisis, examples abound of disability bias and discrimination within medical decision making.[3] Several of these reports call on the HHS Office for Civil Rights (OCR) to issue guidance clarifying the applicability of existing disability nondiscrimination laws to instances of such bias and discrimination. 

In light of the COVID-19 pandemic, we urge your Department to act quickly to notify states that as they review and create their "crisis standards of care,"[4] they must not authorize or promote any form of disability discrimination that would violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. This would include incorporating denials of care, lower prioritization of care, or denial of or limitation of healthcare resources on the basis of one's disability, severity of disability, need for resource-intensive services and supports, or the perception of a lower quality of life on the basis of disability.

Our letter comes to you at a time in which we recognize that the COVID-19 outbreak is placing mounting strain on our nation's healthcare system. While we recognize that it may be appropriate for healthcare providers to delay non-essential care, life-sustaining treatments should not be denied from people with disabilities. We urge you to remind States that their obligations under existing disability nondiscrimination laws are not waiveable during the outbreak.

Thank you for all your Department is doing during this healthcare crisis. 

Sincerely,