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Law360 (March 28, 2020, 7:13 PM EDT) -- The U.S. Department of Health and Human Services on Saturday waded into a gut-wrenching public conversation over how to allocate finite medical resources during the coronavirus crisis, warning doctors and hospitals against denying services based on patient disabilities.
In a six-page bulletin, HHS' Office for Civil Rights cited the Affordable Care Act's anti-discrimination section and cautioned health care providers and states not to make treatment decisions during the viral outbreak based on unlawful appraisals of a patient's value to society.
"Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism," OCR Director Roger Severino said in a statement.
The bulletin specifically said that individuals must not be denied care because of "stereotypes, assessments of quality of life, or judgments about a person's relative 'worth' based on the presence or absence of disabilities."
HHS did not describe any hard-and-fast rules for apportioning scarce resources, calling instead for "individualized assessments" that utilize "the best available objective medical evidence."
"Part of the greatness of America … [is] the beauty of our character in how we treat the most vulnerable among us," Severino said during a media briefing on Saturday.
The novel coronavirus has spread ferociously across the U.S. during March after emerging in China near the end of 2019. More than 121,000 infections had been confirmed in the country by early Saturday evening, up from 33,000 cases one week earlier and just 100 cases when the month began, according to Johns Hopkins University.
The swelling patient volume has fed fears that hospitals will soon be overwhelmed and compelled to make agonizing choices about who gets care. In one illustration of the debate, Michigan-based Henry Ford Health System on Friday acknowledged developing plans to prioritize coronavirus patients with "the best chance of getting better."
"With collective wisdom from our industry, we crafted a policy to provide guidance for making difficult patient care decisions. We hope never to have to apply them," the health system wrote on Twitter, responding to questions about its approach.
In Saturday's briefing, Severino said that HHS has received complaints about some plans for resource allocation, but he declined to give details. The director added that HHS will later issue "clarifications" on anti-discrimination enforcement during the coronavirus pandemic, describing Saturday's bulletin as a high-level statement of principles. The bulletin noted that HHS' recent declaration of a public health emergency "may provide immunity from certain liability under civil rights laws."
Susan Mizner, director of the American Civil Liberties Union's Disability Rights Program, in a statement late Saturday called the bulletin "a welcome reminder" that "even in times of crisis, discrimination against people with disabilities is never the answer."
But Mizner argued that HHS' caveat about possible legal immunity is inaccurate, and she said that "HHS must immediately correct this flawed assertion, which contradicts the spirit of its bulletin."
Saturday's bulletin also observed that the Office for Civil Rights has contributed to a massive campaign aimed at expanding the nation's health care capacity. As one example, the office last month relaxed enforcement of patient privacy policies in the context of telehealth.
One of the most prominent concerns surrounding the coronavirus — which causes a severe respiratory disease called COVID-19 — has centered on a potential shortage of ventilators. President Donald Trump on Friday took the extraordinary step of wielding wartime powers to force the production of ventilators by General Motors.
Deborah Birx, the White House coronavirus response coordinator, asserted during a Thursday night briefing that fears about access to ventilators have been overblown. Severino on Saturday pointed to those reassurances, telling reporters that Birx was "very strong in saying that the American people should not be overly concerned about some of the more unlikely scenarios."
--Editing by Bruce Goldman.
Update: This article has been updated with reaction from the ACLU.
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