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Trump Administration stands tall in ensuring that treatment decisions do not violate the civil rights of COVID-19 victims

by | Mar 31, 2020

By Dave Andrusko

When even the Trump-hating New York Times has a few good words to say about anything the Trump administration has done, you know the action is close to unassailable. What am I referring to?

On Monday, NRL News Today discussed a very, very important Bulletin issued Saturday by the Office of Civil Rights (OCR) which is housed in the U.S. Department of Health and Human Services (HHS). The Bulletin directed covered entities to follow the law to ensure that civil rights are not violated in the treatment of those diagnosed with COVID-19.

You would think such an order would not even be needed. But it was—and will continue to be. There had already been plenty of rumblings that in the midst of the COVID-19 pandemic, “some people” were not as important as others—certainly not important enough to receive scarce medical resources.

Here are the lead paragraphs from a story written by Sheri Fink of the New York Times:

The director of the federal health department’s civil rights office said on Saturday that his office was opening a series of civil rights investigations to ensure that states did not allow medical providers to discriminate on the basis of disabilities, race, age or certain other factors when deciding who would receive lifesaving medical care during the coronavirus emergency.

The office released a new bulletin on civil rights during the coronavirus crisis, days after disability rights advocates filed complaints arguing that protocols to ration lifesaving medical care adopted by Alabama and Washington State were discriminatory.

“Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism,” Roger Severino, the office’s director, said in a news release. “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.”

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.”

These are, obviously, very iffy times, but especially for the disabled, the elderly, and others with chronic medical conditions who are in the bulls-eye of those who itch to ration medical care in the best of times, let alone in a pandemic. For example, writing last week for the Washington Post, Ariana Eunjung Cha observed

Several large hospital systems — Atrium Health in the Carolinas, Geisinger in Pennsylvania and regional Kaiser Permanente networks — are looking at guidelines that would allow doctors to override the wishes of the coronavirus patient or family members on a case-by-case basis due to the risk to doctors and nurses, or a shortage of protective equipment, say ethicists and doctors involved in those conversations. But they would stop short of imposing a do-not-resuscitate order on every coronavirus patient. The companies declined to comment.

Stop short…. for now?

Fink’s story is significant particularly because two states which had plans that they backed off of—one argued the guidelines had been “greatly misunderstood.” What we do know, from Fink’s article and elsewhere, is that Alabama’s plan said patients

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.

On Saturday, Severino said, “Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism.” He added, “HHS is committed to leaving no one behind during an emergency and helping health care providers meet that goal. 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.”

Near the end of Fink’s story, which ran Sunday, we read

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

“Ultimately the question as to resource allocation is not a scientific or medical one,” he added. “It is ultimately a moral and legal one.”

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