State and national disability rights advocates have filed a federal civil rights complaint alleging the state’s medical treatment plan, which lays out protocols to respond to COVID-19 — including treatment rationing — discriminates against those with disabilities.
The advocates, led by Oklahoma Disability Law Center, argue the state’s plan is riddled with discriminatory protocols and deprioritizes people with disabilities for life-saving treatment and care. The center is the organization designated by the state to act as the protection and advocacy system for people with disabilities.
“Rationing human life is not only illegal and immoral, it is simply unacceptable,” said Melissa Sublett, executive director of Oklahoma Disability Law Center.
“While we recognize that our health care system is under unprecedented pressure, no one should face discrimination in accessing life-saving treatment and care.”
The Oklahoma State Department of Health earlier this month issued on its website a revised copy of the guidance, titled “Hospital Crisis Standards of Care,” which would be used amid resource shortfalls. Officials said Friday that while the state was preparing for a possible patient surge, hospitals were not expecting a shortage of resources.
The state health department on Tuesday evening did not return a request for comment on the 16-page complaint, which was filed with the U.S. Department of Health and Human Services Office for Civil Rights that afternoon.
The state’s plan lays out strategies hospitals and doctors would turn to in the event that resources, such as ventilators, were scarce. Ventilators are used in the most dire cases of COVID-19 to help patients breathe and have been on the forefront of discussion surrounding response to the pandemic, as governors and hospitals sounded the alarm on a possible shortage.
If activated, Oklahoma’s plan would use a point system that would move those with higher scores down the priority list for ventilators. The plan says people gain points if they have comorbidities such as Alzheimer’s disease, heart failure and other conditions that could decrease long-term survival.
“Each facility will have to determine the most appropriate steps to take to address specific shortages. It is advised key staff of each facility become familiar with this card set to aid with event preparedness and in anticipation of coping mechanisms to each core category situation outlined in the cards,” the plan states.
In the case of a ventilator shortage where there were “ties” between patients in the same priority group, the plan would give prioritization to those who had “yet to experience all of life’s stage.” Prioritization might also be given to first responders, health care workers or vaccine developers.
The plan notes: “Decision on resource allocation should not consider the following factors: race/ethnicity, gender, sexual orientation, disability, perceptions of quality of life, insurance status, or broad social worth.”
Oklahoma Gov. Kevin Stitt has said hospitalizations have continued to decrease across the state and that even in the worst case scenario, the state would not face a ventilator or bed shortage.
On Tuesday, the health department reported 298 patients were hospitalized with COVID-19 or were under investigation for the virus. There were 2,807 known cases and at least 164 people had died. The state reported it had 985 ventilators.
In late March the HHS Office of Client Advocacy issued guidance saying hospitals and doctors could not de-prioritize treatment for those with disabilities or elderly people amid the pandemic.
“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,” said Roger Severino, director of the Office of Client Advocacy.
Protocols in several other states, such as Washington and Kansas, have drawn legal challenges.
In Alabama, ventilator guidelines were withdrawn after advocates filed a federal civil rights complaint alleging they discriminated on the basis of age and disability. Alabama’s plan allowed the denial of ventilators to those with “profound mental retardation” and “moderate to severe dementia.”
In the complaint, Oklahoma Disability Law Center asked the Office of Civil Rights to step in and help the state develop “non-discriminatory” guidelines.
“Even in the midst of the current crisis, Oklahoma must abide by its obligation to not discriminate against people with disabilities. Lives of Oklahomans with disabilities are at stake,” said Brian Wilkerson, the center’s legal director.
“We implore OCR to step in and provide urgently needed guidance to the health care professionals who may be forced by this policy to make decisions that relegate members of our community to die.”