Tennessee updates standards to protect patients with disabilities during COVID-19

'Our civil rights laws reflect the principle that we are all created with equal dignity and worth,' feds say

Staff photo by Erin O. Smith / A new state agreement eliminates Tennessee guidelines that suggested patients with disabilities might be granted lesser access to intensive care such as ventilators amid the COVID-19 pandemic.

NASHVILLE - Federal officials announced Friday they have reached an early-case resolution with Tennessee after state officials agreed to update their crisis medical standards of care to ensure they don't discriminate against people based on disability or age by rationing their care.

It's the fourth such coronavirus-era agreement struck with a state following complaints filed by disability advocacy groups, the U.S. Department of Health and Human Services' Office for Civil Rights said.

The federal office's director, Roger Severino, said in a statement, "We commend Tennessee for updating its policies to ensure that hospitals do not deny life-saving care during a crisis based on stereotypes about disabilities or other impermissible factors. Our civil rights laws reflect the principle that we are all created with equal dignity and worth."

Stemming from from COVID-19 pandemic concerns, Tennessee's disability advocates as well as their national counterparts raised the issue here and at the federal level in March after discovering a 2016 state document called "Guidelines for the Ethical Allocation of Scarce Resources."

They charged the Tennessee document would "permit and advise that in the context of a crisis like COVID-19, health care providers [can] discriminate on the basis of disability in violation of federal law." Advocates said the guidelines excluded people with disabilities from critical care, including ventilators, in violation of the Americans with Disabilities Act.

Gov. Bill Lee's administration, which inherited the document from the prior governor's administration, was taken by surprise. Lee soon distanced himself from the document, saying his administration had no intention to rely on it or implement it.

The complaint against Tennessee was brought by a coalition of national disability advocates, including The Arc and the Center for Public Representation, together with Tennessee advocates led by Disability Rights Tennessee and the Civil Rights Enforcement and Education Center.

They alleged Tennessee's plan illegally excluded certain people with disabilities from accessing life-saving treatment like ventilators based on their disabilities and deprioritized others based on their disabilities.

Advocates say the agreement sets "key precedent-setting changes" in Tennessee's policy and elsewhere in terms of avoiding discrimination against people with disabilities. The list includes:

* No Categorical Exclusions Based on Disability or Resource Intensity: People can no longer be excluded from medical treatment based solely on a diagnosed disability or because an individual might require more time or resources to recover due to a disability.

Advocates say this marks the first time the civil rights office has addressed "resource intensity" as a factor. Instead of making "assumptions" about a patient's ability to respond to treatment "based solely on stereotypes," advocates said, medical personnel "must perform an individualized assessment of each patient based on the best objective current medical evidence."

* No Long-Term Survivability Considerations: Advocates say Tennessee under this becomes "the first state to explicitly eliminate longer-term survivability as a consideration in treatment decisions, changing its guidance to allow medical personnel to consider only 'imminence of mortality.'"

* Reasonable Modifications Required: Tennessee's Guidance now requires hospitals to make "reasonable modifications" to its Sequential Organ Failure Assessment. It's a tool used to prioritize access to medical treatment. The state will avoid "penalizing people with underlying conditions that are unrelated to their ability to benefit from treatment," advocates said, calling it another civil rights office first.

As a result, hospitals, nursing homes and other long-term facilities will need to "reasonably modify no-visitor policies when necessary to ensure equal access to care."

* Another change prohibits the reallocation of personal ventilators of a patient who uses a ventilator in their daily life to another patient deemed more likely to benefit from it. It's another first for the federal office, advocates said.

"Today's [Office of Civil Rights] resolution makes clear that policies common in many states' medical rationing plans – such as denying care based on the belief that disabled people take longer to recover or by using tools that penalize people for having disabilities that do not impact their ability to survive COVID-19 – constitute illegal disability discrimination," said Alison Barkoff, director of advocacy at the Center for Public Representation.

Contact Andy Sher at asher@timesfreepress.com or 615-255-0550. Follow on Twitter @AndySher.