HHS Reminds Entities Not to Deny Medical Care based on “Stereotypes” and “Ruthless Utilitarianism”

The Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) released a bulletin warning healthcare providers receiving federal funding to “keep in mind their obligations” not to discriminate against elderly and disabled patients when prioritizing COVID-19 treatment.

HHS’s announcement followed the Freedom of Conscience Defense Fund and Thomas More Society’s (TMS) legal memo prepared on behalf of three prominent scholars, Robert George of Princeton University, bioethicist Charles Camosy of Fordham University, and Harvard University sociologist Jacqueline Rivers.

The memo emphasized that rationing scarce medical supplies such as ventilators to exclude the aged and disabled would violate numerous federal civil rights laws, including the American with Disabilities Act and the Age Discrimination Act.

In a press release announcing HHS’s bulletin, OCR Director Roger Severino stated:

HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal. Persons with disabilities, with limited English skills, or needing religious accommodations should not be put at the end of the line for health services during emergencies. Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism.

Roger Severino, Director of HHS’ Office for Civil Rights

As HHS noted, “Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient and his or her circumstances, based on the best available objective medical evidence.”

“We recognize that doctors must use triage to prioritize treatment and that means having to make difficult choices. But rationing health care based on a person’s age or disability is not only unlawful, it is inhumane. We are pleased the Trump administration shares the same belief, and we expect the bulletin to reassure doctors in the battle at the front lines of this pandemic.”

Charles LiMandri, FCDF Litigation Counsel

Last week, the Defense Fund and Thomas More Society issued a follow-up memo applying civil rights law to specific scenarios, such as a patient’s likelihood of survivability from treatment, duration of care, and prioritizing children over the elderly. The memo also discussed the ethical implications of making life-or-death decisions in allocating scarce resources.

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