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Lankford, Gillibrand Lead Bipartisan, Bicameral Call to Protect Civil Rights for People with Disabilities Amidst COVID-19 Pandemic

WASHINGTON, DC –Senators James Lankford (R-OK) and Kirsten Gillibrand (D-NY) led a bipartisan, bicameral call on the Department of Health and Human Services (HHS) Office for Civil Rights (OCR) to protect against disability discrimination in state and health provider responses to COVID-19. In a letter to HHS Secretary Alex Azar and Attorney General William Barr, the bipartisan coalition called for HHS to notify states of their obligations to adhere to anti-discrimination laws—including the Americans with Disabilities Act and Section 504 of the Rehabilitation Act—as they review and develop their “crisis standards of care.” As the public health crisis due to the coronavirus outbreak grows and strains America’s health care system, life-sustaining treatments must not be denied to people with disabilities.

“We are at unique time in our nation’s history as we work together to combat the global COVID-19 pandemic,” said Lankford. “We can work quickly to address the growing crisis, but we cannot forget our most basic laws and protections that safeguard some of the most vulnerable members of our society like older Americans and Americans with disabilities. Especially during times of crisis, we cannot abandon our moral duty to protect vulnerable communities and stand for the value of life. I’m grateful to work with my colleagues to ensure this commitment to every life is upheld as we work to respond rapidly and effectively to this pandemic.”

“In times of crisis our communities must band together to help and protect each other,” said Gillibrand. “The United States has a responsibility to uphold our landmark civil rights laws, and we must honor our commitment to anti-discrimination laws for people with disabilities, even as we combat the coronavirus outbreakI’m proud to lead this bipartisan coalition fighting to protect against disability discrimination during this pandemic.”

Recent reports from the National Council on Disability—an independent federal agency specializing in policy matters affecting the lives of people with disabilities—demonstrate prolific examples of disability bias and discrimination within medical decision-making, even in the absence of a crisis. As Italy experiences the effects of widespread coronavirus infection ahead of the United States, people with disabilities have already shouldered a large portion of the health care rationing response. Media reports have suggested that states around the United States are considering similar decision-making formulas.

The push for disability protections in response to COVID-19 is joined by Senators Maggie Hassan (D-NH), Steve Daines (R-MT), and Senator Richard Blumenthal (D-CT), and in the House of Representatives by Reps. Jim Langevin (D-RI-02), Chris Smith (R-NJ-04) Ro Khanna (D-CA-17), Brian Fitzpatrick (R-PA-1), Sean Patrick Maloney (D-NY-18), Phil Roe, M.D. (R-TN-01), Brian Babin, D.D.S. (R-TX-36), Ann Wagner (R-MO-02), Ralph Norman (R-SC-05), Jim Banks (R-IN-03), Jeff Fortenberry (R-NE-01), Mark E. Green (R-TN-07), Ted Deutch (D-FL-22), and Gerald E. Connolly (D-VA-11). 

The letter is endorsed by leading disability rights organizations including the The Arc, the Bazelon Center for Mental Health Law, the American Association of People with Disabilities (AAPD), the Association of University Centers on Disability (AUCD), the National Disability Rights Network (NDRN), Family Residences and Essential Enterprises, Inc. (FREE), Lutheran Services of America, Partnership to Improve Patient Care, CancerCare, The Honorable Tony Coelho – original author of the Americans with Disabilities Act, and The Coelho Center for Disability Law, Policy, and Innovation. The request in this letter has been recommended by the National Council on Disability (NCD). 

Full text of the letter can be found here and below. 

Dear Secretary Azar and Attorney General Barr:

As COVID-19 spreads across our communities, medical resources, including hospital beds, supplies, and personnel, have been overwhelmed. With media reports suggesting that rationing of care may be inevitable, we urge the Department of Health and Human Services (HHS) to remind States of their obligation to adhere to existing anti-discrimination laws when responding to COVID-19.

In Italy, which is further along in its experience with widespread COVID-19 infection, the rationing response has been borne in part by the population of people with disabilities. This is true even in instances in which those people with disabilities are well-positioned to benefit from being treated. Media reports in both The Washington Post and The New York Times have suggested that states around the U.S. are already considering similar decision-making formulas.

The National Council on Disability, an independent federal agency specializing in policy matters affecting the lives of people with disabilities, recently released a series of reports demonstrating that, even in the absence of a crisis, examples abound of disability bias and discrimination within medical decision making. Several of these reports call on the HHS Office for Civil Rights (OCR) to issue guidance clarifying the applicability of existing disability nondiscrimination laws to instances of such bias and discrimination.

In light of the COVID-19 pandemic, we urge your Department to act quickly to notify states that as they review and create their “crisis standards of care,” they must not authorize or promote any form of disability discrimination that would violate the Americans with Disabilities Act and Section 504 of the Rehabilitation Act. This would include incorporating denials of care, lower prioritization of care, or denial of or limitation of healthcare resources on the basis of one’s disability, severity of disability, need for resource-intensive services and supports, or the perception of a lower quality of life on the basis of disability.

Our letter comes to you at a time in which we recognize that the COVID-19 outbreak is placing mounting strain on our nation’s healthcare system. While we recognize that it may be appropriate for healthcare providers to delay non-essential care, life-sustaining treatments should not be denied from people with disabilities. We urge you to remind States that their obligations under existing disability nondiscrimination laws are not waivable during the outbreak.

Thank you for all your Department is doing during this healthcare crisis. 

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