New Crisis Care Guidelines Protect Older Adults, Disabled

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FOR IMMEDIATE RELEASE:
January 14, 2021

CONTACT:
Edie Surtees, Communications Director,
Disability Rights Texas
esurtees@DRTx.org
512-407-2739

Amidst Nationwide COVID-19 Surge, Health & Civil Rights Groups Secure Federal Approval of Revised Crisis Standards of Care Guidelines in Texas

AUSTIN—Today, amidst an unparalleled rampant spread of COVID-19 infection throughout the country and the looming specter of care rationing as hospitals become overwhelmed, civil rights groups, working closely with two Texas regional health groups and the U.S. Department of Health & Human Services, Office for Civil Rights (OCR) announced the approval of revised crisis standard of care guidelines. Disability and aging advocates—Disability Rights Texas, the Center for Public Representation, The Arc of the United States, and Justice in Aging—worked collaboratively with the North Texas Mass Critical Care Guideline Task Force (NTMCCGTF) and the Southwest Texas RAC (STRAC) to ensure their guidelines comply with federal disability rights laws and do not discriminate against people with disabilities and older adults, even when public health emergencies, such as the COVID-19 pandemic, necessitate the rationing of scarce medical resources.

Texas currently has no statewide crisis standards of care policy. The revised guidelines announced today provide the foundation and models for statewide guidelines that could be adopted by the Texas Medical Association and the Texas Hospital Association.  They would apply to all of the other regional advisory councils, amidst surging hospitalizations and rapidly declining ICU capacity that put the lives of people with disabilities and older adults at grave risk. Like earlier resolutions of crisis standards in Alabama, Pennsylvania, Tennessee, and Utah, the guidelines provide concrete, clinical alternatives to discriminatory provisions common in many states’ rationing plans. The following are key changes in the revised policies to avoid discrimination against people with disabilities and older adults:

  • No Exclusions or Deprioritizing Based on Resource Intensity or Diagnosis: An individual can no longer be excluded from, or deprioritized for, medical treatment based on the fact that they might require more time or resources to recover or because of a person’s diagnosis or functional impairment. Rather than making assumptions about a patient’s ability to respond to treatment based solely on stereotypes, medical personnel must perform an individualized assessment of each patient based on the best objective current medical evidence.
  • Resource Decisions Based Only on Short-Term Survivability: Determinations about treatment can only be based on short-term survivability. Since long-term predictions of the outcome of treatment is fraught with speculation, mistaken stereotypes, and assumptions about the quality of life and lifespan of older adults and people with disabilities, they are explicitly prohibited.
  • Reasonable Modifications Required: Hospitals must make reasonable accommodations to the support needs and communication styles of persons with disabilities, and reasonable modifications to the Modified Sequential Organ Failure Assessment (MSOFA)—or other tools that may be used to prioritize access to medical treatment—to correct against the impact prior conditions may have on the assessment of organ failure scoring. Other reasonable modifications, including modifications to no-visitor policies, may also be required to provide equal access to treatment.
  • Reallocation of Personal Ventilators Prohibited: Medical personnel may not reallocate the personal ventilator of a patient who uses a ventilator in their daily life to another patient whom the personnel deem more likely to benefit from the ventilator in receiving treatment.
  • Blanket Do Not Resuscitate (DNR) Policies Prohibited: Hospitals must provide information on the full scope of available treatment alternatives, including the continued provision of life-sustaining treatment, and may not impose blanket DNR policies. Physicians may not require patients to complete advance directives in order to continue to receive services from the hospital.

“We are grateful to the North Texas Mass Critical Care Guidelines Task Force and the Southwest Texas RAC for their leadership to ensure the rights of persons with disabilities and older adults are protected and to OCR for continuing to recognize the rights of vulnerable populations during this pandemic,” said Lisa Snead, Litigation Attorney, Disability Rights Texas. “Today’s resolution highlights the need for statewide guidance. Without this, persons with disabilities and older adults in Texas may continue to find themselves subject to discriminatory rationing, placing their lives at risk. We hope that State leaders act soon to ensure all Texans receive equal access to medical care.”

“The lives of persons with disabilities are not disposable and we deserve medical treatment just as much as anyone else even in a pandemic,” said Laura Halvorson, a client of Disability Rights Texas with muscular dystrophy and respiratory failure. “I use a personal ventilator 24 hours per day. Recently, I was hospitalized and worried that my ventilator would be taken away from me and given to another patient. These new guidelines will prevent this from happening and make me less worried about going to the hospital.”

Drs. Ronald Stewart and Jason Morrow representing STRAC’s Pandemic Medical Operations Workgroup said: “The STRAC crisis care guidelines are borne out of an inclusive, consensus-based process focused on what’s the right thing to do for the patient. Our guidelines emphasize strategies to stay out of crisis, while emphasizing clinical judgment and decision making within an ethical framework. We are very grateful for the commitment, effort and expertise of a great group of health care professionals and leaders from every health system in San Antonio, and for the great partnership and collaboration with Disability Rights Texas, the Center for Public Representation, The Arc, Justice in Aging, OCR, and our health care colleagues in Dallas (NTMCCGTF).”

Dr. Robert L. Fine representing NTMCCGTF said: “The North Texas Mass Critical Care Task Force, a cooperative endeavor between medical, civic, community, and faith leaders in four North Texas counties, is pleased to have had the opportunity to collaborate with the Office of Civil Rights, Disability Rights Texas, and others to further refine our Guideline so that if our community finds itself in the position of having more demand than supply of medical resources, we can save as many lives as possible while avoiding discrimination against disabled or other disadvantaged patients to the best of our ability.”

See the OCR announcement.

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Disability Rights Texas (previously named Advocacy Inc.) is the federally designated legal protection and advocacy agency (P&A) for people with disabilities in Texas established in 1977. Its mission is to help people with disabilities understand and exercise their rights under the law, ensuring their full and equal participation in society. Visit www.DRTx.org for more information.