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Disability advocates push Hogan administration for pledge to protect rights if ventilator use is rationed

A coalition of advocates for Marylanders with disabilities petitioned Gov. Larry Hogan to give medical providers clear direction that access to treatment, ventilators and hospital beds should not depend on a person’s abilities if they need to triage patients for scarce resources during the coronavirus pandemic.

States are evaluating whether to establish a hierarchy for who would have access to all treatments if there are shortages; the Hogan administration must approve any such plan in Maryland.

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So far, the Republican governor has not endorsed any such patient priorities and the state does not have a shortage of beds or ventilators, a Hogan spokesman said Tuesday.

Protocols in a handful of states have drawn legal challenges. After a civil rights complaint in Alabama, that state withdrew a policy that instructed hospitals there to deny ventilators to patients with “severe or profound mental retardation,” “moderate to severe dementia” and “severe traumatic brain injury.”

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Lauren Young, litigation director for Disability Rights Maryland, said critical medical treatment must be equally accessible.

About 20 disability advocates signed on to a letter sent in early April to Hogan, including the Maryland chapters of The Arc, the National Federation of the Blind and the National Alliance on Mental Health.

The letter describes the protection people with disabilities have from discrimination in medical treatment under the Americans with Disabilities Act and Affordable Care Act. The advocates say the country’s “history of discrimination in health care for persons with disabilities must be recognized as continuing to impact healthcare decisions and biases, and must be addressed.”

Having the governor affirm the rights of all Marylanders during the pandemic, both in policy public statement and influence, would be an important step to making sure treatment is accessible and guide providers to avoid discrimination, Young said. Short of such an action, she said, medical providers could be left to their own judgments.

“These laws apply to hospitals experiencing a medical equipment, bed or staffing shortage during the COVID-19 pandemic, as well as state policies concerning how resources should be allocated in the event of such shortages,” the advocates wrote to Hogan. "Direction is needed to ensure equal access to ventilators and other treatment, and to prevent the unlawful deprivation of life based on disability status.

“Ableism must not direct our response to this crisis.”

Hogan was expected to be presented with a plan drafted by ethicists, doctors and state leaders, but it is unclear whether the governor has received a final set of recommendations or when he might act. The plan was to be based on treatment for people who are likely to survive the new coronavirus and also believed to be healthy enough to survive longer term.

The governor would need to approve the plan before hospitals could begin any rationing of equipment, should that become necessary.

Ventilators have been the subject of much attention, as doctors in Italy and Spain reported widespread shortages and medical teams are bracing for such a threat in the United States. COVID-19 can cause severe respiratory problems, so ventilators are key tools in helping people survive. The machine pumps oxygen into their lungs while their bodies heal.

Including new shipments of ventilators, the state has almost 2,000. Less than a third are actively in use, according to the Maryland Hospital Association.

As of Tuesday, 14,193 Marylanders have tested positive for the coronavirus and 584 people have died.

Under guidance from the U.S. Department of Health and Human Services, states must ensure treatment decisions are based only on individualized assessments and objective medical evidence. The agency’s office of civil rights said no one should be denied medical care because of “stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities.”

In the letter to Hogan, Maryland’s disability advocates demanded:

  • People with disabilities must have an equal opportunity to receive life-sustaining treatment.
  • Doctors and triage teams must assume that they are not free from bias in making critical treatment decisions.
  • Medical teams must not assume that if a patient has a diagnosis, such as an intellectual disability, autism, cystic fibrosis, diabetes, spina bifida or schizophrenia, he or she can be denied care. That person also cannot be given lower priority for treatment.
  • Assumptions should not be made about the strength of a person’s immune system based on a diagnosis, such as AIDS, without an individualized review.

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