Alabama’s Ventilator Rationing Plan Discriminates Against Disabled & Ill Patients, Advocacy Groups Say

A plan created in Alabama in 2009 called the State of Alabama Emergency Operations Plan has ominous implications now that we’re in the midst of the COVID-19 crisis.

The plan outlines how hospitals should prioritize patients in the case of a mass-casualty respiratory emergency. If the number of patients requiring ventilator access exceeds the number of ventilators available, tough decisions will need to be made. Ventilator access in the state could be denied to patients with a variety of medical conditions, including cardiac arrest, severe trauma, dementia, metastasized cancer, severe burns, end-stage organ failure, immunological disorders such as AIDS, and severe mental retardation.

But that’s only the first step. If the pandemic continues to overload ventilator availability despite these restrictions, not only will some patients be denied ventilator access, but patients who are already using one may be pulled off if they are not improving fast enough, so it can be given to someone else who is in better general health.

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“It is cruel that our constituents in Alabama seeking medical treatment during this pandemic may not receive the care they need or they may be left to suffer or die because they are seen as less than or other,” said Gena Richardson, the Executive Director of The Arc Alabama, a nonprofit group that advocates for people with intellectual and developmental disabilities. “The lives of millions of people with disabilities across the nation are at stake – and their lives have value.”

At the time of this writing, there are 1,344 ventilators available statewide in Alabama, and about 546 are in use on an average day. That means there are roughly 800 ventilators in the whole state to handle the anticipated onslaught of coronavirus cases.

The Plan

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This emergency plan was not created in response to COVID-19 — it was created a decade ago. But now that the coronavirus pandemic is here and the plan may actually be thrust into action, some advocacy groups are crying foul. The plan is only to be triggered into action during a mass casualty event that is declared a public health emergency by the governor. Alabama Governor Kay Ivey declared coronavirus as such on March 13th.

“Should conditions become extremely grave due to widespread outbreaks with many people seriously affected, availability of ventilator care and Intensive Care Unit (ICU) care may become extremely limited in any locale,” the document states. “Under such circumstances, measures of last resort herein described may be employed by each hospital after thorough evaluation and consultation with available external sources to confirm that partner hospital resources, usual supplier resources, and resources obtainable through the collaborative efforts of the Department of Public Health through AIMS are all exhausted.

“All efforts should then be directed to provide aggressive treatment to those with the greatest chance of survival even if that requires removal of supportive care from others.”

The Tiers

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The plan has three tiers, designed by two emergency doctors who lived in Minnesota in 2008. The Alabama Department of Public Health (ADPH) explained to Newsweek that the plan was created “with input from multiple medical, legal religious, academic and ethics professionals.”

Tier 1 is implemented at the state level, and is triggered by the governor announcing a mass casualty event that is public health emergency (which already happened0. The first tier utilizes an assessment plan that looks at a patient’s SOFA (Sequential Organ Failure Assessment) score to prioritize ventilator treatment. As stated above, some of the medical conditions that could be excluded from ventilator use include cardiac arrest, severe trauma, dementia, metastasized cancer, severe burns, end-stage organ failure, immunological disorders such as AIDS, and severe mental retardation.

Photo: Alabama Department of Public Health

Tiers 2 and 3 are up to individual hospitals to enact, based on the specific situations that arise as resources are exhausted. In Tier 2, a hospital can decide to selectively withdraw ventilator support for patients who have failed to respond to mechanical ventilation and other support measures such as antibiotics and fluids.

Photo: Alabama Department of Public Health

Tier 3 may go into effect if efforts operating under Tier 2 have not been enough and those resources are still exhausted. In Tier 3, even more rigorous restrictions for ventilator access will be set in place.

The Complaint

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The Alabama Disabilities Advocacy Program (ADAP) filed a complaint on March 24th with the U.S. Department of Health and Human Services Office for Civil Rights (OCR), saying that the plan violates the Americans with Disabilities Act (ADA) and other laws because it discriminates against people with intellectual and cognitive disabilities. They filed on behalf of the Alabama citizens who could die if they are refused health care because of their disabilities. They’re asking that the office take immediate action in this situation.

“In this time of crisis, we cannot devalue the lives of others in our community based on their disabilities,” said the Director of the Alabama Disabilities Advocacy Program, James Tucker, in a statement. “It’s morally wrong, and it violates the law. We implore OCR to rein in and provide urgently needed guidance to the healthcare professionals who are prepared to relegate members of our community to die.

“If OCR fails to act swiftly to clearly and firmly articulate the violation of civil rights implicated by the Alabama ventilator rationing plan, there will be no way to undo the lethal outcome of the plan should it go into effect.”

At the time of this writing, the U.S. Civil Rights Office has opened multiple civil rights investigations to ensure that medical providers in states like Alabama aren’t able to discriminate on the basis of disabilities, race, age, or other factors during the coronavirus emergency.

C. Dixon

C. Dixon likes to read, sing, eat, drink, write, and other verbs. She enjoys cavorting around the country to visit loved ones and experience new places, but especially likes to be at home with her husband, son, and dog.

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