University of Michigan Law School
Civil Rights Litigation Clearinghouse
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Case Name HHS-OCR Complaint of Disability Rights Washington Against Washington State Department of Health DR-WA-0003
Docket / Court docket unknown ( No Court )
State/Territory Washington
Case Type(s) Disability Rights-Pub. Accom.
Special Collection COVID-19 (novel coronavirus)
Attorney Organization Bazelon Center
NDRN/Protection & Advocacy Organizations
Case Summary
COVID-19 Summary: This is a complaint made March 23, 2020, to the U.S. Department of Health and Human Services Office for Civil Rights; it alleges that the state of Washington's particular protocols for rationing ventilator access in the event of over-demand puts people with disabilities lower on ... read more >
COVID-19 Summary: This is a complaint made March 23, 2020, to the U.S. Department of Health and Human Services Office for Civil Rights; it alleges that the state of Washington's particular protocols for rationing ventilator access in the event of over-demand puts people with disabilities lower on the access list than people without, in violation of federal antidiscrimination law. Prompted by this and other similar complaints, OCR on March 28, 2020, issued guidance explaining that disability discrimination was illegal.

As COVID-19 cases increase, U.S. health officials predict that there will be shortages in ventilators and other medical resources needed to treat patients with COVID-19 requiring intensive care. In response, many states and hospitals are developing policies for how to ration care and determine who will have access to lifesaving treatment. As groups develop these plans to ration care, there is concern that the protocols discriminate against people with disabilities in violation of federal disability rights law and places the lives of people with disabilities at serious risk.

On March 23, 2020, disability advocacy organizations Self Advocates in Leadership, Disability Rights Washington, and The Arc of the United States, along with an individual complainant with a developmental disability, filed this complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) challenging Washington state's rationing scheme as illegal discrimination against those with disabilities. The complainants alleged that the Washington State Department of Health, the Northwest Healthcare Response Network (a coalition of hospitals in Washington), and the state-run University of Washington Medical Center’s plans to ration healthcare violates federal disability rights law, including the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and Section 1557 of the Affordable Care Act (ACA). The complainants are represented by counsel from the three disability advocacy organizations, alongside the Bazelon Center, the Autistic Self Advocacy Network, Center for Public Representation, and Sam Bagenstos, a civil rights lawyer and professor at the University of Michigan Law School. A similar complaint (available on the Clearinghouse here) was filed in Alabama the next day on March 24.

Under the developing plan of Washington State Department of Health and the Northwest Healthcare Response Network, it is reported that the plan "will assess factors such as age, health, and likelihood of survival in determining who will get access to full care and who will merely be provided comfort care, with the expectation that they will die.” Descriptions of the plan mirror the policy of the University of Washington Medical Center, which gives priority to young and healthy patients over older and debilitated patients—people with disabilities. The complainants argue that such plans violate federal disability rights law because the state is planning to make decisions that will deny medical treatment to individuals based on their underlying disability. This denial would occur without an individualized inquiry into the efficacy of treatment for that person.

The complainants requested that OCR act quickly to investigate and issue findings and guidance on how physicians and hospitals can refrain from violating the ADA, Section 504, and Section 1557 of the ACA in making treatment decisions. They urged HHS-OCR to take immediate action: “OCR has a very brief moment to intercede. If OCR fails to act swiftly to clearly and firmly articulate the violation of civil rights implicated by the rationing plan about to be unveiled in Washington, there will be no way to undo the lethal outcome of the discriminatory plans that have been formulated without OCR’s guidance. We implore you to enforce the obligations of the health care professionals in Washington to develop non-discriminatory approaches to the delivery of care before it is too late.”

Prompted by this and other similar complaints, OCR on March 28, 2020 issued guidance explaining that disability discrimination was illegal and that hospitals and doctors cannot put people with disabilities or older people at the back of the line for care. The director of OCR also indicated that his office has opened or is about to open investigations of complaints in multiple states.

More to come.

Emily Kempa - 06/13/2020


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Issues and Causes of Action
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Issues
Defendant-type
Hospital/Health Department
Disability
disability, unspecified
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Disparate Treatment
Reasonable Accommodations
Reasonable Modifications
Medical/Mental Health
Medical care, general
Mental Disability
Intellectual/developmental disability, unspecified
Plaintiff Type
Non-profit NON-religious organization
Private Plaintiff
Special Case Type
Out-of-court
Type of Facility
Government-run
Non-government non-profit
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Defendant(s) Northwest Healthcare Response Network
University of Washington Medical Center
Washington State Department of Health
Plaintiff Description Three disability advocacy organizations and an individual with a developmental disability
Indexed Lawyer Organizations Bazelon Center
NDRN/Protection & Advocacy Organizations
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer Yes
Nature of Relief None yet
Source of Relief None yet
Filed 03/23/2020
Case Ongoing Yes
Additional Resources
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  BULLETIN: Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19)
HHS Website
Date: Mar. 28, 2020
By: HHS Office for Civil Rights (U.S. Department of Health and Human Services, Office for Civil Rights)
[ Detail ] [ PDF ] [ External Link ]

Docket(s)
No docket sheet currently in the collection
General Documents
Complaint Against the Washington State Department of Health, the Northwest Healthcare Response Network and the University of Washington Medical Center
DR-WA-0003-0001.pdf | Detail
Date: 03/23/2020
Source: Plaintiffs' counsel
show all people docs
Plaintiff's Lawyers Bagenstos, Samuel R. (Michigan) show/hide docs
DR-WA-0003-0001
Carlson, David R. (Washington) show/hide docs
DR-WA-0003-0001
Costanzo, Cathy E. (Massachusetts) show/hide docs
DR-WA-0003-0001
Crane, Samantha (District of Columbia) show/hide docs
DR-WA-0003-0001
Mathis, Jennifer (District of Columbia) show/hide docs
DR-WA-0003-0001
Wakschlag, Shira (District of Columbia) show/hide docs
DR-WA-0003-0001

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