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Case Name HHS-OCR Complaint of Alabama Disabilities Advocacy Program Against Alabama Department of Public Health DR-AL-0002
Docket / Court docket unknown ( No Court )
State/Territory Alabama
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, dated March 24, 2020, made to the U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR); it alleges that Alabama's particular protocols for rationing ventilator access in the event of over-demand bars access to ventilators to people ... read more >
COVID-19 Summary: This is a complaint, dated March 24, 2020, made to the U.S. Department of Health and Human Services Office for Civil Rights (HHS OCR); it alleges that Alabama's particular protocols for rationing ventilator access in the event of over-demand bars access to ventilators to people with intellectual and cognitive disabilities, in violation of federal anti-discrimination law. Alabama withdrew its ventilator rationing policy and instructed hospitals that they could not discriminate against people with disabilities in accessing treatment on April 8, 2020. OCR found the actions satisfactory and closed its review on May 9.


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, including Alabama, are developing policies for how to ration care and determine who will have access to lifesaving treatment. The Alabama Department of Public Health’s Emergency Operations Plan instructs that when cases of ventilator rationing arise during health emergencies, hospitals are not to provide ventilators to people with certain intellectual and cognitive disabilities.

On March 24, 2020, two disability advocacy organizations—Alabama Disabilities Advocacy Program and the Arc of the United States—filed this complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) alleging disability discrimination in Alabama’s rationing protocol. The complainants claimed that the current ventilator rationing policy denies medical treatment based on underlying disabilities and puts the lives of those with disabilities at risk. Specifically, the complainants alleged that Alabama’s particular healthcare rationing plan 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 two disability advocacy organization alongside the Bazelon Center, 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 against Washington State on March 23.

The complainants requested that OCR act quickly to investigate this complaint of disability discrimination and detail what Alabama health care providers must do to comply with federal disability rights law during the COVID-19 pandemic.

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 opened an investigation of the complaint in Alabama. OCR and Alabama reached an early case resolution. Alabama withdrew its ventilator rationing policy and instructed hospitals that they cannot discriminate against people with disabilities in accessing treatment on April 8, 2020. In addition, Alabama put in place new Crisis Standards of Care Guidelines that contained important nondiscrimination provisions. On May 9, OCR found the Alabama Department of Public Health's actions satisfactory and closed its review.

Emily Kempa - 03/25/2020
Averyn Lee - 06/13/2020


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Issues and Causes of Action
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Issues
Defendant-type
Hospital/Health Department
Disability
Mental impairment
Discrimination-basis
Disability (inc. reasonable accommodations)
General
Disparate Treatment
Reasonable Accommodations
Reasonable Modifications
Medical/Mental Health
Medical care, general
Medical care, unspecified
Mental health care, general
Mental health care, unspecified
Mental Disability
Intellectual/developmental disability, unspecified
Plaintiff Type
Non-profit NON-religious organization
Special Case Type
Out-of-court
Type of Facility
Government-run
Causes of Action Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12111 et seq.
Section 504 (Rehabilitation Act), 29 U.S.C. § 701
Defendant(s) Alabama Department of Public Health
Plaintiff Description Two disability advocacy organizations
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 Plaintiff
Public Int. Lawyer Yes
Nature of Relief None
Source of Relief None
Filed 03/24/2020
Case Closing Year 2020
Case Ongoing No reason to think so
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 of Alabama Disabilities Advocacy Program and The Arc of the United States
DR-AL-0002-0001.pdf | Detail
Date: 03/24/2020
Source: Plaintiffs' counsel
OCR Reaches Early Case Resolution With Alabama After It Removes Discriminatory Ventilator Triaging Guidelines
DR-AL-0002-0002.pdf | Detail
Date: 04/08/2020
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Plaintiff's Lawyers Bagenstos, Samuel R. (Michigan) show/hide docs
DR-AL-0002-0001
Brownstein, Rhonda C. (Alabama) show/hide docs
DR-AL-0002-0001
Costanzo, Cathy E. (Massachusetts) show/hide docs
DR-AL-0002-0001
Mathis, Jennifer (District of Columbia) show/hide docs
DR-AL-0002-0001
Wakschlag, Shira (District of Columbia) show/hide docs
DR-AL-0002-0001

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