OCR Resolves Complaint with Tennessee Following Revision to Crisis Standards of Care

In light of the updated protocol presented by Tennessee, OCR announced that it closed the complaint against the state without any finding of liability.

A version of this article was first published July 7, 2020, by HCPro's Revenue Cycle Advisor, a sibling publication to HealthLeaders.

The Office for Civil Rights (OCR) announced in late June that it reached an early case resolution with the state of Tennessee regarding the state’s crisis standards of care (CSC) protocol.

Previously, OCR received a complaint from Disability Rights Tennessee and other advocacy organizations alleging that Tennessee’s CSC plan was discriminatory toward individuals with disabilities.

The complainants believed the CSC plan would unlawfully disqualify individuals with advanced neuromuscular disease, metastatic cancer, traumatic brain injury, dementia, and other disabilities from access to a ventilator during the novel coronavirus (COVID-19) public health emergency.

OCR provided technical assistance to Tennessee, and the state updated its CSC policies to include the following:

• Added language stating that reasonable modifications to the use of the state’s primary instrument for assessing likelihood of short-term survival should be made when necessary for accurate use with patients with underlying disabilities.
• Added language stating that hospitals should not re-allocate personal ventilators brought by a patient to an acute care facility. Under this language, long-term ventilator users will be protected from having a ventilator they take with them into a hospital setting taken from them to be given to someone else.
• Clarified that resource-intensity and duration of need on the basis of age or disability should be not be used as criteria for the allocation of scarce medical resources. This clarification protects patients who require additional treatment resources due to their age or disability from automatically being given a lower priority to receive life-saving care.
• Removed language permitting the use of a patient’s long-term life expectancy as a factor in the allocation of scarce medical resources, instead indicating that providers should consider only risk of imminent mortality.
• Removed categorical exclusion criteria that prohibited people with disabilities from receiving care on the basis of their diagnosis, and required individualized assessments of patients based on the best available objective medical evidence.

In light of the updated protocol presented by Tennessee, OCR announced that it closed the complaint against the state without any finding of liability.

This marks OCR’s fourth resolution with a state regarding disability discrimination concerns during the COVID-19 pandemic.

OCR also resolved complaints against Alabama, Connecticut, and Pennsylvania in recent months.