The United States Department of Health and Human Services Office for Civil Rights has released a bulletin warning healthcare provider that discrimination against elderly and disabled COVID-19 patients will not be tolerated. This announcement was well received by the Freedom of Conscience Defense Fund and the Thomas More Society, who recently submitted a legal memorandum to the department, which they had prepared on behalf of three prominent scholars.

University bioethicist Charles Camosy, Princeton University’s Robert George, and Harvard University sociologist Jacqueline Rivers commissioned the memorandum, which confirms the prohibition of discriminatory health care decisions under federal civil rights laws. It emphasized that rationing scarce medical supplies – such as ventilators – to exclude the aged and disabled, violates numerous federal civil rights laws, including the American with Disabilities Act and the Age Discrimination Act.

The Health and Human Services bulletin advised healthcare providers that receive federal funding to “keep in mind their obligations” not to discriminate against elderly and disabled patients when prioritizing COVID-19 treatment.

In a press release announcing the bulletin, Office for Civil Rights Director Roger Severino stated: “Health and Human Services is committed to leaving no one behind during an emergency, and this guidance is designed to help healthcare providers meet that goal. Persons with disabilities, with limited English skills, or needing religious accommodations, should not be put at the end of the line for health services during emergencies. Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism.”

According to Severino: “Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient and his or her circumstances, based on the best available objective medical evidence.”

Charles LiMandri, partner at LiMandri & Jonna LLP, in his capacity as Special Counsel for the Freedom of Conscience Defense Fund and the Thomas More Society, headed the team that authored the memorandum that confirms the prohibitions of discriminatory health care decisions under federal civil rights laws.

LiMandri stated: “We recognize that doctors must use triage to prioritize treatment and that means having to make difficult choices. But rationing health care based on a person’s age or disability is not only unlawful, it is inhumane. We are pleased the Trump administration shares that belief, and we expect the bulletin to reassure doctors fighting at the frontlines of this pandemic.”

Read the April 3, 2020, Memorandum on Federal Law on Rationing Medical Care on the Bases of Disability and Age, published by attorney Charles LiMandri, of LiMandri & Jonna LLP, in the capacity of Special Counsel with the Freedom of Conscience Defense Fund and the Thomas More Society the Freedom of Conscience Defense Fund and the Thomas More Society here.

Read the initial Memorandum, issued March 23, 2020, here.