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TN Guidelines Updated in Response to OCR Complaint

Painting of Lady Justice

Tennessee has issued revised guidance prohibiting healthcare providers from discriminating against people with disabilities even when public health emergencies such as the COVID-19 pandemic necessitate rationing of scarce resources. In response to a complaint filed by disability rights advocates (View complaint), the Tennessee Department of Health and COVID-19 Unified Command have revised the “Guidance for the Ethical Allocation of Scarce Resources During a Community-Wide Public Health Emergency as Declared by the Governor of Tennessee.” The revised document replaces the prior version released in July 2016.
The revised guidance has effectively put Tennessee health providers on notice: Tennesseans with disabilities must be treated equally in healthcare decisions including those made during the COVID-19 pandemic or other public health emergencies. The protections of the Americans with Disabilities (ADA) and similar laws are not curtailed during emergencies. 

“We appreciate Tennessee’s prompt response to our complaint and willingness to meet the needs of people with disabilities by addressing issues beyond those we initially raised,” said Brian Keller, Public Policy Attorney at Disability Rights Tennessee.

Key revisions to the guidelines include:
Removal of categorical exclusions based on disability in favor of individual assessments.  An individual can no longer be excluded from treatment based solely on a diagnosed disability. 
Narrowing the scope of survivability assessments from one year to imminent survival.
Requiring reasonable modifications when necessary due to disability. This includes modifications to survivability assessment tools. For example, a person’s speech disability may negatively impact these assessments even though she does not have a lower likelihood of imminent survival. 
In addition to these key changes, the revised guidelines incorporate civil rights requirements issued by the Office of Civil Rights for the Department of Health and Human Services and encourage hospitals and long-term care facilities to modify visitor policies on a case-by-case basis when they can do so safely. 
Martie Lafferty, Director of the Accessibility Project at the Civil Rights Education and Enforcement Center expressed appreciation for the timing of Tennessee’s revisions saying, “In this moment of public health uncertainty, as we anticipate with dread a second wave of COVID-19 infections, it is gratifying that Tennessee has taken this important step to ensure equal access to healthcare under all circumstances. Tennesseans with disabilities no longer need to fear they will be treated as second class citizens when seeking medical treatment during a public health emergency.”

Carol Westlake, Executive Director of the Tennessee Disability Coalition added, “We’re incredibly grateful to the State for its quick and decisive action. While this important and updated guidance lays out a comprehensive roadmap for healthcare administrators, it’s equally important for Tennesseans to understand their individual rights under state and federal laws. Because it takes time for top-down guidance to make it to frontline providers, it is critical for people with disabilities to know their rights and advocate for them.”

If you or a family member have a disability and are being negatively impacted by healthcare rationing or visitor policies at a Tennessee health care facility, please contact Disability Rights Tennessee at 1.800.342.1660 or by email at GetHelp@disabilityrightstn.org

Tennessee organizations which took the lead on filing the complaint that prompted Tennessee to issue these revised guidelines are the Civil Rights Education and Enforcement Center, Disability Rights Tennessee, The Arc Tennessee, and the Tennessee Disability Coalition. In addition, multiple additional Tennessee and national organizations joined as complainants and/or counsel. Several individuals with disabilities joined as complainants. A full list of complainants and counsel follows. 

Organizational Complainants (counsel indicated by *):

Disability Rights Tennessee
Lisa Primm lisap@disabilityrightstn.org
Sherry Wilds* sherryw@disabilityrightstn.org
Brian Keller* briank@disabilityrightstn.org

Civil Rights Education and Enforcement Center
Martie Lafferty* mlafferty@creeclaw.org

Tennessee Disability Coalition
Carol Westlake carol_w@tndisability.org
Donna DeStefano donna_d@tndisability.org

The Arc TN
Loria Hubbard lhubbard@thearctn.org

The Arc of the United States
Shira Wakschlag* Wakschlag@TheArc.org

Disability Rights Education and Defense Fund
Claudia Center* ccenter@dredf.org
Silvia Yee* syee@dredf.org

Autistic Self Advocacy Network
Sam Crane* scrane@autisticadvocacy.org

The Bazelon Center for Mental Health Law
Jennifer Mathis* jenniferm@bazelon.org

Center for Public Representation
Cathy Costanzo* CCostanzo@cpr-ma.org
Alison Barkoff* abarkoff@cpr-us.org

Samuel Bagenstos* sbagen@gmail.com

Epilepsy Foundation of Middle & West Tennessee
Eliza Herzen director@epilepsytn.org

National Kidney Foundation
Michelle Dicken, East and Middle TN michelle.dicken@kidney.org
Mable Barringer, West TN mable.barringer@kidney.org

National Multiple Sclerosis Society
Abby Emanuelson abby.emanuelson@nmss.org