The Mental Health Association in Michigan

is the only statewide, non-governmental agency concerned with the broad spectrum of mental illness across all age groups.

May 7, 2020

Michigan’s Need forNon-Discriminatory Guidance on Rationing Scarce Medical Resources in the COVID-19 Pandemic

April 24 , 2020
Sent Via Email to: Gretchen.Whitmer@michigan.gov
and miag@michigan.gov

Hon. Gretchen Whitmer
Governor, State of Michigan
P.O. Box 30013
Lansing, MI 48909

Hon. Dana Nessel
Attorney General, State of Michigan
G. Mennen Williams Building
525 W. Ottawa Street | P.O. Box 30212
Lansing, MI 48909

Dear Governor Whitmer and Attorney General Nessel:
At the outset, we do want to take this opportunity to commend and thank
you for your overall efforts to fight this crisis to protect the health and
welfare of the residents of the State of Michigan.

This letter represents the collective voic e of 1 9 disability rights
organizations /individuals that desire to present concerns about the
guidance from the State of Michigan regarding appropriate and ethical
actions that healthcare providers are to take w hen making decisions
about medical treatment during the COVID 19 pandemic.

We wish to inform you of serious concerns on behalf of people with
disabilities in Michigan regarding their civil rights and equal access to
potentially scarce resources in this pandemic crisis, including ventilators. Current guidance adopted by the State will have a discriminatory effect on people with disabilities and pre existing conditions which must be rescinded. Michigan has implemented theCOVID 19 Practice Management Guide, adapted from the Department of Defense and Minnesota Department of Health, which provides guidance to health care infrastructure that is discriminatory against people with disabilities. 1 This document guides healthcare infrastructure on what to do in the event medical resources become scarce. 2 The most notable example of discriminatory guidance is found in Appendix H, which details “strategies for scarce resource situations.” 3 Most concerning is the guidance related to mechanical ventilation which include s prioritizing reallocation of life saving ventilation equipment based on disability, rather than an individualized assessment of whether the patient can benefit from treatment. 4 Under the current guidance, in order t o be designated as having a “low potent ial for death” a patient cannot have a “sever e underlying disease.” 5 While consideration of underlying conditions is permissible as part of an objective, individualized assessment; de-prioritization based solely on an underlying diagnosis is discriminatory. As an example, an individual “requiring continuous oxygen use prior to the onset of acute illness” would be immediately deprioritized under this guidance without requiring an individual assessment as to their ability to benefit from treatment. 6

Additionally, those individuals who may require a greater duration of need are given lower priority in the determination of who receives a ventilator, which disproportionately affects people with disabilities. 7 Treatment allocation decisions should not be made based on the perception that a person’s disability will require the use of greater treatment resources and should be based on an objective, individualized assessment. Further, the COVID 19 Practice Management Guide references the Fair Allocation of Scarce Medical Resources in the Time of Covid 19 published in The New England Journal of Medicine 8 This article encourages making scare medical resource allocation decisions that save the most life years in allocating scarce medical resources. 9 Prioritization based on life years disproportionately affects people with disabilities due to stereotypes and subjective assumptions about certain diagnoses. Medical resource allocation decisions should be made based on how to save as many people that can benefit from treatment rather than, for example prioritizing the younger over the older.

The Office for Civil Rights of the Department of Health and Human Services has declared that “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgements about a person’s relative ‘worth’ based on the presence or absence of disabilities.” The COVID 19 Practice Management Guide violates this mandate.

Please CLICK HERE for the complete letter in .pdf format.