On October 7, the National Center for Law and Economic Justice filed a class action complaint on behalf of Not Dead Yet, NMD United, Disability Rights New York, NDY Board member Mike Volkman and other individual plaintiffs against New York Governor Cuomo and the NY Department of Health to challenge the state’s Ventilator Allocation Guidelines that allow personal ventilators to be confiscated from a person living in the community if they go to a hospital for care. NDY has written about this guideline here and here.
The class action civil complaint states:
1. Plaintiffs, chronic ventilator users who reside in New York State and organizations that represent them, bring this action on behalf of themselves and all others similarly situated challenging the New York State Department of Health’s Ventilator Allocation Guidelines (“Guidelines”). The Guidelines allow hospitals to reallocate the personal ventilators of people who seek acute medical care in a hospital during a time of triage to others deemed more likely to survive based on a mechanical scoring system.
2. The Guidelines deprive people with disabilities of a nondiscriminatory emergency preparedness program and risk placing chronic ventilator users in potentially life-threatening situations in violation of the Americans with Disabilities Act (“ADA”). . . Section 504 of the Rehabilitation Act of 1973 . . . and the Affordable Care Act . . ..
The the National Center for Law and Economic Justice posted the following news item on its website and social media:
NCLEJ Files Lawsuit to Protect Personal Ventilator Users
Did you know that New York State has a policy for rationing medical resources — like ventilators — during emergency health crises?
As Covid-19 infections spike again this Fall, New Yorkers with disabilities, and especially personal ventilator users who seek medical care at a hospital, could lose access to ventilators due to this rationing policy.
The New York State Department of Health Ventilator Allocation Guidelines state that if there is a heightened need for ventilators and a shortage of machines, the personal ventilators of chronic ventilator users can be taken and given to other people perceived to have a higher chance of survival.
That’s why the National Center For Law and Economic Justice teamed up with Disability Rights New York and filed a case to change these discriminatory allocation policies. This first of a kind case could ensure ventilator users will have access to their equipment whenever they need them!
While many states across the country including Alabama, Pennsylvania, and Tennessee have filed and resolved administrative complaints to ensure access to medical equipment, Governor Cuomo has refused to do the right thing.
Discriminatory policies like this harm people with disabilities and “underlying conditions” and puts them at risk. Rationing policies are dangerous and unfair. They devalue the medical needs of low-income people and people of color.
New York State shouldn’t have the power to decide who gets to live or die by taking their personal medical equipment from them.
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For the legal-minded, the 28-page complaint explains the case a bit more in the numbered paragraphs indicated below:
9. The Guidelines created wide-spread fear among chronic ventilator users because the Guidelines permit hospitals to requisition patients’ personal ventilators and reallocate them to others deemed more likely to survive.
10. Chronic ventilator users, including the Plaintiffs, saw articles and social media posts shared among their friends, classmates, and community members about the Guidelines and the risk of having their personal ventilators taken away if they sought acute medical care in a hospital.
13. As the COVID-19 pandemic continues, Plaintiffs fear losing their ventilators, and ultimately their lives, should they need to seek acute medical care at a hospital during a time of triage when ventilators are in short supply.
14. Plaintiffs and the proposed Class seek prospective injunctive relief ordering the Defendants to amend the Guidelines to ensure that chronic ventilator users will not have their personal ventilators reallocated to other individuals, especially without another ventilator readily available for their use.
45. The Guidelines permit hospitals to take chronic ventilator users’ personal ventilators upon their arrival into a hospital and place them into the general ventilator allocation pool for distribution to those with higher SOFA scores. Id. at 40.
46. The Guidelines acknowledge that the policy “may place ventilator-dependent individuals in a difficult position of choosing between life-sustaining ventilation and urgent medical care.” Id. at 41.
To review the full complaint, go here for a PDF version and here for a text version.