Dissent

Mar 282020
 
 March 28, 2020  Posted by  Announcements, Featured News, Healthcare

Much of the world first seems to be learning what “triage” really means.  Even for many healthcare professionals, triage has never been so meaningful, real, or brutal as it is during this pandemic when ventilators and PPE are in short supply.

So who gets treated and who doesn’t when you run out of personnel and supplies?

The concept of triage is that you try to save as many as you can — meaning you allocate resources to those must likely to survive with a good outcome if they get treatment.

So old people?  Sorry….?

People with serious underlying medical conditions?  Sorry…?

What about people in good physical health but intellectually disabled?

What about people with dementia?

Yesterday, I read some concerning news that some states were suggesting that people with mental/intellectual disabilities would not be priorities in triage situations.  Yes, people with dementia may have trouble remembering what to do or how to take care of themselves, but does that mean that we don’t try to save them while we try to save someone else who may be intellectually intact but who hasn’t taken care of their health over the years?

You can try to save someone who has been a heavy smoker for years or someone who doesn’t smoke but has not lived independently in years.  Whom do you try to save?

HHS/OCR has issued a statement that I am reproducing in full below.

OCR Issues Bulletin on Civil Rights Laws and HIPAA Flexibilities That Apply During the COVID-19 Emergency

Today, the Office for Civil Rights (OCR) at the U.S Department of Health and Human Services (HHS) is issuing a bulletin to ensure that entities covered by civil rights authorities keep in mind their obligations under laws and regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs, including in the provision of health care services during COVID-19.

OCR is particularly focused on ensuring that covered entities do not unlawfully discriminate against people with disabilities when making decisions about their treatment during the COVID-19 health care emergency.

OCR enforces the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, the Age Discrimination Act, and Section 1557 of the Affordable Care Act which prohibits discrimination in HHS funded health programs or activities.  These laws, like other civil rights statutes OCR enforces, remain in effect. As such, persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities or age. 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.

“Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism,” said Roger Severino, OCR Director.  “HHS is committed to leaving no one behind during an emergency, and helping health care providers meet that goal.” “Persons with disabilities, with limited English skills, and older persons should not be put at the end of the line for health care during emergencies.”  Severino added.

The Bulletin may be found at: https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20 – PDF

Today’s bulletin also reminds health care covered entities of unprecedented HIPAA flexibilities recently made available by OCR in response to the COVID-19 emergency concerning:

For general information regarding COVID-19, please see: https://www.coronavirus.gov/

Mar 282020
 
 March 28, 2020  Posted by  Business, Healthcare

HIPAA lawyer Jeff Drummond has a blog post about the concerns Consumer Reports raised about using Zoom. Jeff focuses on its use for those who are covered by HIPAA, and he has a  good tip for covered entities:

This highlights two things: think about the services your (sic) are using that get to view your information and find out what they can do with it (especially find out if they are actually doing it or deny doing it, even though they have the right to).  And make sure you get a BAA if (i) you are a covered entity under HIPAA and (ii) any of the information that the service comes into contact with might be PHI.

I’ve looked at Zoom’s BAA.  It’s ok (“meh”).  Doxy.me has a much better one.  But both are minimally sufficient.

UPDATE: one other thing: be the host, if you are the CE.

Read more on HIPAA Blog.

 

Mar 272020
 
 March 27, 2020  Posted by  Business, Court, Govt, Laws, U.S., Youth & Schools

Susan Montoya Bryan reports:

A U.S. district judge has rejected an effort to derail New Mexico’s lawsuit against Twitter, Google and other companies that develop and market mobile gaming apps for children.

The judge concluded in a ruling Tuesday that the court has jurisdiction over the case, clearing the way for it to proceed.

Read more on AP.

Via Joe Cadillic

Mar 272020
 
 March 27, 2020  Posted by  Court, Healthcare

Eugene Volokh writes:

Here’s the motion for a preliminary injunction; here’s the heart of the argument (I hope to also post key parts of the state’s brief, when that is filed):

Here, in terms of the burdens, the Attorney General’s current enforcement threat operates as a ban, whether for all abortions or for all abortions after ten weeks. The Executive Order is in effect for at least thirty days, and in fact could remain in effect for months, which would push many abortion patients past the legal limit for an abortion in Texas. Moreover, even if some patients affected by the order are able to obtain an abortion if the order is lifted sooner than anticipated, they will still suffer increased risks to their health by the delay in access to abortion care. Thus, the Executive Order overwhelmingly harms individuals seeking an abortion.

These harms vastly outweigh any potential benefits from the Executive Order as interpreted by the Attorney General. The State asserts two interests—neither of which is furthered by the Attorney General’s interpretation. On its face, the Executive Order is intended to preserve hospital capacity and PPE. Plaintiffs share those interests, but a blanket abortion ban does not serve either one and, in fact, as so interpreted the Executive Order is more likely to aggravate than alleviate the public health crisis arising from the pandemic. As to the first interest, legal abortion is safe, and complications associated with abortion—including those requiring hospital care—are exceedingly rare. Nearly all abortions in Texas are provided in outpatient facilities, such as Plaintiffs’ abortion facilities and ambulatory surgical centers, not hospitals. Thus, Plaintiffs’ provision of abortion would not deplete hospital capacity.

Read more on Reason.com