FILE - Ventilator

Imagine Alabama hospitals being overrun with COVID-19 patients in the coming months and doctors choosing to save the life of an 80-year-old man over a 10-year-old boy with autism due to a shortage of ventilators.

Under an Emergency Operations Plan developed by the Alabama Department of Public Health, that is a real possibility. That plan, and a similar set of rules in Washington state, have sparked an outcry from organizations that advocate on behalf of the disabled.

The Alabama plan, last revised in 2010, calls for (in part) how to deal with a ventilator shortage during a mass casualty event such as a pandemic. The plan could very well be put in place this year given the rapid spread of the coronavirus that causes COVID-19 and the expected influx of patients who would need to use ventilators.

A ventilator shortage is a real possibility. Earlier this week, New York Gov. Andrew Cuomo said the state only has a few thousand ventilators, but will need at least 30,000 more in the next two weeks when the contagion is expected to peak. Doctors in Italy have had to make the heartbreaking decisions to leave older patients to die because of a ventilator shortage in that country.

Unsurprisingly, the Alabama plan excludes those suffering from end stage organ failure from receiving ventilators if the governor declares a public health emergency during a mass casualty event. Also, among those the plan also excludes from receiving what could be life-saving devices under its ventilator triage protocol are people with various neurological disorders – and there is no provision for age.

The plan states that, “functional assessment for persons with intellectual disability, complex neurological problems, dementia, or mixtures of symptoms should focus on premorbid function in all domains of life including social, intellectual, professional, etc.”

It seems based on that paragraph that doctors should evaluate the patient’s ability to hold down a job before deciding whether they should get a ventilator.

The document has raised the ire of groups that fight for the rights of the disabled. The Alabama Disabilities Advocacy Program and The Arc of the United States filed a complaint with U.S. Health and Human Services Office of Civil Rights Director Roger Severino on Tuesday, calling Alabama’s plan a “ventilator rationing scheme.”

The complaint argues that the plan violates federal disability rights laws, including the Americans with Disabilities Act, by discriminating against people with intellectual and cognitive disabilities.

“It is critical that the Office for Civil Rights [OCR] take immediate action to address this discrimination and assist covered entities in developing non-discriminatory approaches before there are lethal consequences from the application of these illegal policies,” the letter states.

“Alabamians with intellectual and cognitive disabilities … will likely die if medical professionals are allowed to withhold health care services from them on the basis of their disabilities,” the letter continues.

The state of Washington has a similar plan as the one in Alabama and has sparked its own share of complaints to the HHS OCR. The Washington plan calls for doctors to consider a patient’s “baseline functional status,” which includes cognitive ability.

David Carlson, director of advocacy at Disability Rights Washington, told The New York Times that the wording allows for doctors to make snap judgments that would leave people with disabilities at a disadvantage.

“We are in some urgent times,” Carlson told the newspaper. “These are not the times to throw out our core principles of fairness and equality. We don’t want to look back on these times like we have on other times when we’ve had great fear.”

Hopefully, the HHS OCR will act quickly to correct these discriminatory rules before the pandemic grows. For a society that has made great strides in creating better lives for those with disabilities, these types of plans are a major and disappointing step backwards.

Johnny Kampis, father of a 10-year-old boy with autism, is investigative reporter for The Taxpayers Alliance.

Johnny Kampis is an investigative reporter for the Taxpayers Protection Alliance Foundation, and has been published in The New York Times, Time.com, FoxNews.com and the Atlanta Journal-Constitution.