OCR Complaint Filed by National Organizations on Behalf of the Family of Michael Hickson
July 31, 2020
Director, Office for Civil Rights
U.S. Department of Health & Human Services
200 Independence Avenue, S.W.
Washington DC 20201
RE: Complaint of Disability Discrimination filed by the National Council on Independent Living et al
Dear Mr. Severino:
This complaint concerns illegal discrimination by St. David’s South Austin Medical Center, 901 W. Ben White Blvd., Austin, TX, 78704, St. David’s parent organizations, HCA Healthcare, Inc, One Park Plaza Nashville, Tennessee 37203; and Georgetown HealthCare System, Inc., 2425 Williams Dr Ste 101, Georgetown, TX 78628; and Family Eldercare, Inc., 1700 Rutherford Lane, Austin, TX 78754. This complaint is filed on behalf of the National Council on Independent Living and their constituent organizations.
This complaint is asserting violations of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Affordable Care Act (ACA), and OCR Guidance Bulletin “Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19)” issued March 28, 2020, based on the withholding of life-sustaining care and treatment for the former patient of St. David’s South Austin Medical Center, Michael Hickson. This withholding of care and treatment, based on the discriminatory application of care and treatment decisions based on Mr. Hickson’s disability, resulted in his premature death on June 11, 2020.
The National Council on Independent Living (NCIL) is a 501(c)(3) representing the network of Centers for Independent Living and Statewide Independent Living Council member organizations. NCIL advances independent living and the rights of people with disabilities. NCIL envisions a world in which people with disabilities are valued equally and participate fully. NCIL engages in rigorous public policy advocacy efforts to support the integration and inclusion of people with disabilities by protecting, enforcing, and strengthening civil rights protections and programs that support the civil rights of people with all types of disabilities.
Michael Hickson was a person with multiple disabilities – quadriplegia, cortical blindness, and Anoxic brain injury – after having experienced a cardiac incident in 2017. He was married; he and his wife had five children. Since becoming disabled in 2017, Mr. Hickson had received ongoing habilitative and medical treatment. Mr. Hickson was an integral and beloved family member whose humor, strength, and personality were demonstrated in myriad ways.
The ADA, Section 504, and Section 1557 apply to hospitals and health care providers in Texas. These federal laws prohibit disability discrimination in medical decision-making. OCR has received complaints from all across the country regarding states’ adoption of “Crisis Standard of Care” policies that would apply discriminatory standards as guidance for decision-making in the event of resource scarcity in healthcare provision. In state after state, OCR has confirmed that, in the event of resource scarcity, civil rights and anti-discrimination laws continue to govern decision-making processes in the esoteric.
In Mr. Hickson’s case, the issue is not abstract. The treating professional for Mr. Hickson made a discriminatory determination that, due to his disabilities, Mr. Hickson’s life would not be supported. Statements made directly to Mr. Hickson’s wife, Melissa, by the treating professional indicate clearly that the determination to withhold life sustaining measures was predicated on the discriminatory notion that Mr. Hickson’s disabilities made his life unworthy of continued life sustaining measures, including provision of nutrition and hydration. We know this as his statements were video recorded.
The State of Texas does not have a state Crisis of Care Standards guidance document. St. David’s South Austin Medical Center applied arbitrary and discriminatory standards in the decision-making process that resulted in Michael Hickson’s death. These discriminatory standards were applied, and discriminatory actions were taken notwithstanding the availability of equipment and facilities necessary to support Mr. Hickson’s care and treatment. St. David’s South Austin Medical Center was not in an implementation phase of crisis of care. St. David’s had resources available to continue to provide Michael Hickson with medical care and treatment, but because discriminatory standards were applied to him by his treating professionals, the decision was made to withhold life-sustaining care.
The court-appointed agency providing Guardianship for Mr. Hickson, Family Eldercare, acting in that capacity, approved the care and treatment regimen proposed by St. David’s South Austin Medical Center which resulted in Mr. Hickson’s death. Under Texas state law, “Sec. 1001.001(a) a court may appoint a guardian with either full or limited authority over an incapacitated person as indicated by the incapacitated person’s actual mental or physical limitations and only as necessary to promote and protect the well-being of the incapacitated person.” The role of the appointed Guardian for Mr. Hickson was to promote and protect his well-being, not be complicit in the steps that would result in the end of his life. Family Eldercare perpetuated the medical provider’s discrimination against Mr. Hickson and ultimately provided permission to execute the decisions which led to Mr. Hickson’s death. Family Eldercare in so doing, acted in violation of the purpose of their role as Guardian agency and in a discriminatory matter, acceding to the medical provider’s opinion that Mr. Hickson’s disabilities justified withholding life-sustaining care and services.
The guidance bulletin your office issued on March 28, 2020, contemplate exactly the type of situation Mr. Hickson and his family confronted. “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.”
We request that OCR investigate and resolve this complaint of disability discrimination.
American Association of People with Disabilities (AAPD)
Autistic Self Advocacy Network (ASAN)
Brain Injury Association of America (BIAA)
Center for Public Representation
National Council on Independent Living (NCIL)
Not Dead Yet
Partnership for Inclusive Disaster Strategies
World Institute on Disability (WID)