BIRMINGHAM, Ala. — A U.S. senator has introduced legislation aimed at bringing an end to ventilator triage protocols that advocates worry could be used to discriminate against coronavirus patients on the basis of disability.

Sen. Bill Sasse, a Nebraska Republican, announced last week that he had introduced the bill, saying in a statement that he drafted it in response to “abhorrent” policies in more than 20 states, including Alabama, that could allow people with disabilities to “be sent to the back of the line for ventilators.”

Sasse said he hopes the bill will be adopted as part of the next phase of the federal government’s response to the COVID-19 pandemic. The legislation would make it so states with discriminatory protocols in place would be ineligible to receive ventilators or “any resource” from the federal government’s Strategic National Stockpile of medical equipment and supplies.

“Congress can’t re-write state laws, but we can regulate the Strategic National Stockpile of ventilators,” Sasse’s statement said. “As Congress takes up Phase Four legislation, we have a moral obligation to prevent discrimination against people with disabilities.”

Alabama advocates quickly heralded the new legislation, calling it a necessary step to further address policies in the state and beyond.

“People with disabilities are one of the most at-risk groups in this pandemic, in part because of the shortages of ventilators and PPE nationally,” Rhonda Brownstein, legal director of the Alabama Disabilities Advocacy Program, said.

“Congress must do whatever is necessary to address this dire need.”

The new legislation was introduced nearly six weeks after AL.com first reported on a little-known 2010 Alabama Department of Public Health protocol that the department has since disavowed and removed from its website.

The document advised that during a potential worst-case pandemic, Alabama hospitals should “not offer mechanical ventilator support for patients … with severe functional impairment produced by static or progressive neurological disorders.” It went on to state that “persons with severe mental retardation, advanced dementia or severe traumatic brain injury may be poor candidates for ventilator support.”

The document, titled “Criteria for Mechanical Ventilator Triage Following Proclamation of Mass-Casualty Respiratory Emergency,” also said that people suffering from dementia, metastatic cancer, end-stage organ failure, severe trauma or cardiac arrest could be denied access to ventilators during a severe pandemic.

Advocates immediately came out against the protocol, saying it discriminated against Alabamians with disabilities and could lead to adverse health outcomes.

Within days, the U.S. Department of Health and Human Services’ Office for Civil Rights (OCR) launched a review of Alabama’s protocol, which it closed on April 8 after the ADPH swiftly rescinded the document and disavowed its potentially discriminatory language.

“Persons with disabilities have equal worth and dignity and should not be deprioritized for health care based on a supposedly lower ‘quality of life’ compared to persons without disabilities,” Roger Severino, OCR’s director, said in a statement announcing the conclusion of the office’s review.

“Older Americans in Alabama can take solace knowing that their state will not impose blunt age cutoffs for ventilator allocation if, God forbid, there is a shortage.”

Also last month, the Center for Public Integrity published an investigation that revealed that 25 states, including Alabama, had potentially discriminatory ventilator policies on their books.

Sasse’s office cited the Center for Public Integrity’s report in its statement announcing the new legislation.

“An investigation from The Center for Public Integrity, published on April 8, found that care-rationing policies in many states can prevent individuals with disabilities from accessing ventilators,” the statement said.

Sasse’s office did not immediately respond to a request for comment. It was unclear if any other members of Congress had expressed support for the bill.

“Senator Sasse has been in talks with his colleagues and will continue to improve the legislation for inclusion in any Phase Four legislation,” the statement from Sasse’s office said.

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