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NEW YORK, June 23, 2020 — The American Civil Liberties Union, the Service Employees International Union (SEIU), and partner organizations filed a legal petition today with the U.S. Department of Health and Human Services (HHS) calling for the agency to take quick and essential action to correct its mishandling of the COVID-19 crisis for people with disabilities and health care workers. Should HHS neglect to enact changes, the groups will sue.

The petition points to the federal government’s pervasive failure to respond to the risk COVID-19 presents in our country’s congregate settings for people with disabilities, including nursing homes, group homes for individuals with disabilities, intermediate care facilities for individuals with intellectual disabilities, and psychiatric facilities. The petition is addressed to HHS and its agencies, the Centers for Medicare and Medicaid Services (CMS), the Center for Clinical Standards and Quality (CCSQ), and the Centers for Disease Control and Prevention (CDS).

More than 51,000 residents and workers in nursing homes and other long-term care facilities have died of COVID-19 to date — more than 40 percent of total COVID-19 deaths in the U.S. Death rates in other facilities for people with disabilities are also disproportionately high. The petition asserts that HHS bears significant responsibility for this devastating death toll through its actions and inactions, including: failing to issue clear guidance for infection prevention and control, waiving basic patient and worker protections, and failing to divert patients from these settings and facilitate appropriate transitions back into the community — a process that would help reduce the populations in these facilities so that social distancing might be possible. Finally, HHS has hidden the scope of the problem by hiding staffing shortages and failing to require nursing homes to report COVID-19 infections or deaths until May.

“The grossly disproportionate deaths of residents and staff in these congregate settings are a direct result of HHS’ neglect and failure to protect the health and lives of residents and staff,” said Susan Mizner, director of the ACLU’s Disability Rights Project. “This is both a human tragedy and civil rights issue.  Every resident in this setting is a person with a disability,  and our society continues its practice of warehousing them in crowded, understaffed buildings, with poor resources and little oversight. The HHS response to this pandemic reflects a longstanding and continuing de-prioritization of people with disabilities.”

Nearly 28 percent of nursing home workers are Black and a majority of nursing home workers are people of color. This largely female workforce is suffering now due to HHS’ neglect. Workers across the country have reported lack of access to personal protective equipment, inadequate testing, understaffing, and lack of guidance for infection control in facilities.

“As nursing home workers, resident safety is our number one priority. But since this pandemic started, our employers and elected leaders have treated us as disposable and have failed to provide the equipment, training and protection we need to keep ourselves and our residents safe,” said Chris Brown, CNA, a nursing home worker and SEIU member from Chicago, Ill. “Never before have I feared for my own life on the job. Each day, we walk into our facilities not knowing if today’s the day we catch the virus, or worse, pass it on to our residents. Decision makers refused to take action, and now thousands of lives have been lost. Enough is enough.”

The ACLU and SEIU petition the HHS, CMS, CCSQ, and CDC to take swift action to significantly revise their directives to save the lives of people with disabilities in their care, as well as the staff who attend to them, both as we see COVID-19 cases rise in many states, and before a next wave sweeps through the nation. The groups are calling for the HHS, CMS, CCSQ, and CDC to immediately confront this crisis by requiring true transparency with reporting infection and deaths, reducing the populations in these facilities, and protecting the residents and staff who remain.

The petition was filed by the ACLU and SEIU on behalf of the American Association of People with Disabilities (AAPD), Autistic Self-Advocacy Center (ASAN), Disability Rights Education and Defense Fund (DREDF), National Council on Independent Living (NCIL), Partnership for Inclusive Disaster Strategies, and World Institute on Disability (WID).

The petition can be found here: https://www.aclu.org/petition-covid-19-response-nursing-homes-and-other-congregate-settings-where-people-disabilities

A blog on the filing can be found here: https://www.aclu.org/news/disability-rights/covid-19-deaths-in-nursing-homes-are-not-unavoidable-they-are-the-result-of-deadly-discrimination