Posted by: Elizabeth Todaro on Mar 1, 2021

Journal Issue Date: March/April 2021

Journal Name: Vol. 57 No. 2

FOCUS

Disability Rights Tennessee

Disability Rights Tennessee (DRT) is in a unique situation. Serving as the state’s Congressionally mandated Protection & Advocacy (P&A) organization, it has responsibility for protecting and advocating for the rights of individuals with disabilities across Tennessee. DRT’s investigatory responsibilities provide for unscheduled access to certain facilities, without having to obtain a warrant or court order. Prior to COVID-19, DRT was able to go into facilities to meet and interview individuals with disabilities and observe first-hand the conditions under which the persons with disabilities were living. This “access authority” is vital to DRT’s ability to protect individuals from harm, especially vulnerable individuals who may not have the ability to physically protect themselves or communicate.

When COVID-19 hit, DRT was sent into a tailspin. For the safety of its clients and employees alike, DRT investigators could no longer go into facilities to do in-person investigations, except in very limited, including life-or-death, circumstances. For the first time in its history, DRT had to rely on technology, such as Zoom, WebEx and Facetime, to interview clients and conduct investigations. This posed many inherent challenges, such as not being able to physically be in the same space as clients who might have difficulties communicating over technology, having to schedule virtual visits as opposed to showing up unannounced, and having to rely on facility staff to show DRT facility conditions over often unreliable video connection.

“Without in-person visits, it is impossible to get the look and feel of an institutional condition, including the smell, the level of cleanliness, the unexplained bruises, the pain in the person’s face, and really ask the probing questions,” explains Jack Derryberry, legal director of DRT.  “It is also hard to avoid situations where residents are ‘coached up’ by facilities.”

Given that the clients served by DRT are among the most at-risk individuals for complications from a COVID infection, DRT made COVID-related issues for persons with disabilities its main focus. One tangible change stemming from this new focus is that clients with COVID-19-related issues will be given priority access to DRT’s services.

One of the first issues to arise was the Tennessee Department of Health and Humans Services’ (HHS) guidance on rationing medical care and resources, such as ventilators, during the pandemic.  According to 2016 guidelines, persons with certain disabilities, including traumatic brain injury and advanced-stage Multiple Sclerosis, could be denied ventilators if the rationing guidelines were implemented. DRT collaborated with other state and national disability rights organizations to file an Office of Civil Rights (OCR) complaint and negotiate with the state attorney general to change the guidance to prevent serious harm to persons with disabilities. After the OCR complaint was filed, HHS issued a bulletin making clear that covered entities may not discriminate against persons with disabilities in making rationing decisions.

Other COVID-19-related issues DRT has assisted clients with include visitation in hospitals and aggregate care facilities, program access, personal protective equipment (PPE), and reasonable modifications to face mask policies. DRT has recently begun working on issues of vaccine dissemination for people with disabilities to ensure that vulnerable populations have access to the vaccine as quickly as possible.

DRT is also monitoring the impact of COVID restrictions on the state’s children and youth, including children who have special education needs and those in psychiatric residential treatment and correctional facilities. At the residential facilities, children in crises have been cut off from family and friends because of the pandemic.

DRT is concerned about the enormously disproportionate impact the virus is having on persons with disabilities who are also persons of color. DRT’s advocacy in this area emphasizes that that there should be no difference in how persons of color with disabilities receive health care during the pandemic.