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New Non-Discrimination Law Leaves Many Open Questions

August 6, 2021

Overview

On July 19, 2021, Governor Kate Brown signed a bill that is intended to combat discrimination in health care. SB 567 prohibits health care providers in Oregon from denying medical treatment, or limiting the amount of medical resources allocated, to patients based on their race, color, national origin, sex, sexual orientation, gender identity, age, or disability.

SB 567 has been the subject of considerable debate. Supporters say that the new rules are needed to prevent abuses that some populations continue to experience in the health care environment. They point as an example to ventilator rationing guidelines issued by the Washington State Department of Health early in the COVID-19 pandemic. The guidelines suggested that providers could give preference to young, healthy patients.

Critics of SB 567 maintain that, while all providers support the goal of eliminating illegal discrimination, the new law creates unnecessary and confusing standards for providers to navigate. They take particular exception to three aspects of the legislation. First, they say the law seems to give patients a new legal claim—discriminatory deprivation of medical treatment or resources—to assert against health care providers. Second, they claim the law makes it more difficult and riskier for providers to withhold treatment they deem futile but the patient or family demands. Finally, they fear the law calls into question the validity of advance directives, medical standards, and cost-saving measures (like prescribing generic drugs rather than brand name drugs) that might be thought to “limit or restrict in any manner the allocation of medical resources to the patient.”

Because it was written to address what its sponsors claim is an emergency need, SB 567 became effective immediately upon signature by the governor. Health care providers are therefore encouraged to review their internal policies to ensure that they reference and comply with the new law.

This article summarizes aspects of the law; it does not constitute legal advice. For legal advice for your situation, you should contact an attorney.

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