Huge admiration and gratitude to our colleagues at DREDF for issuing a document entitled Preventing Discrimination in the Treatment of COVID-19 Patients: The Illegality of Medical Rationing on the Basis of Disability. It’s directed to “lawmakers and providers of health care, education, transportation, housing, and other critical services.”
The 2nd opening paragraph explains:
In the face of a public health crisis, where projections show that the need for intensive medical care for individuals made ill by COVID-19 may far exceed the resources of the U.S. healthcare system, the inclination of healthcare providers may be to take “rationing” measures or rather, make decisions about who should or should not receive care and, if they do, what level of care. While COVID-19 poses a serious challenge to the capacity and resources of our healthcare system, DREDF reminds healthcare providers that longstanding federal and state nondiscrimination laws, such as the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, Section 1557 of the Affordable Care Act (“ACA”), the California Unruh Civil Rights Act, and California Government Code Section 11135, prohibit such rationing measures when they result in the denial of care on the basis of disability to an individual who would benefit from it.
The first major section of the brief provides important legal analysis and precedent. The second major section includes four important subparts:
- A. Providers Cannot Deny or Limit Care to Disabled People Because of Their Disability
- B. Providers Cannot Deny or Limit Care Based on the Fact That A Disabled Person May Have A Lower Likelihood of Survival or Require More Intensive Care
- C. Providers Must Not Rely on Quality of Life Judgments When Deciding Whether to Deny or Limit COVID-19 Treatment
- D. Providers Cannot Deny or Limit Treatment to A Person with a Disability Because They May Require Reasonable Accommodations
For those of us who may have a lower likelihood of survival or require greater resources to survive, Section [II] B. is most directly relevant:
In enacting the ADA and subsequent civil rights legislation specific to the health care setting, Congress affirmed that principles of equality are more important than the efficiency of systems. Despite the COVID-19 crisis, this principle remains appropriate and the law of the land.
While a healthcare provider does not have a duty to provide treatment when there is objectively no chance of it succeeding (i.e., it is “absolutely futile”[42]), they cannot exclude from treatment people whose underlying disabilities mean that they have a lower probability of survival or those who, because of their disabilities, may require a higher level of care.
Prioritizing people without pre-existing conditions, who may have a higher probability of survival, would be inappropriate and constitute illegal disability discrimination. While providers are not obligated to deliver objectively futile care, they cannot discriminate against disabled people who could benefit from treatment.
Furthermore, while healthcare providers may prioritize people with a greater urgency of need, they cannot give lower relative priority to individuals whose anticipated intensity of care or resources exceeds that of other current or anticipated patients. When dealing with patients with a similar level of treatment urgency, providers should maintain their existing practice of “first come, first serve,” rather than prioritizing people who would require the fewest resources.
To read the DREDF brief in full, go here. Thank you to all at DREDF for issuing such a rapid response to this crisis!