Preventing Discrimination in the Treatment of COVID-19 Patients: The Illegality of Medical Rationing on the Basis of Disability, Disability Rights Education and Defense Fund (DREDF), 3/25/2020

DREDF’s document is a response to real and potential COVID-19-related shortages of essential medical supplies, and the potential for health care “rationing” that relies on prejudices and assumptions about whose lives have the most value and should be prioritized in times of resource scarcity. 

In this excellent summary, DREDF reminds healthcare providers that federal and state nondiscrimination laws, such as the Americans with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Rehab Act), Section 1557 of the Affordable Care Act (ACA) prohibit rationing measures that would result in the denial of needed care on the basis of disability. None of these federal laws include exceptions to this prohibition in the event of an “emergency.”

Under the ADA, for example, illegal discrimination includes the use of “eligibility criteria that screen out or tend to screen out an individual with a disability or any class of individuals with disabilities from fully and equally enjoying any service, program, or activity.” As the U.S. Supreme Court’s first case interpreting the ADA made clear – in Abbott v. Bragdon, involving a dentist that refused to provide in-office treatment to a woman living with HIV – illegal criteria include those used to the detriment of people living with disabilities in health care settings. 

This resource should prove very helpful to both care providers and advocates who anticipate or encounter demands to “triage” out people with HIV or other disabilities when and if ventilators, ICU beds and other needed resources become too scarce to meet immediate needs.