Discrimination Against People with Disabilities In Resource Allocation Is Illegal

Disability Rights Center – New Hampshire Urges DHHS Commissioner and Governor to Protect People with Disabilities in Resource Allocation

Across the nation and in New Hampshire, plans for the allocation of potential scarce medical resources are being developed as the COVID-19 pandemic threatens to overwhelm health care capacity. Plans address administration of COVID-19 tests, the provision of medical supplies including personal protective equipment (PPEs), and the allocation of staff and hospital capacity. We must ensure that any plan that is adopted fairly protects people with disabilities.

Commissioner Shibinette and Governor Sununu, along with medical ethicists, are developing a crisis standards of care plan for New Hampshire.  The plan must guard against discrimination against people with disabilities. Health plans and insurers, hospitals, and other medical providers must maintain their obligations under state and federal disability nondiscrimination laws during the coronavirus crisis, including in the allocation of scarce medical resources.

“At this critical time, Commissioner Shibinette and Governor Sununu must provide valuable guidance to healthcare providers to ensure that, if the current pandemic requires rationing of scarce medical resources, such decisions are made without discriminating on the basis of disability,” said DRC-NH Executive Director, Stephanie Patrick

Such guidance must include the following basic principles:

  • The presence of a disability, including a significant disability, is not a permissible basis for denying people access to care or giving them a lower priority for care.
  • Although the possibility of a person’s survival may receive some consideration in allocation decisions, that consideration must be based on the prospect of surviving the condition for which the treatment is designed – in this case, COVID-19 – and not other disabilities. In addition, it must be based on a clear indication from the person’s circumstances that the person is unlikely to survive or to benefit from treatment.
  • The fact that a person with a disability may require reasonable accommodations during treatment, or more intensive treatment, is not a permissible basis for denying care or allocating the person a lower priority for care.
  • All medical decisions about providing care must be based on current objective medical evidence, and not based on generalized assumptions about a person’s disability. Treatment decisions may not be made based on misguided assumptions that people with disabilities experience a lower quality of life.

People with disabilities should not face discrimination in seeking life-sustaining care. The lives of people with disabilities are equally valuable to those without disabilities.

“It’s time for the State to lead on this issue, to value people with disabilities in ways that other states have not. Governor Sununu and Commissioner Shibinette, please take action,” said Patrick.

DRC-NH is New Hampshire’s designated Protection and Advocacy system and is dedicated to eliminating barriers existing in New Hampshire to the full and equal enjoyment of civil and other legal rights by people with disabilities. More information about DRC-NH can be found at http://www.drcnh.org.


Disability Rights Center – New Hampshire is a statewide non-profit organization dedicated to eliminating barriers for people with disabilities across New Hampshire. DRC is the federally designated protection and advocacy agency for New Hampshire and has authority under federal law to conduct investigations in cases of probable abuse or neglect.

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