Discrimination Against People with Disabilities in Resource Allocation Is Illegal
New Hampshire must not discriminate against people with disabilities in the allocation of scarce medical resources in hospitals.
Across the nation, hospitals and states are looking at shortages of critical healthcare services and equipment as the COVID-19 public health crisis threatens to overwhelm hospital capacity. States are developing guidance for hospitals; hospitals are revising their plans in the face of real likelihood that they will not have enough lifesaving equipment to meet the needs of everyone.
Plans from other states clearly discriminate. Kansas’s plan allows hospitals to take away the ventilators of patients receiving care, including individuals who use regularly use their own ventilators.[i] In Alabama, “Hospitals are ordered to ‘not offer mechanical ventilator support for patients’ with ‘severe or profound mental retardation,’ ‘moderate to severe dementia,’ and ‘severe traumatic brain injury.’ ”[ii] New Hampshire can do better.
On Saturday, March 28, 2020, the US Department of Health and Human Services, Office of Civil Rights issued guidance for healthcare providers, stating, “persons with disabilities should not be denied medical care on the basis of stereotypes, assessments of quality of life, or judgments about a person’s relative “worth” based on the presence or absence of disabilities. Decisions by covered entities concerning whether an individual is a candidate for treatment should be based on an individualized assessment of the patient based on the best available objective medical evidence.”[iii]
New Hampshire’s guidance and the plans developed by hospitals must guard against explicit or implicit discrimination against people with disabilities:
- 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.
New Hampshire and its hospitals must lead on this issue, by creating and implementing plans that value the lives of people with disabilities in ways that other states have not.
Stephanie Patrick is the Executive Director of Disability Rights Center – NH, New Hampshire’s designated Protection and Advocacy system. More information about DRC-NH can be found at http://www.drcnh.org.
[i] https://www.centerforpublicrep.org/wp-content/uploads/2020/03/Kansas-OCR-complaint-3.27.20-final.pdf
[ii] https://adap.ua.edu/uploads/5/7/8/9/57892141/al-ocr-complaint_3.24.20.pdf
[iii] https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf
