Hospitals Might Violate Law With Rationing Schemes, Professor Says

With some hospitals rationing medical resources such as ventilators in light of the COVID-19 pandemic, people with disabilities are not being treated fairly or in accordance with the law when it comes to life-or-death care, Professor Deborah Hellman of the University of Virginia School of Law says. 

Hellman argues in her new co-authored paper, “Rationing and Disability in a State of Crisis,” that rather than prioritizing resources based only on who might live or otherwise receive the greatest benefit, hospitals should give people with disabilities additional consideration that ensures equity and respects their humanity, per the Americans With Disabilities Act. 

Hellman, who teaches and writes about issues related to discrimination and the law, penned the paper with civil rights attorney Kate M. Nicholson, her longtime friend and a person with a disability herself.   

“Treating all lives equally doesn’t work if some start out with a significant disadvantage,” they write in the draft paper. “The ADA provides a remedy for this inequality — it attempts to level the playing field, if you will — by requiring changes to services so that all people have an equal chance to use and benefit from them.” 

They argue that rationing approaches that have been reported across the country discriminate against people with disabilities because of either real or assumed reasons why someone with a disability might not recover as quickly or as well compared to others who are sick. 

While some government officials have made public promises to adhere to the guidelines of the ADA, the authors point out that most of the decision-making will be in private care settings, behind the scenes. 

They also mention known policy in places such as New York, one of the states hardest hit by the novel coronavirus, where patients receiving treatment by ventilator must demonstrate a benefit from the treatment within a set time frame or their use of the equipment may be discontinued.  

“In our view, this policy does not provide the ‘reasonable modification’ required by the ADA, nor does it provide people with pre-existing health conditions a fair opportunity to benefit from the life-saving resource,” they write. “A reasonable modification for people with disabilities may require they be given more time to meet each benchmark. For that reason, we believe that the sort of time check-in adopted by the NY Ventilator Guidelines must be modified to allow people with disabilities an equal chance to survive.” 

The authors break down the discussion into four categories of rationing policies: efficiency (meaning time to achieve recovery), probability of success, life expectancy and different quality of life after treatment, if successful. 

Quality of life is the most problematic consideration, they say. Making a resource decision based on who will have the better chance at an active life after treatment would likely violate the ADA, as would schemes that consider life expectancy, they say. 

Other rationing approaches based on efficiency and probability for success, are more complicated to interpret in terms of their moral and legal implications, they suggest — “with efficiency being closest to the line of permissibility.”  

The paper sets out in each instance to show how an administrator might provide equitable consideration. While the authors don’t argue that a person with a disability has to be prioritized for care, or can never be de-prioritized, they do hope in writing the paper that hospitals will take a more nuanced approach. They also seek to advance the conversation among the general public, who are also stakeholders in the care they receive. 

Hellman is the David Lurton Massee Jr. Professor of Law, and the Roy L. and Rosamond Woodruff Morgan Professor of Law at UVA. She is the author of “When is Discrimination Wrong?” (Harvard University Press, 2008) and co-editor of “The Philosophical Foundations of Discrimination Law” (Oxford University Press, 2013), as well as several articles related to equal protection. 

Hellman and Nicholson have an additional paper, forthcoming in the American Journal of Law & Medicine, about the federal opioid prescribing guidelines and their effects on patients with chronic pain.