Medical Rationing

The Problem

In the face of the current COVID-19 pandemic, projections show that the need for intensive medical care may exceed the available resources. There is and will be significant pressure for policymakers and healthcare providers to prioritize who receives care and who does not, which significantly risks the lives of people with disabilities. Deciding who does and who does not receive limited medical care is known as medical rationing and presents discriminatory practice to allow those infected with disabilities to be denied care that could be life-saving.

Access to Medical Treatment

Able SC reminds all health decision-makers that longstanding federal and state nondiscrimination laws, such as the Americans with Disabilities Act (“ADA”), Section 504 of the Rehabilitation Act, and Section 1557 of the Affordable Care Act (“ACA”), prohibit such rationing measures when they result in the denial of care on the basis of disability.

While providers may prioritize individuals with a greater urgency for care and delay non-urgent situations, they may not set aside the principles of disability nondiscrimination laws in doing so.

Rationing Best Practice

Able South Carolina recommends using the following guidelines for decisions to support triage decision-making in order to prevent the disproportionate impact on the disability community:

1. Establish a transparent decision-making process and procedures for appealing and revising individual decisions. Make these documents widely available and fairly consider public input.
2. The presence of a disability and/or chronic condition or the likelihood of acquiring a “disabling condition” cannot be the basis for the denial, limitation, or lower prioritization in accessing treatment given a similar level of urgency of care. Existing practices of “first come, first serve,” are used to support equal access to limited resources.
3. People with disabilities should not be denied access to care or given lower priority for receiving or continuing to receive care because they require more intensive resources, including scarce medical resources.
4. While short-term survival probability may be an appropriate criteria for the allocation of scarce medical resources, survival probability should be limited to the acute care episode, rather than long-term survival. Patients should not be denied or given lower priority for care based on their long-term prognosis, given the inherent uncertainty associated with predicting likelihood of long-term survival.
5. Similarly, healthcare providers should accommodate patients with disabilities by ensuring that all treatment facilities and policies explicitly allow for the reasonable modifications and exceptions needed by people with various disabilities and of all ages.
6. Judgements based on quality of life are subjective. Healthcare providers should only rely on objective, evidence-based criteria in making treatment decisions.

Able South Carolina’s Position

The lives of every person are equally valuable, and every measure must be taken to prevent the disproportionate impact of COVID-19 on any marginalized group, including those with disabilities. Inappropriate application of medical rationing and disqualifying individuals with disabilities is unacceptable, abhorrent, and damaging to the fiber of diverse communities. While COVID-19 poses a serious strain on resources, Able South Carolina reminds all decision-makers of their duty to uphold the civil and human rights of people with disabilities no matter the context.