Disability Discrimination in the Rationing of Life Saving COVID Treatment: Who Gets Left Behind?

The COVID-19 pandemic poses serious challenges, with projections showing that the need for life-saving treatment may far exceed both the capacity and resources of the U.S. healthcare system. This raises concerns, as states and hospital develop protocols for rationing care, namely making decisions as to who should or should not receive care and, if they do, what level of care. Presenters will discuss the application of disability rights laws, such as the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act, to these decisions, including recent guidance from HHS' Office of Civil Rights. Presenters will also discuss recent federal and state-level legal and policy advocacy to prevent disability discrimination in access to COVID-19 treatment.

Panelists

• Alison Barkoff, Director of Advocacy, Center for Public Representation

• David Carlson, Director of Advocacy, Disability Rights Washington

• Samantha Crane, Director of Public Policy, Autistic Self Advocacy Network (ASAN)

• Jennifer Mathis, Director of Policy and Legal Advocacy, Bazelon Center for Mental Health Law
  
• Ivanova L. Smith, Washington Disability Rights Activist.
  

Moderator

• Shira Wakschlag, Director, Legal Advocacy & Associate General Counsel, The Arc of the United States

Joint Sponsor: ABA Commission on Disability Rights

Co-Sponsors: ABA Commission on Hispanic Legal Rights & Responsibilities, ABA Commission on Racial and Ethnic Diversity in the Profession, ABA Commission on Sexual Orientation and Gender Identity, ABA Criminal Justice Section,  ABA Government and Public Sector Lawyers Division, ABA Section of Litigation, ABA Section of State and Local Government Law, ABA Senior Lawyers Division

Resources

Presentation: David Carlson

Transcript: Disability Discrimination in the Rationing of Life Saving COVID Treatment: Who Gets Left Behind?

HHS Office of Civil Rights Bulletin "Civil Rights, HIPAA, and the Coronavirus Disease 2019 (COVID-19)" (March 28, 2020)

Guidance to States and Health Care Providers on Avoiding Disability-Based Discrimination in Accessing COVID-19 Treatment (April 3, 2020)

Large Coalition of National Disability and Health Advocacy Organizations Endorse Guidance on Preventing Disability Discrimination in COVID-19 Treatment Rationing

Evaluation Framework for Crisis Standards of Care (April 9, 2020)

Disability Discrimination Complaint Filed Over COVID-19 Treatment Rationing Plan in Washington State 

Medical Rationing webpage, with links filed to OCR complaints and state coalition activities

Bagenstos, Samuel R., May Hospitals Withhold Ventilators from COVID-19 Patients with Pre-Existing Disabilities? Notes on the Law and Ethics of Disability-Based Medical Rationing (March 24, 2020). 130 Yale Law Journal Forum ____ (2020, Forthcoming).

Utah Crisis Standards of Care Guidelines

OCR Resolves Complaint with Utah After it Revised Crisis Standards of Care to Protect Against Age and Disability Discrimination
August 20, 2020

North Carolina Protocol for Allocating Scarce Inpatient Critical Care Resources in a Pandemic

North Carolina Increases COVID-19 Medical Rationing Protections for Disabled Patients in Response to Civil Rights Complaint by Disability Rights NC, Other Advocacy Groups

Examining How Crisis Standards of Care May Lead to Intersectional Medical Discrimination Against COVID-19 Patients

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