We must not leave the vulnerable out if we have health care rations
With over 13 million coronavirus cases in the country and another surge on the way, overburdened health care systems could soon face difficult decisions about who has access to lifesaving care. States have enacted crisis standards of care with criteria to allocate scarce resources such as hospital or intensive care unit beds. These standards have an overarching goal to save the most lives. While this goal is surely important, it becomes problematic when what it means in practice is that those individuals with disabilities or other minorities are less likely to receive necessary care.
When the prospect of medical rations first arose in the spring, disability rights groups objected to standards that excluded people with certain disabilities. They argued that these exclusions violate the Americans with Disabilities Act and associated civil rights laws. The civil rights office for the Department of Health and Human Services swiftly concurred, leading some states to withdraw or revise standards that discriminate with intent.
Yet the modified standards are still likely to discriminate in effect, if no longer explicitly with intent. To see why, consider a person with a prior illness that makes survival from the coronavirus doubtful. If resources are scarce, the standards dictate they should go to the person more likely to survive or to the person who will use them for the shortest period of time, which is probably a person without a prior illness. Multiply this scenario by all the decisions for rations that health care providers face and the result is that individuals with disabilities and members of racial minorities with comorbid conditions will be less likely to have access to lifesaving care.
Even if the standards do not single out people with specific conditions, criteria that prioritize those most likely to survive or recover faster would result in vulnerable people denied critical care. Policies that discriminate in effect are also banned by laws such as the Americans with Disabilities Act. The recent escalation in cases brings the prospect of medical rations to the forefront once more. Even before this surge, experts suggested that crisis standards of care may soon come into play. Nearly half of hospitals today deal with staffing shortages, while some states report that more than 80 percent of their intensive care unit beds are in use at this time.
Making grueling decisions about who has access to care affects the most basic life or death interests. Discrimination law demands that we consider not only how much benefit or harm a policy choice produces but how that benefit or harm is distributed. Do all the benefits go to one group and all the burdens to another? The current standards regard how many lives are saved but not whose lives these are. There is a way to balance both saving the most lives and ensuring that all groups get a fair chance to benefit. As we elaborated with our recent research, states should reserve a specified portion of the scarce resources for each aim of saving the most lives and ensuring people from vulnerable and protected groups have access.
Here is how such a policy would work. State standards would dictate that a specified portion of scarce resources be allocated to the aim of efficient use of resources and the aim of fairness to vulnerable groups. The policy directives would ideally be written in advance of a crisis, with advice from experts and community members, including those in vulnerable groups. Unfortunately, hospitals today face uncomfortable choices. The current standards likely conflict with the law, yet no others are ready at hand.
There is positive news on the horizon with the coronavirus. We are better at saving lives. But our ability to administer the treatment that improves outcomes depends on access to scarce hospital beds, medical workers, and in some cases supplies like ventilators. An effective vaccine appears increasingly likely, however, it will not come soon enough for this wave of infections or the projected intensification during this holiday season.
As long as scarce resources remain an issue in the pandemic, states and hospital administrators will need to determine how to allocate health care. Saving the most lives possible is important. But so is ensuring that people with disabilities or other vulnerable individuals are not denied reasonable access to critical care. In this crisis, hospitals must balance efficiency and inclusion as best they can. Millions of people are counting on them.
Kate Nicholson is an activist and attorney who has served in the civil rights division for the Justice Department. Deborah Hellman is a professor of law at the University of Virginia and author of “When is Discrimination Wrong?”
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