As hospitals, clinics, and other medical facilities develop policies that dictate allocation
of scarce medical resources during the COVID-19 pandemic, it is imperative that great
care be taken to prevent those policies from adversely affecting people with disabilities.
While we recognize the need to plan and be prepared for healthcare resource shortages
during these extraordinary times, the guiding principles that are adopted must be
consistent with federal civil rights law and must not discriminate against people with
Disability Rights Wisconsin (DRW) is a private non-profit organization serving as the
designated Protection and Advocacy System for the State of Wisconsin for residents who
have physical, mental, or developmental disabilities.
Our bottom line regarding development and implementation of any “rationing” policy is
Any policy for resource deployment must be based on objective medical criteria that
do not intentionally or inadvertently lead to people with disabilities being
disproportionately denied testing or treatment. In particular, no rationing policy
may include any criterion that explicitly or implicitly makes “quality of life” a
consideration. “Quality of life” has long been a pretext for denying treatment,
including life-sustaining treatment, to people with disability, particularly people
with intellectual disabilities.
We will not detail the long history of discrimination against people with disabilities in the
context of the delivery of health care. Suffice it to say that the existence of widespread
discrimination against people with disabilities by the medical community when making
treatment decisions is well established. In the context of the COVID-19 pandemic, we
have already heard of some states in which discriminatory rationing policies have been
developed. This cannot and must not happen in Wisconsin.
The laws which prohibit discrimination on the basis of disability include the Americans
with Disabilities Act (ADA), Section 504 of the Rehabilitation Act (Section 504), and
Section 1557 of the Affordable Care Act (ACA). These authorities require healthcare providers to take special care to ensure that COVID-19 rationing policies do not
specifically, or in effect, discriminate against people with disabilities.
Under state and federal law, Disability Rights Wisconsin has broad authority to take
action against entities that discriminate against people with disabilities, and we will not
hesitate to do so. However, we strongly encourage entities to work together with people
with disabilities and their advocates in the development of any rationing policies to
assure that they are equitable and just for all Wisconsin residents. There are tough
choices ahead to be sure, but choosing a path that permits discrimination against people
with disabilities should not be one of them. We stand more than willing to work with
policymakers and healthcare providers in the development or review of any such policies
to help avoid inadvertent discrimination.
Please contact me if you would like us to assist you in this effort. I can be reached at
608-267-0214 or [email protected]