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Because the #healthlaw and #bioethics issues around #covid19 and #disability are moving so quickly, I've posted an open-access draft, "Why Disability Law Permits Evidence-Based Triage," to SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3571139. (Normally I'd wait until the paper found a home.) Thread /1
Covid-19's spread & an inadequate federal response have required states & hospitals to create triage policies for allocating scarce treatments. I defend the legality of triage policies that consider medical evidence in order to save & extend lives, like https://ccm.pitt.edu/?q=content/model-hospital-policy-allocating-scarce-critical-care-resources-available-online-now /2
Some disability advocates have challenged triage policies that use medical evidence. Some say policies must ignore differences in how likely a patient is to benefit, or the likely quantity of resources required for benefit. Others go further, endorsing first-come, first-served /3
I disagree. Saving more lives--"stay home, save lives," is the goal of Covid-19 response. Saving more lives recognizes the equal importance of each life. Policies shouldn't use quality of life judgments or stereotypes. But evidence-based triage saves lives and is legal. /4
(Evidence-based triage also saves more patients with disabilities, because most disabilities don't affect benefit from Covid-19 treatment, as #JoeMillum & I explain elsewhere. Crucial to avoid assuming that all disabilities are the same.) https://twitter.com/GovindPersad/status/1247639863337205760?s=20 /5
Now for law. First, recent HHS guidance says--& I agree-- that policies must avoid stereotyping and quality-of-life determinations. https://www.hhs.gov/sites/default/files/ocr-bulletin-3-28-20.pdf This is consistent with the use of medical evidence to save more lives, or to save more years of life. /6
Second, note that policy for lung allocation--another scarce lifesaving treatment--considers probability of survival. The recent @NatCounDis report rejects first-come, first-served & emphasizes that policy must reflect medical evidence, not stereotypes https://ncd.gov/sites/default/files/NCD_Organ_Transplant_508.pdf /7
The few cases applying disability law to medicine (p. 9) prohibit groundless stereotypes, but permit using medical evidence even if it disadvantages some patients w/disabilities. Saving & extending lives are legitimate medical goals & evidence about them is legal to consider. /8
Disability law also recognizes that resource scarcity can justify not maximally benefiting people w/specific disabilities if doing so would unfairly deprive others, including people w/other disabilities. This supports considering how much of a scarce treatment patients may use /9
All patients with disabilities should receive non-scarce resources that accommodate their needs. But the law does not require giving patients whose disabilities genuinely affect Covid-19 treatment more of a scarce treatment (e.g. ventilator time) than other patients receive /10
Similarly, prioritizing health care workers, even if they were less likely to be disabled, would not constitute disparate impact discrimination under disability law, because prioritizing health care workers serves the relevant goal of delivering more treatments /11
Evidence-based triage is also more consistent with legal requirements that judgments be individualized than random selection or first-come, first-served, which ignore relevant medical differences between patients. (And first-come, first-served is biased in practice.) /12
Two last points. Patients who believe they will be harmed by triage are better placed to organize & tell personal stories than the patients with and without disabilities who stand to lose if triage is abandoned. Advocacy shouldn't favor the visible over the invisible. /13
And advocating for HHS--the same federal agency whose mismanagement & interference w/states caused scarcity--to now control others' response to scarcity is a problematic strategy. It would be better to combat bias in state & local efforts while rejecting federal overreach. /14
Restricting movement & canceling dr visits are legal & ethical efforts to save more patients with & w/o disabilities, even though they inevitably harm some w/specific disabilities. So is evidence-based triage. If we should stay home to save lives, we should triage to save lives.
If you can't access paper on SSRN (there's a "download w/o registration" link on bottom right), feel free to DM. Also want to highlight an underdiscussed piece I cite by @LeslieWolfGSU @WendyFHensel: http://www.floridalawreview.com/2011/wendy-f-hensel-leslie-e-wolf-playing-god-the-legality-of-plans-denying-scarce-resources-to-people-with-disabilities-in-public-health-emergencies/ I disagree w/some parts, but it is an excellent paper.
Just realized (thanks to @douglaspmackay 's list) that @WendyFHensel @LeslieWolfGSU published a superb open access shorter piece making some of the same points as their longer article: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3199960/
