A new bulletin from the U.S. Department of Health and Human Services (HHS) Office for Civil Rights (OCR) addresses the application of existing federal anti-discrimination laws to the treatment of persons with disabilities and other groups during a public health emergency such as COVID-19, including the allocation of scarce resources.

OCR enforces federal laws such as the Americans with Disabilities Act and parts of the Rehabilitation Act and the Affordable Care Act that prohibit discrimination on the basis of disability and other characteristics in HHS-funded health programs and activities. The bulletin notes that treatment eligibility decisions should be based on “an individualized assessment of the patient based on the best available objective medical evidence” and not on “stereotypes, assessments of quality of life, or judgments about a person’s relative ‘worth’ based on the presence or absence of disabilities.” Entities covered by federal anti-discrimination laws are required to take actions to effectively address the needs of at-risk populations, including making reasonable accommodations to ensure access and minimize stigmatization. These requirements remain in place during an emergency and apply to the ability for persons to access and benefit from emergency response efforts. This guidance appears to disallow the use of quality-adjusted life years (QALYs) or disability-adjusted life years (DALYs) in resource allocation and triage decisions and potentially cautions against the use of strict categorical exclusionary criteria.