This forthcoming article argues that basing resource allocation or triage decisions on a person’s pre-existing disability violates provisions of the Americans with Disabilities Act (ADA), the Rehabilitation Act, and the Affordable Care Act.
These federal laws prohibit discrimination against otherwise qualified persons on the basis of disability. The author, who is part of the legal team that filed a complaint challenging Washington State’s resource allocation plans for a public health crisis, identifies allocation plan language from Alabama, Tennessee, and Washington State that potentially violates federal law because it categorically excludes or deprioritizes allocation to persons with pre-existing disabilities on the basis of those disabilities. The author argues that disability may be relevant to rationing scarce resources to the extent an individual’s underlying disability will result in imminent mortality irrespective of intervention, but that this is a limited and narrow factual scenario. Instead, the author advocates for decision-making based entirely on non-disability factors and the use of a lottery process when those factors are not determinative.