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130 Yale L.J. F. 1 (2020-2021)

handle is hein.journals/yljfor130 and id is 1 raw text is: THE YALE LAW JOURNAL FORUM MAY 27, 2020 Who Gets the Ventilator? Disability Discrimination in COVID-19 Medical-Rationing Protocols Samuel R. Bagenstos ABSTRACT. The coronavirus pandemic has forced us to reckon with the possibility of having to ration life-saving medical treatments. In response, many health systems have employed proto- cols that explicitly de-prioritize people for these treatments based on pre-existing disabilities. This Essay argues that such protocols violate the Americans with Disabilities Act, the Rehabilitation Act, and the Affordable Care Act. Such explicit discrimination on its face violates these statutes. Nor can medical providers simply define disabled patients as being unqualified because of disa- bilities that do not affect the ability to ameliorate the condition for which treatment is sought. A proper interpretation of the law may permit medical providers to use disability as a basis for a rationing decision where an individual's underlying disability will kill the individual in the imme- diate term regardless of the treatment. However, as this Essay demonstrates, those circumstances will be narrow. Further, the law requires that such imminent-death determinations will be made based on the best available objective evidence, free from both bias against people with disabilities and devaluation of their lives. INTRODUCTION For years, conflicts over medical rationing have preoccupied participants in healthcare debates. But they have tended to take place in the abstract- as in dis- cussions of what treatments will be covered under various healthcare reform pro- posals that may or may not pass. In many cases, discussions of these issues have tended to the demagogic- as in the trumped-up furor over the supposed Obamacare death panels. Due to the coronavirus pandemic, the threat of medical rationing has become much more present. As the virus spreads throughout the United States, provid- ers in various areas have found themselves lacking adequate medical facilities and equipment to handle the predicted number of cases. Hospitals faced with a 1

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