Disability and Accessible Medical Care in the time of COVID-19

Disability Law, Health Care No comments

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EN ESPANOL AQUI

By: Asim Dietrich*

The Americans with Disabilities Act of 1990 (ADA) is an important law that safeguards the civil rights of persons with disabilities in a variety of settings, including hospitals, physician’s offices, and other professional healthcare offices. Access to medical care is more important than ever during the COVID-19 pandemic because people with disabilities are disproportionately affected by COVID-19. In honor of the ADA’s 30th anniversary, this blog post discusses the application of the ADA to medical care.

Historical Discrimination

People with disabilities have historically been discriminated against in the provision of medical care, especially during public health emergencies. Individuals have often been denied medical care based on disability-related biases and assumptions about quality-of-life, long-term life expectancy, and social worth, as well as the need for reasonable modifications and auxiliary aids and services. Congress passed the ADA in 1990 to eliminate persistent disability-based discrimination in many critical areas, including access to health services.

Coverage

An individual is protected by the ADA if they have a disability, which the ADA defines.  Read ACDL’s recent blog post about the ADA definition of disability, which has the same meaning for employment and public accommodations and services.

The ADA and its Application to Healthcare Offices

Title III of the ADA applies to hospitals and medical offices operated by private businesses or corporations, such as Banner and Dignity Health. Title II of the ADA covers hospitals and medical facilities operated by state or local governmental agencies, such as Arizona Health Care Cost Containment System (AHCCCS). Two additional federal laws—Section 504 of the Rehabilitation Act and the Affordable Care Act—also provide anti-discrimination protections. Section 504 applies to any hospital, medical clinic, or healthcare office that receives federal financial assistance, which includes Medicare and Medicaid reimbursements.

Prohibiting Discrimination

Under the ADA, people with disabilities have a right to equal treatment and to not be subjected to lesser services. The ADA further prohibits people with disabilities from being denied equal benefits of medical care. Additionally, any medical services must be provided to people with disabilities in the most integrated setting that is appropriate to the needs of the individual. Under the ADA, hospitals and other medical providers cannot deny people with disabilities eligibility for medical services based on their disability. In addition, hospitals and medical providers cannot apply any eligibility criteria that would have the effect of denying people medical care based on their disability. Healthcare providers must also provide effective communication, remove architectural and communication barriers, and make reasonable modifications to policies and practices, subject to a few defenses.

The ADA and the COVID-19 Pandemic

Medical providers often make health care decisions based upon their own assumptions that people with disabilities have a lower quality-of-life or a shorter life expectancy, particularly during a pandemic when the demand for hospital beds, equipment, and treatments are projected to exceed the availability of these resources. These kinds of assumptions can lead to people with disabilities being denied lifesaving care. These assumptions are not based on objective medical evidence, and many people with disabilities live longer than expected. If any group of persons with disabilities has a shorter life expectancy it is often because of systemic discrimination in the provision of medical care. Additionally, physicians often believe that people with disabilities have a lower quality-of-life, while those same individuals report they have a high quality-of-life.

Under the ADA, medical providers must objectively and individually assess all individuals and provide lifesaving care if the individual could survive in the short-term, regardless of their disability. Medical providers cannot allow their own assumptions about quality-of-life or long-term life expectancy to affect medical decisions. For example, an individual with a disability who could survive COVID-19 with treatment in the short-term cannot be denied that treatment based on their disability.

Even when patients with disabilities are individually assessed, they can be subject to discrimination in medical decision-making if reasonable modifications are not made to assessment scoring instruments. For example, an assessment of verbal ability or purposeful movement could reflect a person’s disability if reasonable modifications are not made to that assessment because many disabilities impair verbal ability or purposeful movement while having no effect on short-term survival.

When a person has a disability, the ADA requires that reasonable modifications be made to assessment scoring instruments to make sure that medical assessments accurately determine short-term mortality, and do not reflect a person’s disability or pre-existing medical condition. In the context of COVID-19, reasonable modifications are necessary in medical assessment tools to ensure that people with disabilities who could survive in the short-term are provided lifesaving treatment.

Patients with disabilities may also be unlawfully denied lifesaving care based upon a medical provider’s assumptions about the intensity of the resources the person will need, and the duration of that need. Medical providers often have these assumptions related to the individual’s hospital stay as well as their need for social and medical resources after discharge.

The ADA prohibits the denial of medical care based upon assumptions about a person with a disability needing additional resources. Even if a person with a disability requires additional resources for a longer period of time, they should be provided care, including COVID-19 treatment, if they could survive in the short-term.

To learn more about ACDL’s advocacy and collaboration with other community partners about access to medical care during the pandemic, read ACDL’s recent blog posts on advocacy for changes to Arizona’s crisis standards of care and to Arizona’s broad no-visitor policies with no exceptions for disability-related reasonable modifications.

More Information

*Asim Dietrich is staff attorney at the ACDL’s Phoenix office where he has practices disability discrimination and addresses abuse and neglect issues for the past nine years.

 

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