This article explores the extent to which federal disability rights law limits the use of effectiveness criteria to allocate health care, either alone or as a part of cost-effectiveness analyses. To be more precise, it considers the circumstances in which disability-based classifications by health plans which would otherwise violate the anti-discrimination laws can be legally and ethically defended by proof that the excluded treatments are less effective than those which are provided. Part I introduces the expanding use of effectiveness analysis in health care, explains its discriminatory potential, and reviews the Oregon experience. Part II outlines the current federal law protecting the rights of disabled persons to health care. The remaining portions of this article examine, first, whether measures of effectiveness that do not take quality of life into account, such as survival rates, violate the rights of disabled persons (Part III), and, second, whether the additional issues raised by quality of life considerations preclude their use (Part IV). While the arguments for prohibiting the use of measures of effectiveness such as survival or success rates are surprisingly powerful, they are not sufficient to outweigh the ethical and legal arguments for permitting their use in proper circumstances. Quality of life considerations are more troublesome. When used to rank life-sustaining care, they would place a lesser value on the life of a disabled person than on the life of a person who could be restored to full function. If used in that way, quality of life considerations will probably be held to violate the existing disability rights laws. But because quality of life is relevant, even in the context of life-extending care, it is time to begin discussing the circumstances in which to authorize its use. The objective of this essay is to make a preliminary exploration of the legal and ethical legitimacy of using medical effectiveness as a criterion for the allocation of health resources. The vulnerability of health-care plans which take the effectiveness of treatments into account, however, will also depend upon the resolution of several other crucially important legal issues not addressed here. For example, some court opinions appear to suggest that plans which favor one disability over another are less vulnerable to challenge than those which treat people without disabilities more favorably than persons with disabilities. Also, considerable confusion currently exists as to the vulnerability of exclusions which have a disproportionately unfavorable impact on disabled patients but which do not make facial classifications on the basis of disability (e.g., a limit on blood transfusions that disproportionately affects hemophiliacs). Health insurers have also suggested, so far unsuccessfully, that the anti-discrimination statutes do not apply to coverage restrictions placed on private health insurance. The resolution of each of these issues could have a profound impact on the freedom of health plans to prioritize health services and deserves separate and extended analysis. In addition, the discussion which follows examines rationing at the level of health benefit plans. Bedside rationing by physicians raises many of the same issues, but it also poses additional issues which justify separate consideration and which may limit the application of my conclusions in that setting.
Philip G. Peters, Jr., Health Care Rationing and Disability Rights, 70 Ind. L.J. 491 (1995)