January 27, 2011
Professors Wendy F. Hensel and Leslie E. Wolf have been presenting their paper, "Playing God: The Legality of Plans Restricting People with Disabilities from Scarce Resources in Public Health Emergencies," in numerous forums nationally and internationally. The paper considers protocols published by physician groups to guide allocation of scarce resources, such as ventilators, during a public health emergency such as pandemic flu.
Hensel and Wolf argue that the current proposals may violate federal antidiscrimination laws. Categorical exclusion for conditions like severe cognitive impairment, cystic fibrosis, or immune deficiency "are the easiest cases," said Hensel, "because they are discriminatory on their face, which is precisely what the laws are directed against."
Exclusions based on physician evaluations of quality of life post-treatment are similarly problematic. The fact that these protocols would be implemented only in an emergency does not save them. "The federal government has expressed its commitment to providing services to people with disabilities during public health emergencies in multiple ways," said Wolf, "and the antidiscrimination laws do not have an emergency exception."
Hensel and Wolf have taken their message around the country and the world, including presentations in Chicago, Atlanta, Lancaster, United Kingdom, and Tel Aviv, Israel. The Lancaster and Tel Aviv conferences drew disability researchers and advocates from around the world, both of which had over 200 attendees.
"Our goal in presenting this paper," Wolf said, "is to foster broader discussion of these issues. We applaud the doctors for trying to develop guidelines that can help them make tough decisions during an emergency, but the voices of those who may be affected by those decisions need to be heard in developing the guidelines."
Hensel and Wolf’s paper will be published in the Florida Law Review this spring.