Order Code RL33381
CRS Report for Congress
Received through the CRS Web
The Americans with Disabilities Act (ADA):
Allocation of Scarce Medical Resources
During a Pandemic
April 21, 2006
Nancy Lee Jones
Legislative Attorney
American Law Division
Congressional Research Service ˜ The Library of Congress

---

The Americans with Disabilities Act (ADA): Allocation of
Scarce Medical Resources During a Pandemic
Summary
The emergence and rapid spread of a new avian influenza virus (H5N1) and its
potential for causing a human influenza pandemic have given rise to numerous
issues. One of these is the general lack of surge capacity within our health-care
system. Essentially, this means that a severe influenza pandemic could lead to much
greater demand for vaccines, antiviral medications, and other medical technology,
such as ventilators, than there are supplies. This potential imbalance has led to
recommendations for priorities for medical resources for certain categories of
individuals, including recommendations in the U.S. Department of Health and
Human Services (HHS) Pandemic Influenza Plan. This report examines selected
proposed priorities in light of the nondiscrimination provisions of the Americans with
Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973. It will be
updated as appropriate.

---

Contents
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
HHS Pandemic Influenza Plan and Selected Allocation Proposals . . . . . . . . . . . . 3
HHS Recommendations Regarding Prioritization . . . . . . . . . . . . . . . . . . . . . 3
Other Allocation Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
The Americans with Disabilities Act and Section 504 of the
Rehabilitation Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Overview . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Definition of Disability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Application of the ADA and Section 504 to the Allocation of
Scarce Medical Resources . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Individual Medical Treatment Decisions . . . . . . . . . . . . . . . . . . . . . . . . 8
Alexander v. Choate . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Oregon Medicaid Waiver Proposals . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Organ Transplant Policies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Application . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

---

The Americans with Disabilities Act (ADA):
Allocation of Scarce Medical Resources
During a Pandemic
Introduction
The emergence and rapid spread of a new avian influenza virus (H5N1) and its
potential for causing a human influenza pandemic have given rise to numerous
issues. One of these is the general lack of surge capacity within our health-care
system. Essentially, this means that a severe influenza pandemic could lead to much
greater demand for vaccines, antiviral medications, and other medical technology,
such as ventilators, than there are supplies. This potential imbalance has led to
recommendations for priorities for medical resources for certain categories of
individuals, including recommendations in the U.S. Department of Health and
Human Services (HHS) Pandemic Influenza Plan. This report examines selected
proposed priorities in light of the nondiscrimination provisions of the Americans with
Disabilities Act (ADA) and section 504 of the Rehabilitation Act of 1973. It will be
updated as appropriate.
Background
The increased transmission of the H5NI virus among avian populations has
raised concerns about a possible mutation of the virus that might cause a human
influenza pandemic.1 The possibility of a human influenza pandemic similar to the
one in 1918, or even similar to the more moderate pandemics of 1957 and 1968, has
raised questions about the ability of our health-care system to respond to such a
crisis.2 Julie Gerberding, the Director of the Centers for Disease Control and
1 For a detailed discussion of pandemic influenza, preparedness, and response, see CRS
Report RL33145, Pandemic Influenza: Domestic Preparedness Efforts, by Sarah A. Lister.
2 For a history of the 1918 pandemic, see John M. Barry, THE GREAT INFLUENZA (Penguin
Books: New York, 2004). “In 1918 an influenza virus emerged — probably in the United
States — that would spread around the world.... Before that world-wide pandemic faded
away in 1920, it would kill more people than any other outbreak in human history.... The
lowest estimate of the pandemic’s worldwide death toll is twenty-one million, in a world
with a population less than one-third today’s.... Epidemiologists today estimate that
influenza likely caused at least fifty million deaths worldwide, and possible as many as one
hundred million.... And they died with extraordinary ferocity and speed. Although the
influenza pandemic stretched over two years, perhaps two-thirds of the deaths occurred in
a period of twenty-four weeks, and more than half of those deaths occurred in even less
(continued...)

---

CRS-2
Prevention (CDC), stated in recent congressional testimony that “medical surge
capacity is limited, and could be vastly outpaced by demand.”3
In a recent House hearing, Dr. Tara O’Toole, the chief executive officer and
director of the Center for Biosecurity at the University of Pittsburgh Medical Center,
noted that CDC has created a computer model that allows each hospital to calculate
how much surge capacity would be needed if a human influenza pandemic similar
to that of 1918 were to occur. As an example, Dr. O’Toole calculated the data for the
Atlanta area and provided the following description for those hospitals.
For example, in a 1918 type pandemic, in the Atlanta metro area, that region
would require 300% of its current (pre-epidemic) hospital bed capacity to care
for flu patients (and the necessary clinical staff to care for this increase in
patients); 700% of Atlanta’s pre-epidemic Intensive Care Unit capacity and
nearly four times as many ventilators to care just for the flu patients. These
demands do not take into account the resources that would be required to meet
normal ongoing critical medical needs (care of heart attack victims, etc.).4
Similarly, although efforts are underway to develop vaccines and stockpile
antiviral drugs, it is unlikely that there would be sufficient quantities of these
medications for all who might seek them during a pandemic.5 The World Health
Organization (WHO) has noted that the primary method for preventing influenza is
vaccination. However, “at the beginning of a pandemic, vaccine supplies will be
limited or non-existent. This is because the emergence of a pandemic is
unpredictable, vaccine cannot be stockpiled and vaccine production can only start
once the pandemic virus has been recognized.”6
In situations such as bioterrorism or pandemic influenza, where resources are
limited, issues concerning altered standards of care may arise. The allocation of
2 (...continued)
time, from mid-September to early December 1918.” At 4-5.
3 Avian Influenza: Hearing Before the Subcommittee on Foreign Operations, Export
Financing and Related Programs of the House Appropriations Committee, 109th Cong., 2d
Sess. (March 2, 2006), Testimony of Dr. Julie L. Gerberding, Director, Centers for Disease
Control and Prevention, U.S. Department of Health and Human Services, reprinted at
[http://www.hhs.gov/asl/testify/t060302b.html].
4 Pandemic Flu: Joint Hearing Before the Prevention of Nuclear and Biological Attack and
Emergency Preparedness, Science and Technology Subcommittees of the House Homeland
Security Committee,109th Cong., 2d Sess. (Feb. 8, 2006), Testimony of Dr. Tara O’Toole.
Even with a moderate epidemic, the CDC has estimated an increase in hospitalization and
intensive care unit demand of more than 25%. See HHS Pandemic Influenza Plan,
Appendix D [http://www.hhs.gov/pandemicflu/plan/appendixd.html]
5 See Department of Health and Human Services (HHS), Pandemic Planning Update (March
13, 2006); Lawrence O. Gostin, “Medical Countermeasures for Pandemic Influenza: Ethics
and the Law,” 295 JAMA 554 (Feb. 1, 2006).
6 World Health Organization, “WHO Guidelines on the Use of Vaccines and Antivirals
During Influenza Pandemics,” [http://www.who.int/csr/resources/publications/influenza/
WHO_CDS_CSR_RMD_2004_8/en/index.html].

---

CRS-3
scarce medical resources would be part of this broader issue. One discussion of the
overall issue of altered standards of care noted that “under normal conditions, current
standards of care might be interpreted as calling for the allocation of all appropriate
health and medical resources to improve the health status and/or save the life of each
individual patient. However, should a mass casualty event occur, the demand for
care provided in accordance with current standards would exceed system resources.”7
This report also notes that “altered standards” is not defined but “generally is
assumed to mean a shift to providing care and allocating scarce equipment, supplies,
and personnel in a way that saves the largest number of lives in contrast to the
traditional focus on saving individuals.”8 This could mean applying principles of
triage, the process of sorting victims according to their need for treatment and the
resources available.
HHS Pandemic Influenza Plan and Selected
Allocation Proposals
HHS Recommendations Regarding Prioritization
The Department of Health and Human Services (HHS) issued a pandemic
influenza plan in November 2005 that provides a blueprint for HHS pandemic
influenza preparedness planning and response and offers detailed guidance to states
and localities for their planning and response.9 The executive summary of the plan
notes that “an influenza pandemic has the potential to cause more death and illness
than any other public health threat” and that “it is unlikely that there will be sufficient
personnel, equipment, and supplies.”10 The plan also emphasizes that influenza
preparedness is a “shared responsibility” between the federal, state, and local
governments.11
7 Health Systems Resources, “Altered Standards of Care in Mass Casualty Events,” 8 (April
8, 2005), prepared for the Department of Health and Human Services, printed at
[http://www.ahrq.gov/research/altstand/altstand.pdf].
8 Id.
9 HHS Pandemic Flu Plan [http://www.hhs.gov/pandemicflu/plan/overview.html]. Recent
news reports have indicated that President Bush is expected to approve soon a national
pandemic influenza plan that delineates the tasks for various federal agencies, including
which workers should be vaccinated first. See Ceci Connolly, “U.S. Plan for FLU Pandemic
Revealed,” THE WASHINGTON POST A-1 (April 16, 2006). The ethical issues regarding
allocation of medical resources are beyond the scope of this report. For a discussion of
these issues, see CRS Report RL32655, Influenza Vaccine Shortages and Implications, by
Sarah A. Lister and Erin D. Williams. Similarly, quarantine and isolation issues are also
beyond the scope of this report. See CRS Report RL33201, Federal and State Quarantine
and Isolation Authority, by Kathleen S. Swendiman and Jennifer K. Elsea.
10 Id.
11 Id. For a discussion of how this shared responsibility might work, see “Enhancing Public
Health and Medical Preparedness: Reauthorization of Public Health Security and
Bioterrorism Preparedness and Response Act,” Hearing before the Senate Committee on
(continued...)

---

CRS-4
Appendix D of the HHS pandemic influenza plan contains recommendations
regarding prioritization of pandemic influenza vaccine and antiviral drugs and
includes the rationale for the prioritization. The first priority individuals for vaccines
would be those involved in vaccine and antiviral manufacturing and medical workers,
because they would be needed to assure maximum production of vaccine and
antiviral drugs and to provide medical care. The second group would be individuals
at high risk of hospitalization and death, excluding the elderly in nursing homes and
those who are immunocompromised, because they would not be expected to respond
well to vaccination. The recommendations also rank various other groups.
The recommendations for priority treatment differ for antiviral drug use. The
first priority group to receive antiviral drugs would be patients admitted to the
hospital due to severe influenza illness; the second priority group would be health-
care workers. The next tier would include influenza patients at greatest risk of
hospitalization and death, including immunocompromised persons and pregnant
women. After this group would be pandemic health responders, including vaccine
and antiviral manufacturers, police, fire fighters, corrections officials, and
government decision makers. The recommendations also rank various other
groups.12 The individuals in these groups may receive antiviral drugs for treatment
or, in some cases, as a preventative measure.
Other Allocation Proposals
Other proposals also have been made for the allocation of scarce medical
resources.13 The World Health Organization (WHO) has suggested, as planning
guidance, providing vaccines to “essential service providers, including health care
workers” and groups at high risk of death and severe complications.14 In addition,
other individuals have advanced allocation proposals in journal articles. For
example, two emergency medicine physicians have proposed criteria for ventilatory
support administration and for withdrawal of ventilatory support. The first tier for not
offering and withdrawing ventilatory support under this proposal would include
individuals with persistent hypotension unresponsive to adequate fluid resuscitation
and signs of additional end-organ dysfunction. This proposal has as its second tier
11 (...continued)
Health, Education, Labor and Pensions, 109th Congress, 2d Sess. (March 16, 2006),
Testimony of Richard A. Falkenrath.
12 See HHS Pandemic Influenza Plan, Appendix D [http://www.hhs.gov/pandemicflu/plan/
appendixd.html]
13 For a more detailed discussion of various proposals, see CRS Report RL32655, Influenza
Vaccine Shortages and Implications, by Sarah A. Lister and Erin D. Williams. It should be
noted that other countries use other ranking systems. For example, the Canadian plan would
rank healthy children below healthy adults, whereas the HHS plan would group healthy
adults and children together. The Canadian plan may be found at [http://www.phac-aspc.gc.
ca/cpip-pclcpi/index.html]
14 World Health Organization, “WHO Guidelines on the Use of Vaccines and Antiviral
during Influenza Pandemics,” [http://www.who.int/csr/resources/publications/influenza/
WHO_CDS_CSR_RMD_2004_8/en/index.html]

---

CRS-5
for receiving no services patients with various preexisting conditions, such as acute
renal failure requiring hemodialysis and AIDS.15
The Americans with Disabilities Act and Section 504
of the Rehabilitation Act
Overview
The Americans with Disabilities Act (ADA)16 has often been described as the
most sweeping nondiscrimination legislation since the Civil Rights Act of 1964. It
provides broad nondiscrimination protection in employment, public services, public
accommodation and services operated by private entities, transportation, and
telecommunications for individuals with disabilities. Congress found that individuals
with disabilities continually encounter various forms of discrimination, often
resulting from “stereotypic assumptions not truly indicative of the individual ability
of such individuals to participate in, and contribute to, society.”17 As stated in the
act, the ADA’s purpose is “to provide a clear and comprehensive national mandate
for the elimination of discrimination against individuals with disabilities.”18
Title II of the ADA prohibits discrimination by state and local governments,
whereas title III of the ADA prohibits discrimination by places of public
accommodation, which are defined to include hospitals or offices of a health-care
provider.19 Many of the concepts used in the ADA originated in section 504 of the
Rehabilitation Act of 197320 and its interpretations, and the two statutes are generally
interpreted in the same manner, although their areas of coverage differ somewhat.
Section 504 prohibits discrimination against individuals with disabilities in any
program or activity receiving federal financial assistance, in the executive branch, or
the U.S. Postal Service; the ADA covers the private sector and state and local
governments.
15 John L. Hick, MD and Daniel T. O’Laughlin, MD, “Concept of Operations for Triage of
Mechanical Ventilation in an Epidemic,” 13 ACADEMIC EMERGENCY MEDICINE 223 (Feb.
2006). For an analysis and criticism of this article and a discussion of an “evidence-based
standard of care,” see Kriti L. Koenig, David C. Cone, Jonathan L. Burstein, and Carlos A.
Camego, Jr., “Surging to the Right Standard of Care,” 13 ACADEMIC EMERGENCY MEDICINE
195 (Feb. 2006). See also Lawrence O. Gostin, “Medical Countermeasures for the
Pandemic Influenza: Ethics and the Law,” 295 JAMA 554 (Feb. 1, 2006).
16 42 U.S.C. §§12101 et seq. For a more detailed discussion of the ADA, see CRS Report
98-921, The Americans with Disabilities Act (ADA):Statutory Language and Recent Issues,
by Nancy Lee Jones.
17 42 U.S.C. §12101(7).
18 42 U.S.C. §12101(b)(1).
19 42 U.S.C. §12181(7).
20 29 U.S.C. §794.

---

CRS-6
Although the ADA does not specifically mention coverage of disasters, its
provisions are broad and would provide nondiscrimination protection for emergency
situations. The Department of Justice has observed that “one of the most important
roles of local government is to protect their citizenry from harm, including helping
people prepare for and respond to emergencies. Making local government emergency
preparedness and response programs accessible to people with disabilities is a critical
part of this responsibility. Making these programs accessible is also required by the
ADA.”21
The Department of Justice recently has issued an ADA guide for local
governments regarding making community emergency preparedness and response
programs accessible to people with disabilities.22 This guide includes planning for
individuals who use oxygen or respirators or who have need for medications;
however, the guide is focused on disasters that occur during a short period of time
and in a specific location, such as a terrorist attack or hurricane, rather than on an
influenza pandemic, which could last more than a year and span the world. Despite
this focus, the ADA would appear to require planning undertaken regarding a
potential influenza pandemic to including planning for individuals with disabilities.
Definition of Disability
The starting point for an analysis of rights provided by the ADA or section 504
is whether an individual is an individual with a disability. The term “disability,” with
respect to an individual, is defined as “(A) a physical or mental impairment that
substantially limits one or more of the major life activities of such individual; (B) a
record of such an impairment; or (C) being regarded as having such an
impairment.”23 This definition, which has been the subject of numerous cases
brought under the ADA, including major Supreme Court decisions, is drawn from the
definitional section applicable to Section 504 of the Rehabilitation Act of 1973.24
The most likely discrimination issue that would arise under the ADA or section 504
during an influenza pandemic would be whether an existing disability, such as visual
impairment, affects the provision of medical services to an individual.
However, there could also be situations where infection with the pandemic
influenza virus could raise issues under these statutes. Individuals with serious
contagious diseases, such as pandemic influenza, would most likely be considered
21 [http://www.usdoj.gov/crt/ada/emergencyprep.htm] This requirement would be under
Title II of the ADA, which covers state and local governments. For a discussion of
emergency preparedness under the ADA, see CRS Report RS22254, The Americans with
Disabilities Act and Emergency Preparedness and Response, by Nancy Lee Jones.
22 Id.
23 42 U.S.C. § 12102(2). For a detailed discussion of the ADA’s definition of disability, see
CRS Report RL33304, The Americans with Disabilities Act (ADA): The Definition of
Disability, by Nancy Lee Jones.
24 29 U.S.C. §706(8).

---

CRS-7
individuals with disabilities,25 although the nondiscrimination mandates are not
applicable if an individual is a direct threat to the health or safety of others.26 Thus,
even if an individual infected with a pandemic influenza virus was determined to be
an individual with a disability, a physician or other health-care provider may not be
required to treat that individual if doing so would create a direct threat to the health
of the provider.27
Application of the ADA and Section 504 to the Allocation of
Scarce Medical Resources
Introduction. Title II of the ADA prohibits discrimination by state and local
governments, whereas title III of the ADA prohibits discrimination by places of
public accommodation, including hospitals or offices of a health-care provider.28
Section 504 prohibits discrimination against individuals with disabilities in any
program or activity receiving federal financial assistance, in the executive branch, or
in the U.S. Postal Service.29 If a state or locality provides a service, a “qualified
individual with a disability” may not be denied the benefits of the service or be
subject to discrimination.30 “Qualified individual with a disability” is defined for the
purposes of title II of the ADA as “an individual with a disability who, with or
without reasonable modifications to rules, policies, or practices, the removal of
architectural, communication or transportation barriers, or the provision of auxiliary
aids and services, meets the essential eligibility requirements for the receipt of
services or the participation in programs or activities provided by a public entity.”31
The section 504 regulations define the term “qualified handicapped person” as
meaning in relevant part “a handicapped person who meets the essential eligibility
requirements for the receipt of such services.”32
There has been no situation directly analogous to one that might be posed by
allocation issues regarding medical resources during an influenza pandemic, but
some situations have arisen that may be instructive. These include situations
25 See Bragdon v. Abbott, 524 U.S. 624 (1998), where the Supreme Court found that an
HIV-infected individual was covered by the ADA, and School Board of Nassau County v.
Arline, 480 U.S. 273 (1987), where the Supreme Court found that an individual with
tuberculosis was covered under section 504.
26 For a more detailed discussion of this issue, see CRS Report RS22219, The Americans
with Disabilities Act (ADA)Coverage of Contagious Diseases, by Nancy Lee Jones.
27 Bragdon v. Abbott, 524 U.S. 624 (1998). In Bragdon, although the HIV-infected
individual was found to be an individual with a disability, and thus covered under the ADA,
the direct threat exemption was discussed and the case was remanded for consideration of
whether filling the cavity of an HIV-infected individual would create a direct threat of
transmission.
28 42 U.S.C. §12181(7).
29 29 U.S.C. §794.
30 28 C.F.R. §35.130 (ADA regulations); 45 C.F.R. 84.4 (Section 504 regulations).
31 42 U.S.C. §12131(2).
32 45 C.F.R. §84.3(l)(4).

---

CRS-8
involving individual medical treatment decisions, the reduction of the number of
inpatient hospital days paid for by Medicaid, allocating health-care services under
Medicaid in a proposed Oregon Medicaid waiver, and organ transplant allocation
policies.
Individual Medical Treatment Decisions. The ADA and section 504 of
the Rehabilitation Act of 1973 have been found not to apply to individual medical
treatment decisions.33 In other words, a physician’s medical judgment concerning
treatment will be given deference and generally will not trigger discrimination issues.
The requirement that an individual with a disability be qualified has been seen by at
least one court to be “geared toward relatively static programs or activities such as
education” and thus is unable to be applied in “the comparatively fluid context of
medical treatment.”34 When the disability is related to the condition to be treated,
courts have found that “it will rarely, if ever, be possible to say ... that a particular
decision was ‘discriminatory.’”35 However, in one district court case, section 504
was found to require the provision of medical treatment to an anecephalic infant,
despite the advice of physicians and the hospital’s ethics committee recommending
that the child not be resuscitated.36
Alexander v. Choate. Questions have also been raised regarding the
application of section 504 and the ADA to the application of policies regarding
medical resources. In Alexander v. Choate,37 the Supreme Court grappled with the
issue of whether a reduction of the number of inpatient hospital days paid for by
Medicaid would violate section 504. This reduction would have a disparate impact
on individuals with disabilities, but this alone was not seen as sufficient to violate the
nondiscrimination requirements. Upholding Tennessee’s 14-day limitation, the
Supreme Court stated:
Section 504 does not require the State to alter this definition of the benefit being
offered simply to meet the reality that the handicapped have greater medical
needs.... Section 504 seeks to assure even-handed treatment and the opportunity
33 Burger v. Bloomberg, 418 F.3d 882 (8th Cir. 2005)(“... a lawsuit under the Rehab Act or
the Americans with Disabilities Act (ADA) cannot be based on medical treatment
decisions.”); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005);
Fitzgerald v. Corr. Corp. of America, 403 F.3d 1134, 1144 (10th Cir. 2005); Wilson v.
Woodford, 2006 U.S. Dist. LEXIS 12330 (E.D. Calif. March 23, 2006)(“The treatment, or
lack of treatment, concerning Plaintiff’s medical condition does not provide a basis upon
which to impose liability under the RA or ADA.”)
34 United States v. University Hospital, 729 F.2d. 144, 156 (2d Cir. 1984).
35 United States v. University Hospital, 729 F.2d. 144, 157 (2d Cir. 1984), discussing the
application of section 504 to the treatment of a newborn with multiple physical and mental
disabilities. Several cases alleging violations of section 504 were brought on behalf of
infants with disabilities in the 1980s. For a detailed discussion of this issue, see Bonnie P.
Tucker and Bruce A. Goldstein, Legal Rights of Persons with Disabilities: An Analysis of
Federal Law §20 (1992).
36 In the Matter of Baby K, 832 F.Supp. 1022 (E.D. Va. 1993), aff’d on other grounds, 16
F.3d 590 (4th Cir. 1994).
37 469 U.S. 287 (1985).

---

CRS-9
for handicapped individuals who participate in and benefit from programs
receiving federal assistance... The Act does not, however, guarantee the
handicapped equal results from the provision of state Medicaid, even assuming
some measure of equality of health could be constructed.38
Oregon Medicaid Waiver Proposals. Similar issues were raised in the
early 1990s by the state of Oregon Medicaid waiver proposal, which attempted to set
priorities for allocating health-care services.39 The methodology used to set the
priorities for the ranking in the Oregon plan involved data supplied by health-care
providers (e.g. the likelihood of recovery from certain diseases or conditions) and
“values” contributed by the general public through public hearings and community
meetings, in a telephone survey, and by the Oregon commissioners. The values were
given weight based on three attributes: value to society, value to an individual
needing the services, and whether it was essential to a basic health-care package. The
value to an individual included an element described as “quality of life,” which was
quantified largely through a telephone survey in which the respondents scored the
severity of certain symptoms or functional impairments on a scale of 1 to 100, with
0 representing death and 100 representing perfect health. The survey did not reach
53.4% of the randomly dialed numbers, and the Commission’s report indicated that
this was due to various factors, including “deaf/language barrier.”40 The Department
of Health and Human Services (HHS) denied the waiver application based on
conflicts with the ADA, especially the “quality of life” components.41 One
commentator noted that this decision made “a legitimate point of fundamental
difficulty in any rationing scheme that gives quality of life measurement a significant
role.”42
Organ Transplant Policies. The intersection of the ADA and organ
allocation policies is another similar issue. The Public Health Service Act provisions
relating to organ procurement and transplantation43 require the Secretary of HHS to
contract with a private, nonprofit corporation to establish and operate the Organ
Procurement and Transplantation Network (OPTN). In 1986, the United Network
for Organ Sharing (UNOS) was awarded a federal contract to administer the OPTN,
whose primary function is to maintain a national computerized list of potential
recipients and a system that matches donors and recipients.44 Although no judicial
decisions were found alleging discrimination under the ADA or section 504 in the
38 Id. at 303-304.
39 For a detailed discussion of this proposal, see Office of Technology Assessment,
“Evaluation of the Oregon Medicaid Proposal,” OTA-H-531 (May 1992).
40 Oregon Health Services Commission, PRIORITIZATION OF HEALTH SERVICES C-2 (1991).
41 See Paul T. Menzel, “Oregon’s Denial: Disabilities and Quality of Life,” 22 THE
HASTINGS CENTER REPORT 21 (Nov./Dec. 1992).
42 Id. See also David Orentlicher, “Rationing and the Americans With Disabilities Act,”
271 JAMA 308 (Jan. 26, 1994).
43 42 U.S.C. §§273 et seq.
44 For a more detailed discussion of this system see CRS Report RL30109, Medicare and
Medicaid Organ Transplants, by Sibyl Tilson.

---

CRS-10
application of this system, the situation involving Sandra Jensen raised these issues.
Sandra Jensen was an individual with Down Syndrome who needed a heart-lung
transplant. Surgeons at two hospitals initially rejected her for the procedure claiming
that she lacked the mental capacity to participate in her care. However, pressure from
community members and advocacy groups led the hospitals to reconsider and, after
further examination, Stanford University surgeons determined that they had
misjudged Ms. Jensen’s ability to comprehend her condition and handle her care, and
performed the surgery.45
Application. How, then, could these ADA and section 504 precedents be
applied to proposed priorities for the allocation of scarce medical resources when the
scenarios that arise from a possible influenza pandemic are imposed on modern
society? First, it should be noted that there are numerous ways in which allocation
priorities could be made and that these priorities vary depending on, for example,
whether the situation involves the distribution of vaccine or the provision of antiviral
medications or the use of ventilators. In addition, the HHS pandemic influenza plan
recommendations for priorities emphasize that the recommendations were based on
certain critical assumptions that might change.46 This analysis, therefore, will be
general in nature.
Exactly how the ADA or section 504 will affect priorities for the allocation of
scarce medical resources is uncertain. No event comparable to the scenarios
projected by a pandemic influenza, such as the one of 1918, has occurred since the
enactment of the ADA or section 504, although other national disasters have
happened, such as the terrorist attacks on 9/11 and the devastation of hurricanes
Katrina, Rita, and Wilma.47 These disasters have highlighted the difficulty of
45 For a more detailed discussion of this situation and an argument for the application of the
ADA, see Angela T. Whitehead, “Rejecting Organs: The Organ Allocation Process and the
Americans with Disabilities,” 24 AMERICAN J. OF LAW AND MEDICINE 481 (1998).
46 The assumptions for the vaccine prioritization recommendation were (1) that the greatest
risk of hospitalization and death would be infants, the elderly, and those with underlying
health conditions; (2) that the health-care system would be “severely taxed if not
overwhelmed due to the large number of illnesses and complications”; (3) that during a
pandemic wave between 25% and 30% of persons will become ill during a 6-8 week
outbreak; (4) that there is limited information available to assess potential impacts on critical
infrastructure sectors, such as transportation and utility services; and (5) that the U.S.- based
vaccine production capacity would be 3 to 5 million doses per week, with 3 to 6 months
needed before the first doses were produced. These assumptions, however, could change.
For example, individuals who are at greatest risk of hospitalization and death may not be
infants, the elderly, and those with underlying health conditions. In the 1918 pandemic,
most deaths occurred in young adults. See HHS Pandemic Influenza Plan, Appendix D,
[http://www.hhs.gov/pandemicflu/plan/appendixd.html].
47 An influenza pandemic differs from these other disasters in that it would be global in
nature; span a year or more, with waves of peak activity in various areas; and have
significantly greater potential mortality. One commentator found that “If 1918-19 mortality
data are extrapolated to the current U.S. population, 1.7 million people could die, half of
them between the ages of 18 and 40. Globally, those same estimates yield 180-360 million
deaths....” Michael T. Osterholm, “Preparing for the Next Pandemic,” 84 FOREIGN AFFAIRS
(continued...)

---

CRS-11
providing medical equipment and supplies to individuals with disabilities, including
homebound individuals, and the importance of planning.48 However, they do not
provide much guidance on how scarce medical resources are to be allocated.
It should be reiterated that title II of the ADA would apply to policies
implemented by states and localities and that ADA title III would apply to private
entities, such as hospitals, whereas section 504 would cover recipients of federal
financial assistance, federal executive agencies, and the U.S. Postal Service. After
finding coverage, the next step is to determine whether the individual is an individual
with a disability and whether discrimination has occurred.
Certainly some situations (e.g., denial of a vaccine to an individual solely
because of a visual or mobility impairment unrelated to how that individual would
respond to the vaccine) would most likely run afoul of the ADA’s goal of eliminating
actions resulting from stereotypic assumptions and of its nondiscrimination
requirements.49 A determination of who is to receive vaccines or other medical
treatments that are in limited supply should involve careful consideration and
safeguards to avoid the reliance on stereotypical assumptions that might trigger a
violation of the ADA or section 504. However, a determination that an individual
not receive a vaccine because the vaccine would not be effective given his or her
health situation would be unlikely to raise ADA concerns, because it would be based
on a medical determination of treatment. The mere fact that a decision would have
a disparate impact on individuals with disabilities would not necessarily be sufficient
to violate the nondiscrimination mandates.50
Many of the situations that might occur are likely to be much more difficult to
analyze, especially if physicians and hospital staff are faced with the kind of extreme
situations described in recent congressional hearings.51 For example, decisions
regarding who should be admitted to a hospital when there is a shortage of beds, as
well as who should receive scarce medications, could be difficult to make. To the
extent that these decisions are based on an individual medical treatment decision
(e.g., where the individual is allergic to the scarce medication or would not mount an
47 (...continued)
24 (July/August 2005).
48 See e.g., National Council on Disability, SAVING LIVES: INCLUDING PEOPLE WITH
DISABILITIES IN EMERGENCY PLANNING (April 15, 2005), reprinted at [http://www.ncd.gov/
newsroom/publications2005/saving_lives.htm]; Congressional briefing, Emergency
Management and People with Disabilities: Before, During and After (Nov. 10, 2005),
reprinted at [http://www.ncd.gov/newsroom/publications/2005/transcript_
emergencymgt.htm]; Emergency Preparedness for the Elderly and Disabled: Field Hearing
Before the Senate Special Committee on Aging, 107th Cong., 2d Sess. (Feb. 11, 2002).
49 42 U.S.C. §12101.
50 Alexander v. Choate, 469 U.S. 287 (1985).
51 See e.g., Pandemic Flu: Joint Hearing Before the Prevention of Nuclear and Biological
Attack and Emergency Preparedness, Science and Technology Subcommittees of the House
Homeland Security Committee,109th Cong., 2d Sess. (February 8, 2006), Testimony of Dr.
Tara O’Toole.

---

CRS-12
immune response to the drug), case law under the ADA and section 504 would
indicate that a violation of these statutes would be unlikely. However, to the extent
that the decision is based on stereotypical assumptions, there may be a violation of
the ADA or section 504.
An influenza pandemic with shortages of medical supplies, such as ventilators,
could raise issues concerning whether treatment that has begun should be stopped.
For example, if an individual with a severe underlying medical condition such as
heart failure were infected with the influenza virus and, as a result of the virus, was
on a ventilator with unlikely prospects for survival, would the removal of such an
individual from the ventilator so it could be used for an individual with a stronger
likelihood of survival violate the nondiscrimination mandates of the ADA or section
504?52 This situation would raise novel legal issues.53 These issues may be presented
in extreme situations, such as where hospitals are grossly overcrowded and
understaffed and where the hospitals may be operating in a triage situation. Finally,
these types of issues involve not only the application of law, but also an application
of the underlying ethical considerations.
52 This is one of scenarios examined, although not in the context of the ADA or section 504,
in John L. Hick, MD and Daniel T. O’Laughlin, MD, “Concept of Operations for Triage of
Mechanical Ventilation in an Epidemic,” 13 ACADEMIC EMERGENCY MEDICINE 223 (Feb.
2006).
53 The closest analogy would be to the situations raised by assisted suicide or “right to die”
cases; however, these cases do not directly concern an immediate shortage of medical
equipment. For a discussion of these issues, see CRS Report 97-244 A, The “Right to Die”:
Constitutional and Statutory Analysis, by Kenneth R. Thomas.

---