The United States is facing a shortage of prescription drugs, ranging from antibiotics to cancer treatments. These shortages are putting the medical profession in the frequent position of deciding who will get the drugs that are in short supply and, more importantly, who will not.

Physicians and hospitals always have had to make rationing decisions in times of shortage. But these decisions usually are made behind the scenes. A recent New York Times article about the drug shortages shines a light on the rationing that is occurring.

According to the article, the decision-making process varies considerably across institutions. For instance, in some hospitals formal ethics committees make these decisions. At others, these decisions are made by individual physicians, pharmacists or even drug company executives.

And, as the article also reports, patients typically are not told of the shortage and have no idea that their choice of treatment has been limited, even though the decision may delay their recovery, increase their pain or, in some cases, potentially accelerate their death.

As legal experts in medical ethics and disability law who have conducted research on the allocation of medical resources, we were struck by the general lack of awareness of the law evident in the article. The fact is, there are civil rights laws and state laws governing informed consent that apply to such decisions, even in times of public health emergencies and medical shortages.

These laws constrain physician decision-making and must be taken into account on the front end in making treatment or distribution decisions for all patients and in particular, we would argue, for patients with disabilities.

Bias against people with disabilities

In 1990, Congress passed the Americans with Disabilities Act (ADA) to provide protection to people with disabilities and assure equal opportunity, access and participation in all areas of public life. The ADA applies to both public and private hospitals, as well as physicians providing care to patients.

The ADA prohibits the use of any eligibility criteria that would screen out people with disabilities from receiving necessary services, including medical care.

But, in the past, drug and treatment allocation protocols or distribution plans created by medical professionals in times of shortage have failed to acknowledge that the ADA limits their discretion.