On May 9, 2024, the U.S. Department of Health and Human Services is publishing a Final Rule that implements federal disability discrimination laws. The new rule becomes effective on July 8, 2024.
While DHHS will continue to develop guidance and technical assistance, the Final Rule is nearly identical to the September 2023 draft rule with respect to medical futility.
On the one hand, DHHS seems to accept PIT/NBT determinations. First, it accepts "futility" as defined in the 2015 Five Society Statement. Second, it permits considering the patient's disability if it impacts the effectiveness of treatment or makes the patient not qualified.
On the other hand, DHHS prohibits value judgments inherent in determinations of what the Five Society Statement called "potentially inappropriate treatment." Specifically, DHHS suggests that the patient's permanent dependence on ICU treatment should not be considered. Yet, this is a common basis for unilaterally withdrawal included in U.S. hospital policies.
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