1 See World Health Org., WHO Guide to Cost-Effectiveness Analysis 3-5 (T. Tan-Torres Edejer et al. eds., 2003) (discussing the basics of cost-effectiveness analysis).

2 See id. at 84-85 (illustrating how the use of cost-effectiveness analysis can lead to a gain in healthy life expectancy).

3 See, e.g., Murray, Christopher J.L. et al., Development of WHO Guidelines on Generalised Cost-Effectiveness Analysis, 9 Health Econ. 235 (2000)3.0.CO;2-O>CrossRefGoogle Scholar, available at http://www.who.int/choice/publications/p_2000_guidelines_generalisedcea.pdf.

4 See Hoffman, Allison K., Three Models of Health Insurance: The Conceptual Pluralism of the Patient Protection and Affordable Care Act, 159 U. Pa. L. Rev. 1873, 1905-06 (2011)Google Scholar (arguing that restrictions on priority setting for essential health benefits reflect antidiscrimination commitments); Miller, James Dabney, The Patient-Centered Outcomes Research Institute, 4 J. Health & Life Sci. L. 4, 19 (2010)Google Scholar (discussing restrictions on priority setting within PCORI); Saver, Richard S., Health Care Reform’s Wild Card: The Uncertain Effectiveness of Comparative Effectiveness Research, 159 U. Pa. L. Rev. 2147, 2166-67 (2011)Google Scholar (discussing restrictions in the use of comparative-effectiveness research within Medicare).

5 See Hoffman, Sharona & Podgurski, Andy, Improving Health Care Outcomes Through Personalized Comparisons of Treatment Effectiveness Based on Electronic Health Records, 39 J.L. Med. & Ethics 425, 428 (2011)Google ScholarPubMed (summarizing critics—views of cost-effectiveness research); Sawicki, Nadia N., Patient Protection and Decision-Aid Quality: Regulatory and Tort Law Approaches, 54 Ariz. L. Rev. 621, 641-42 (2012)Google Scholar (discussing cost-effectiveness research and the balance of patient values regarding quality and length of life); Stopa, Emily S., Comment, Harnessing Comparative Effectiveness Research to Bend the Cost Curve and Achieve Successful Health Reform: An Assessment of Constitutional Barriers to Limiting Health Care Treatment Options, 13 U. Pa. J. Const. L. 815, 832-46 (2011)Google Scholar (discussing potential constitutional challenges to the use of cost-effectiveness analysis in priority setting).

6 See, e.g., Saver, supra note 4, at 2168.

7 E.g., Mikochik, Stephen L., Rationing Human Life: Health Care Reform and People with Disabilities, 26 Issues L. & Med. 199, 204-05 (2011)Google ScholarPubMed.

8 For this useful terminology, I draw on, Note, Scarce Medical Resources, 69 Colum. L. Rev. 620, 670-71 (1969)Google Scholar.

9 See, e.g., Childress, James F., Triage in Neonatal Intensive Care: The Limitations of a Metaphor, 69 Va. L. Rev. 547, 548 (1983)CrossRefGoogle ScholarPubMed; see also Thomas B. Leary, Comm’r, Fed. Trade Comm’n, Special Challenges for Antitrust in Health Care, Address at a Forum on Antitrust and Health Care (May 15, 2003), in 18 Antitrust 23, 25 (2004) (“Triage is still something that is hard for people to contemplate outside a battlefield because of the innate reluctance to acknowledge any limits on the ‘value of a human life,’ but a market system that tends to give priority to cases where the treatments are most likely to succeed may be better than the alternatives. In fact, for certain special medical procedures, like organ transplants, this seems to be the way treatment is rationed today.”).

10 Examples of statutes addressing priority setting in a pandemic include, 42 U.S.C § 247d-1(b) (2012) (discussing the need for “estimates of high priority populations, as determined by the Secretary, in State, local, and tribal jurisdictions in order to inform Federal, State, local, and tribal decision makers during vaccine shortages and supply disruptions”) and Ark. Code Ann. § 20-10-1304(d)(2) (2014) (noting that “during the outbreak of a pandemic disease, the department may enforce vaccine priorities necessary to limit the loss of life among citizens and to contain the spread of the disease”). For scholarly commentary, see Coleman, Carl H., Allocating Vaccines and Antiviral Medications During an Influenza Pandemic, 39 Seton Hall L. Rev. 1111, 1111-12 (2009)Google ScholarPubMed and Hobbes, Necia B., Note, Out of the Frying Pan into the Fire: Heightened Discrimination & Reduced Legal Safeguards When Pandemic Strikes, 72 U. Pitt. L. Rev. 779, 810 (2011)Google Scholar.

11 See 42 U.S.C. § 274(2)(B) (2012) (authorizing the Organ Procurement and Transplantation Network to “establish membership criteria and medical criteria for allocating organs and provide to members of the public an opportunity to comment with respect to such criteria”); Barshes, Neal R. et al., Justice, Administrative Law, and the Transplant Clinician: The Ethical and Legislative Basis of a National Policy on Donor Liver Allocation, 23 J. Contemp. Health L. & Pol'y 200, 227 (2007)Google ScholarPubMed. For a detailed discussion of the principles and systems employed in micro-level rationing of scarce resources, see Persad, Govind et al., Principles for Allocation of Scarce Medical Interventions, 373 Lancet 423 (2009)CrossRefGoogle ScholarPubMed.

12 See Hall, Mark A., Rationing Health Care at the Bedside, 69 N.Y.U.L. Rev. 693, 711-14 (1994)Google ScholarPubMed.

13 Scarce Medical Resources, supra note 8, at 670-71.

14 See Tex. Gov't Code Ann. § 533.005(a)(2) (West Supp. 2014) (“A contract between a managed care organization and the commission for the organization to provide health care services to recipients must contain … capitation rates that ensure the cost-effective provision of quality health care.”); Carrao v. Health Care Serv. Corp., 454 N.E.2d 781, 786 (Ill. App. Ct. 1983) (noting that Illinois state law requires a healthcare service corporation to “make a vigorous, good-faith effort to contain rates of reimbursement to hospitals and other participating health care providers as well as to promote cost-effective alternative forms of health care” (emphasis omitted)).

15 See Fla. Stat. Ann. § 409.91195(8) (West 2013) (“The committee shall develop its preferred drug list recommendations by considering the clinical efficacy, safety, and cost-effectiveness of a product.”); Kan. Stat. Ann. § 39-7121a(b) (Supp. 2013) (“[T]he department of health and environment shall evaluate drugs and drug classes to determine whether inclusion of such drugs or drug classes in a starter dose program would be clinically efficacious and cost effective.”); Minn. Stat. Ann. § 256B.0625(13)(d) (West 2007) (stating that decision makers considering whether to include treatments in the state's medical assistance formulary should evaluate whether the treatments are “necessary, appropriate, and cost-effective for the treatment of certain specified chronic diseases, conditions, or disorders”); N.M. Stat. Ann. § 27-2C-3(A) (West 2011) (“The department shall develop or implement a formulary or preferred drug list, taking into consideration the clinical efficacy, safety and cost-effectiveness of a product.”); 32 C.F.R. § 199.21(c)(1) (2014) (establishing a committee to ensure that, within the TRICARE program, “the selection of pharmaceutical agents for the uniform formulary is based on broadly representative professional expertise concerning relative clinical and cost effectiveness of pharmaceutical agents”); see also Korobkin, Russell, Comparative Effectiveness Research as Choice Architecture: The Behavioral Law and Economics Solution to the Health Care Cost Crisis, 112 Mich. L. Rev. 523, 549 (2014)Google ScholarPubMed (“Many insurance plans come with pharmaceutical ‘formularies,’ for example, whereby drugs in more favored coverage ‘tiers’ require lower patient copayments, and drugs in less favored tiers require higher copayments or are even excluded from coverage altogether.”).

16 See Korobkin, supra note 15, at 549-50 (“Using an emerging practice known as value-based insurance design (‘VBID’), insurance companies and self-insured employers have experimented with offering reduced or even zero copayments for prescription drugs that, when taken as directed, are particularly likely to reduce future health care costs.” (footnotes omitted)); see also 42 U.S.C. § 300gg-13(c) (2012) (“The Secretary may develop guidelines to permit a group health plan and a health insurance issuer offering group or individual health insurance coverage to utilize value-based insurance designs.”); D.C. CODE § 31-3171.16(a)(1)(A)(i)(IX) (2001) (stating that the D.C. health exchange's advisory board should evaluate whether the exchange should employ a “[v]alue-based insurance design”); Public Comment Letter from Mark J. Ugoretz, President, ERISA Indust. Comm., to the Internal Revenue Service (Sept. 8, 2010) (on file with the Federal eRulemaking Portal), available at http://www.regulations.gov/#!documentDetail;D=IRS-2010-0017-0003 (noting that the ERISA Industry Committee “strongly supports the provisions that promote value-based insurance designs by permitting plans to impose cost-sharing requirements on out-of-network services”).

17 See Md. Code Ann., Educ. § 18-2805(b) (LexisNexis Supp 2014) (directing the office responsible for student loan repayment assistance to “prioritize funding for the repayment of education loans” to physicians practicing in underserved geographic areas or underserved specialties); Va. Code Ann. § 32.1-122.6:1 (Supp. 2014) (similar state code); see also Marciarille, Ann Marie, Healing Medicare Hospital Recidivism: Causes and Cures, 37 Am. J.L. & Med. 41, 69 (2011)Google ScholarPubMed (“The shortage of primary care physicians is itself partly a payment systems failure that rewards specialists with much higher incomes—and concomitantly much higher professional status—than that accorded primary care physicians.”); Mayo, Thomas Wm., Nonfinancial Barriers to Health Care, 32 Hous. L. Rev. 1187, 1188-89 (1996)Google Scholar (discussing how geographic and specialty mal-distribution among Texas physicians presents a barrier to healthcare access).

18 See Toby Ord, The Moral Imperative Toward Cost-Effectiveness in Global Health 7 (2013), available at www.cgdev.org/content/publications/detail/1427016 (illustrating the magnitude of the impact that reallocation of resources can have on saving lives).

19 Id.

20 Id. at 4-5.

21 See, e.g., Willingham v. NovaStar Mortgage, Inc., No. 04-CV-2391, 2006 WL 6676801, at *19 (W.D. Tenn. Feb. 7, 2006) (“Pareto efficiency (or optimality) occurs when no individual can be made better off without making another worse off.”); Ellis, Stephen E. & Hayden, Grant M., The Cult of Efficiency in Corporate Law, 5 Va. L. & Bus. Rev. 239, 241-42 (2010)Google Scholar (“A situation x is a Pareto improvement over a situation y just in case no one (strictly) prefers y to x and at least one person (strictly) prefers x to y…. The uncontested nature of Pareto improvements is what makes them so appealing to economists. So long as a given situation is a Pareto improvement over what preceded it, one never has to balance one person's gains in satisfaction with another's losses ….” (footnote omitted)).

22 Cf. Jost, Timothy Stoltzfus & Tanenbaum, Sandra J., Selling Cost Containment, 19 Am. J.L. & Med. 95, 95 (1993)CrossRefGoogle ScholarPubMed (“As long as the health care system reform debate is cast as a zero-sum game, under which the current ‘winners’ in health care will either continue to ‘win’ or become ‘losers,’ the concentrated special interests that benefit from high health care costs will continue to obstruct change.”).

23 Ord, supra note 18, at 2.

24 See Hunter, Nan D., Rights Talk and Patient Subjectivity: The Role of Autonomy, Equality, and Participation Norms, 45 Wake Forest L. Rev. 1525, 1543 (2010)Google Scholar (noting that “advocates obtained … [a] provision in legislation that established breast cancer research in the Department of Defense (‘DoD’), a location that insulated it from cuts in domestic funding that customarily exempted DoD.”).

25 See Sofamor Danek Grp. v. Gaus, 61 F.3d 929, 931 (D.C. Cir. 1995) (challenging federal clinical practice guidelines), cert. denied, 516 U.S. 1112 (1996); Kinney, Eleanor D., Behind the Veil Where the Action Is: Private Policy Making and American Health Care, 51 Admin. L. Rev. 145, 167 (1999)Google Scholar (detailing Congress's efforts to defund the agency responsible for promulgating clinical practice guidelines on treatment of back pain).

26 See Elliott, April M., Note, Medicare as Technology Regulator: Medicare Policy's Role in Shaping Technology Use and Access, 26 Berkeley Tech. L.J. 1489, 1506-07 (2011)Google Scholar (noting that “changes to the fundamental nature of Medicare and to the guarantee of coverage it provides to millions of beneficiaries are widely considered politically infeasible”); see also Cannon, Michael F., Pay-for-Performance: Is Medicare a Good Candidate?, 7 Yale J. Health Pol'y L. & Ethics 1, 31-32 (2007)Google ScholarPubMed (“Given the influence that Medicare's P4P decisions would have on providers' incomes and the overall tax burden, those interest groups can be expected to use political pressure to block changes that they expect would adversely affect their interests.”).

27 42 U.S.C. § 300gg-13(a)(5) (2012) (“[F]or the purposes of this chapter, and for the purposes of any other provision of law, the current recommendations of the United States Preventive Service Task Force regarding breast cancer screening, mammography, and prevention shall be considered the most current other than those issued in or around November 2009.”); see also Mantel, Jessica, Setting National Coverage Standards for Health Plans Under Healthcare Reform, 58 UCLA L. Rev. 221, 246 (2010)Google Scholar (noting that “the Senate quickly amended their healthcare reform bill to include a provision guaranteeing coverage of annual mammograms for women age forty and over”).

28 See Corinna Sorenson et al., The Politics of Comparative Effectiveness Research: Lessons from Recent History, 39 J. Health Pol. Pol'y & L. 139, 153 (2014) (“[I]n both the United States and abroad, a public backlash has occurred when available evidence calls for some degree of disinvestment or places conditions on access to or payment for care. In such cases, the research (and general overall approach) is seen as a potential threat to the interests of vested stakeholders, namely, organized medicine, industry, and patient advocacy organizations—groups who typically possess significant resources to influence policy makers.”); cf. Hyman, David A., Convicts and Convictions: Some Lessons from Transportation for Health Reform, 159 U. Pa. L. Rev. 1999, 2024 (2011)Google Scholar (quoting Laura Meckler, Obama's Health Expert Gets Political, Wall St. J., July 24, 2009, at A1) (“Officials had been trying for years to cut payments to suppliers of oxygen and other medical equipment, which critics say are inflated. Yet when a new competitive bidding process was set to take effect last year, industry supporters in Congress were able to delay the plan. They are still fighting to block changes.”).

29 See Bank of America Corp., SEC No-Action Letter, 2011 WL 87736 (Mar. 7, 2011) (discussing the “protests over ‘death panels’ that supposedly would result from health care reform legislation”); Moncrieff, Abigail R., The Freedom of Health, 159 U. Pa. L. Rev. 2209, 2239-41 (2011)Google Scholar (recapping the “death panels” debate).

30 See Sanford, Sallie Thieme, What Scribner Wrought: How the Invention of Modern Dialysis Shaped Health Law and Policy, 13 Rich. J.L. & Pub. Int. 337, 341-42 (2010)Google Scholar (discussing how a committee responsible for selecting patients to receive life-saving treatment was dubbed the “God Committee”).

31 42 U.S.C. § 18022 (2012).

32 Id. § 18021(a)(1)(B).

33 See id. § 1320e-1(c)-(e).

34 Id. § 1320e(b)-(d).

35 Id. § 300gg-8(d)(1) (“‘[A]pproved clinical trial’ means a phase I, phase II, phase III, or phase IV clinical trial that is conducted in relation to the prevention, detection, or treatment of cancer or other life-threatening disease or condition.”).

36 See, e.g., id. §§ 300gg-17 to -18 (designating the subheadings as “Ensuring the quality of care” and “Bringing down the cost of health care coverage,” respectively).

37 See id. § 300gg-17.

38 See id. § 1320e-1(c)(1) (“The Secretary shall not use evidence or findings from comparative clinical effectiveness research conducted under section 1320e of this title in determining coverage, reimbursement, or incentive programs under subchapter XVIII of this chapter in a manner that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill.”); 42 U.S.C. § 18022(b)(4)(B) (listing the required elements for consideration in defining essential health benefits); 42 U.S.C. § 18031(e)(1)(B)(iii) (explaining how an Exchange may certify a health plan as a qualified health plan).

39 See John K. Iglehart, The Political Fight over Comparative Effectiveness Research, 29 Health Aff. 1757, 1758 (2010); Sorenson et al., supra note 28, at 142 (discussing Republican opposition to “considerations of cost or cost-effectiveness in the research”).

40 E.g., 156 Cong. Rec. E462-63 (daily ed. Mar. 23, 2010) (statement of Rep. Pascrell) (describing some of the restrictions as “strong protections that will help ensure that the essential health benefits package … will take into account the needs of people with brain injury and other disabilities … and not impose value judgments about disability and quality of life.”); Sara Rosenbaum et al., The Essential Health Benefits Provisions of the Affordable Care Act: Implications for People with Disabilities 9 (2011) (“The Affordable Care Act's essential benefits nondiscrimination provisions break new ground in how to think about … common techniques of health benefit design and management—adding new dimensions to prior federal laws regulating insurance and health plans and barring discrimination.”); Consortium for Citizens with Disabilities, IOM Essential Health Benefits Survey Responses 10 (praising the restrictions on considering disability within comparative effectiveness research as “very powerful language that is designed to ensure that normative judgments about the quality of life of a person with a disability are not used against people with disabilities when decision makers determine the essential benefits package”); Letter from the Habilitation Benefits Coal., to Marilyn Tavenner, Adm'r, Ctrs. for Medicare & Medicaid Servs. (Feb. 21, 2013) (on file with the Children's Hospital Association), available at http://www.aahd.us/wp-content/uploads/2013/02/HABCoalitonLtrMedicaid02212013.pdf (similar); Letter from Susan Henderson, Exec. Dir., Disability Rights Educ. & Def. Fund, to Kathleen Sebelius, Sec'y, U.S. Dep't of Health & Hum. Servs. (Feb. 14, 2012) (on file with author) (similar).

41 Letter from Orthotic & Prosthetic Alliance, to Gary Cohen, Dir., Ctr. for Consumer Info. & Ins. Oversight (Dec. 26, 2012) (on file with author), available at available at http://www.oandp.org/assets/PDF/EHB_Comments_D0454932-2.pdf. (endorsing prohibition on excluding coverage for services based on age, disability, or length of life); Press Release, Pharmaceutical Research & Mfrs. of Am., Statement of the Pharmaceutical Research and Manufacturers of America Supporting Oregon SB 1565 (Jan. 30, 2014) (on file with author), available at http://web.archive.org/web/20150323175516/https://olis.leg.state.or.us/liz/2014R1/Downloads/CommitteeMeetingDocument/32029 (“The Pharmaceutical Research and Manufacturers of America (PhRMA) and its member companies strongly support the provisions of federal law that prevent discrimination based on age, expected length of life, present or predicted disability, degree of medical dependency or quality of life.”).

42 Cf. Robertson, John A., Cruzan and the Constitutional Status of Nontreatment Decisions for Incompetent Patients, 25 Ga. L. Rev. 1139, 1140 (1991)Google ScholarPubMed (“From the vitalist perspective, all human life is viewed as worthy of protection regardless of its quality or functional ability.”).

43 See Henry J. Kaiser Family Found., Kaiser Health Tracking Poll: March 2013, 8-9 (2013), available at http://kff.org/health-reform/poll-finding/march-2013-tracking-poll/; Rosenbaum et al., supra note 40, at 3-4, 11-12; Michael Saks, What Do Polls Really Tell Us Care Act?, Health Aff. Blog (Sept. 21, 2012, 11:42 AM), http://healthaffairs.org/blog/2012/09/21/what-do-polls-really-tell-us-about-thepublics-view-of-the-affordable-care-act/.

44 See, e.g., Bagley, Nicholas, Bedside Bureaucrats: Why Medicare Reform Hasn't Worked, 101 Geo. L.J. 519, 574 (2013)Google Scholar (“As a practical matter, none of the Medicare-specific prohibitions appear all that constraining.”); Mikochik, supra note 7, at 204-05.

45 Mikochik, supra note 7, at 204-05.

46 Id. at 205.

47 Bagley, supra note 44, at 574.

48 E.g., Furrow, Barry R., Cost Control and the Affordable Care Act: CRAMPing Our Health Care Appetite, 13 Nev. L.J. 822, 853 (2013)Google Scholar; Gostin, Lawrence O. et al., Restoring Health to Health Reform: Integrating Medicine and Public Health to Advance the Population's Well-Being, 159 U. Pa. L. Rev. 1777, 1779 (2011)Google Scholar; Elizabeth Weeks Leonard, Death Panels and the Rhetoric of Rationing, 13 Nev. L.J. 872, 885 (2013); Sorenson et al., supra note 30, at 142 (“[T]he bill language prohibited the use of quality-adjusted life years (QALYs), a metric used in cost-effectiveness to measure net health gain.”).

49 Parisi, Thomas J., How Much Did You Pay for Your Heart: Is a Centralized Entity Performing Health Technology Assessment with Cost-Effectiveness Analysis the Answer to the Rising Costs of Health Care?, 49 Jurimetrics 285, 299 (2009)Google Scholar.

50 See Furrow, supra note 48, at 853.

51 42 U.S.C. § 1320e(b) (2012).

52 Id. § 1320e(c).

53 Id. § 1320e(d)(1)(A).

54 Id. § 1320e(b).

55 See Barry R. Furrow, Regulating Patient Safety: The Patient Protection and Affordable Care Act, 159 U. Pa. L. Rev. 1727, 1738-39 (2011).

56 Miller, James Dabney, The Patient-Centered Outcomes Research Institute, 4 J. Health & Life Sci. L. 4, 19 (2010)Google Scholar (quoting Patient-Centered Outcomes Act of 2009, S. 1213, 111th Cong. § 2(a) (2009)).

57 Id.; see 42 U.S.C § 1320e-1(e) (2012).

58 42 U.S.C. § 1320e-1(e).

59 See sources cited supra note 48.

60 Furrow, supra note 48, at 853.

61 Leonard, supra note 48, at 885.

62 Gostin et al., supra note 48, at 1779.

63 See 42 U.S.C. § 1320e(a) (2012).

64 See id.

65 See, e.g., C.C. Earle et al., Systematic Overview of Cost-Utility Assessments in Oncology, 18 J. Clinical Oncology 3302, 3302-03 (2000).

66 H.R. 2101, 112th Cong. § 399OO(b)(1) (2013) (proposing “a Center of Eating Disorders Epidemiology for the purpose of,” inter alia, “collecting and analyzing information on the effects of eating disorders on quality of life, including disability adjusted life years (DALY) and quality-adjusted life years”); Office of Mgmt. & Budget, Exec. Office of the President, OMB Circular No. A-4, Regulatory Analysis (2003) (discussing comprehensive, integrated measures of effectiveness such as the number of equivalent lives (ELs) saved and the number of QALYs saved). International organizations use a similar measure, the disability-adjusted life year (DALY), to make funding and practice recommendations for medical care worldwide. See, e.g., Nuria Homedes, The Disability-Adjusted Life Year (DALY) Definition, Measurement and Potential Use 1 (World Bank, Human Capital Working Paper No. 16128, 1996), available at http://documents.worldbank.org/curated/en/1996/07/696380/disability-adjusted-life-year-daly-definition-measurement-potential-use.

67 Puma, John La, Quality-Adjusted Life Years: Ethical Implications and the Oregon Plan, 7 Issues L. & Med. 429, 429 (1992)Google ScholarPubMed.

68 Adler, Matthew D., QALYs and Policy Evaluation: A New Perspective, 6 Yale J. Health Pol'y L. & Ethics 1, 4-6 (2006)Google ScholarPubMed.

69 Id. at 1-3.

70 For this distinction, see, for example, Jamieson, Dale, Climate Change, Consequentialism, and the Road Ahead, 13 Chi. J. Int'l L. 439, 458 (2013)Google Scholar.

71 Am. Trucking Ass'ns v. U.S. Envtl. Prot. Agency, 175 F.3d 1027, 1039 n.5 (D.C. Cir. 1999) (proposing “measuring the seriousness of a pollution-induced health effect by the absolute level of well-being that the effect brings about, not by the decrease in level that the effect causes”), aff'd in part, rev'd in part sub nom. Whitman v. Am. Trucking Ass'ns, 531 U.S. 457 (2001).

72 42 U.S.C. § 1320e-1(e) (2012).

73 See Maxwell J. Mehlman et al., When Do Health Care Decisions Discriminate Against Persons with Disabilities?, 22 J. Health Pol. Pol'y & L. 1385, 1396 (1997).

74 42 U.S.C. § 1320e-1(d)(3) (2012).

75 Id.

76 42 U.S.C. § 1320e-1(e); see also Bagley, supra note 44, at 573-74.

77 Nicholas Bagley, Who Says PCORI Can't Do Cost Effectiveness?, Incidental Economist (Oct. 14, 2013, 6:00 AM), http://theincidentaleconomist.com/wordpress/who-says-pcori-cant-do-cost-effectiveness/; see also Bagley, supra note 44, at 574.

78 Bagley, supra note 44, at 574.

79 See, e.g., Grutter v. Bollinger, 539 U.S. 306 (2003).

80 Id. at 334.

81 Kim, Sung Hui, The Diversity Double Standard, 89 N.C. L. Rev. 945, 975 (2011)Google Scholar (noting that “the University of Michigan's undergraduate admissions office hired additional application counselors and readers, at a cost of $1.8 million, to move to a system of holistic review of application files.”).

82 Grutter, 539 U.S. at 321-22.

83 See, e.g., Lewis v. Humboldt Acquisition Corp., 681 F.3d 312, 321 (6th Cir. 2012).

84 Id. at 315.

85 Id. at 321.

86 Id. at 324-25 (Clay, J., concurring in part and dissenting in part) (collecting cases).

87 See id. at 323-35.

88 Cf. Ogden v. Bureau of Labor, 699 P.2d 189, 191 (Or. 1985) (“If the word ‘solely’ … were given its literal meaning, forbidden age discrimination would occur only if age were the ‘sole factor’ in an employment decision, that is to say, only if the employer's explicit or actual policy were to give preference to an older or a younger employee without regard to any other characteristic, qualification, or performance. The commissioner is not bound to so limited a view of the law.”).

89 Cf. Heslop v. Sanderson, 123 S.W.3d 214, 222 (Mo. Ct. App. 2003) (noting “the illogical result that although home schooling could not be considered as the sole factor in determining whether a custodial arrangement was in the child's best interests, it could be considered as a change of circumstance to modify custody”).

90 42 U.S.C. § 1320e-1(e) (2012).

91 42 U.S.C. § 1320e-1(c)(1). Subchapter XVIII is the section of the United States Code that provides the framework for Medicare.

93 Id.

94 Id.

95 Id.

96 42 U.S.C. § 1320e-1(d)(2)(A).

97 42 U.S.C. § 1320e-1(c)(1).

98 Tsuchiya, Aki, Age-Related Preferences and Age Weighting Health Benefits, 48 Soc. Sci. & Med. 267, 268-69 (1999)CrossRefGoogle ScholarPubMed.

99 Bognar, Greg, Age-Weighting, 24 Econ. & Phil. 167, 169 (2008)CrossRefGoogle Scholar; Tsuchiya, supra note 101, at 98. Age-weighting can be combined with QALY approaches, but I focus here on age weighting applied to life year methods that do not consider QALYs.

100 Robert M. Veatch, How Age Should Matter: Justice as the Basis for Limiting Care to the Elderly, in Facing Limits: Ethics and Health Care for the Elderly 211, 222-23 (Gerald R. Winslow & James W. Walters eds., 1993); see also Alan Williams, Intergenerational Equity: An Exploration of the ‘Fair Innings’ Argument, 6 Health Econ. 117, 117-18, 121 (1997).

101 Eric Rakowski, Should Health Care Be Rationed by Age?, in Controversial Issues in Aging 103, 104-06 (Andrew E. Scharlach & Lenard W. Kaye eds., 1997).

102 Norman Daniels, Am I My Parents' Keeper?: An Essay on Justice Between the Young and the Old, at vii, 45-46 (1988).

103 Id. at 53.

104 F.M. Kamm, Morality, Mortality Volume I: Death and Whom to Save from It 237-38 (1993).

105 Id. at 238.

106 Ronald Dworkin, Life's Dominion: An Argument About Abortion, Euthanasia, and Individual Freedom 87 (1993).

107 Daniel Callahan, Setting Limits: Medical Goals in an Aging Society 137-38 (1995).

108 Anand, Sudhir & Hanson, Kara, Disability-Adjusted Life Years: A Critical Review, 16 J. Health Econ. 685, 691-92 (1997)CrossRefGoogle ScholarPubMed; Murray, C.J.L., Quantifying the Burden of Disease: The Technical Basis for Disability-Adjusted Life Years, 72 Bull. World Health Org. 429, 435 (1994)Google ScholarPubMed, available at http://www.ncbi.nlm.nih.gov/pmc/articles/PMC2486718/pdf/bullwho00414-0105.pdf.

109 Williams, Sean Hannon, Statistical Children, 30 Yale J. on Reg. 63, 103 (2013)Google Scholar; id. at 123 (“People care about the fact that children have more years ahead of them, but this is not necessarily all that people care about. For example, they may care that children have not had their fair innings yet. QALYs do not account for fair innings arguments, and thus it is reasonable to suspect that the social value of protecting children vs. adults will be higher than indicated just by their relative remaining QALYs. This suggests that some form of age-weighting could better align CEA with societal values regarding childhood risk reductions.” (citations omitted)). See Williams, supra note 100, for further information on the “fair innings argument.”

110 See sources cited infra note 260.

111 42 U.S.C. § 1320e-1(c)(1) (2012).

112 See Callahan, supra note 107, at 80-81, 118.

113 42 U.S.C. § 1395c (restricting access to Medicare to individuals over sixty-five, disabled individuals receiving Social Security benefits, and individuals with end-stage renal disease); see also 42 U.S.C. § 1395o (requiring that Medicare Part B beneficiaries be over sixty-five years of age or eligible for Part A).

114 42 U.S.C. § 1320e-1(c)(1).

115 42 U.S.C. § 1320e-1(c)(2)(A).

116 Harris, John, Does Justice Require That We Be Ageist?, 8 Bioethics 74, 74-83 (1994)CrossRefGoogle ScholarPubMed.

117 John Harris, The Value of Life: An Introduction to Medical Ethics 90 (Taylor & Francis e-Library ed., 2001) (footnotes omitted).

118 David Orentlicher has defended a similar but less extreme view of length insensitivity, asking us to treat as equal all gains in lifespan that are not de minimis. Orentlicher, David, Destructuring Disability: Rationing of Health Care and Unfair Discrimination Against the Sick, 31 Harv. C.R.-C.L. L. Rev. 49, 72-73 (1996)Google ScholarPubMed (“[I]f an organ transplant program excluded persons whose coexisting illnesses prevented them from gaining more than a few months of benefit from an organ, there should be no problem with the exclusion. If, however, a program excluded persons who would gain a few years of benefit on the ground that other persons would gain even more, that kind of exclusion should not be permitted.”).

119 Amartya Sen, Rationality and Freedom 79 (2004).

120 Cf. Broome, John, The Ethics of Climate Change, 298 Sci. Am. 96, 99-100 (2008)CrossRefGoogle ScholarPubMed (differentiating fairness-based, “prioritarian” arguments from diminishing marginal utility arguments).

121 42 U.S.C. § 1320e-1(c)(2)(A) (2012).

122 Id.

123 Cf. Bognar, supra note 99, at 172-73 (discussing examples).

124 42 U.S.C. § 1320e-1(c)(1).

125 Id. § 18022(b)(4)(B).

126 Id. § 1320e-1(c)(1).

127 Id.

128 Id. § 18022(b)(4).

129 Id. §§ 1320e-1, 18022(b)(4)(B).

130 Rene Cabral-Daniels, Exec. Vice President of Regulatory Affairs, Nat'l Patient Advocate Fund, Comments at the Department of Health and Human Services' Open Comment Session for Consumer Advocates on Essential Health Benefits (Oct. 20, 2011), available at http://www.npaf.org/files/NPAF%20Comments%20Provided%20to%20HHS%20on%20Essential%20Health%20Benefits%20Oct%2020%202011.pdf.

131 Id.

132 Id.

133 Orthotic & Prosthetic Alliance, supra note 41.

134 42 U.S.C. § 18022(b)(4)(B).

135 Orthotic & Prosthetic Alliance, supra note 41.

136 See id.

137 Cf. Orentlicher, supra note 118, at 72-73.

138 E.g., Loftin v. Wilson, 67 So. 2d 185, 188 (Fla. 1953) (holding that, when assessing damages, “the jury must consider the person's health, habits, occupation, surroundings and any other elements, which in his case will be likely to operate for or against his expected length of life, as well as the fact that his earning power may diminish as his physical and mental strength decline”).

139 Inst. of Medicine, Perspectives on Essential Health Benefits: Workshop Report 87 (2012).

140 Patient Protection and Affordable Care Act; Standards Related to Essential Health Benefits, Actuarial Value, and Accreditation, 78 Fed. Reg. 12,834, 12,847 (Feb. 25, 2013) (to be codified at 45 C.F.R. pts. 147, 155, 156).

141 Id.

142 Id. (emphasis added).

143 Id.

144 S.D. Admin. R. 20:06:56:09 (2013).

145 See Hope, Tony et al., “Not Clinically Indicated”: Patients' Interests or Resource Allocation?, 306 Brit. Med. J. 379, 380 (1993)CrossRefGoogle ScholarPubMed; cf. Morreim, E. Haavi, Futilitarianism, Exoticare, and Coerced Altruism: The ADA Meets Its Limits, 25 Seton Hall L. Rev. 883, 907 (1995)Google Scholar (“[P]hysicians cannot appeal to medical science to determine that a patient's life—his very existence—is somehow ‘medically contraindicated.’ It is here that controversies should be resolved, not by professional declaration, but by societal negotiation.”).

146 Cf. Eidelson, Benjamin, Comment, Kidney Allocation and the Limits of the Age Discrimination Act, 122 Yale L.J. 1635, 1645 (2013)Google Scholar (“But when age is cast as a proxy for conditions such as heart disease, and incorporated alongside other paradigmatically medical criteria such as diabetes status, the inference from years lived to years left is attenuated and ‘medicalized’ in a way that may invite greater deference.”).

147 See Thomas L. Greaney, The Affordable Care Act and Competition Policy: Antidote or Placebo?, 89 Or. L. Rev. 811, 827 (2011).

148 45 C.F.R. § 147.104(e) (2013).

149 See Greaney, supra note 147, at 827.

150 42 U.S.C. § 18022(b)(4)(D) (2012).

151 Id.

152 Id. § 1395cc-3.

153 Id. § 18022(b)(4)(B).

154 See, e.g., DeBoer, Michael J., Medicare Coverage Policy and Decision Making, Preventive Services, and Comparative Effectiveness Research Before and After the Affordable Care Act, 7 J. Health & Biomedical L. 493, 563 (2012)Google Scholar (quoting 42 U.S.C. § 1320e-1(c)(1) (2012)) (“The ACA does, however, prohibit the Secretary from using evidence or findings from comparative clinical effectiveness research under section 1181 of the Social Security Act in determining Medicare coverage, reimbursement, or incentive programs ‘in a manner that treats extending the life of an elderly, disabled, or terminally ill individual as of lower value than extending the life of an individual who is younger, nondisabled, or not terminally ill.’”).

155 Health Evidence Review Commission: New Cancer Treatment Guideline, Oregon.gov, http://www.oregon.gov/oha/herc/Pages/New-Cancer-Treatment-Guideline.aspx (last visited Apr. 2, 2015).

156 See, e.g., Letter from The Leukemia & Lymphoma Soc'y et al., to Diane Gerrits, Dir. of the Div. of State Demonstrations & Waivers, Ctrs. for Medicare & Medicaid Servs. (Sept. 27, 2013) (on file with author), available at http://community.lls.org/blog/1/entry-282-oregon-cms-advocate-letter/.

157 Compare 42 U.S.C. § 18022(b)(4)(D) (2012), with § 18022(b)(4)(B).

158 See Univ. of Tex. Sw. Med. Ctr. v. Nassar, 133 S. Ct. 2517, 2531 (2013) (discussing the Supreme Court's disparate interpretations of “discrimination” in the context of the Americans with Disabilities Act and the Age Discrimination in Employment Act); Gross v. FBL Fin. Servs., 557 U.S. 167, 176 (2009) (analyzing the plain meaning of the phrase “because of” in the Age Discrimination in Employment Act); see also Ky. Ret. Sys. v. EEOC, 554 U.S. 135, 142 (2008) (considering legislative intent when ruling on a disparate-treatment claim under the Age Discrimination in Employment Act); Hazen Paper Co. v. Biggins, 507 U.S. 604, 608 (1993) (“The Courts of Appeals repeatedly have faced the question whether an employer violates the ADEA by acting on the basis of a factor, such as an employee's pension status or seniority, that is empirically correlated with age.”).

159 E.g., Petock v. Thomas Jefferson Univ., 630 F. Supp. 187, 189 (E.D. Pa. 1986) (citing Lewis v. Univ. of Pittsburgh, 725 F.2d 910, 914 (3d Cir. 1983)).

160 Smith v. City of Jackson, 544 U.S. 228, 240 (2005) (“[A]ge, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual's capacity to engage in certain types of employment.”).

161 See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961 n.1 (7th Cir. 2010) (explaining that older “because of” language in Americans with Disabilities Act entailed a but-for causation requirement, but noting that newer “on the basis of” language might have different implications); Quillen v. Touchstone Med. Imaging L.L.C., 15 F. Supp. 3d 774, 780 n.10 (M.D. Tenn. Apr. 18, 2014) (collecting cases interpreting the “on the basis of” language); Southerland v. Dep't of Def., 2011 M.S.P.B. 92, ¶ 38 (2011), aff'd as modified, 119 M.S.P.B. 46 (2013) (holding “that the phrase ‘on the basis of’ in the [ADA Amendments Act of 2008] means the same thing as ‘because of’ in the ADA and, therefore, requires application of the same ‘but for’ test discussed in Gross”); Brian S. Clarke, Grossly Restricted Pleading: Twombly/Iqbal, Gross, and Cannibalistic Facts in Compound Employment Discrimination Claims, 2010 Utah L. Rev. 1101, 1125 n.164 (2010) (asserting that “the terms ‘because of’ and ‘on the basis of’ are essentially identical”).

162 Minn. Stat. Ann. § 62U.01 subd. 3 (West 2013).

163 Id. § 62U.01 subd. 5.

164 Id.

165 For a discussion of the expressive significance of legal requirements, see generally Elizabeth S. Anderson & Richard H. Pildes, Expressive Theories of Law: A General Restatement, 148 U. Pa. L. Rev. 1503 (2000).

166 42 U.S.C. § 18022(b)(4)(C) (2012).

167 Id. § 18022(b)(4)(A). This was more or less the approach that Oregon followed in initial versions of its Medicaid plan. See La Puma, supra note 67, at 434 (“The legislature has decided how far down the list to go … and how much more to approve the health care of Oregon's medically indigent.”).

168 See id. § 18022(b)(4)(C) (using the phrase “other groups”).

169 45 C.F.R. § 156.125(a) (2014).

170 Id. § 156.200(e); see also id. § 156.125(b) (“An issuer providing EHB must comply with the requirements of § 156.200(e) of this subchapter.”).

171 See id. §§ 156.125(b), 156.200(e).

172 See generally Jessica L. Roberts, ‘Healthism’: A Critique of the Antidiscrimination Approach to Health Insurance and Health-Care Reform, 2012 U. Ill. L. Rev. 1159, 1187-89 (reviewing and critiquing antidiscrimination provisions in the ACA).

173 Sara Rosenbaum, Update: Essential Health Benefits Final Rule, HealthReformGPS (Mar. 13, 2013), http://healthreformgps.org/resources/update-essential-health-benefits-final-rule-2/.

174 Katie Keith et al., Nondiscrimination Under the Affordable Care Act 12 (2013), available at http://ssrn.com/abstract=2362942 (reporting that “one insurer questioned whether the use of age-based clinical criteria (such as preventive services recommended only for children or adults of a certain age) would be considered ‘reasonable medical management techniques’ (which is allowed under federal regulations) or discriminatory based on age (which is prohibited)”).

175 See id. at 7 (“[I]nsurers in most states can deny or limit coverage based on health status.”) (citing Kaiser Family Found., Health Insurance Market Reforms: Guaranteed Issue 1 (2012), available at http://kaiserfamilyfoundation.files.wordpress.com/2013/01/8327.pdf).

176 Id. (citing Goldman, Dana P. et al., Benefit Design and Specialty Drug Use, 25 Health Aff. 1319 (2006)CrossRefGoogle ScholarPubMed; Kate Fitch & Bruce Pyenson, Benefit Designs for High Cost medical Conditions (2011)) (“[C]onsumers may face high cost-sharing for chronic diseases.”).

177 Id. (citing Danielle Garrett et al., Turning to Fairness: Insurance Discrimination Against Women Today and the Affordable Care Act 7 (2012), available at http://www.nwlc.org/sites/default/files/pdfs/nwlc_2012_turningtofairness_report.pdf) (“Women continue to be charged more for coverage.”).

178 ACA Impact on State Regulatory Authority: Qualified Health Plans, Nat'l Inst. Ins. Commissioners, http://web.archive.org/web/20130502150248/http://www.naic.org/documents/committees_b_exchanges_hcr_reg_alt_wg_130325_analysis_hix.pdf (last visited Feb. 17, 2015).

179 Donna A. Boswell, Access To Care Under Health Reform: How Will Patients Obtain Innovative Therapies 20 (2013), available at http://www.womeningovernment.org/files/DonnaBoswell.pdf.

180 Gary Puckrein, The National Healthcare Quality Report and Essential Health Benefits: Opportunity Squandered, Huffington Post (May 29, 2013), http://www.huffingtonpost.com/gary-puckrein/the-national-healthcare-q_b_3352778.html; Letter from the AIDS Action Comm. of Mass. et al., to Kathleen Sebelius, Sec'y, Health & Human Servs. (Oct. 2, 2012) (on file with the AIDS Institute), available at http://www.theaidsinstitute.org/sites/default/files/attachments/Sebelius%20EHB%20letter%20oct%202012.pdf.

181 See, e.g., Vill. of Willowbrook v. Olech, 528 U.S. 562, 563 (2000) (holding that an individual's allegation that a regulation's application to her was “irrational and wholly arbitrary” was sufficient to state a claim for relief under the Equal Protection Clause (internal quotation marks omitted)).

182 See Racine Charter One, Inc. v. Racine Unified Sch. Dist., 424 F.3d 677, 683-84 (7th Cir. 2005) (collecting cases); see also Schuster, Benjamin L., Fighting Disparate Treatment: Using the ‘Class of One’ Equal Protection Doctrine in Eminent Domain Settlement Negotiations, 45 Real Prop. Tr. & Est. L.J. 369, 392 (2010)Google Scholar (noting that some courts require animus in “class of one” cases).

183 E.g., Level Dev. Corp. v. Pisani, No. 3:10CV820 (MRK), 2012 WL 2397360, at *4 (D. Conn. June 25, 2012) (“Instead of pointing to the similarities between Level and its proposed comparators, Level's brief on this issue lingers instead on the ways in which Level's quarry is ‘atypical,’ ‘peculiar,’ and ‘sui generis.’ … Yet without a similarly situated comparator—much less any evidence in the record of intentional discrimination by Defendants—Level's class-of-one equal protection claim must fail as a matter of law.”).

184 Engquist v. Or. Dep't of Agric., 553 U.S. 591, 603-04 (2008); see also Las Lomas Land Co. v. City of L.A., 177 Cal. App. 4th 837, 860 (Cal. Ct. App. 2009) (rejecting a “class of one” claim where the city had numerous legitimate reasons for choosing not to expand its boundaries).

185 Cf. Endsley v. Luna, No. CV 06-04100 DSF (SS), 2009 WL 3806266, at *3 (C.D. Cal. Nov. 12, 2009), aff'd, 473 F. App'x 750 (9th Cir. 2012) (noting that “[a] state hospital for the mentally ill presents exactly the kind of situation identified by the Supreme Court requiring ‘discretionary decisionmaking based on a vast array of subjective, individualized assessments,’” and therefore barring patient's class of one claim).

186 Cf. Morreim, E. Haavi, Futilitarianism, Exoticare, and Coerced Altruism: The ADA Meets Its Limits, 25 Seton Hall L. Rev. 883, 917 (1995)Google Scholar (“If more of the pharmaceutical budget is spent on high-cost life-saving drugs, less of it will be available to offer a broad variety of choices for more common maladies like hypertension, arthritis, and asthma.”).

187 On the dangers of interest group policymaking, see generally Mancur Olson Jr., The Logic of Collective Action (1965).

188 Public Comment Letter from the ERISA Indus. Comm., to the Internal Revenue Serv. (Sept. 7, 2010) (on file with the Federal eRulemaking Portal), available at http://www.eric.org/forms/uploadFiles/2390800000106.filename.ERIC_Comments_Preventive_Services_Reg090710.pdf (“The Departments also should make clear that a plan may limit its coverage to the preventive services that are appropriate for the general population defined by the recommendations and guidelines (for example, men aged 35 and older): the plan is not required to cover more frequent screenings or other additional services for specific individuals within that population who might be at higher risk for a particular condition (for example, a man with a family history of cardiovascular disease).”).

189 City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985) (holding that a distinction between the mentally ill and others must be rationally related to a legitimate government purpose).

190 See City of Cleburne, 473 U.S. at 450.

191 Id. at 445-46.

192 E.g., Fournier v. Sebelius, 718 F.3d 1110, 1123-24 (9th Cir. 2013), cert. denied sub nom. Berg v. Sebelius, 134 S. Ct. 1501 (2014); Lopez v. Corr. Med. Servs., No. 04-2155 (NLH), 2009 WL 1883915, at *10 (D.N.J. June 30, 2009), aff'd, 499 F. App'x 142 (3d Cir. 2012) (“The most that Lopez has alleged is that those inmates with risk factors other than HIV may not have been screened as promptly as those with HIV. There is no evidence to suggest that Defendants intentionally, and without a rational basis, singled out Lopez and refused to screen or treat just him.”).

193 Bernard v. Blue Cross & Blue Shield of Greater N.Y., 528 F. Supp. 125, 132-33 (S.D.N.Y. 1981), aff'd, 679 F.2d 7 (2d Cir. 1982).

194 Alexander v. Choate, 469 U.S. 287, 303-04 (1985) (citations omitted).

195 Id. at 308.

196 Cohon ex rel. Bass v. N.M. Dep't of Health, 646 F.3d 717, 726-27 (10th Cir. 2011) (rejecting claim that Medicaid benefits sufficient “to serve the interests of the Medicaid population as a whole” but insufficient for plaintiff's needs constituted a Rehabilitation Act violation); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 560 (7th Cir. 1999), cert. denied, 528 U.S. 1106 (2000) (rejecting claim that caps on treatment for AIDS-related illnesses violate the ADA); Lenox v. Healthwise of Ky., Ltd., 149 F.3d 453, 457 (6th Cir. 1998) (rejecting claim that a “plan violates the ADA because it covers some types of transplants, but not heart transplants”); Modderno v. King, 871 F. Supp. 40, 43 (D.D.C. 1994), aff'd, 82 F.3d 1059 (D.C. Cir. 1996), cert. denied, 519 U.S. 1094 (1997) (rejecting claim that differences in benefits violate the Rehabilitation Act).

197 Henderson v. Bodine Aluminum, Inc., 70 F.3d 958, 960 (8th Cir. 1995).

198 Rodde v. Bonta, 357 F.3d 988, 997 (9th Cir. 2004); see also Doe, 179 F.3d at 565 (Evans, J., dissenting).

199 Bowen v. Am. Hosp. Ass'n, 476 U.S. 610, 647 (1986) (Stevens, J., plurality opinion) (“Section 504 does not authorize the Secretary to give unsolicited advice either to parents, to hospitals, or to state officials who are faced with difficult treatment decisions concerning handicapped children.”); Schiavo ex rel. Schindler v. Schiavo, 403 F.3d 1289, 1294 (11th Cir. 2005), reh'g denied en banc, 404 F.3d 1270 (11th Cir. 2005); reh'g denied, 404 F.3d 1282 (11th Cir. 2005); stay denied, 544 U.S. 957 (2005) (“The Rehabilitation Act, like the ADA, was never intended to apply to decisions involving the termination of life support or medical treatment”); United States v. Univ. Hosp., State Univ. of N.Y. at Stony Brook, 729 F.2d 144, 157 (2d Cir. 1984) (rejecting the suggestion that a medical judgment not to treat a newborn with a disability constituted discrimination under the ADA, in part because antidiscrimination principles are inappropriate when applied to medical judgments); see also Wagner ex rel. Wagner v. Fair Acres Geriatric Ctr., 49 F.3d 1002, 1012 (3d Cir. 1995) (noting that Bowen and University Hospital refused to apply the ADA's antidiscrimination provisions to “medical treatment cases involving handicapped infants which necessitate complex assessments of the medical needs, benefits and risks of providing invasive medical care”).

200 Lesley v. Chie, 81 F. Supp. 2d 217, 224 (D. Mass. 2000), aff'd, 250 F.3d 47 (1st Cir. 2001) (holding that the Rehabilitation Act “is not meant to apply to medical treatment decisions”).

201 Burger v. Bloomberg, 418 F.3d 882, 883 (8th Cir. 2005) (“[A] lawsuit under the Rehab[ilitation] Act or the Americans with Disabilities Act (ADA) cannot be based on medical treatment decisions.”); Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005) (stating that “neither the ADA nor the Rehabilitation Act provide remedies for alleged medical negligence,” and collecting cases).

202 In re Baby K, 832 F. Supp. 1022, 1028 (E.D. Va. 1993), aff'd, 16 F.3d 590 (4th Cir. 1994) (suggesting that “an AIDS patient seeking ear surgery is ‘otherwise qualified’ to receive treatment despite poor long term prospects of living”); see also Bowen, 476 U.S. at 656-57 (White, J., dissenting) (“That some or most failures to treat may not fall within § 504, that discerning which failures to treat are discriminatory may be difficult, and that applying § 504 in this area may intrude into the traditional functions of the State do not support the categorical conclusion that the section may never be applied to medical decisions about handicapped infants.”); Univ. Hosp., State Univ. of N.Y. at Stony Brook, 729 F.2d at 162 (Winter, J., dissenting) (“[A] decision not to correct a life threatening digestive problem because an infant has Down's Syndrome is not a bona fide medical judgment.”).

203 See Lesley, 250 F.3d at 55; see also Glanz v. Vernick, 756 F. Supp. 632, 638 (D. Mass. 1991) (“A strict rule of deference would enable doctors to offer merely pretextual medical opinions to cover up discriminatory decisions.”); Glanz v. Vernick, 750 F. Supp. 39, 46 (D. Mass. 1990) (finding, notwithstanding University Hospital, that plaintiff stated a claim for relief under the Rehabilitation Act by alleging that his medical treatment was “denied because of unjustified consideration of … handicap”).

204 Hensel, Wendy F. & Wolf, Leslie E., Playing God: The Legality of Plans Denying Scarce Resources to People with Disabilities in Public Health Emergencies, 63 Fla. L. Rev. 719, 747 (2011)Google Scholar (“The cases declining to review medical treatment decisions generally require scrutiny of professional judgment rendered to a specific individual without predetermined limitations as to what care may be provided. Because the professional's decision pertains to and can be evaluated in the context of a particular patient and his actual need for treatment, it is necessarily based, at least to some extent, on an individualized determination as mandated by the ADA. It may be that once this threshold is crossed, the legitimacy and reasonableness of medical decisions are most appropriately evaluated in the context of state tort law and professional standards of care, rather than in the context of antidiscrimination laws. In contrast, sweeping policies that preclude or significantly limit entire categories of people with disabilities from receiving medical care in advance of actual need necessarily are based on generalizations concerning status. Their legitimacy depends on whether scientific evidence establishes that no individual in the excluded class could possibly qualify for or benefit from the medical treatment at issue, or whether the exclusionary criteria is actually based on prejudicial stereotypes and myths. It is precisely this type of inquiry that Congress intended to reach through the ADA and the Rehabilitation Act, and such policies should be subject to judicial review.” (footnotes omitted)).

205 Id.

206 Id. at 748; see also Mary Crossley, Becoming Visible: The ADA's Impact on Health Care for Persons with Disabilities, 52 Ala. L. Rev. 51, 65 (2000) (describing “the case of Sandra Jensen, a woman with Down syndrome who developed a need for a heart and lung transplant”).

207 Richards, Danielle, Note, The Defibrillation of NOTA: How Establishing Federal Regulation of Waitlist Eligibility May Save Organ Transplant Patients with Disabilities from Flat-Lining, 87 S. Cal. L. Rev. 151, 187 (2013)Google Scholar (endorsing the “importance of individual evaluation of transplant candidates to determine their postoperative compliance abilities”); Angela T. Whitehead, Note, Rejecting Organs: The Organ Allocation Process and the Americans with Disabilities Act, 24 Am. J.L. & Med. 481, 495 (1998) (arguing that UNOS should “consider a patient's candidacy based on his or her own characteristics and capabilities” rather than adopting categorical rules).

208 Cal. Health & Safety Code § 7151.35 (West 2007); N.J. Stat. Ann. § 26:6-86.2 (West 2007); see also Richards, supra note 207, at 188-90 (discussing these statutes).

209 See Hall, supra note 12, at 703-11 (reviewing opposition to priority setting at the physician level).

210 See Hensel & Wolf, supra note 204, at 744-50.

211 Sch. Bd. of Nassau Cnty., Fla. v. Arline, 480 U.S. 273, 286 n.15 (1987); cf. Moossy, Robert J., Jr., Comment, Health Care Prioritization and the ADA: The Oregon Plan 1991-1993, 31 Hous. L. Rev. 265, 316-17 (1994)Google Scholar (“Within the scope of an entitlement program such as Medicaid, however, the decision of what benefits to provide rests with public health officials so long as they are truly exercising their professional judgment in a reasonable manner. It is part of a public health care professional's job to assess treatment options and then decide, using their medically based health care judgment, whether that treatment warrants implementation.” (footnotes omitted)).

212 See Hensel & Wolf, supra note 204, at 724-28.

213 E.g., Alexander v. Choate, 469 U.S. 287, 303-04 (1985); Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 563-64 (7th Cir. 1999); Modderno v. King, 871 F. Supp. 40, 42-43 (D.D.C. 1994).

214 Keith et al., supra note 174, at 4.

215 Id. at 9.

216 Joshua L. Holmes, Human Rights and Health Care Exchanges: Affordable Care Act's Antidiscrimination Provisions, HIV Clinician, Winter 2014, at 1, 2, available at http://www.deltaaetc.org/hcarticles/articles%20as%20pdf/winter%202014%20articles%20as%20pdf/ACA%20antidiscrimination%20provisions.pdf.

217 Mut. of Omaha Ins. Co., 179 F.3d at 560, cert. denied, 528 U.S. 1106 (2000).

218 Letter from Alan Langnas, President, Am. Soc'y of Transplant Surgeons, and Daniel R. Salomon, President, Am. Soc'y of Transplantation, to Laura Cali, Ins. Comm'r, Or. Dept. of Consumer Bus. Servs. (Dec. 6, 2013) (on file with author), available at http://asts.org/docs/default-source/regulatory/asts-and-ast-comments-to-oregon-insurance-division-december-9-2013.pdf.

219 Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare & Medicaid Servs., Frequently Asked Questions on Health Insurance Market Reforms and Marketplace Standards 1 (2014), available at http://www.cms.gov/CCIIO/Resources/Fact-Sheets-and-FAQs/downloads/Final-Master-FAQs-5-16-14.pdf.

220 Id. at 2.

221 Id.

222 See Orentlicher, supra note 118, at 78-81 (discussing Alexander v. Choate and its implications).

223 Gilhooley, Margaret, Broken Back: A Patient's Reflections on the Process of Medical Necessity Determinations, 40 Vill. L. Rev. 153, 161-62 (1995)Google Scholar.

224 Public Comment Letter from the Patients Equal Access Coal., to Kathleen Sebelius, Sec'y, Dep't of Health & Human Servs. (Dec. 21, 2012) (on file with the National Brain Tumor Society), available at http://www.braintumor.org/assets/docs/advocate-for-change/alerts-polls-updates/2012_final_peac_speac_comment_letter_on_ehb_proposed_rule_11_11_13.pdf.

225 However, the ACA's provision for “risk corridors” that pay insurers bonuses for covering high-risk patients attempts to prevent this outcome. See Kaiser Family Found., Explaining Health Care Reform: Risk Adjustment, Reinsurance, and Risk Corridors 8-9 (2014), available at http://kff.org/health-reform/issue-brief/explaining-health-care-reform-risk-adjustment-reinsurance-and-risk-corridors/.

226 Cf. Letter from James H. Scully, Jr., Med. Dir. & CEO, Am. Psychiatric Ass'n, to Ctr. for Consumer Info. & Ins. Oversight (Mar. 15, 2013) (on file with author), available at http://www.psychiatry.org/File%20Library/Advocacy%20and%20Newsroom/APA%20on%20the%20Issues/Regulatory/3-15-13-Final-Letter-to-Issuers-on-Federally-facilitated-and-State-Partnership-Exchanges.pdf (“The primary goal of health reform is to provide health care access to a greater number of Americans. The ACA's nondiscrimination provisions remain central to being able to achieve this goal.”).

227 Memorandum from the Arkansas Insurance Department to All Licensed Insurers et al. 15 (Apr. 11, 2014) (on file with author), available at http://www.insurance.arkansas.gov/Legal/Bulletins/9-2014.pdf; see also Memorandum from Todd E. Kiser, Comm'r, Utah Insurance Dep't, to Insurance Carriers Offering Health Benefit Plans or Stand-Alone Dental Plans 8 (Mar. 4, 2014), available at https://insurance.utah.gov/legal-resources/bulletins/documents/2014-3-Signed.pdf (similar).

228 CMS's 2014 Letter to Issuers in the Federally-Facilitated Marketplaces affirms that the purpose of outlier analysis is to prevent cherry-picking. Memorandum from Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare & Medicaid Servs. to Issuers in the Federally-Facilitated Marketplaces 28 (March 14, 2014) (on file with author), available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/2015-final-issuer-letter-3-14-2014.pdf [hereinafter Final Memorandum] (“In addition to complying with EHB non-discrimination standards, [Qualified Health Plans (QHPs)] must not employ market practices or benefit designs that will have the effect of discouraging the enrollment of individuals with significant health needs. To ensure non-discrimination in QHP benefit design, CMS will perform an outlier analysis on QHP cost sharing (e.g., co-payments and co-insurance) as part of the QHP certification application process. QHPs identified as outliers may be given the opportunity to modify cost sharing for certain benefits if CMS determines that the cost sharing structure of the plan that was submitted for certification could have the effect of discouraging the enrollment of individuals with significant health needs.” (citations omitted)).

229 Draft Memorandum from Ctr. for Consumer Info. & Ins. Oversight, Ctrs. for Medicare & Medicaid Servs. to Issuers in the Federally-Facilitated Marketplaces 30 (Feb. 4, 2014) (on file with author), available at http://www.cms.gov/CCIIO/Resources/Regulations-and-Guidance/Downloads/draft-issuer-letter-2-4-2014.pdf.

230 Final Memorandum, supra note 228, at 29.

231 Patience White, Testimony on Behalf of the American Academy of Pediatrics Before the U.S. Department of Health and Human Services (Oct. 18, 2011), available at http://www.aap.org/enus/advocacy-and-policy/federal-advocacy/Documents/Patience_White_Testimony_10-18-11.pdf.

232 Erin Armstrong, Medical Management and Access to Contraception, Nat'l Health L. Program (May 1, 2013), http://www.healthlaw.org/publications/medical-management-and-access-to-contraception.

233 National Women's Law Center, An Overview of Section 1557, Nondiscrimination Standards, and the Affordable Care Act: A Tool for Stakeholders 7 (2013) (footnote omitted), available at http://www.nwlc.org/resource/overview-section-1557-nondiscrimination-standards-and-affordable-care-act-tool-stakeholders.

234 Public Comment Letter from Jennifer Chrisler, Exec. Dir., Family Equal. Council, to Ctrs. for Medicare & Medicaid Servs., Dep't of Health & Human Servs. (Dec. 20, 2012) (on file with author), available at http://www.familyequality.org/_asset/cst5jd/Family-Equality-Council-Comments-for-HHSEHB-Proposed-Rule-12_20.pdf. The Family Equality Council is a lesbian, gay, bisexual and transgender advocacy group. Id.

235 Id.

236 Inst. of Medicine, supra note 139, at 87.

237 Chrisler, supra note 234.

238 Ricci v. DeStefano, 557 U.S. 557, 577 (2009) (“Title VII prohibits both intentional discrimination (known as ‘disparate treatment’) as well as, in some cases, practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as ‘disparate impact’).”).

239 See Ian Haney-Lopez, Intentional Blindness, 87 N.Y.U. L. Rev. 1779, 1781 n.3 (2012) (collecting examples); see also Ricci, 557 U.S. at 594 (Scalia, J., concurring) (“Whether, or to what extent, are the disparate-impact provisions of Title VII of the Civil Rights Act of 1964 consistent with the Constitution's guarantee of equal protection?”).

240 42 U.S.C. § 18031(e)(1)(B)(iii) (2012).

241 Id.

242 Cf. Strahilevitz, Lior Jacob, Exclusionary Amenities in Residential Communities, 92 Va. L. Rev. 437 (2006)Google Scholar (noting that costly amenities can serve to exclude disadvantaged individuals from community membership).

243 42 U.S.C. § 18031(e)(1)(B)(iii) (2012).

244 42 U.S.C. § 18031(c)(3).

245 Id.

246 Jonsen, Albert R., Bentham in a Box: Technology Assessment and Health Care Allocation, 14 L. Med. & Health Care 172, 174 (1986)Google Scholar.

247 See Persad et al., supra note 11, at 424-25; see also Fleck, Leonard M., Last Chance Therapies: Can a Just and Caring Society Do Health Care Rationing When Life Itself is at Stake?, 2 Yale J. Health Pol'y L. & Ethics 255, 275 (2002)Google ScholarPubMed (noting that “[i]f all … individuals could make themselves visible victims of rationing in need of rescue, it would subvert all just schemes of health care rationing, including last chance therapies.”).

248 42 U.S.C. § 300gg-8.

249 42 U.S.C. § 300gg-8(a)(1)(A)-(C).

250 42 U.S.C. § 300gg-8(d)(1).

251 42 U.S.C. § 300gg-8(e).

252 Human papillomavirus (HPV) and cervical cancer, World Health Org., http://www.who.int/mediacentre/factsheets/fs380/en (last updated Nov. 2014).

253 Autism Fact Sheet, Nat'l Inst. Neurological Disorders & Stroke, http://www.ninds.nih.gov/disorders/autism/detail_autism.htm (last updated Nov. 6, 2014) [hereinafter Autism Fact Sheet].

254 NINDS Chronic Pain Information Page, Nat'l Inst. Neurological Disorders & Stroke, http://www.ninds.nih.gov/disorders/chronic_pain/chronic_pain.htm (last updated Dec. 18, 2014).

255 See Roubille, François & Tardif, Jean-Claude, New Therapeutic Targets in Cardiology—Heart Failure and Arrhythmia: HCN Channels, 127 Circulation 1986, 1993 (2013)CrossRefGoogle ScholarPubMed.

256 Autism Fact Sheet, supra note 53.

257 For a recognition of this limitation, see Menzel, Paul, How Should What Economists Call “Social Values” Be Measured?, 3 J. Ethics 249, 260 (1999)Google Scholar (labeling this problem the “QALY trap”).

258 See, e.g., Bronsteen, John et al., Hedonic Adaptation and the Settlement of Civil Lawsuits, 108 Colum. L. Rev. 1516, 1529-30 (2008)Google Scholar.

259 See Tex. Health & Safety Code Ann. § 166.046 (West 2010) (delineating procedures for stopping futile treatments); Pope, Thaddeus Mason, Dispute Resolution Mechanisms for Intractable Medical Futility Disputes, 58 N.Y.L. Sch. L. Rev. 347, 362 (2014)Google Scholar. But see Katz, Meir, When is Medical Care “Futile”? The Institutional Competence of the Medical Profession Regarding the Provision of Life-Sustaining Medical Care, 90 Neb. L. Rev. 1, 7 (2011)Google Scholar.

260 Kamm, supra note 104, at 236.

261 See Dolan, Paul et al., QALY Maximisation and People's Preferences: A Methodological Review of the Literature, 14 Health Econ. 197, 201-02 (2005)CrossRefGoogle ScholarPubMed; Johansson-Stenman, Olof et al., Saving Lives Versus Life-Years in Rural Bangladesh: An Ethical Preferences Approach, 20 Health Econ. 723, 729 (2011).CrossRefGoogle ScholarPubMed

262 Tsuchiya, Aki et. al., Measuring People's Preferences Regarding Ageism in Health: Some Methodological Issues and Some Fresh Evidence, 57 Soc. Sci. & Med. 687, 688 (2003)CrossRefGoogle ScholarPubMed.

263 See Daniels, supra note 102, at 85; cf. Persad et al., supra note 11, at 425.

264 Contra Silver, Jessica Dunsay, From Baby Doe to Grandpa Doe: The Impact of the Federal Age Discrimination Act on the ‘Hidden’ Rationing of Medical Care, 37 Cath. U. L. Rev. 993, 1066-67 (1988)Google ScholarPubMed (rejecting the use of age in organ allocation).

265 Daniels, Norman, Why Saying No to Patients in the United States Is So Hard: Cost Containment, Justice, and Provider Autonomy, 314 New Eng. J. Med. 1380, 1380-81 (1986)CrossRefGoogle ScholarPubMed; see also Fleck, Leonard M., Just Health Care Rationing: A Democratic Decisionmaking Approach, 140 U. Pa. L. Rev. 1597, 1626 (1992)CrossRefGoogle ScholarPubMed.

266 Daniels, supra note 265, at 1380.

267 42 U.S.C. § 300gg-18(b)(1) (2012).

268 Daniels, supra note 265, at 1381-83.

269 Mullahy, John, Live Long, Live Well: Quantifying the Health of Heterogeneous Populations, 10 Health Econ. 429, 430 (2001)CrossRefGoogle ScholarPubMed.

270 Id. at 435.

271 See supra Part II.C.3.

272 Coleman, supra note 10, at 1122 (“For example, the system does not rely on HLA antigen matching for kidney transplantation, in part because such an approach would systematically favor white over black organ recipients.”); see also Hall, Erin C. et al., Effect of Eliminating Priority Points for HLA-B Matching on Racial Disparities in Kidney Transplant Rates, 58 Am. J. Kidney Diseases 813, 813 (2011)CrossRefGoogle ScholarPubMed; cf. Ayres, Ian et al., Unequal Racial Access to Kidney Transplantation, 46 Vand. L. Rev. 805, 843-50 (1993)Google ScholarPubMed (suggesting how kidney allocation protocols might be revised to remedy racial disparities in allocation).

273 Cf. Ezekiel J. Emanuel, The Ends of Human Life: Medical Ethics in a Liberal Polity 178-244 (1991) (proposing a healthcare system that includes a variety of “community health programs” catering to individuals with different values).