The Health Law Ticker

Faced with an ongoing public health emergency that threatens to overload healthcare systems, many states, including California, have developed or revisited their crisis care guidelines to address a potential COVID-19 patient surge. Many of these provide a framework, guided by ethical principles and a commitment to treating patients with equity, for hospitals, county health departments and healthcare providers to plan for the potential allocation of critical care resources (such as ventilators) should they become scarce.

The California Department of Public Health (“CDPH”), for example, released its revised “Crisis Care Guidelines” for COVID-19 earlier this year, which includes an Approach to Ventilator Management. These guidelines provide recommendations for ethical and medical best practices for allocating ventilators, with a focus on saving the most lives while respecting human equality.

Some of the guiding principles include:

• A reminder that healthcare decisions, including allocation of scarce resources, cannot be based on age, race, disability (including weight-related disabilities and chronic medical conditions), gender, sexual orientation, gender identity, ethnicity (including national origin and language spoken), ability to pay, weight/size, socioeconomic status, insurance status, perceived self-worth, perceived quality of life, immigration status, incarceration status, homelessness, or past or future use of resources;
• The use of a patient’s SOFA (Sequential Organ Failure Assessment) score or Modified SOFA score as a nondiscriminatory triage process; and
• Encouraging those who will be making allocation decisions to first be educated and trained in avoiding implicit bias, respecting disability rights, and diminishing the impact of social inequalities on health outcomes.

To protect patients’ civil rights while they receive lifesaving healthcare services under these crisis care guidelines, the U.S. Department of Health and Human Services (“HHS”) Office for Civil Rights (“OCR”) has issued guidance warning healthcare providers that the shortages of critical care resources do not suspend anti-discrimination laws. The guidance reminds healthcare providers not to deny medical care to a person with disabilities based on the person’s relative “worth” based on the presence or absence of disabilities or age. Rather, decisions about whether a patient is a candidate for treatment should be “based on an individualized assessment based on objective medical evidence.”

Despite these warnings, OCR has responded to various complaints about multiple states’ crisis standards of care plans or care triaging policies because of their perceived discrimination against patients with disabilities. 

For example, in resolving a complaint about Tennessee’s crisis standards of care plan, OCR requested the state revise its plan by clarifying that “resource-intensity and duration of need on the basis of age or disability should not be used as criteria for the allocation or re-allocation of scarce medical resources.”

In another example, OCR resolved a complaint against Utah’s crisis standards of care plan by requesting the state remove “categorical exclusion criteria that prohibited people with disabilities from receiving care on the basis of their diagnosis, and requiring individualized assessments of patients based on the best available objective medical evidence.”

In the face of the COVID-19 pandemic, healthcare providers must continue to ensure that they do not deny patients’ access to lifesaving healthcare services on the basis of disability or age. To do so, developing a regulatory compliant and clinically useful critical care resources policy is an essential step. The policy should specify clear criteria to reduce potential influence of discrimination and implicit bias in the triage process. Accordingly, healthcare entities who have previously adopted their own policies or are in the process of developing a scarce allocation resource policy should review the applicable OCR and state guidance in addition to any applicable state and federal anti-discrimination laws.