What
seemed unimaginable in the United States a few months ago may begin soon in
Utah: rationing of access to critical life-saving medical care. This dire
situation comes due to surging COVID-19 cases coupled with limited medical
supplies and staff at hospitals in the state. As if it were not devastating
enough that some deathly ill patients may be denied life-saving treatment, the
Center for Medicare Advocacy has found that Utah’s criteria for making these
determinations illegally discriminate against older adults in violation of the
Age Discrimination Act of 1975 (Age Act) and Section 1557 of the Affordable
Care Act.
According
to news reports, hospital administrators in Utah have alerted the Governor that
if virus cases continue to climb, hospitals will not be able to treat all
patients – they will need to activate rationing criteria, which they expect to
do within the next week or two.
Under
Utah’s “criteria,” or Crisis Standards of Care, a medical provider who assesses
two patients to be in the same health status can use age as a tie-breaker to
determine which one of them receives access to lifesaving care when there is
only enough to treat one patient. If the standards are approved by the
Governor, then in a scenario where the patients’ conditions are considered
“equal” after certain health factors are taken into account, the provider can
use age as a tiebreaker to deny care to the older patient.
Since
the pandemic began, the Center for Medicare Advocacy has been involved in a
coalition effort, along with disability rights advocates and advocates
representing older adults, to ensure that decisions to ration treatment are
made without discrimination based on disability or age.
In
September, the Center joined colleagues at Justice in Aging and the American
Society on Aging in opposing HHS Office of Civil Rights endorsement of Utah’s
standards as discriminatory against older adults in violation of the Age Act
and Section 1557. To fairly allocate scarce medical resources, such as
ventilators, guidelines should look to an individualized assessment of
short-term mortality risk from the acute COVID-19 infection, not long term
mortality. It is shameful to deny treatment to older adults, based solely on
their age, embracing a value system in which an older person has less societal
worth.
As
stated in our joint letter:
One
major goal of a CSC [Crisis Standards of Care] is to ensure decisions
surrounding scarce resource allocation are made based on an individualized,
clinical assessment of the patient and without discrimination.. . .The
tiebreaker provision will work to prevent an older patient from receiving care
in favor of a younger patient with a similar … individualized assessment. In
that instance, the biased age-based tiebreaker would give preference to the
younger person outside of any individualized factors. To avoid bias, tiebreaker
provisions in crisis standards should not be based on generalized assumptions
that an older individual must have worse mortality outcomes. . . .The
tiebreaker language in the Utah CSC inexplicably denies critical care to the
very people these [COVID-19 mitigation] efforts were meant to protect – those
most at risk of dying from COVID-19 complications.
Resources:
- New York Times, "In hot spots around the country, hospitals are
reaching their limits." https://www.nytimes.com/2020/10/25/world/in-hot-spots-around-the-country-hospitals-are-reaching-their-limits.html
- Salt Lake tribune, "Utah’s hospitals prepare to ration care as a record
number of coronavirus patients flood their ICUs" https://www.sltrib.com/news/2020/10/25/with-coronavirus-cases/
- Letter to Office for Civil Rights: https://justiceinaging.org/wp-content/uploads/2020/10/Utah-CSC-Ltr-to-OCR-2020-09-02.pdf?eType=EmailBlastContent&eId=cdfa7cc7-1b95-4e08-aa9b-eb3b463bf054
- Center for Medicare Advocacy Update: Medical Rationing: https://medicareadvocacy.org/advocacy-update-medical-rationing/
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