Civil rights complaint targets Idaho health care rationing

By REBECCA BOONE

Associated Press

BOISE — An advocacy group for older adults has filed a civil rights complaint against Idaho over the state's “crisis standards of care” guidelines for hospitals that are overwhelmed by patients amid the coronavirus pandemic.

The group Justice in Aging asked the U.S. Department of Health and Human Services on Tuesday to investigate Idaho's health care rationing plan — contending it discriminates against older adults and especially older Black and Native American adults by using factors like age in prioritizing which patients may get access to life-saving care.

“Older adults are facing serious risk of discrimination, resulting in death,” because of Idaho's crisis standards, Justice for Aging attorneys wrote in their complaint letter.

Other states have faced similar complaints in recent months. Since the pandemic began, public health officials in Arizona, Utah and northern Texas have modified their crisis care plans amid complaints from Justice in Aging and other disability rights and civil rights organizations.

Idaho activated crisis standards of care earlier this month after a surge of COVID-19 patients exhausted the resources available in most Idaho hospitals.

Crisis care standards are designed as ethical and legal guidelines for health care rationing, directing scarce resources like intensive care unit beds or ventilators to patients most likely to survive. If there is a shortage of resources, other patients may be treated with less effective methods or, in dire cases, given pain relief and other palliative care.

Idaho Department of Health and Welfare spokesman Greg Stahl said Friday that the department was unaware of the complaint.

“The Patient Care Strategies for Scarce Resource Situations document is grounded in ethical obligations that include the duty to care, duty to steward resources, distributive and procedural justice, and transparency,” Stahl wrote in an email to The Associated Press. “It's guiding principal is that all lives have value and no patients will be discriminated against on the basis of disability, race, color, national origin, age, sex, gender or exercise of conscience and religion.”

But Justice in Aging said that the standards discriminate by using patients' remaining “life-years” as a tiebreaker if two generally similar patients need the same resources.

“The tiebreaker language in Idaho is not limited to situations where there are large age differences between the two people needing care. By its terms, it would be applied in situations where there may be very little difference, such as a 60-year-old man and a 61-year-old man,” Justice in Aging's attorneys wrote to Health and Human Services' Office of Civil Rights Acting Director Robinsue Frohboese.

The letter added: “When they are so clinically similar as to require a tie-breaker, this would lead to absurd and ageist result of denying care to the 61-year-old man simply because he is as little as one year older.”

Idaho's standards also a “Sequential Organ Failure Assessment” or “SOFA” score to help doctors determine patients' likelihood of surviving an illness or injury.

The score considers how well patients' major organ systems are functioning. But Justice for Aging attorneys say recent studies from Yale University researchers indicate it is not an accurate measure of survival for Black adult patients.

Using age as a tie-breaker violates the federal Age Discrimination Act of 1975 and the Affordable Care Act, said Justice for Aging litigation director Regan Bailey.

The individual patient assessments in the guidelines already account for the impact aging has on the human body, Bailey said, and using it again as a tie-breaker essentially amounts to double-counting age to the detriment of older patients.

“We want the state to not include age as a stand-alone factor,” and to move away from SOFA scores, Bailey. “We're concerned with the continued reliance on a tool that's been shown to disproportionately steer Black people away from life-saving care.”

Several entities were involved in crafting Idaho's crisis plan, including a Disaster Medical Advisory Committee, the Board of Medicine, Idaho State Independent Living Council, officials from the Idaho Attorney General's office and the Department of Health and Welfare, Stahl said. So far, the tie-breakers haven't been used in Idaho, he said.

“The need for tiebreaker criteria is expected to be very rare,” Stahl wrote.

Idaho's coronavirus numbers have continued to surge, leading to record-high hospitalization rates. And the state's coronavirus vaccination rates remain among the lowest in the nation, with only about 51% of eligible residents fully vaccinated.

Hospitals and health care providers are struggling to treat everyone, with new patients sometimes staying on gurneys for days as doctors desperately try to find enough beds and other resources.

Hospital officials have also reported that the mechanical systems their hospitals use for delivering oxygen into hospital rooms is also struggling to keep up with the high demand from the massive influx of COVID-19 patients.

There were more than 760 coronavirus patients hospitalized statewide as of Sept. 20, according to the Idaho Department of Health and Welfare, including 202 people in intensive care unit beds.