Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

Utah’s Crisis Standards of Care: Discriminatory Medical Rationing

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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.

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