But many states — even in virus hot spots — are dragging their feet. Texas Gov. Greg Abbott has yet to respond to an April appeal to set ground rules for triaging patients, in case hospitalization rates outpace the supply of beds. In early July, as caseloads surged and some overwhelmed hospitals started turning away patients, the groups tried again, writing that “what might have seemed unnecessary in April is, we believe, clearly urgent today.” Abbott’s spokesperson didn’t respond to a request for comment.
It’s been left to some local medical bodies to fill the gaps. A health advisory panel for the Dallas-Fort Worth area — home to nearly a third of the state’s population and comprising its second-highest case count — released care rationing guidelines that disability rights groups quickly condemned. Under the policy, doctors could reject outright patients with certain medical conditions, or penalize anyone they think has a grim long-term prognosis — regardless of the person’s short-term outlook for surviving Covid-19. Discrimination based on disability, age or race and ethnicity was not expressly prohibited.
The guidelines were pulled without explanation almost immediately after Disability Rights Texas complained to Severino’s office late last month. The website of the panel that wrote the policy now says it’s under revision.
Meanwhile, Rio Grande City, a border town with a surge in cases had already decided to adopt those Dallas-area triage measures. Jose Vasquez, the health authority of Starr County, Texas, defended the decision to local media, saying rising infections had made the situation “desperate.” The local hospital is tiny, with an eight-bed Covid-19 unit, but had admitted nearly 30 patients with the virus, including three on ventilators and life support, and Vasquez said it wouldn’t be able to keep functioning at that rate.
Vasquez did not respond to a request for comment, but Kevin Reed, an attorney for the hospital district, said the guidelines aren’t being followed and haven’t been necessary — even though the hospital is still at capacity with Covid-19 patients — because they’ve been able to add makeshift bed capacity and the state has sent in contract staff.
Reed noted that the hospital district weighed adoption of the triage guidelines before they’d heard of Disability Rights Texas’ concerns — but that they’re currently discussing the issue with the advocacy groups and medical experts.
“This is a complex issue and, if the district adopts guidelines in the future, it wishes to do this right,” Reed said.
The Arizona triage policy is shaping up to be the next big fight, because of the way it could allow doctors to reject critically ill patients and prioritize people based on their “opportunity to experience life stages.” It also allows health workers to pull ventilators or beds from patients who develop conditions while hospitalized that change their prognosis.
Arizona’s chapter of The Arc appealed to to the HHS civil rights office late last month. The state insists its guidelines won’t “categorically” deny care to anyone “based on stereotypes, assumptions about any person’s quality of life, or judgment about a person’s ‘worth’ based on the presence or absence of disabilities.”
But against this backdrop, Arizona’s hospitals also asked officials to waive the state’s discrimination laws so they can’t be sued if they have to start rationing care.
“Giving physicians and triage committees these kinds of predisposed discriminatory factors to ‘break ties’ is going to bleed over into all kinds of situations that are not necessarily in the writing,” said Matt Valliére, executive director of the Patients’ Rights Action Fund. “They would be immune from any poor decision-making that’s even more discriminatory than what is in this [guidance], because that’s what happens in crisis scenarios.”
Front-line doctors have become embroiled in the debate. Beyond having to make life-or-death decisions they face the possibility of lawsuits over triage decisions.
“Rationing is already here,” a group of 10 physicians wrote in late May in the New England Journal of Medicine. They argued that priority should be given to the critically ill Covid-19 patients who are young — or as they put it, “who are sick but who could recover with treatment.”
But leaders of the American Medical Association and the American College of Physicians have taken a different tack, pointing to the way the pandemic has laid bare long-time inequities in the system. The groups rejected any triage measures that could discriminate against whole swathes of people like the elderly as “not ethically defensible.”
“The pandemic has revealed a need for a much more thoughtful and ethically, medically justifiable approach to the clinical aspects of preparedness planning,” ACP President Jacqueline Fincher and AMA President Patrice Harris wrote in a June op-ed in Modern Healthcare.