With COVID-19 cases surging across the country, many hospitals will soon face the unthinkable—having too few resources to treat all patients in need. Already overrun, some hospitals have had to make the choice to ration Intensive Care Unit (ICU) beds, ventilators, and other lifesaving care. Anticipating increased demand, many states have issued Crisis Standards of Care (CSC) that include guiding principles and criteria for allocating scarce resources.

Patient advocates have challenged the triage protocols incorporated into some state CSC guidelines on the grounds that they violate federal antidiscrimination laws that protect individuals who are older or disabled. In response to these complaints, the Office for Civil Rights (OCR) at the U.S. Department of Health & Human Services has required several states to amend their CSC guidelines in order to comply with applicable civil rights laws.

Unfortunately, OCR’s actions do not go far enough to ensure that, in times of scarcity, older or disabled patients have a meaningful opportunity to obtain the same health outcomes as younger, non-disabled patients. Regulators must also review individual hospitals’ triage protocols for compliance with the civil rights laws and require hospitals to publicize their CSC plans.

When a public health crisis strains the health system’s capacity, providers have a duty to steward scarce resources responsibly. State CSC guidelines therefore emphasize maximizing the efficient use of available resources and direct hospitals to prioritize those patients who are most likely to benefit from treatment. Some states, however, have posted guidelines that adopt a broad conceptualization of net benefits and consider not only patients’ likelihood of surviving COVID-19 with treatment, but also their expected remaining life years, quality of life post-treatment, and anticipated treatment needs. For example, some CSC guidelines assigned patients with intellectual disabilities or metastatic cancer a lower priority score than other patients, regardless of whether these conditions impact a patient’s ability to benefit from treatment for COVID-19. Other CRC guidelines directed hospitals to automatically withhold care from certain patients such as those above a certain age or those with advanced neuromuscular diseases like Lou Gehrig’s disease.   

Acting on complaints filed by disability advocates, OCR reviewed several states’ CSC guidelines and concluded that certain triage criteria do indeed violate applicable civil rights laws, namely Title II of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, Section 1557 of the Affordable Care Act, and the Age Discrimination Act of 1975. Under OCR’s interpretation of these laws, providers can consider age, physical and mental impairments, and other diagnoses, but only as part of a case-by-case assessment of a patient’s ability to benefit from treatment in the short-term. What they cannot do is adopt triage protocols that exclude or deprioritize patients based on age, diagnoses, or functional impairment. Nor can they prioritize patients judged to have a higher quality of life, those with longer life expectancies, or those whose treatment requires fewer resources.

OCR’s actions against discriminatory state CSC guidelines reinforce society’s commitment to allocate lifesaving resources fairly and equitably during times of scarcity. But even if all states with CSC guidelines were to revise their plans to conform to OCR’s directives, this would only partially safeguard the rights of patients who are older or disabled during the COVID-19 crisis. Fully protecting these patients from discrimination in the allocation of scarce resources requires that individual hospitals comply with civil rights laws. Unfortunately, there is reason to fear noncompliance by some hospitals.

Because they are not required to publicize their CSC plans, few hospitals do so. This lack of transparency leaves the public in the dark as to whether hospitals that triage care during the COVID-19 crisis will do so in a manner consistent with civil rights laws. Moreover, disabled and aged patients cannot rely on regulatory oversight to protect their rights because state and federal regulators do not assess individual hospital CSC plans for compliance with civil rights laws. Nor does the Joint Commission, the organization responsible for accrediting hospitals, conduct a substantive review of CSC plans as part of the accreditation process. 

This absence of transparency and oversight would raise little concern if there were minimal risk of hospitals triaging care based on discriminatory criteria. Regrettably, three conditions suggest that this may not be the case. First, state CSC guidelines are just that—guidelines for a state’s hospitals. While many hospitals voluntarily conform their internal triage policies to state guidelines, most states do not legally require hospitals to do so. So even if states amend their CRC guidelines to conform to OCR’s guidance, some hospitals might ignore their state’s guidelines and adopt discriminatory triage protocols.

Second, some states such as Texas, New York, and Oklahoma have no published CSC guidelines, or their guidelines are marked as drafts. In states lacking finalized CSC guidelines, some hospitals may base their triage protocols on frameworks developed by influential bioethicists that incorporate criteria deemed discriminatory by OCR, including life expectancy, disability, or diagnosis. Moreover, in states without finalized CSC guidelines, some hospitals might forego formally adopting triage policies. Should a surge in COVID-19 cases necessitate that these hospitals ration care, triage decisions will be made by beleaguered frontline clinicians. With studies repeatedly documenting implicit bias against the disabled and aged in the health care context, some clinicians’ ad hoc triage decisions will likely be shaped by impermissible criteria or implicit bias against patients who are older or disabled.

Finally, private action lawsuits are unlikely to promote hospitals’ compliance with civil rights laws. The threat of litigation works effectively as a deterrence mechanism only if those harmed by discrimination bring suit. But in the throes of an unprecedented public health crisis, older or disabled patients and their families are unlikely to recognize when denial of care stems from discriminatory triage criteria.  

With the surge in COVID-19 cases straining hospital resources, many medical professionals will confront the grim task of prioritizing which patients receive lifesaving treatment. We must ensure that those making the most consequential of decisions—who lives and who dies—do not unlawfully discriminate against disabled and aged patients. We must remove the cloak of secrecy that currently enshrouds hospital triage protocols. Accordingly, patient advocates, government health agencies, the media, and others should demand that hospitals immediately make their CSC plans and criteria for rationing scarce resources transparent. Federal and state regulators and the Joint Commission also should condition hospital licensing, accreditation, and participation in government health programs on hospital compliance with civil rights laws in CSC plans.

Jessica Mantel is the George Butler Research Professor and Co-Director of the Health Law & Policy Institute at University of Houston Law Center.