by Eleanor Klibanoff, Kentucky Center for Investigative Reporting
April 13, 2020
If Kentucky’s healthcare facilities become overrun with coronavirus patients, tough decisions may have to be made about who gets access to limited resources. But hospitals won’t be making those decisions in a vacuum — they’ll be guided by the state’s crisis standards of care plan.
On March 30, Department for Public Health Commissioner Dr. Stephen Stack sent a copy of the state’s crisis standards of care plan to all hospitals in Kentucky. In an attached letter, he said that as coronavirus spread around the state, “crisis standards of care will need to be deployed to save the largest number of lives possible.”
The 54-page plan lays out how hospitals should respond to “ethical challenges as a result of scarce critical resources,” in an effort to minimize illness, death, and adverse effects on social order and economic stability. It also includes a series of steps hospitals can take to expand their capacity amid a surge of need.
Some steps Kentucky has already taken, like allowing retired healthcare providers to return to work, and others Gov. Andy Beshear has said could be coming in future days and weeks.
The state’s pandemic plans were made with influenza in mind, said Ruth Carrico, a professor and infectious disease nurse at the University of Louisville Hospital who helped write the standards.
“Unfortunately, [COVID-19] has brought a whole different set of issues. This is a clever, a fearless, a relentless virus that has taken us all by surprise,” she said. “But without some sort of foundation, it would be extremely difficult to address those particular nuances.”
Carrico said the plan helps hospitals think through next steps for roadblocks they might run into during an emergency. And it also lays out guidance for what to do if the hospital reaches a point where the efforts to expand capacity aren’t enough — like if there are just more patients who need ventilators than the hospital can accommodate.
“It’s like doing CPR on someone. You continue until you can’t do it anymore,” said Carrico. “Any of us could at any point be in a situation where the need outpaces the resources. No one wants to think about that.”
To be clear: Kentucky is not yet at this stage, and it’s possible we won’t reach that stage during the coronavirus pandemic. One model, from the Institute for Health Metrics and Evaluation at the University of Washington, currently indicates Kentucky has enough intensive care unit beds and ventilators to accommodate the expected spike in cases.
But other states and countries have seen their systems reach the breaking point, and are relying on their own crisis standards of care plans to make decisions about who gets access to life-saving resources.
Kentucky’s plan creates a team of people at each hospital responsible for activating these standards of care, taking the burden off of any single doctor or nurse, and it highlights the need for mental health services for anyone working through those conditions.
“None of us ever want to have to go there,” said Carrico. “And I don’t think there’s anything you can do to adequately prepare someone to decide what to do with the last piece of equipment.”
‘Do the best for the most’
Kentucky’s crisis standards of care plan aims “to do the best for the most,” which means that in a crisis, “there are certain medical conditions or situations where maximally aggressive care will not be able to be provided to every individual.”
The plan says in those situations, hospitals should deprioritize:
- Those who are too ill to likely survive the acute illness
- Those with underlying medical issues that make it unlikely they will live another year
- Those who require a larger-than-normal amount of resources, which makes it not feasible to accommodate their hospitalization in a prolonged mass-casualty situation.
How these broad categories will be translated into actual patient care would be decided at each hospital and should take each patient’s situation into account.
For example, the plan says, people with severe dementia have a relatively high mortality rate and may require more resources than is feasible to provide. But people with dementia are not automatically excluded from care, because “there is wide variance in the severity of the disease between individuals.”
It also specifies that people over the age of 85 “as a group” have a relatively high mortality rate, are less likely to survive an acute illness and may require more resources. But there are also cases where they would qualify for intervention, and thus are not summarily excluded.
Kentucky’s plan is fairly non-specific in its guidance for hospitals. Carrico said that was by design: the plan is intended to be adapted to a hospital’s individual needs, based on the patient population they serve and the severity of the outbreak they are seeing.
Disability Community Concerned
Nationally, rationing guidelines in crisis standards of care plans are controversial. Disability advocates have filed federal complaints against several states, including Tennessee, saying their plans are discriminatory. These plans are also sometimes seen as discriminatory against non-English speakers, vulnerable populations including the homeless, and the elderly.
“People with disabilities know that we are in danger right now,” said Arthur Campbell, Jr., a disability and civil rights advocate from Louisville. ”If they only have one bed and one ventilator to use and two people need it, we know who will get it.”
The American Association of People with Disabilities has appealed to Congress to ban the rationing of medical resources based on the patient’s perceived quality of life, how resource-intensive it would be to save them, and how long they are expected to live, if they are otherwise determined likely to benefit from medical treatment.
Kentucky’s plan does not consider a patient’s perceived quality of life, but it does assess patients on the other two metrics.
Kentucky Protection and Advocacy, the state-funded disability rights group, called on Beshear in an April 7 letter to clarify the state’s policies around rationing medical care.
“While we hope there will not be discrimination against the disabled, history shows that it will nevertheless likely occur,” reads the letter, written by KYPA and signed by 29 groups and individuals.
In the letter, the advocacy group claims that Kentucky’s crisis standards of care plan does not apply during coronavirus, highlighting a point of confusion for advocates and healthcare providers. The plan says it does not apply to pandemic influenza or other long-term infectious disease outbreaks; coronavirus is different from pandemic flu, but is by many measures a long-term infectious disease outbreak.
But the plan is currently in use, and according to Stack’s letter, these are the guidelines hospitals will be using during the coronavirus pandemic if the need emerges.
KYPA’s letter asks Beshear to issue guidance to all hospitals reminding them of their obligation under federal laws that prevent discrimination against people with disabilities.
The group wants the state to remind hospitals that medical decisions should not be based on assumptions about people with disabilities, including that they experience a lower quality of life, will require more treatment resources or have a lower prospect of survival.
“While the possibility of a person’s survival may receive some consideration in an allocation decision, that consideration must be based on the prospect of surviving the condition for which the treatment is designed — in this case, COVID-19 — and not other disabilities,” the letter says.
The current crisis standards of care plan does not address the disabled community in its rationing guidelines. But it does have a section explaining specific challenges people with disabilities may face during a public health emergency, including reduced access to medications, caregiving resources and routine health services.
Critic Calls Plans ‘Fool’s Errand’
These types of plans have come under more scrutiny as states deploy them to deal with the pandemic.
Mark Rothstein, the director of the Institute for Bioethics, Health Policy and Law at the University of Louisville School of Medicine, said crisis standards of care plans that go beyond advising hospitals on expanding capacity and accessing additional resources are unnecessary at best, and problematic at worst.
He said hospitals should triage patients using the standards that emergency medical providers are trained on, and provide care based on available resources and the patient’s likely responsiveness to treatment — not myriad other factors state crisis plans consider.
“You can’t ignore the facts. Otherwise, it wouldn’t be using any medical judgment, you would just be taking numbers,” he said. “But to try to take into account too many things that are subjective or likely to be based on incomplete or inaccurate information, it’s a fool’s errand.”
Rothstein said there is a widespread belief that crisis standards of care guidelines can protect healthcare workers from lawsuits. But, he said, crisis medical situations rarely produce lawsuits, and healthcare workers are protected by several other state and federal laws as long as they are acting in good faith.
Many state crisis standards of care plans urge consideration of more factors than Kentucky’s. Several prioritize care for healthcare workers, a policy Rothstein said he has long opposed as a slippery slope to rationing medical care based on societal value. But, he said, the U.S. response to coronavirus has challenged one of the central premises of his argument.
“I wrote that article on the assumption that we would do everything possible to protect these people who are risking their lives for us, that they were going to get the best personal protective equipment we can get and we’re going to support them in all sorts of ways,” he said.
“We have failed to do that,” he said. “So the assumption on which I made that argument is no longer valid.”
Contact Eleanor Klibanoff at [email protected]