Crisis Standards of Care

Published on: September 28, 2021

Over the past few weeks, increasing COVID-19 hospitalizations finally overwhelmed hospitals, driving health officials to cross a threshold that had been avoided successfully since the beginning of the pandemic. Last week, two hard-hit areas of the United States declared “crisis standards of care” due to lack of available healthcare resources in the setting of COVID-19.

On 9/7/21 the Idaho Department of Health and Welfare announced that two districts in Northern Idaho would activate crisis standards of care; the rest of the state followed suit on 9/16/21 due to a lack of critical care resources at the state’s largest health system. On 9/14/21 the largest hospital in Alaska, Providence Anchorage Medical Center, announced that crisis standards were being activated at that facility, and on 9/21/21 the entire state of Alaska activated crisis standards of care. Another hospital in Montana announced last week that it was also activating crisis standards of care, and other states including Arkansas, Georgia, Kentucky, Mississippi, and Texas are nearing ICU capacity.

What are Crisis Standards of Care?

Crisis standards of care (CSC) provides a framework for the fair, unbiased and ethical allocation of limited healthcare resources during an emergency. Resources can be limited in terms of staffing, supplies, or physical space. Primarily, CSC involves the rationing of limited resources to patients who are most likely to survive, rather than those who are most severely ill. Decisions around care are made according to carefully developed protocols that are established at the organizational or facility level, and which are based on government-approved plans.

As evidenced in Alaska, decisions to activate CSC do not require a formal declaration from the government or other state authorities; decisions occur at the health system or hospital level.

Individual CSCs vary from state to state and between facilities, in part according to each hospital’s unique patient population and individual circumstances. Many state CSC guidelines are based on existing guidelines from other states and academic institutions, including the Institute of Medicine.

CSC protocols consider various factors in prioritizing patients for care. The Sequential Organ Failure Assessment (SOFA) score is a scoring system that uses lab testing to evaluate the performance of several organ systems. Patients receive higher scores for worse function, with a maximum score of 24; patients with higher SOFA scores face increased risk of mortality. Importantly, the SOFA score and related Pediatric Logistic Organ Dysfunction 2 (PELOD-2) score are used primarily to determine short-term survivability in the allocation of ICU care and scarce resources such as ventilators or ECMO therapy.

Of note, COVID vaccination status is not considered as part of the criteria determining the provision of care under CSC.

Some CSC plans establish separate triage teams consisting of providers who are not involved in direct patient care to carry out the application of crisis standards at a hospital. These teams can focus on applying protocols in a fair, unbiased, and accurate manner while freeing treating physicians to focus on providing the best care and support they can for their patients.

As described below, ethical recommendations around CSC discourage overreliance on scoring systems and encourage patient-specific evaluations, including specialty consultation as appropriate. Ethical guidelines, including those by the American Medical Association and the Office of Civil Rights, note that CSC decisions should not be based on non-medical factors such as race, color, national origin, disability, age, gender, religion, or social worth.

In 2012 the Institute of Medicine (now the National Academy of Medicine) published its Crisis Standards of Care: A Toolkit for Indicators and Triggers. This document has provided the foundation for many local CSC guidelines.

In a December 2020 communication, the National Academy of Medicine recommended that hospitals and health systems do the following in preparation for CSC:

Socialize existing CSC plans with health care personnel and take steps to make the plans operational, including determining how staffing shortages will be addressed and what resources clinicians can draw upon for difficult triage or allocation decisions. Whenever possible, these decisions should be made according to best available evidence, consistent with crisis standards guidance, and supported by an incident management team, rather than left to bedside providers.
In the absence of a CSC plan, convene an interdisciplinary team to immediately draft a plan (see the resource list at the conclusion of this letter). Plans should be focused on describing the incremental changes to the way health care – particularly critical care – will be delivered. They should define how staffing accommodations will be implemented to cover the demand for services as fairly as possible. Plans should define the role of an incident command team, how the facility should interact with the rest of the health care system in its region, and the clinical and resource support that is available to clinicians who have to make decisions that fall outside their usual practice standards.
Provide instruction related to applicable civil rights law in the adoption and implementation of CSC plans including prohibitions on unlawful stereotyping.
Make resource allocation decisions based on individualized assessments of each patient, using the best available objective medical evidence concerning likelihood of death prior to or imminently after hospital discharge, including clinical factors relevant and available to such determinations, which may include age under limited circumstances.
However, such assessments should NOT use categorical exclusion criteria on the basis of disability or age; judgments as to long-term life expectancy; evaluations of the relative worth of life, including through quality-of-life judgments, and should NOT deprioritize persons on the basis of disability or age because they may consume more treatment resources or require auxiliary aids or supports.
Plan for how to engage families and palliative care departments in end-of-life discussions and, crucially, ensure that end-of-life wishes are documented, including desire for multi-organ failure support and prolonged mechanical ventilation. Avoid steering or pressuring patients to agree to the withdrawal or withholding of life-sustaining care.

The NAM further recommends the following considerations for physicians providing care under CSC:

Understand the potential resource decisions that may rest on you and determine who you will call for assistance when you have questions or face uncertainty.
Assess prognosis based on the best available evidence. Assess prognosis for short-term survival based on an individualized assessment of the patient based on the best available objective medical evidence.
Do not consider disability, age (unless a prognostic factor), race, gender, or other non-medical factors in your decisions.
Only consider essential worker or other status when these designations are part of a community/state plan (e.g., priority access to vaccine for health care workers is ethically very different from priority access to critical care).
Try to incrementally reduce access to resources whenever possible, avoiding giving all to some and none to others by spreading/stretching the staff or resource.
Do not assume that you know what a patient would want without hearing it from them directly. Avoid steering or pressuring patients to agree to the withdrawal or withholding of life-sustaining care.
Resource allocation decisions should be made based on likelihood of survival to hospital discharge and not judgments as to long-term life expectancy or resource-intensity/duration of need. Decisions should not incorporate stereotypes or evaluations of the relative worth of life on the basis of age, disability, or anticipated disability, including the use of quality-of-life judgments.

How are Physicians Protected?

During a crisis in which resources are unavailable to all patients, physicians undoubtedly face liability exposure since they are the ones who make decisions around rationing care, and it is expected that some patients will experience adverse outcomes due to lack of care. Most importantly, MIEC stands behind our members and we will vigorously defend any physician who is facing liability arising from care delivered under CSC.

The process of creating written crisis standards based on approved standards developed by state public health authorities is intended to provide a framework for making objective, evidence-based decisions for the provision of scarce resources. To the extent that physicians carefully follow CSC guidelines, they should provide some protection for those physicians.

It should also be noted that medical malpractice claims depend on proving negligence, which is a violation of the community standard of care. Standards of care are subject to change, including in situations involving shortages of resources or staff in the absence of a public health emergency. During emergencies, “crisis” standards of care further change this definition. In CSC, physicians are held to the standard of following the CSC guidelines at their facility.

Finally, there are COVID-related federal and state liability protections that may protect physicians while delivering care under CSC. These are generally tied to current states of emergency and address COVID mitigation efforts primarily; however, there may be some liability protection afforded to physicians who provide treatment under CSC. Of note, COVID immunities universally do not apply to gross negligence or willful/malicious conduct.

The national public health emergency was last extended on 7/19/21. There may be liability protections afforded by the PREP Act for non-volunteer physicians providing care under the state of emergency. Other federal statutes provide protection during emergencies, but only for volunteers.

Here are the CSC-related liability protections in the states in which MIEC insures:

Alaska:

In May 2021, Alaska passed HB 76 which extended the public health emergency to December 2021. Under the law, physicians have legal immunity when providing care under CSC when directed to do so by the Department of Health and Social Services.

On 9/21/21 the Alaska DHSS added an addendum to the Public Health Order, which also activated CSC across the entire state. With respect to CSC, the Order allows hospitals, health systems, and providers to activate their own CSC independently or in conjunction with the state.

Importantly, the Order states that any actions taken by providers under the Order are “considered action taken at the request of the DHSS Commissioner as set forth in HB 76.” This allows for immunities to apply to physicians delivering care under CSC.

California:

California’s state of emergency, declared in March 2020, remains in effect. Under the California Emergency Services Act, physicians who render care during a state of emergency and at the “request of a local official” is immune from civil liability.

On 8/16/21 Governor Newsome issued a public health Order requiring hospitals to accept transfer of patients from other facilities in the state that are experiencing shortages of resources.

Hawaii:

On 9/1/21 Governor Ige issued an Executive Order directing health care facilities and providers to assist with the COVID emergency in the state, and immunizing all physicians from liability- including when providing care under CSC.

Idaho:

Idaho declared statewide CSC on 9/16/21. However, there do not appear to be any specific liability protections for physicians delivering care under CSC and/or a public health emergency.