Weekly Review: Ethics, Law & Policy – Staff, Stuff, Space & Systems – April 12, 2021

Weekly Review: Ethics, Law & Policy – Staff, Stuff, Space & Systems – April 12, 2021

Resource Allocation and Crisis Standards of Care

This forthcoming article by Ne’eman et al. assesses Crisis Standards of Care (CSC) plans in 35 states to compare their approaches to disability as they intersect with allocation of scarce resources. Specifically, the article compares states that have revised their CSC plans to those that have not and provides legal and ethical analyses regarding how state policy changes align with existing disability rights ethics and legal frameworks, particularly the Americans with Disabilities Act (ADA) and Section 504 of the Rehabilitation Act. Specific targets of the analysis include state variation across 5 domains:

  • Use of categorical exclusionary criteria
    • The article argues that categorical exclusions, which automatically exclude individuals with particular diagnoses from accessing scarce critical care resources, are both ethically wrong and legally impermissible regardless of rationale, largely because they do not provide an individualized assessment of qualification for a program or service and consideration of reasonable modifications.
  • Use of long-term survival projections
    • The article argues that attempts to maximize “life-years” saved by using long-term survival among allocation criteria deprioritize persons who experience significant health disparities as a result of structural inequities and bias, including persons with disabilities, and that use of equity weighting is both practically and legally dubious. Additionally, they note that long-term survival projections are inherently uncertain and unreliable for this type of use.
  • Use of resource intensity or “duration of need” predictions
    • While acknowledging the strict efficiency argument for deprioritizing those who require greater resources, the article argues that this fails to account for key ethical and legal issues. The ADA and Section 504 require health programs to provide reasonable modifications to ensure meaningful access for persons with disabilities (provided the modifications do not rise to the level of an undue burden or fundamental alteration of the program).
  • Protections against reallocation of personal ventilators
    • The article argues that CSCs should explicitly exempt personal ventilators belong to chronic ventilator users from reallocation, a concern raised early in the pandemic among ventilator users who worried that some CSC plans could be interpreted to permit reallocation of personal ventilators (or other pieces of life-sustaining equipment) if a chronic ventilator user sought acute care at a hospital.
  • Modifications to prognostic scoring instruments
    • Scoring instruments such as Sequential Organ Failure Assessment (SOFA) score are common in CSC plans to assess short-term mortality risk. Several states have modified CSC policies to include modifications to SOFA scores and similar instruments to account for stable underlying disabilities that are not predictive of short-term mortality but may still impact the assessment and thus allocation priority (e.g., impaired motor movement or ability to articulate intelligible speech that may be associated with various types of disabilities). The article argues that such reasonable modifications are required by the ADA and Section 504 to ensure meaningful access for persons with disabilities.

This article by Supady et al. considers the advantages and disadvantages of different decision-makers (triage committees vs. bedside physician-led decision-making) and key principles used for rationing decisions. Triage committees have been used to separate the duties of direct patient care and resource allocation in order to protect the practitioner-patient relationship as decision-making shifts from an individual focus to a population focus under CSC. However, the article argues that institutions operating under CSC found reliance on triage committees impractical due to changing circumstances, multiplicity of care locations, and scarcity of available information. The article proposes that the role of triage committees shift toward providing policies and guidance for clinicians to make rationing decisions consistent with an approach that integrates egalitarian and utilitarian principles and assesses the advantages and disadvantages of various potential principles to guide rationing decisions:

  • Maximization of benefits (utilitarian principles)
  • Individual rights (egalitarian principles)
  • Instrumental value
  • Maximization of number of lives saved
  • Prioritization of the worst off
  • First-come, first-served
  • Lottery systems.

Health Care Workers

Two international surveys of health care workers illuminate key challenges and failures of health care systems during the pandemic with respect to providing adequate equipment and training and ensuring the well-being of health care workers.

  • This article by Kea et al. reports results of a survey of over 2000 health care workers from 23 countries. Among other important findings, the survey found that reuse of personal protective equipment (PPE) designed for single use was extremely common, with over 80% reporting general reuse of PPE. Among those reporting reuse, 65% said they reused N95 respirators. Of those who wore an N95 for an aerosol-generating procedure, 72% reported reuse and 45% reported reuse for more than 3 days. In addition to quantitative insights, qualitative themes of lack of PPE availability resulting in fear and anxiety among health care workers were common, as well as concerns about potential exposure of family members and concerns regarding workload and pay.
  • This article by O’Neal et al. reports results of a survey of over 800 health care workers (with over 90% from the US). Key findings include 74% being concerned about their own health and 86% about potentially spreading COVID-19 to family and friends. Respondents unanimously reported shortages or rationing of at least one type of medical resource, including PPE and sanitizing supplies, and 54% reported that they did not receive sufficient training in how to allocate scarce resources during the pandemic. Many also felt moral distress due to conflicts between institutional constrains and what they believed was right (66%). Most (68%) reported feeling comfortable internally communicating with administration about safety issues, but only 37% reported feeling confident about speaking publicly about safety issues without institutional retaliation.
|2021-04-12T08:02:14-04:00April 12th, 2021|COVID-19 Literature|0 Comments

About the Author: Daniel Orenstein

Daniel Orenstein
Daniel G. Orenstein, JD, MPH, is Visiting Assistant Professor of Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. He teaches in the areas of administrative law, public health law, and health care law and policy. His research focuses on public health law, policy, and ethics, and he was previously Deputy Director of the Network for Public Health Law Western Region, where much of his work centered on emergency preparedness and response, including resource allocation and government authority during declared emergencies, as well as vaccination policy.

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