Oxygen mask as part of artificial lungs ventilation machine in surgery room, closeup.

Arizona’s Crisis Standards of Care and Fair Allocation of Resources During COVID-19

By Govind Persad

As COVID-19 cases spiked in Arizona, the state activated its crisis standards of care, which provide triage guidelines if absolute scarcity arises.

Arizona has done the right thing by adopting crisis standards of care instead of leaving these decisions about ventilators to be made ad hoc by medical staff, which presents the risk both of arbitrary and biased decisions and of greater distress for clinical staff who are forced to make decisions without a guidance framework.

Arizona’s activation of its crisis standards of care stands in contrast to most other states’ response to the pandemic, including New York, which ultimately did not activate its crisis standards of care. Even though Arizona and other states have not yet reached the stage of absolute scarcity where triage policies are invoked—and hopefully will take steps to avoid reaching it—the move has prompted discussions about fair triage policies and criticisms from some community organizations.

This discussion intersects with two recent New England Journal of Medicine articles, one I co-authored with Michelle Mello and Doug White and one by Mildred Solomon, Matt Wynia, and Larry Gostin, and with a paper David Wasserman, Joe Millum and I have forthcoming in the Journal of Law and the Biosciences.

The community organizations’ critiques often overlap the approaches we take. For instance, we agree about the value of basing decisions on individualized assessments, making clear that individuals using out-of-hospital ventilators should not have their ventilators reallocated if they are hospitalized, and providing interpreters and other forms of assistance to ensure inclusive participation in health decisions.

There are two major areas, however, where we differ. The first is the claim that triage policies are unreasonable to consider whether someone is likely to survive for a year after treatment. Although some of the organizations describe one-year survival as “long-term survival,” one-year survival is short-term survival.

Ethicists, including those deeply concerned with disparity reduction, recognize “conditions that are very severe, with a life-expectancy of less than one year” as a legitimate criterion when there are “insufficient resources to meet the needs of all individuals with similar probability of short-term survival.” One-year survival is considered when allocating other scarce resources, such as organs for transplant.

It is doubtful that considering one-year survival will “disproportionately de-prioritize people with disabilities from receiving critical care”; the overwhelming majority of disabilities, including many that are the object of stigma or injustice, do not limit one-year survival. If we are willing to ask people to accept major burdens and health risks – like delayed medical procedures – to save lives from COVID-19, it is reasonable to consider whether those lives are being saved for at least a year, just as it is reasonable to consider one-year survival when asking people to donate organs to save lives.

The alternative criterion the organizations propose, “immediate short-term survival,” is less specific than one-year survival and more open to subjective interpretation. The same is true for the proposal to consider a “clinically-definitive terminal diagnosis that makes mortality imminent and the individual meets hospice guidelines” as a factor in allocation, rather than one-year survival. While there is reasonable disagreement over when short-term survival becomes long-term survival and so less appropriate to consider, one year is a reasonable and administrable standard for short-term survival.

The more serious and troubling problem is the organizations’ conflation of age with life expectancy.

Organizations concerned with social justice err in rejecting policies that aim to prevent the distinctive harm of dying earlier in life from COVID-19—a harm that, we are learning, disproportionately befalls members of groups subject to structural racism—and in conflating age-aware policies with policies that consider long-term life expectancy. As I and others argue in a recent Pediatrics roundtable, a variety of ethical perspectives recognize the legitimacy of prioritizing younger patients for scarce treatments. Considering age as one factor in allocating scarce resources is also recognized as legal, including by HHS.

Whereas giving priority to patients with a relatively longer life expectancy presents a genuine tension between those who are more likely to benefit from treatment and those who are most disadvantaged, giving priority to younger patients does not present this tension: a younger, severely ill patient has not been able to live for as many years as older patients, making her claim to a ventilator particularly urgent, regardless of her future life expectancy.

Last, while I disagree with some of the criticism of the Arizona crisis standards of care, I also see a deeper reason for legitimate frustration. Unlike Italy or New York, Arizona had ample notice that COVID-19 was spreading. Yet its Governor decided to reopen bars and indoor venues earlier than other states.

In light of this, people might reasonably feel frustrated at being asked to make, and be subject to, wrenching triage decisions when the need for triage was plainly avoidable. And they might see triage policies as complicit in, or even responsible for, deaths that should have been avoided. It might seem preferable to refuse to make moral compromises to save lives in the fact of background injustice, and to simply let the chips fall where they may.

The refusal to triage in unjust circumstances offers the promise of moral purity—of keeping health systems’ hands clean of social wrongs. But I believe it embodies a cognitive bias some have recently recognized: the mistake of blaming people who take action to address a danger for the danger itself. Triage policies and crisis standards of care are part of a broader effort at harm reduction in the face of COVID-19—an effort that will often seem morally unsatisfying against a backdrop of inadequate federal response, but that nevertheless has the promise of saving lives while treating people fairly.


Thanks to Joe Millum and David Wasserman for their comments on a draft of this post.

Govind Persad

Professor Persad’s research interests center on the legal and ethical dimensions of health insurance, health care financing (both domestic and international), and markets in health care services, as well as professional ethics and the regulation of medical research. He has been selected as a 2018-21 Greenwall Faculty Scholar in Bioethics for an ongoing research project on health insurance and protection against financial risk. His articles have appeared or will appear in the George Washington Law Review, Emory Law Journal, Boston College Law Review, and Yale Journal of Health Policy, Law, and Ethics, among others. He was selected as a Health Law Scholar in 2017 and as a BioIP Scholar in 2018 by the American Society of Law, Medicine and Ethics.

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