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COVID-19 and Health EquityCrisis Standards of Care

Addressing Disparities in Crisis Standard of Care Implementation

November 17, 2021


Broad racial disparities in health outcomes illustrated by the COVID-19 pandemic demonstrate the continuing urgent need for true health justice in the United States. While pandemic impacts have shifted slightly over time, an analysis by Kaiser Family Foundation shows continued disproportionate case numbers in Hispanic populations, disproportionate death counts in Black populations, and disproportionate case and death rates in American Indian and Alaska Native populations. These demonstrated disparities have also shone a light on decision-making tools incorporated into Crisis Standard of Care (CSC) plans. CSC plans are intended to reduce morbidity and mortality during crisis scenarios, saving the most lives through triage decisions when resources are scarce and patient populations are surging. The decision-making criteria incorporated into these plans can and do result in one patient receiving available resources over another; it is therefore of the utmost importance to ensure that decisions are made equitably.

Express discrimination in providing care or allocating resources is clearly unlawful. The Department of Health and Human Services (HHS) Office for Civil Rights (OCR), which enforces civil rights protections in federal health programs, issued guidance on July 20, 2020 explaining the protections ensured during COVID-19 by Title VI of the Civil Rights Act. Discrimination on the basis of race, color, or national origin remain unlawful during states of emergency; OCR expressly stated that COVID-19 related services should not “exclude or otherwise deny persons on the basis of race, color, or national origin.” More specifically, OCR explained that persons from “racial and ethnic minority groups” should not be “subjected to excessive wait times, rejected for hospital admissions, or denied access to intensive care units compared to similarly situated non-minority individuals.”

Yet targeting and eliminating expressly discriminatory provisions does not come close to completely solving the problem. A color-blind approach to CSC, or one which attempts to ignore or not discuss race, fails to account for systemic conditions that cause disparate outcomes. For example, Black patient populations are more likely than White populations to have comorbidities because of institutional and structural barriers to accessing affordable health care, safe housing, employment opportunities and more. Comorbidities undoubtedly contribute to the heightened percentage of Black patient deaths due to COVID-19, but they can also can result in de-prioritization of these patients for resources under triage plans. This is because some triage plans include determinants which fail to account for systemic inequities.

One of the most prevalent criteria for allocation in CSC plans is the Sequential Organ Failure Assessment (SOFA), a system designed to provide prognostic information regarding survival of patients with sepsis. SOFA tracks organ function, providing a survivability score; heightened SOFA scores generally indicate worsened outcomes. SOFA scores were incorporated into many CSC triage plans as a prognostic tool designed to help in prioritizing patients more likely to survive. Yet data in several different analyses published over the course of the COVID-19 pandemic indicate that SOFA is not a reliable tool for assessing survivability in respiratory conditions as opposed to sepsis. Further analyses have pinpointed a distinct equity issue in the use of SOFA: its assessment of organ function disproportionately affects Black patient populations, who are more likely than White patient populations to have chronic kidney disease. This results in heightened levels of creatinine, a factor incorporated into the SOFA scoring metric. Analyses of data across the COVID-19 pandemic indicate that this metric fed into overestimation of Black patient mortality pursuant to SOFA scoring, which ultimately leads to de-prioritization of Black patient populations for resource allocation. Thus, while incorporating SOFA scoring into triage plans is not facially discriminatory, the effects of it in implementation clearly demonstrate disparate impacts.

The creatinine assessment wrapped into SOFA scoring is not the only problem identified in CSC plans. Additional prioritizations based on the amount of life years saved have been expressly addressed by HHS’ OCR as discriminatory on the basis of age (as older persons automatically will have lessened long-term life expectancy as compared with younger people). But “amount of life years” prioritizations also disproportionately affect Black patient populations, who have, on average, lower life expectancy as compared with White patient populations.

Attempts have been made to address these inequities. For example, Massachusetts expressly built into its CSC plan a limitation on SOFA scoring for persons with chronic kidney disease and elevated creatinine. And OCR worked with several states on their CSC plans to eliminate long-term survivability metrics. In October 2021, the Presidential COVID-19 Health Equity Task Force issued a report recommending that the federal government “support research to better understand the ways in which states’ [CSC] intersect with ableism and ageism, as well as how disproportionately impacted communities of color and other underserved populations should be supported.” These kinds of alterations are an important step in the direction of equity. While civil rights protections prohibiting express racial discrimination are clearly imperative, assessing criteria to ensure equitable outcomes is a necessary additional step in developing CSC plans, as color-blind plans ultimately continue to perpetuate and exacerbate racial health disparities.

This post was written by Jennifer Piatt, JD, Deputy Director, Network for Public Health Law – Western Region Office.

The Network for Public Health Law provides information and technical assistance on issues related to public health. The legal information and assistance provided in this post do not constitute legal advice or legal representation. For legal advice, readers should consult a lawyer in their state.

Support for the Network is provided by the Robert Wood Johnson Foundation (RWJF). The views expressed in this post do not represent the views of (and should not be attributed to) RWJF.