Question to Ask for Next Coronavirus Surge: Are Your Triage Protocols in Compliance with OCR Guidance?

At the height of the COVID-19 pandemic, many states issued guidance to hospitals and acute care providers about how to ration and allocate ventilators during the surge.  In states where there was no government guidance, individual acute care providers developed their own protocols.  Most of these protocols utilize a common scoring system which gives each patient a Sequential Organ Failure Assessment (SOFA) score.  The SOFA score is intended to indicate the severity of the patient’s condition and their likelihood of short-term survival: the higher the score, the lower the likelihood of short-term survival.  Many protocols add “points” to the SOFA score for comorbidities and other conditions which are likely to decrease the chance of short-term survival.  Generally, the more points to a patient, the lower the priority for access to life-saving treatment.

Disability rights advocacy groups have asked the Office for Civil Rights (OCR) to intervene where a state’s triage protocol improperly discriminates against persons on the basis of age or disability.  Generally speaking, advocates are concerned that the use of the SOFA score does not properly account for persons with disabilities that are otherwise healthy and likely to survive their acute illness and that triage teams will add points to a patient’s triage score for disabilities due to pre-conceived notions of quality of life of disabled persons or unconscious biases. 

On August 20, 2020, OCR announced that it had reached Early Case Resolution with the state of Utah regarding that state’s crisis standards of care, the fourth such resolution this year involving triage protocols.  A review of the Utah Early Case Resolution, along with the resolutions reached with Alabama, Tennessee, and Pennsylvania, inform states and providers developing their own plans.  Providers that have already developed triage protocols should review the OCR guidance to confirm that their current protocols comply with OCR recommendations.

1.  Do not provide for the unqualified use of SOFA or MSOFA scores.

OCR has made it clear that the use of a strict, unqualified SOFA or even a Modified Sequential Organ Failure Assessment (MSOFA) score is unacceptable due to concerns that persons with disabilities are more likely to receive high scores as a result of their disability but not necessarily as a result of their lower short-term prognosis.  Disability rights advocates have urged providers to ensure that scores are further modified such that baseline co-morbidities do not increase a patient’s score unless objective medical evidence demonstrates that the condition directly impacts an individual’s short-term survivability with treatment.  In resolving these cases, states have typically inserted language requiring “reasonable modification” of the scoring system to ensure that people with disabilities are evaluated based on their actual mortality risk, not disability-related characteristics.

2.  Be careful adding exclusionary conditions and comorbidities. 

Extreme caution should be taken when any plan provides for an automatic reduction in priority due to a disability, condition, or age.  OCR has made clear that any adjustments to score need to be strictly related to short-term mortality.  The use of disabilities unrelated to survivability—such as cognitive function—is not permitted.  

Generally, instead of providing a list of conditions which increase a patient’s triage score (thus inviting challenge if one of such conditions is unrelated to the patient’s short-term prognosis), states have adopted an approach of adding points based on the individualized assessment of the patient and their expected survivability to one or five years. 

 3.  Clarify that personal ventilators may not be re-allocated. 

Protocols should also clarify that a personal ventilator brought to an acute care facility by a patient that has been using it to treat their disability or chronic condition will not be taken from that patient and provided to another, even if the providing patient does not qualify for a ventilator under the facility’s triage protocol.  Although this sounds like an unlikely scenario, disability rights advocates have raised concerns that those who use a ventilator for chronic support have avoided going to the hospital for treatment due to fears that their ventilator would be taken from them to provide for someone who was perceived by the triage team to be healthier and more “worthy” of treatment.

4.  Add a non-discrimination statement. 

Finally, each triage protocol should include a statement affirming that civil rights law continues to apply in an emergency and reminding providers that all decisions must be based on an individualized assessment of the patient based on the best available objective medical evidence.  Generally, states have included excerpts of the March 28, 2020 HHS Bulletin on Civil Rights, HIPAA, and the Coronavirus Disease 2019 to accomplish this.

Providers should also take this time to ensure that their visitation policies appropriately accommodate persons with disabilities.  OCR recently reached an Early Case Resolution with the State of Connecticut and a Connecticut hospital after investigating non-visitation policies for the hospital which only allowed support persons for individuals with disabilities who were receiving certain services from the state Department of Developmental Services.  As a result, the State of Connecticut and the Connecticut hospital revised their policies to permit support persons consistent with disability rights laws. 

If you have any questions or concerns about your facility’s triage protocols and compliance with OCR guidance, please contact Stephen Cowherd, Kelly O’Donnell, or Amy Murray at Pullman & Comley, LLC.



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