Idaho Sued Over Using Rationing Medical Care, Says It Discriminates Against Elderly

Justice in Aging, an advocacy group for older adults, asked the U.S. Department of Health and Human Services to investigate Idaho's health care rationing plan, claiming it discriminates against the elderly, the Associated Press reported.

Crisis care standards, activated in Idaho this month amid a COVID-19 surge, are designed as guidelines to direct scarce resources, like ventilators, to the patients who are most likely to survive.

Justice in Aging claims that Idaho's crisis standards are ageist because it uses a patient's age as a tiebreaker if two similar patients need the same resources.

"Older adults are facing serious risk of discrimination, resulting in death," because of Idaho's crisis standards, Justice for Aging attorneys wrote in their complaint letter.

For more reporting from the Associated Press, see below.

Idaho Rationed Healthcare Lawsuit
An advocacy group for the elderly claims Idaho's crisis standards are ageists because a patients' age is used to determine if they will receive scarce resources. Above, a counter protester walks through an unmasked crowd during a mask-burning event at the Idaho Statehouse on March 6, 2021, in Boise. (Photo by Nathan Howard/Getty Images)

Justice in Aging's attorneys wrote to Health and Human Services' Office of Civil Rights Acting Director Robinsue Frohboese that "the tiebreaker language in Idaho is not limited to situations where there are large age differences between the two people needing care. By its terms, it would be applied in situations where there may be very little difference, such as a 60-year-old man and a 61-year-old man."

The letter added: "When they are so clinically similar as to require a tie-breaker, this would lead to absurd and ageist result of denying care to the 61-year-old man simply because he is as little as one year older."

Idaho Department of Health and Welfare spokesman Greg Stahl said Friday that the department was unaware of the complaint.

"The Patient Care Strategies for Scarce Resource Situations document is grounded in ethical obligations that include the duty to care, duty to steward resources, distributive and procedural justice, and transparency," Stahl wrote in an email to AP.

"It's guiding principal is that all lives have value and no patients will be discriminated against on the basis of disability, race, color, national origin, age, sex, gender or exercise of conscience and religion."

Other states have faced similar complaints in recent months. Since the pandemic began, public health officials in Arizona, Utah and northern Texas have modified their crisis care plans amid complaints from Justice in Aging and other disability rights and civil rights organizations.

Idaho's standards also a "Sequential Organ Failure Assessment" or "SOFA" score to help doctors determine patients' likelihood of surviving an illness or injury.

The score considers how well patients' major organ systems are functioning. But Justice for Aging attorneys say recent studies from Yale University researchers indicate it is not an accurate measure of survival for Black adult patients.

Using age as a tiebreaker violates the federal Age Discrimination Act of 1975 and the Affordable Care Act, said Justice for Aging litigation director Regan Bailey.

The individual patient assessments in the guidelines already account for the impact aging has on the human body, Bailey said, and using it again as a tie-breaker essentially amounts to double-counting age to the detriment of older patients.

"We want the state to not include age as a stand-alone factor," and to move away from SOFA scores, Bailey. "We're concerned with the continued reliance on a tool that's been shown to disproportionately steer Black people away from life-saving care."

Several entities were involved in crafting Idaho's crisis plan, including a Disaster Medical Advisory Committee, the Board of Medicine, Idaho State Independent Living Council, officials from the Idaho Attorney General's office and the Department of Health and Welfare, Stahl said. So far, the tiebreakers haven't been used in Idaho, he said.

"The need for tiebreaker criteria is expected to be very rare," Stahl wrote.

Idaho's coronavirus numbers have continued to surge, leading to record-high hospitalization rates. And the state's coronavirus vaccination rates remain among the lowest in the nation, with only about 51 percent of eligible residents fully vaccinated.

Hospitals and health care providers are struggling to treat everyone, with new patients sometimes staying on gurneys for days as doctors desperately try to find enough beds and other resources.

Hospital officials have also reported that the mechanical systems their hospitals use for delivering oxygen into hospital rooms is also struggling to keep up with the high demand from the massive influx of COVID-19 patients.

There were more than 760 coronavirus patients hospitalized statewide as of September 20, according to the Idaho Department of Health and Welfare, including 202 people in intensive care unit beds.