Hawaii stood by its decision to use age as a tiebreaker if needed in treatment decisions, according to the latest version of its plan for allocating resources if the pandemic overwhelms the state’s health care system, despite criticism that the plan may discriminate against older patients.

The age provision has drawn concern from advocacy groups and national experts who warned the wording could possibly risk federal scrutiny and even federal sanctions.

“You just don’t get to use age or race or ethnicity or other things as a basis for who wins or who loses in the crisis standards of care allocation scheme,” said James Hodge, a law professor and director of Arizona State University’s Center for Public Health Law and Policy.

The state Department of Health published the crisis standards of care plan on its website for the first time Wednesday, laying out a scoring system that hospitals, nursing homes and other health care facilities should use if they are faced with a triage situation.

“Life-cycle considerations will also be used as a tiebreaker, if there are not enough resources to provide to all patients within a priority group, younger patients will be prioritized,” the plan said, using the same language as the original version that was developed in August 2020.

It added that if two patients have the same triage score, the triage officer or review committee should consider that a Covid patient over the age of 65 is “less likely to benefit from the scarce resource.”

Hilo Medical Center's new vacination site is below Hilo Medical Center at the Arc of Hilo. Photo: Tim Wright
Hilo Medical Center was operating beyond capacity Wednesday due to the Covid pandemic. Tim Wright/Civil Beat/2021

The latest surge in coronavirus cases, fueled by the aggressive delta variant, has hit Hawaii hard, although officials have expressed hope that lower case counts in recent days may indicate the crisis has peaked.

Health officials have emphasized that they hope not to implement the crisis standards of care plan, which is intended only for worst-case scenarios, but the revelation that age may be a factor in determining access to care has raised alarm.

Hawaii had 341 Covid-19 patients in the hospital Wednesday, a drop from last week’s high of 471 but still more single-day hospitalizations of coronavirus patients than any day in 2020. Hospitals such as Hilo Medical Center have been operating beyond their capacity.

In recent weeks, state officials have implemented a series of restrictions, such as banning indoor gatherings larger than 10 people, to prevent the health system from being overwhelmed.

Hawaii’s triage plan was crafted by a group of 21 health professionals from various organizations including but not limited to The Queen’s Medical Center, Hawaii Pacific Health and Kaiser Permanente. Civil Beat reached out to several participants Wednesday but was unable to reach them for comment.

The plan published Wednesday describes the process by which patients’ likelihood of survival, such as preexisting life-limiting illnesses, should be taken into account if there aren’t enough resources to care for everyone, and lays out an appeals process if families disagree with any decisions.

A new introduction penned by Health Department director Libby Char describes how the chief medical officers of the Healthcare Association of Hawaii and a committee dedicated to critical care collaborated with the state to produce the plan.

Matthew Wynia, a physician and director of the Center for Bioethics and Humanities at the University of Colorado, said Hawaii’s plan is very similar to other states and largely uses boilerplate language, but is unusual in how it explicitly describes age and life cycle considerations as determinants.

“I see a problem with having an explicit age cut off,” he said. “There’s really very little to differentiate a 64-year-old from a 65-year-old.”

Hodge, who also works at the Network for Public Health Law which has analyzed crisis standards of care plans, said that other states have been pressured by the U.S. Department of Health and Human Services to revise their plans during the pandemic due to concerns about age and disability discrimination.

The provisions regarding life cycle and age are “a rather clear statement to triage committees — the 80-year old should be put aside, black tagged, but not the 40-year old,” he said, adding that they didn’t appear “equitable or ethical.”

Char’s Response

Char from the Health Department distanced herself from the plan during a state House hearing on Wednesday afternoon.

The Health Department has been facing criticism since the Honolulu Star-Advertiser reported Sunday that the initial plan issued in August 2020 included the age provision, and it raised concerns by the American Association of Retired Persons.

Rep. Gene Ward asked twice if Char agreed with the policy to prioritize younger people.

“This is not my document. I did not write it,” she responded. “This has nothing to do with the state writing it.”

She said that the plan was created by health practitioners with community feedback, including from kupuna who supported the idea of prioritizing younger people.

But the document was recently referenced in a Sept. 1 executive order by Gov. David Ige that in part offers immunity from lawsuits for health facilities that implement the plan.

Char emphasized age comes up only as a last resort if two patients have otherwise identical health situations, and said its inclusion is based on data showing that elderly people are much more likely to die from Covid.

“It was all about trying to be very, very fair and trying to have some mechanism that we can apply across the board to everybody to make decisions,” she said.

In Hawaii, 47% of people aged 80 or older who caught Covid were hospitalized or died. That percentage shrinks to 32% of people aged 70 to 79; 19% of people aged 60 to 69; 12% of people aged 50 to 59; and continues to fall for younger people.

Elderly people in Hawaii are also more likely to be vaccinated against Covid than younger people. And the introduction of vaccines and the delta variant this year have led to more young people being hospitalized than last year.

But the age consideration would only come into play in a crisis situation if two patients had the exact same prognosis based on their triage score, regardless of vaccination.

Legal And Ethical Concerns

Wynia from the University of Colorado has reviewed crisis standards of care plans from across the nation, and said Hawaii’s relies on a commonly used eight-point scoring system that prioritizes people based on their possibility of benefiting from critical care.

But having so few points lends weight to the tiebreakers.

“There are only eight points,” Wynia said. “There are going to be many ties.”

Age isn’t the only final determining factor in Hawaii’s plan; the plan also prioritizes pregnant women as well as the patient’s “contribution to the public health response.”

Wynia also said that all scoring systems are subject to racial bias and that one way to counteract that is to ensure that people who are making triage decisions be trained in implicit bias and understand how racial bias can permeate the system.

Hawaii’s plan currently doesn’t mention such training, even though the state has experienced extreme racial and ethnic disparities throughout its pandemic.

James Pietsch, a law professor at the University of Hawaii who specializes in elder law, said part of what’s concerning about Hawaii’s plan is the lack of public awareness about it. 

The Hawaii Emergency Management Agency posted the August 2020 version of the plan on its website last year but many weren’t aware of the plan until Sunday’s Star-Advertiser article.

Pietsch wonders whether any geriatricians were involved in forming the plan. The plan says practitioners involved came from more than a dozen medical specialties but doesn’t mention geriatrics. He noted Hawaii has a large elderly population and many people would want to weigh in. 

“Why not open it up for some public comment?” Pietsch said. “Why not involve them in this? I’m sure they’d be pleasantly surprised by how much people would engage.” 

Even without an invitation for public comment, the AARP is advocating for the plan to change.

“We think this is age bias and age discrimination and it doesn’t belong in these crisis standards,” said Kealiʻi Lopez, the nonprofit’s Hawaii director.

Click here to read the full plan.

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