Governor Gary Herbert
The Office of Governor Gary R. Herbert
350 North State Street, Suite 200 PO Box 142220
Salt Lake City, UT 84114-2220
RE: Invocation of Utah’s Crisis Standards of Care Guidelines
Dear Governor Herbert,
We are writing because of recent reporting that Utah’s hospitals may soon, or in some instances have already, breached their capacity for critical care during the Covid-19 pandemic. As you may be aware, The Disability Law Center (DLC) brought a complaint in the spring alleging that Utah’s Crisis Standards of Care (CSCs) were discriminatory towards people with disabilities. In August, we were sincerely heartened to see the State resolve our complaint with the U.S. Department of Health and Human Services Office for Civil Rights (OCR) when Utah released updated CSCs that addressed many of the concerns we raised regarding disability discrimination.
While we lauded the improvement to the CSCs, it is unclear to what degree the State has worked with Utah’s medical providers to implement training to ensure the most recent version will guide medical decision-making should the CSCs come into effect.
We are concerned that without clear and unequivocal guidance and education from the State, some medical personnel may be unclear as to what iteration of the CSCs to follow. We urge the State to provide all of Utah’s medical providers with the training needed to implement the August CSCs.
Additionally, While we hope that it is unnecessary to invoke the CSCs for any amount of time, Utah’s Covid-19 case counts remain concerningly high, and it is likely that difficult decisions regarding care are being made even today. It is therefore possible that “soft rationing” or rationing without the invocation of the CSCs is occurring at distinct locations. Whether or not the CSCs are formally invoked, rationing based on disability is unlawful, and the State must make every effort to inform hospitals that such discrimination is prohibited. We also remain concerned about the CSCs use of age as a tiebreaker, and caution about the legality of this approach. As older patients are susceptible to adverse outcomes from COVID-19, it is this group that is in most need of treatment to survive. It is the State’s responsibility to ensure that all Utahns are provided access to the best possible care, and we urge the State to take all necessary steps toward that outcome.
On Friday October 30th, the DLC sent a letter to Utah’s hospitals offering to serve as a resource to provide training on the intersection of reasonable accommodations under the Americans with Disabilities Act and the CSCs. If called upon we are prepared to assist the State with this task as well. We also stand ready to provide the public with information about their rights under the August CSCs.
Given the potentially dire situation our community faces, we implore the State to take all necessary steps to ensure our health care providers have the training they need to make the most difficult decisions in a non-discriminatory manner.
Sincerely,
The Disability Law Center
Adina Zahradnikova
Executive Director
Laura Henrie
Acting Legal Director