The advocacy group Justice in Aging has filed a civil rights complaint against Idaho, claiming the state’s health care rationing plan discriminates against older people, particularly Black people and Native Americans, by prioritizing which patients receive life-saving care, per the Associated Press. 

Justice in Aging’s attorneys said in their complaint, “Older adults are facing serious risk of discrimination, resulting in death,” because of Idaho’s crisis standards, which allegedly uses patients’ remaining life-years as a factor when it comes to two patients with similar needs requiring the same resources. 

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Justice for Aging legal director Regan Bailey said using age as a tie-breaker violates the federal Age Discrimination Act of 1975 and the Affordable Care Act, especially because the impact of aging on the human body is already factored into individual patient assessments in the recommendations. 

“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,” per Justice in Aging’s attorneys. “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.”

The state declared crisis standards of care earlier this month after a surge in COVID-19 patients overwhelmed the resources available in most Idaho hospitals. The standards are meant to serve as ethical and legal guidelines for allocating scarce health care resources such as intensive-care unit beds and ventilators to patients who are most likely to survive.  

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Requirements include a “Sequential Organ Failure Assessment” or “SOFA” score, which is based on how well the major organ systems of the patient are working, to assist doctors in determining a patient’s chances of surviving an illness or injury. 

Justice in Aging wants the state to “not include age as a stand-alone factor” and shift away from SOFA scores, according to Bailey, because they’re concerned about the continuous dependence on a tool that has been found to disproportionately push Black people away from life-saving care. 

Greg Stahl, a spokesman for the Idaho Department of Health and Welfare, said in an email to AP the Patient Care Strategies for Scarce Resource Situations document is anchored in “ethical obligations that include the duty to care, duty to steward resources, distributive and procedural justice, and transparency.” 

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“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,” he said. 

In response to complaints from Justice in Aging and other disability rights and civil rights organizations, public health officials in Arizona, Utah, and northern Texas have changed their crisis care plans since the pandemic began.