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Legal Clinic

Crisis Standards of Care

Brous, Edie JD, MPH, MS, RN

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AJN, American Journal of Nursing: July 2021 - Volume 121 - Issue 7 - p 51-54
doi: 10.1097/01.NAJ.0000758504.14938.01
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Figure
Figure:
Police applaud health care workers who came to New York from other cities to help treat patients with COVID-19. Photo courtesy of the New York Daily News.

[Crisis standards of care] situations impose a heavy emotional toll on healthcare workers. The incredible stress of the magnitude and pace of the patient surge intertwines with the moral burden of making life and death decisions. Ways must be found to alleviate some of this burden and to provide emotional support to healthcare workers.—Crisis Standards of Care: Lessons from New York City Hospitals' COVID-19 Experience1

Nurses have eternally struggled with staffing issues. The inability to spend enough time with patients or to safely deliver care has always created fears of patient harm and of liability. Inexperienced nurses are given responsibilities for which they are unprepared, and experienced nurses are burdened with supervising their performance at the expense of their own patient responsibilities. Staffing laws have been enacted at the federal and state levels to address these concerns,2 but such laws are not adequate to accommodate patient complexity, the time-consuming process of admissions and discharges, or the experience level of nurses caring for progressively more acute patients. They certainly cannot address public health emergencies such as the current COVID-19 pandemic.

Community spread of the novel coronavirus has created a nationwide surge of acutely ill patients requiring critical care resources. Hospitals have been overwhelmed with the influx, and the staffing of skilled nurses has become a more acute problem. Mass casualty disasters do not permit providers or institutions to adhere to conventional standards of care. Sustained scarcities alter guidelines regarding resource allocation of staff and equipment. The pandemic has disrupted usual health care operations, and the focus of care has shifted from promoting the best interests of individual patients to promoting the best interests of the population.3

Point-of-care clinical decisions are greatly altered when the standard of care shifts from conventional to crisis, and when the focus shifts from individuals to the population at large and society. These decisions are made within a changed ethical framework.4 Because the consequence to providers is moral distress, nurses can benefit from understanding crisis standards of care (CSC) and the resultant ethical concerns.5

Standards of care. The Association of American Medical Colleges identifies three standards of care6:

  • conventional standards involving everyday, normal care
  • contingency standards when adjustments need to be made, but individual care remains functionally equivalent
  • crisis standards, when circumstances require adjustments in care delivery

The current pandemic has overwhelmed hospitals with patients in critical condition. More than 586,000 Americans have lost their lives to the coronavirus; as recently as January, the country saw more than 4,000 deaths in a day.7 The United States has the largest number of active cases and almost 20% of global fatalities.8 The current public health situation meets the Institute of Medicine's definition of CSC: “A substantial change in usual health care operations and the level of care it is possible to deliver . . . justified by specific circumstances and . . . formally declared by a state government, in recognition that crisis operations will be in effect for a sustained period.”9

CSC are intended to formally recognize that the environment of care has changed and to provide legal protections for providers and organizations that have implemented them. Generally, nurses are held to a standard of care that requires them to act as a reasonable nurse would in similar circumstances, as determined by professional standards of practice. CSC attempt to indemnify providers during emergencies, so their acts or omissions are judged by adherence to or departure from standards involving emergency situations and resource scarcity.

The Institute of Medicine recommends that CSC plans contain a number of key elements9:

  • fairness
  • equitable processes
  • transparency
  • consistency
  • proportionality
  • accountability
  • community and provider engagement, education, and communication
  • the rule of law

ETHICAL ISSUES

Although needs during catastrophic events might be infinite, the resources will be finite. Determinations must be made regarding allocation of equipment and personnel, and such rationing entails difficult triage decisions. It is important to consider the likelihood of benefit based solely on medical need, and not on considerations of perceived social worth.10 This encompasses a utilitarian framework for which there must be preparedness, training, and planning. Preparation must address the element of moral distress. The participation of nurses in planning for these difficult decisions can provide support for providers while addressing equity, in terms of resource allocation and disparities, and optimizing care during the crisis.11

During public health emergencies, certain populations, such as prisoners, those with physical handicaps, persons lacking mental competence, persons who are unable to speak English, the medically fragile, and the elderly, are more vulnerable. The specific needs of these vulnerable populations must be planned for so they can be addressed.

Resource allocation decisions must be based on individualized assessments using the best medical evidence available that considers short-term survivability.12, 13 The National Academies of Sciences, Engineering, and Medicine defines short-term survivability as being able to be discharged from the hospital.13 Civil rights can be violated if categorical exclusions are made on the basis of age, disability, or long-term survivability. Determinations cannot be based on perceived social worth, and plans must be in place so providers are not making decisions without guidance.

During the utilitarian shift in focus from individual patients to the population, health care disparities can be intensified.14 The current pandemic may be shaped by systemic racism, requiring revision in existing CSC plans. Minority populations experience significant disparities in COVID-19 incidence, morbidity, and mortality.15 Particular attention must be paid to marginalized populations to provide health equity.

Nurses also have an ethical obligation to engage in self-care. As the American Nurses Association notes, “During these times of pandemics or natural catastrophes, nurses and other health care providers must decide how much high-quality care they can provide to others while also taking care of themselves.”16 This includes such considerations as the nurse's own safety, fatigue levels, vulnerability to illness, exposure of one's family, clinical skill level, childcare, and physical endurance.

LEGAL FRAMEWORK

In 2005, the Gulf Coast was struck by two Category 5 hurricanes—Katrina on August 25, followed by Rita on September 24. Health care practitioners were unable to respond effectively because of significant deficiencies in the regulatory framework for deployment of first responders. Each state had its own patchwork of laws. Concerns about workers' compensation, red tape, and fear of liability further delayed and deterred provider response. A committee was appointed to determine whether statutory uniformity would remedy the problem, followed by a drafting committee to propose legislation. The result was the Uniform Emergency Volunteer Health Practitioners Act (UEVHPA).17

The 2006 UEVHPA allows state governments to permit out-of-state licensees to work in their states on a reciprocity basis. This permits nurses not licensed in the host states to provide emergency services there during a declared emergency. The act also provides civil liability protections in addition to what is provided at the state level.17 Similarly, the Model State Emergency Health Powers Act provides liability protection for out-of-state health care professionals when they are responding to public health emergencies.18

All states, the District of Columbia, and several territories belong to the Emergency Management Assistance Compact, which was ratified by Congress and became law in 1996.19 The compact provides for workers' compensation, license reciprocity, liability protection, and reimbursement. It establishes the legal foundation by which the states can share resources.20

The Public Readiness and Emergency Preparedness Act provides immunity from liability for providers,21 as does the federal Volunteer Protection Act.22

Immunity protections in these acts do not apply to intentional torts; willful misconduct; or wanton, grossly negligent, reckless, or criminal conduct. Nurses wishing to be deployed for emergency response must have unencumbered licenses.23 The protections offered by these statutes apply only during declared emergencies. A state wishing to invoke the acts' provisions must declare an emergency under their state laws. To encourage volunteer health practitioners and make them more available, states can declare emergencies in anticipation of impending disasters.

The UEVHPA defines an emergency declaration as “the official pronouncement made by a state or local official authorized to declare the existence of an ‘emergency’ . . . that authorizes the use, deployment, and protection of volunteer health practitioners who comply with the provisions of [the UEVHPA].”17 Such emergency declarations can trigger CSC but cannot be relied upon and do not provide uniformity. (Furthermore, political considerations can interfere with an official's decision to issue such declarations.24)

The Nurse Licensure Compact (NLC) permits RNs and LPNs holding multistate privileges to work in participating states.25 Unlike in the statutes, no declared emergency is required. Nurses can practice in other NLC states without obtaining licensure in those states. Nurses can find out whether their state participates in the compact from the National Council of State Boards of Nursing.26

In addition to federal level statutes, individual states (both those in the NLC and those that do not participate) have passed health orders and have issued state of emergency declarations, executive orders, and emergency directives regarding nursing licensure. As with the NLC, nurses can check the National Council of State Boards of Nursing to learn their state's status.27

ORGANIZATIONAL RESPONSIBILITIES

Health care organizations have a duty to plan for mass casualty situations so clinical operations can be adapted. Shortages of equipment and personnel should be anticipated and prepared for. Planning for CSC must engage all stakeholders and provide coordinated and robust disaster strategies; CSC plans must provide explicit guidelines that address ethical considerations and provider distress. This includes education and training exercises. The Institute of Medicine recommends that CSC plans include9

  • a strong ethical grounding that enables a process deemed equitable based on its transparency, consistency, proportionality, and accountability.
  • integrated and ongoing community and provider engagement, education, and communication.
  • the necessary legal authority and legal environment in which CSC can be ethically and optimally implemented.
  • clear indicators, triggers, and lines of responsibility.
  • evidence-based clinical processes and operations.

An organization's failure to plan and properly prepare for emergencies can be costly in terms of lives and can result in liability claims. As noted in a recent Prehospital and Disaster Medicine editorial, “While health care providers are required by oath to care for patients in need, health care organizations should be held to an even higher standard of disaster preparedness, so that in the event of a crisis, doctors and nurses are capable of fulfilling that oath.”28

NURSING IMPLICATIONS

  • Participate in organizational planning for CSC implementation.
  • Participate in your organization's bioethics committees.
  • Check your state or territory nursing regulatory body updates at the National Council of State Boards of Nursing: www.ncsbn.org/14507.htm.
  • Find out from the Uniform Law Commission whether your state or territory has enacted the EVHPA: https://bit.ly/3e41Nl1.
  • Consider and respect the moral distress that can be caused during CSC.

REFERENCES

1. Toner E, et al. Crisis standards of care: lessons from New York City hospitals' COVID-19 experience: a meeting report. Baltimore, MD: Johns Hopkins Bloomberg School of Public Health, Center for Health Security; 2020 Nov.
2. American Nurses Association. Nurse staffing advocacy. Silver Spring, MD; 2019 Jul. Practice and advocacy; https://www.nursingworld.org/practice-policy/nurse-staffing/nurse-staffing-advocacy.
3. Stewart IA, Jonas BW. Employing crisis standards of care in response to the COVID-19 pandemic. National Law Review 2020;10(80). https://www.natlawreview.com/article/employing-crisis-standards-care-response-to-covid-19-pandemic.
4. American Nurses Association. Crisis standard of care: COVID-19 pandemic. Silver Spring, MD; 2020. https://www.nursingworld.org/~498211/globalassets/covid19/final-crisis-standards-of-care-1.pdf.
5. Hertelendy AJ, et al. Crisis standards of care in a pandemic: navigating the ethical, clinical, psychological and policy-making maelstrom. Int J Qual Health Care 2021;33(1).
6. Association of American Medical Colleges. COVID-19 crisis standards of care: frequently asked questions for counsel. Washington, DC; 2020 Dec 19. https://www.aamc.org/coronavirus/faq-crisis-standards-care.
7. New York Times Staff. Coronavirus in the U.S.: latest map and case count. New York Times 2021 May 3. https://www.nytimes.com/interactive/2021/us/covid-cases.html.
8. Johns Hopkins University of Medicine, Coronavirus Resource Center. COVID-19 dashboard by the Center for Systems Science and Engineering (CSSE) at Johns Hopkins. 2021. https://coronavirus.jhu.edu/map.html.
9. Altevogt BM, et al. Crisis of care: the vision. In: Guidance for establishing crisis standards of care for use in disaster situations: a letter report. Washington, DC: National Academies Press; 2009. p. 17–23. https://www.ncbi.nlm.nih.gov/books/NBK219958/pdf/Bookshelf_NBK219958.pdf.
10. American Medical Association. Crisis standards of care: guidance from the AMA code of medical ethics. Chicago; 2020 Apr 5. https://www.ama-assn.org/delivering-care/ethics/crisis-standards-care-guidance-ama-code-medical-ethics.
11. Butler CR, et al. US clinicians' experiences and perspectives on resource limitation and patient care during the COVID-19 pandemic. JAMA Netw Open 2020;3(11):e2027315.
12. Altevogt BM, et al. Operational implementation of crisis standards of care. In: Guidance for establishing crisis standards of care for use in disaster situations: a letter report. Washington, DC: National Academies Press; 2009. p. 51–90. https://www.ncbi.nlm.nih.gov/books/NBK219958/pdf/Bookshelf_NBK219958.pdf.
13. National Academies of Sciences, Engineering, and Medicine. Crisis standards of care during the COVID-19 pandemic--real-time legal issues and solutions: a webinar. 2021. https://www.nationalacademies.org/event/01-07-2021/crisis-standards-of-care-during-the-covid-19-pandemic-real-time-legal-issues-and-solutions-a-webinar.
14. National Academies of Sciences, Engineering, and Medicine. Crisis standards of care: ten years of successes and challenges: proceedings of a workshop. Washington, DC: National Academies Press; 2020. Proceedings; https://www.nap.edu/catalog/25767/crisis-standards-of-care-ten-years-of-successes-and-challenges.
15. Cleveland Manchanda EC, et al. Crisis standards of care in the USA: a systematic review and implications for equity amidst COVID-19. J Racial Ethn Health Disparities 2020 Aug 13. Online ahead of print.
16. American Nurses Association. Who will be there? Ethics, the law, and a nurse's duty to respond in a disaster. Silver Spring, MD; 2017. Issue brief; https://www.nursingworld.org/~4af058/globalassets/docs/ana/ethics/who-will-be-there_disaster-preparedness_2017.pdf.
17. National Conference of Commissioners on Uniform State Laws. Uniform emergency volunteer health practitioners act. Chicago: Uniform Law Commission; 2007 Nov 1. https://www.uniformlaws.org/viewdocument/final-act-with-comments-30.
18. Centers for Law and the Public's Health. The model state emergency health powers act (MSEHPA). Baltimore, MD; Washington, DC: Johns Hopkins and Georgetown Universities; 2001 Apr 12.
19. United States Congress. Public Law 104-321. Emergency Management Assistance Compact. Washington, DC 1996.
20. EMAC, Emergency Management Assistance Compact. What is EMAC? Lexington, KY: National Emergency Management Association; n.d. https://www.emacweb.org/index.php/learn-about-emac/what-is-emac.
21. U.S. Department of Health and Human Services, Assistant Secretary for Preparedness and Response (ASPR). Public readiness and emergency preparedness act (PREP Act). Washington, DC; 2021 Mar 16. https://www.phe.gov/Preparedness/legal/prepact/Pages/default.aspx.
22. United States Congress. 42 USC (the public health and welfare) chapter 139—volunteer protection. 2010.
23. National Council of State Boards of Nursing. Evaluating board of nursing discipline during the COVID-19 pandemic. Chicago; 2020. Policy brief; https://www.ncsbn.org/Policy-Brief-US-Nursing-Discipline_COVID19.pdf.
24. Hodge JG Jr. Revisiting legal foundations of crisis standards of care. J Law Med Ethics 2020;48(1):221–4.
25. National Council of State Boards of Nursing. State level declaration and the NLC. Chicago; 2020. Emergency declarations; https://www.ncsbn.org/14582.htm.
26. National Council of State Boards of Nursing. Nurse licensure compact (NLC). 2021. https://www.ncsbn.org/nurse-licensure-compact.htm.
27. National Council of State Boards of Nursing. State response to COVID-19. Chicago; 2021 Mar 16. https://www.ncsbn.org/State_COVID-19_Response.pdf.
28. Ingram AE, et al. State preparedness for crisis standards of care in the United States: implications for emergency management. Prehosp Disaster Med 2021;36(1):1–3.
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