In August, staff at hospitals around Oregon began rationing scarce care among patients to an unprecedented extent, making life-or-death decisions about who gets what treatment.

Now, with providers still making such decisions, doctors and hospitals say the state should issue rules for the hot-button practice.

“Clinicians are having to make those decisions without any clear guidelines,” said Rep. Maxine Dexter, a lung specialist and intensive care doctor who has led the call for state guidance on rationing since early in the pandemic.

Dexter, who is in contact with physicians around the state, said the lack of standards hurts the care Oregonians receive. It also fuels the “severe stress” and “burnout” that has led to widespread staff shortages in hospitals around the state.

State health officials, however, reject those calls. They say that it’s up to hospitals to set their own guidelines that follow a non-discrimination policy issued by the state last year.

“Hospitals should have their own crisis standards of care,” said Rudy Owens, a spokesman for the Oregon Health Authority. “And they do not need a declaration from the state to use those when they believe it is necessary.”

Rationing’s new reality

Six weeks ago, the news was jarring:

•A hospital executive in Astoria told the Portland Tribune several patients had died due to a lack of beds in other hospitals, making complex care impossible.

•A nurse, meanwhile, told the Tribune some emergency departments in the Portland region were being “completely overrun to the point where they’re unsafe.”

•Mercy Medical Center in Roseburg reported that a patient died in the emergency room because its intensive-care unit was full.

•At a press conference with Gov. Kate Brown, Jeff Absalon, the top doctor at St. Charles Health System in Central Oregon said, “I don’t want to mince my words: We are rationing care.

“Only patients that have the most severe needs for surgical care are getting that care in our hospitals today. And many, many, many more are waiting.”

‘Triage’ still happening

In September, surges in other states, such as Idaho and Alaska, have led state officials to activate their own statewide crisis care rules to regulate health care rationing there. Hawaii and Arkansas, among others, may follow suit.

In Oregon, where hospitalizations have declined and rationing has faded from the headlines, Gov. Kate Brown has not declared a crisis,

But Dexter says doctors around Oregon are still having to make the same kinds of decisions. Health care resources are still strained, and there is a level of quiet “triage” still happening, with patients suffering as a result.”

“We are triaging to a degree and to adverse outcomes for some people … but we aren’t in what’s considered a crisis,” Dexter said. “Clinicians are still having to make those decisions and (the lack of crisis-care standards) is part of what is perpetuating severe stress for some of our providers, because they don’t have that clarity.”

She joined several other lawmakers for a listening session with 20 physicians and nurses from around the state recently, she added.

“The number one thing they are concerned about is the lack of sufficient resources to deliver standards of care that we all expect of ourselves.”

“Physicians are feeling that very personally,” she said. “it’s driving enormous stress and dissatisfaction and burnout, and that only gets worse the longer that perpetuates.”

State shelved standards

Oregon officials adopted a set of crisis standards of care in June 2018, but had to shelve them due to a lack of anti-discrimination safeguards.

A coalition of nonprofits led by Disability Rights Oregon in May 202 filed a federal complaint with the Office of Civil Rights of the U.S. Department of Health and Human Services, pointing out that the crisis standards lacked even basic protections required by the Americans with Disabilities Act.

Oregonians with intellectual disabilities who had COVID-19 had started being told by doctors that “they should agree to Do Not Resuscitate orders,” the complaint said.

In December 2020, the state issued more general non-discrimination and health equity guidelines for “resource-constrained events,” but promised to soon launch a new process establishing more detailed crisis care guidance and “triage criteria.”

That, however, never happened.

“The state committed to start a process to develop new guidance, and we fully supported that process,” said Becky Hultberg, President and CEO of the Oregon Association of Hospitals and Health Systems. “Unfortunately, one year later, that process has not begun.”

Hospital critics bristle

A recent flurry of activism by hospitals pushing for new standards triggers distrust for Sen. Sara Gelser, D-Corvallis, who has been critical of hospitals for a response to the recent surge that she says has disproportionately hurt the elderly and people with disabilities.

She does not like the idea of hospitals keeping their own crisis care guidelines secretly. In a recent meeting she asked Hultberg’s trade group for copies of hospitals’ policies only to be rebuffed, she said.

“I don’t disagree that there is a crisis at the hospital level,” Gelser said. “But the solution to that should not be at the expense of the lives and safety of elderly and disabled people and people of color and poor people.”

Andy Van Pelt, an executive vice president of the hospitals’ group, disputed Gelser’s characterization.

“As recent as this week, we offered to meet with her to address her questions and concerns. We have been asking for an open dialogue for over a year,” he said. “To say this is about anything other than what is in the best interest of our patients and our staff is inaccurate and insulting.”

Hospitals would benefit financially if the state endorses detailed crisis-care guidance. That would provide a measure of protection against lawsuits filed over the rationing decisions made.

Dexter, for her part, said that lawsuit protection is about letting health care providers do their job when circumstances don’t let them do it as well as they’d like.

Without some protection, and clear guidelines, “you feel like you always could be making the wrong decisions,” she said.

Timeline unclear

Dexter said, she isn’t sure why the standards promised a year ago haven’t come.

It could be that cases went down for a time, or that people have been focused on other crises over the last year.

“It’s not meant as a criticism of any particular person,” she said. “It’s just we we now find ourselves in a crisis without those clear guidelines.”

State officials say they hope to spearhead more detailed crisis-care rules someday, but they don’t know when.

They say the problem is a lack of capacity both in the state and elsewhere, to take on the task.

Owens, the Health Authority spokesman, said the state’s focus right now is to make sure hospitals don’t use rationing in a discriminatory way.

“We want to ensure there’s a foundation of health equity that informs these difficult decisions and that hospitals are using tools that are transparent and informed by input from their community,” he said.

The state hopes to eventually spearhead more detailed guidance, he said, adding “when this will happen is unclear given the current resources both within OHA and in the community.”