NYS Public Health Legal Manual: A Guide for Judges, Attorneys ...

NEW YORK STATE PUBLIC HEALTH LEGAL MANUAL § 1.101
Commentary
Among the most critical, and most sensitive, decisions that have to
be made by medical professionals in response to public health disasters
is how to allocate scarce resources to vulnerable populations.
Epidemics—or biological, chemical or radiological disasters—
could put overwhelming demands on the need for medicines, vaccines,
medical devices (such as ventilators), and hospital facilities.
There are no statutes or rules directly addressing which vulnerable
persons should get priority to limited health resources, although federal
and state anti-discrimination laws protecting various populations
(e.g., the elderly and the disabled) could constrain government
actions that would otherwise have a discriminatory impact.
Health care providers therefore need to work within an ethical
framework that balances the duty to care for patients with the duty to
use scarce resources wisely. In serious health emergencies, this most
likely would involve a triage system that balances the obligation to
save the greatest number of lives against the obligation to care for
each single patient. See 42 U.S.C. § 1395dd; 42 CFR § 489.24(1)
[hospitals that have emergency departments have obligation to provide
a medical screening examination and stabilizing treatment to
every patient who arrives for care]. Such a system would generally
be based on clinical evaluations of which persons would have the
best chance to survive given the resources available. The specific
criteria for making such grim decisions remain a source of active
debate in the health care community. The State Department of
Health, in coordination with the New York Task Force on Life and
the Law, and the Federal Centers for Disease Control and Prevention
(CDC) have issued plans for allocation of scarce resources in specific
situations (see State plan for allocation of ventilators in an
influenza pandemic, available at http://www.nyhealth.gov/; CDC
prioritization of H1N1 vaccine recipients in 2009, available at http://
www.cdc.gov/) but, absent such prioritization, health care providers
are not required to institute any specific allocation protocols. Failure
to comply with any existing state and federal requirements and
guidelines could carry severe consequences, including loss of government
funding.
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