A nurse enters a COVID-19 patient's room inside the ICU at Adventist Health in Sonora, Calif., on Aug. 27, 2021.
Nic Coury—AFP/Getty Images
September 10, 2021 11:51 AM EDT

On Sept. 7, the country’s leading COVID-19 doctor issued a dire warning about the growing number of pandemic cases in the country, and the shrinking number of ICU beds available to care for the sickest people. Speaking on CNN, Dr. Anthony Fauci, the chief White House medical advisor, said we are “perilously close in certain areas of the country of getting so close to having full occupancy that you’re going to be in a situation where you’re going to have to make some tough choices.”

Those tough choices, he admitted, include discussions about whether scarce resources should go to people who haven’t been vaccinated, and the difficult ethical questions about personal choice that rationing crises raise. Doctors and hospital administrators are making heart-breaking decisions about who gets access to the increasingly few ICU beds. Should vaccinated people take precedence? Should people who followed mask and social distancing recommendations be prioritized over people who flouted these public health guidelines? While Fauci said such factors should not factor into a person’s care, he acknowledged that faced with such difficult choices, inevitably, “there’s talk of that.”

In some states, hospitals have already descended into the negative numbers for ICU beds, meaning they have more patients than beds available. In the U.S., as of Sept. 9, 80% of ICU beds are occupied, with 31% of them filled by patients with COVID-19, according to data collected by the Department of Health and Human Services. Those data also show that 100% of ICU beds in Alabama are occupied, but Dr. Karen Landers, assistant state health officer at the Alabama Department of Public Health, said to TIME in an email that the situation is actually worse. The state “reports that Alabama hospitals are in the negative zone in terms of ICU beds,” she writes. “Alabama hospitals have more ICU patients than ICU beds. Alabama has asked for and received Federal assets for care teams in Southwest and Southeast Alabama in the last two weeks.”

In the vast majority of states, at least 60% or more of those beds are filled with patients, most of them battling COVID-19. As of Sept. 9, more than half a dozen states reported that 90% or more of its ICU beds were occupied.

The strain pushes hospital directors into an ethical corner: how to decide which of the extremely limited beds and staff should go to which patients. In Idaho, where 90% of ICU beds in the state are full, the governor on Sept. 7 declared, for the first time in the state’s history, that the northern regions would now operate under “crisis standards of care,” which means normal standards of care that hospitals provide are preempted by other pressing factors, most notably the scarcity of equipment, beds, and health care staff. The declaration minimizes liability for doctors, nurses, health care workers and hospitals if they can’t respond with the same level of care and resources as they normally would. “Crisis standards of care is a last resort,” said Dave Jeppesen, director of the Idaho Department of Health and Welfare, which made the decision, in a statement.

Because it’s the first time that the emergency standard is being applied, “things are pretty fluid as we are still figuring out what it all means for us,” says Kimberly Johnson, director of communications and marketing for St. Mary’s Health, a 23-bed community hospital in Cottonwood, Idaho. Any decision about allocating limited medical equipment or services to patients goes to the hospital’s triage team, which involves an ethics committee that applies an intricate algorithm that takes into account the patient’s age, health status, family situation and more. It’s not perfect by any means, but gives doctors some foundation on which they can make those seemingly impossible decisions about who receives care and when.

“We are robbing Peter to pay Paul,” says Johnson. “We are wheeling and dealing to find beds, asking other hospitals to take our very acute patients if we can take their less acute ones.” Johnson says doctors have called facilities as far as Utah and San Francisco to find beds for their critical care patients when none were available in the northern part of Idaho last week.

Read more: Pediatric COVID-19 Cases Are Surging, Pushing Hospitals—and Health Care Workers—to Their Breaking Points

Meanwhile, hospitals need to find ways to free up room for those less acute cases. At Kootenai Health, one of the Idaho hospitals affected by the new standards, officials turned the hospital’s health resource center into a temporary patient care unit to absorb those with less urgent needs. Hospitals in Florida were forced to do the same, converting cafeterias into patient wards to accommodate less urgent cases.

But what if there are no such valves to reduce the pressure on the critical care system? In those situations, says David Magnus, director of the Center for Biomedical Ethics at Stanford University, long-standing principles of utilitarianism, prioritization and egalitarianism apply. Different institutes may come up with varying algorithms that balance these concepts in different ways, with some preferring to focus on addressing social and cultural discrimination while others prioritize life years that a younger, healthy person may have yet to live over absolute number of lives saved. These principles have guided medical decision making of scarce resources, most notably in distributing organs for transplantation, for decades. That doesn’t make allocation decisions any easier, he notes, and rationing may grow more necessary in coming weeks and months as COVID-19 continues to spread.

Should vaccinated patients get priority?

The shadow that hovers over the current threat of rationing is the fact that this blow to the health care system was essentially avoidable and solvable. “We are having the same conversation that we had in April 2020. It’s disheartening; we are back where we were a year and a half ago,” says Jeffrey Kahn, director of the Johns Hopkins Berman Institute of Bioethics. “It didn’t have to be this way.”

Unlike during the previous crush on the health care system during the first and second COVID-19 waves, one of the factors driving the flood of ICU cases this time around are people who have not been vaccinated against COVID-19. It’s no coincidence that the states with the highest ICU bed occupancies are also those with relatively low vaccination coverage; in Georgia, where 99% of ICU beds are now full, 42% of the population is fully vaccinated, and in Alabama, where hospitals can no longer find beds for patients who need ICU care, 39% of the residents are vaccinated; Wyoming has a similar vaccination rate, which is the lowest in the country. In a plea on the state’s department of public health website, Alabama’s Landers noted that “given the shortage of ICU beds in Alabama, Alabama Department of Public Health continues to remind the general public of mitigation standards to reduce COVID-19 as well as the need for all persons ages 12 and above to be vaccinated.”

Read more: When Will COVID-19 Vaccines Be Available for Younger Kids?

Still, ethicists and medical professionals agree that people’s behavior is not an acceptable factor to consider in making rationing decisions, as emotionally difficult as that may be to implement. “It’s understandable why physicians, nurses, respiratory therapists, social workers, food service and environmental workers and everybody who works in a health system are frustrated and angry toward the unvaccinated,” says Magnus. “They are facing another surge, and have had a miserable year and a half. And instead of being over, we’re back to square one. There is a sense that this time, we didn’t have to have this, and yet here we are again. So, the emotions are very understandable. But the mere fact that their behavior may have contributed to why people are sick and needing access to critical care resources is not a reason to discriminate [against] them by itself.”

Inevitably, patients who flouted public health guidelines to wear masks, avoid indoor public gatherings, and maintain social distancing will be vying for the same ICU beds as patients who followed them faithfully; but adherence to these guidelines should not play any role in determining who gets care. “The truth is that we provide care to diabetics who are non-compliant [with their dietary advice] and medication, and we provide critical care to smokers who develop heart disease,” says Johnson from St. Mary’s in Idaho. “Not having a vaccination is not a reason to not provide care; it’s not a consideration in our algorithms for how we provide care.”

The chokepoints on the horizon

Those algorithms will be tested to their limits in coming weeks. Even more urgent than the dwindling number of ICU beds is the shortage of ECMO units. For patients who can’t breathe well, extracorporeal membrane oxygen machines act as a mechanical set of heart and lungs to pump oxygenated blood through the body, similar to the heart-lung bypass machines surgeons use during heart bypass surgery. Many of the younger patients now affected by COVID-19 aren’t improving on ventilators—which only provide mechanical breathing assistance but still rely on patients’ lungs to do most of the work—and often require an ECMO. But even before the pandemic, ECMO machines were not widely available. In northern California, where about 7 million people live, there are 40 ECMO beds; Kaiser Permanente’s six beds are already full, and Stanford receives four to five requests for ECMO daily. “There is just not anywhere near enough of this resource to go around,” Magnus says.

In addition, ECMO was first used primarily in treating pediatric patients, and only recently became an option for adults, which means that fewer machines calibrated for adults, as well as fewer specially trained nurses, are available to treat adult ECMO patients—a single patient on ECMO requires a team of three specially trained nurses on duty 24 hours a day. That means that guidelines for helping doctors navigate who should receive ECMO when supply is scarce aren’t as robust as they are for rationing ventilators or ICU beds. “We have similar principles, but I don’t think the processes are as well developed for making decisions in a transparent way and with any type of community engagement,” says Magnus.

Staffing in ICU units is becoming another choke point on the already strained critical care system. Even if ICUs beds are available, the trained staff to care for patients occupying them may not be.

In Florida, when hospitalizations during this latest surge hit their peak in late August, hospitals scrambled to find doctors and nurses to staff the overflowing ICUs. It’s a catch-as-catch-can system that needs better coordination, says Mary Mayhew, president and CEO of the Florida Hospital Association. Having a database of health care professionals from neighboring states who are licensed and ready to fill in during emergency shortages would be a useful lesson learned from the pandemic experience. Already, many states participate in nursing compacts that enable nurses to work outside of the state in which they’re licensed. “We need better information about the number of individuals who have those compact licenses, and a repository that is regularly updated of individuals who have indicated an interest or willingness to support whatever current or future needs may be,” Mayhew says. “It points to an opportunity post-pandemic to evaluate where there are still unnecessary barriers to timely access to staff.”

In the meantime, Fauci stressed that getting vaccinated could help to alleviate some of the burden on ICU wards, as well as avoid those wrenching rationing decisions, as we enter the fall and winter, when students are back in school and colder weather means more people will be spending time indoors where not just SARS-CoV-2, but other respiratory viruses like influenza can take hold and spread. Studies show that fully vaccinated people are better protected against COVID-19, and far less likely than unvaccinated people to develop severe disease that requires ICU or even hospital care. But if the numbers of unvaccinated people remain high, the reality is that the fast-spreading Delta variant will find a way to bury deeper in communities not just in the U.S. but around the world. And with finite medical resources available to care for the sickest patients, rationing will become a hard truth. “Everybody who talks about this really hopes we never have to do this,” says Kahn.

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