Senate approves bill requiring transparency for "crisis standards of care" after heated debate

The Utah Senate on Feb. 18 passed First Substitute Senate Bill 194, directing the Department of Health and Human Services to adopt rules, provide public input and notify elected officials before implementing crisis standards of care or scarce-resource rationing.

Supporters said the bill restores transparency after the department used pandemic-era standards without public rulemaking. Sponsor Senator Curt Fillmore said the department "adopted these crisis standards of care" outside of the Administrative Procedures Act and that the bill requires the agency to write rules, describe committee membership and timelines, and transmit currently used standards to the Administrative Rules Review Committee.

The measure drew extended questioning about operational implications. Senator Iwamoto asked where the department’s existing documents would be filed and how frequently they would change. Fillmore replied the bill requires transmission of those standards to the rules committee and subjects them to the same review process as other administrative rules.

The debate turned pointed when Senator Wyler cited press reports alleging that hospitals and some state agencies used race as a factor when allocating scarce COVID-19 treatments. Wyler said reporting showed hospitals and at least one state had used a point system that "counted a BIPOC status" in prioritization. Opponents said such reports required careful review but reinforced the need for legislative oversight.

Senator Kennedy, a physician who said he had treated large numbers of COVID-19 patients, urged balance: "I am supportive of medical experts, but I will not recommend that we turn our lives over to medical experts to the exclusion of elected officials and others," he said, urging a process that blends medical expertise and public accountability.

After discussion and several clarifying exchanges about the Administrative Procedures Act and the department's prior practices, the Senate passed the bill. The official tally recorded 19 yeas, 5 nays and 5 absent. The bill will be sent to the House for further consideration.

What happens next: If the House concurs and the governor signs the measure, the Department of Health and Human Services will be required to follow the administrative-rule process when adopting crisis standards of care and to notify the legislature prior to activating scarce-resource protocols.