Colorado Governor Polis' Latest Executive Order: Confronting Reality Or Confounding It?
The Executive Order Calls Out The "Unvaccinated". But Does It Discriminate Against Them?
On Sunday, October 31, 2021, Colorado Governor Jared Polis issued Executive Order D 2021 135, authorizing hospitals to cease admitting patients if they were at or near capacity. The impetus for this order is a recent rise in COVID-19 cases that, according to media reports, threaten to overwhelm Colorado’s healthcare system.
Hospitals in Colorado are being allowed to turn away patients as the state experiences its worst Covid surge in a year.
An order signed Sunday by Gov. Jared Polis gives health care professionals the authority to prioritize crisis care under the direction of the state health department.
Journalist Kyle Becker of Becker News, framed the order thus:
Colorado Governor Jared Polis has signed an executive order that constitutes a flagrant assault on medical ethics, as well as a human rights violation. The executive order would turn those who have decided to remain unvaccinated for Covid-19, whether for reasons of freedom of conscience or for natural immunity, and to prioritize medical treatment to the vaccinated.
Given the highly polarized nature of COVID policies around the country (and, indeed, around the globe), we do well to pause to examine the particulars of Governor Polis’ order.
Governor Polis Calls Out Colorado’s “Unvaccinated”
We must concede one point straight away to Kyle Becker: the Executive Order undeniably calls out Colorado’s unvaccinated and imputes a measure of blame to them for the state’s hospital crisis:
Despite significant progress, there has been an increase in COVID-19 cases, largely due to the highly contagious Delta variant and the 20% of Coloradans who have yet to get the highly effective, safe vaccine. As a result, the number of persons seeking medical treatment at hospitals may exceed the capacity of any given hospital.
However, scrutiny of the state’s own COVID dashboard suggests Governor Polis might be exaggerating the role of the unvaccinated COVID patient somewhat. The Hospital Data Summary shows the state having a total of 1,296 COVID-19 patients.
The dashboard reports that 1,012 of COVID-19 patients are unvaccinated, and the remainder are vaccinated.
However, data gathered by Johns Hopkins University from the Department of Health and Human Services suggests that Colorado’s COVID-19 patients are very much the minority of the state’s overall patient burden.
As of this writing, Johns Hopkins reports Colorado having 1,396 COVID-19 patients in hospital, and 7,194 non-COVID-19 patients. (Timing variances are the most probable cause for the discrepancy between the Johns Hopkins data and the state dashboard).
For ICU capacity, COVID-19 patients are a larger proportion of the patient burden but still in the minority. As of this writing, Johns Hopkins reports Colorado having 420 COVID-19 patients in ICU and 724 non-COVID-19 patients.
Moreover, according to Johns Hopkins, Colorado is using 86% of its ICU capacity and 74% of its total inpatient capacity. Neither percentage is the 90% figure mentioned in passing by the media:
While the state has a nearly 80 percent partial vaccination rate, unvaccinated people with severe Covid-19 are overwhelming hospitals, many of which reported being over 90 percent capacity, according to Scott Bookman, Covid-19 incident commander for the Colorado Department of Public Health and Environment.
Even Colorado’s own COVID dashboard shows that COVID patients are only 16% of the total patient population at this time.
Governor Polis’ Executive Order does not provide these nuances, and presents a scenario of COVID-19 patients occupying the bulk of the state’s hospital beds. The data absolutely does not support such a presentation.
Whatever causes lie behind the hospital crisis Colorado appears to be experiencing, COVID-19 patients overall do not appear to be the main cause, which would make it impossible for unvaccinated COVID-19 patients to be stressing the state’s hospitals.
Is There Even A Hospital Crisis?
Further inspection of the data also indicates that Governor Polis and the media might be exaggerating the crisis level in Colorado healthcare overall. Judging by the Johns Hopkins data, arguably there is no hospital crisis in the state.
Significantly, Johns Hopkins reports Colorado as having a higher number of available ICU beds and hospital beds overall than is being mentioned in the mainstream media. Fox News, for example, reports that Colorado has a total of 895 ICU beds, while Johns Hopkins gives the total as 1,340—a difference of 445 beds.
Additionally, Colorado’s pandemic incident commander Scott Bookman indicated that, as of Friday, November 5, there were fewer than 100 ICU beds available in the state, and only 815 inpatient beds.
Colorado’s COVID-19 hospitalizations continue to increase at the same time that the number of beds available in the state has declined.
The state has an average of 815 beds available, less than 100 of them in intensive care units, Colorado’s pandemic incident commander Scott Bookman said Friday.
Johns Hopkins indicates 186 ICU beds available and 3,037 inpatient beds—significant differences in both cases—and no decline in ICU or inpatient bed capacity. While it is impossible to determine just from the data which source describes the hospital situation correctly, the Johns Hopkins data (which, remember, is sourced from HHS) makes a compelling presentation that there is no hospital crisis in Colorado.
Governor Polis might be responding to a crisis that literally does not exist. Whether that is or is not the case will be for Coloradans to determine.
Executive Order Authorizes Patient Transfers As Necessary
The thrust of the Executive Order is authorizing individual hospitals to cease admitting new patients and to transfer out patients as needed to keep operating below the saturation threshold.
I authorize CDPHE to determine whether a hospital or freestanding emergency
department is at, or reasonably anticipated to reach, capacity. CDPHE is then authorized to take the following actions, as necessary:
1. Direct the hospital or freestanding emergency department to cease admitting
patients and direct any persons thereafter seeking treatment to another hospital or
facility designated by CDPHE;
2. Direct the transfer of patients from the hospital or freestanding emergency
department to another hospital, skilled nursing facility, dormitory, alternative care
facility, or other facility designated by CDPHE. CDPHE may direct the transfer of
patients without first obtaining the patient’s written or informed consent to such a
3. Direct a hospital, skilled nursing facility, or other facility to accept patients
transferred from a hospital or freestanding emergency department pursuant to this
There is no mention within the text of the Executive Order of a prohibition on treating unvaccinated patients. Indeed, as Governor Polis’ Deputy Press Secretary Elisabeth Kosar's response to Becker News makes clear, such a prohibition arguably would be in violation of Federal law.
“The Executive Order D 2021 135 authorizes the Colorado Department of Public Health & Environment (CDPHE) to determine whether a hospital or freestanding emergency department is at, or reasonably anticipated to reach, capacity. CDPHE is authorized to direct those facilities to transfer patients to prevent overwhelming the capacity of a facility and its staff. The Executive Order doesn’t even mention or have anything to do with vaccination status.
Federal law prohibits hospitals from refusing to provide emergency care to individuals based on their inability to pay. The Executive Order states:
A hospital must comply with the non-waived sections of the EMTALA (Emergency Medical Treatment and Labor Act), including the requirements to provide stabilizing treatment within the hospital’s capabilities and capacity prior to the initiation of a transfer to another hospital, and to provide a medical screening examination to any individual who comes to the emergency department and requests examination or treatment.”
While Ms. Kosar is technically incorrect about the Executive Order not mentioning vaccination status, the authorizations it provides to Colorado hospitals are not grounded in patient vaccination status. The language of the order is indeed clear, but, as written, it does not authorize medical discrimination nor does it target the unvaccinated for denial of medical treatment. The order might open the door for such discrimination by short-circuiting normal consent mechanisms for patient transfers, but that hardly is an endorsement or an enablement of it.
Kyle Becker’s reporting in this regard is simply false. The order does not read as a license to discriminate against those not vaccinated against COVID-19.
Facts Matter. So Does Honest Reporting
For all the mainstream media’s well-deserved reputation for inaccurate reporting, biased reporting, and even blatant propaganda, we should never be so blithe to presume that alternative media sources such as Becker News are immune to such journalistic sins. Taking any reporting at face value is simply unwise. All reporting (including this newsletter) should always be taken with a good dose of skepticism.
Similarly, when appraising the actions and decisions of elected officials, a complete scrutiny of the facts is imperative. Governor Polis’ Executive Order is not discriminatory, but neither is it entirely grounded in reality, and its necessity is at best problematic.
If we go by the Johns Hopkins data, the order’s necessity is nonexistent, and so is the “crisis” in Colorado hospitals. Authorizing—and thus encouraging—potentially unnecessary patient transfers, as well as denying new patients access to hospital resources, has a very immediate risk of impairing public health in Colorado. Far from helping, Governor Polis’ Executive Order could be potentially harmful to patients.
Far from confronting the reality of Colorado’s COVID-19 cases, both the media and the Governor appear to be confounding it, to nobody’s benefit.