Ethics, Law & Policy Roundup: Space, Staff, and Supplies

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Ethics, Law & Policy Roundup: Space, Staff, and Supplies

Ethics, Law & Policy Roundup: Space, Staff, and Supplies

TESTING: Tennessee is taking a bold approach to testing for COVID-19, making testing available to any person who wants it, even without symptoms or specific exposure risks. Test shortages have led most states to limit availability, but Tennessee’s approach has led to one of the highest rates of testing in the country. A key component to the approach has been the state’s policy of paying directly for testing at private commercial labs, rather than having the labs bill various health insurance plans. Although insurance plans are required to cover the testing, the time, paperwork, and initial costs required can be a disincentive for labs to participate.

DRUGS: The federal government allocated limited supplies of remdesivir to states, which have allocated them to hospitals. Yet criteria differ by state and by hospital, meaning that a patient who qualifies in one location might not qualify in another. According to a recent study (discussed more fully in another post), the drug may moderately improve time to recovery in COVID-19 patients, but little is known at this point about which patients may benefit most. As a result, allocation strategies have ranged from first-come, first-served to random allocation by lottery.

HEALTH CARE WORKER SAFETY: A survey from nurses’ union National Nurses United reports that PPE remains scarce in many facilities, potentially increasing risks to staff and patients. According to the survey, 87% of respondents reported having to reuse a single-use disposable respirator or mask with a COVID-19 patient, and 28% reported having to reuse a decontaminated respirator with a confirmed COVID-19 patient. Additionally 27% reported providing care to confirmed COVID-19 patients without appropriate PPE and having subsequently returned to work before the end of a 14-day quarantine window, and 33% reported their employers requiring them to use their own sick leave, vacation, or paid time off to cover self-quarantine or illness due to COVID-19.

NURSING HOMES: This Health Affairs blog focuses the COVID-19 discussion on nursing homes, one of the most vulnerable and often-overlooked parts of the health care system. COVID-19 has hit nursing homes from all sides, with residents among the most at-risk populations for serious complications and death, residents disconnected from the support of families and loved ones due to distancing measures, and staff at risk from the infection and the mental health implications of losing patients at such a rapid rate. In the authors’ state of Massachusetts, for example, over 3,600 residents have died, representing almost 10% of the nursing home population and over 50% of COVID-19 deaths in the state. The pandemic has also exposed chronic neglect and underfunding in these facilities. Nationally, nearly 40% of nursing homes have deficiencies related to infection control. The authors recommend measures to improve infection control and patient care resources. Specifically, they recommend increased funding accompanied by a robust auditing tool, creation of a statewide infection control command center, and potential creation of dedicated units for COVID-19-infected patients. To improve patient care resources (staff, PPE, testing, and ancillary services), they note with approval Massachusetts’ staffing approach, which has included a bonus for new staff, an online portal to match job seekers and volunteers, and creation of rapid response teams for temporary deployment.

LIABILITY FOR DISABILITY DISCRIMINATION: This summary of legal liability issues that may arise from provisions in triage or resource allocation plans that discriminate, exclude, or disadvantage persons with disabilities provides critical legal context, links to additional resources, and examples of potentially problematic provisions. Three federal laws prohibit discrimination against persons with disabilities in health care: Section 1557 of the Patient Protection and Affordable Care Act (ACA), the Americans with Disabilities Act, and Section 504 of the Rehabilitation Act. Problematic provisions include categorical exclusions based on specific conditions, explicit or implicit assessments of quality-of-life, assumptions regarding long-term survival, failure to incorporate reasonable modifications for treatment, reallocation of ventilators from chronic ventilator users to other patients, assumptions regarding ability to comply with post-treatment protocol, and failure to require an individual assessment of each patient to avoid decisions based on diagnoses and stereotypes.

|2020-05-28T15:25:23-04:00May 28th, 2020|COVID-19 Literature|0 Comments

About the Author: Daniel Orenstein

Daniel Orenstein
Daniel G. Orenstein, JD, MPH, is Visiting Assistant Professor of Law at the Indiana University Robert H. McKinney School of Law in Indianapolis. He teaches in the areas of administrative law, public health law, and health care law and policy. His research focuses on public health law, policy, and ethics, and he was previously Deputy Director of the Network for Public Health Law Western Region, where much of his work centered on emergency preparedness and response, including resource allocation and government authority during declared emergencies, as well as vaccination policy.

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