Weekly Review: Ethics, Law & Policy – Staff, Stuff, Space & Systems – January 11, 2021

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Weekly Review: Ethics, Law & Policy – Staff, Stuff, Space & Systems – January 11, 2021

Weekly Review: Ethics, Law & Policy – Staff, Stuff, Space & Systems – January 11, 2021

Resource Allocation

This article by Kerr & Schmidt provides a review of existing literature related to ventilator rationing protocols with a focus on disadvantaged populations’ views on appropriate principles. While the authors identified a large number of ventilator triage guidelines overall, very few studies reported findings stratified by race and income. The authors note that this is of particular concern because most existing protocols rely on ethical principles of saving the most lives and saving the most life-years, while there are indications that disadvantaged groups, including racial and ethnic minority populations, worry that these dominant principles may reduce their chances of being allocated scarce resources such as ventilators. Allocation strategies that further disadvantages these populations may compound existing historical and structural disadvantages they already face, and this may be worsened further to the extent selected strategies conflict with the preferences of these groups. Concerted efforts must be made to engage with these populations with appropriate transparency and to incorporate their views in policy.

This Health Affairs blog by Goodman, Harris & Hoffman explores legal challenges to allocation of monoclonal antibody therapies to treat COVID-19, two experimental but promising treatments currently available under FDA emergency use authorizations. Treatments supplies are expected to remain scarce compared to demand for the foreseeable future. Of particular challenge, optimal use requires administration early in disease course with significant commitment of facility resources, necessitating predictive allocations that present ethical and logistical difficulties. The authors note that allocation strategies have varied widely in the absence of national strategy. Some states and institutions are using a first-come, first served approach, some prioritizing patients with high-risk factors, some prioritizing health care workers or other specific populations, and others reluctant to distribute the treatments at all.

The authors note that priority based on age, race, and other factors may be justified based on the unequal distribution of morbidity and mortality but would likely face legal challenge. Among other hurdles, section 1557 of the Affordable Care Act prohibits discrimination on the basis of race, color, national origin, sex, age, or disability by providers receiving federal government funding (including, for example, Medicare or Medicaid reimbursement). Age may be lawfully used as a basis for differential treatment when used as a proxy for other factors, but race- and sex-based systems would face additional legal scrutiny under the Civil Rights Acts of 1965 and Title IX of the Education Amendments of 1972, respectively. Allocation systems that prioritize on the basis of such factors would need to meet a demanding legal standard that requires them to be narrowly tailored to further a compelling governmental interest. While there are options that may reduce legal risk, providers and institutions must be aware of these challenges in determining allocation strategies.

Facilities

Among many other accounts, this L.A. Times article describes the current crisis facing Los Angeles County, the most populous county in the U.S. at over 10 million residents. The county’s health care infrastructure is straining to meet demands amid the current COVID-19 case surge, including reports of multi-hour waits for emergency room access for patients in ambulances that require hospitalization and instructions to ambulances not to bring patients with low chances of survival to the hospital at all. ICUs are running well above normal capacity, and even surge capacity is at risk of being overrun in coming days or weeks.

This article by Mantey et al. assesses COVID-19 response in Michigan nursing homes, using survey data from May 2020 to explore preparedness, challenges, testing capacity, and adaptations made. Among the most important findings, a majority (68%) of facilities indicated that their pandemic response plan addressed the vast majority of issues they experienced, and another 29% reported their plan addressed most concerns. All facilities provided additional staff education on PPE use, and 66% experienced PPE shortages. Half of responding facilities lacked resources to test asymptomatic residents or staff, and only 36% were able to test all residents and staff with suspected infection.

|2021-01-11T08:27:18-05:00January 11th, 2021|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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