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Excerpted From: Miriam F. Weismann and Cheryl Holder, Ruthless Utilitarianism? Covid-19 State Triage Protocols May Subject Patients to Racial Discrimination and Providers to Legal Liability, 47 American Journal of Law & Medicine 26 (2021) (252 Footnotes) (Full Document)


WeismannandHolderAs COVID-19, also referred to as coronavirus, intensified, many communities in the United States experienced shortages of ventilators and intensive care unit (“ICU”) beds. The virus has placed unprecedented demand on the nation's health care systems. Conservative estimates show that the health needs created by COVID-19 far exceed the capacity of U.S. hospitals. Such demands have created the need to ration, or plan for rationing, medical equipment and interventions.

In response, some states have formulated various “triage protocols” to prioritize those who will receive care and those who may not have the same access to health care services when the population demand exceeds the supply. Triage protocols address general concepts of “fairness” under accepted medical ethics rules, and the consensus is that limited medical resources should be allocated to do the greatest good for the greatest number of people.

This Article examines whether the triage protocols from six states, although facially race neutral, result in a discriminatory disparate impact based on race when applied. If so, this Article asks: Is this legally actionable discrimination? This Article concludes that the administration of the triage protocol guidelines does have the potential for disparate impact discrimination against Black Americans and other ethnic groups. Whether this form of disparate impact discrimination based on race is legally actionable may be a case of first impression in the courts.

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As noted above, HHS has declared that individuals or entities receiving federal financial assistance may not, based on race, color, or national origin:

[D]eny services or other benefits provided as a part of health or human service programs; provide a different service or other benefit, or provide services or benefits in a different manner from those provided to others under the program; segregate or separately treat individuals in any matter related to the receipt of any service or other benefit; utilize criteria or methods of administration which subject individuals to discrimination; select a facility's site or location that excludes individuals or denies them benefits; and/or deny an individual an opportunity to participate on a planning or advisory board.

Yet major states impacted by the spread of COVID-19, like Florida, California, Georgia, New York, and Texas, either have no statewide sanctioned triage protocol or base the decision on some version of SOFA scoring, which may penalize Black individuals and ethnic minorities previously excluded from equal access to care.

Although the SOFA scoring system is intended to be facially neutral and objective, subjective judgments will inevitably play a role in decision making. To mitigate the risk of implicit bias, states have empowered triage officers and appeals committee members to review decisions, but there is no guarantee that these administrators have any expertise in equity and anti-discrimination training or come from diverse backgrounds.

The question of enforceability of individual rights during a pandemic implicates great concern. Simply, state triage protocols that have a discriminatory disparate impact on health care rationing could result in the grave misapplication of life saving resources based on race. While still a case of first impression, courts should conclude, along with HHS, that a private right of action exists under section 1557 and that Black individuals and ethnic minorities have a right to enforce patient civil rights violations based on the theory of disparate impact discrimination arising under the implementation of facially neutral state triage protocols.

Miriam F. Weismann, JD, LLM (taxation) is the Academic Director of the Healthcare MBA program at Florida International University. She is also a Professor of Business Law and Tax.

Cheryl Holder, M.D., F.A.C.P., is the Interim Associate Dean of Diversity, Equity, Inclusivity, and Community Initiative, and Associate Professor, Wertheim College of Medicine, Florida International University, and is board certified in internal medicine. She has dedicated her medical career to serving underserved populations.

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