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MADISON — Should life-saving COVID-19 drugs be prioritized based on a patient’s race?

The Biden administration thinks so.

And now health care systems reportedly are beginning to follow such “equitable” guidance to the letter, making race and ethnicity a primary factor in determining who receives life-saving COVID-19 treatments such as monoclonal antibodies and oral antiviral drugs.

The Wisconsin Institute for Law & Liberty today sent a letter warning St. Louis-based SSM Health that its risk scoring calculator that prioritizes COVID treatments for “non-white or Hispanic” COVID patients is wrong on many counts.

“The approach taken by your calculator is not only profoundly unethical and immoral, it is illegal,” Rick Esenberg, president and general counsel of the Milwaukee-based cvil rights law firm, and WILL Deputy Counsel Daniel Lennington advise SSM administrators in the warning letter.

SSM, which operates hospitals and health clinics in four states, in late December sent an email to its Wisconsin physicians regarding distribution of monoclonal antibody products (mABs), according to the letter. The treatments are “highly effective in neutralizing the [COVID-19] virus and preventing symptoms from worsening,” SSM’s website states.

In the email, the health care system announced a new “risk scoring calculator” to determine which patients will be eligible for mAbs, according to WILL, which obtained a copy of the calculator.

“To be eligible for mAbs, patients must score a minimum of 20 points. But under your current risk scoring calculator, patients will receive a substantial preference based on race, with the color of a patient’s skin mattering more than medically recognized co-morbidities or symptoms,” WILL’s letter states.

For example, a 50-year-old white female (15 points) suffering from obesity (1 point), asthma (1 point), and hypertension (1 point) would not be eligible for mAbs because she does not receive the 20-point minimum score under the calculator. On the other hand, an otherwise healthy 50-year-old black female (22 points), without any of these health risks, would be eligible. A 40-year-old white male (14 points) presenting in an emergency room with shortness of breath (4 points) would not be eligible, while a 40- year-old black male (21 points) without any co-morbidities or symptom risk factors would be eligible.

“These inequities result solely from the weight given to race in the calculator,” the letter states. “The risk scoring calculator provides a 7-point bonus to all patients who are ‘non- white’ or Hispanic.” In other words, non-white patients receive a 7-point head start in your risk scoring calculator and are therefore more likely to receive life-saving medical treatment based solely on the color of their skin. But having ‘non-white’ skin color is not a medical condition, co-morbidity, or treatable symptom.”

COVID-19 is not more virulent to those who are non-white. SSM doesn’t contend that in its new calculator. WILL asserts SSM is apparently granting the bonus for other, non-medical reasons.

Federal law forbids discrimination based on race. Esenberg and Lennington note the Affordable Care Act declares that patients may not be discriminated against based on race in any health program or activity, “a part of which is receiving Federal financial assistance.” Title VI of the Civil Rights Act of 1964 contains a similar prohibition. And there are numerous other federal and state laws prohibiting the kinds of race-weighting — particularly in life-or-death situations — SSM appears to be doing, the letter asserts.

The correspondence concludes with this warning:

“Because your risk calculator discriminates against patients based on race, it is illegal. We are asking that you immediately suspend use of this calculator and develop a new tool that evaluates patients based on their individual health history and symptoms, rather than their race,” the letter advises.

An official with SSM Health did not return phone and email messages seeking comment.

Discrimination from the top

The Biden Administration has forced its racially divisive “equity” policies on pandemic response, pushing race-based priorities for COVID treatments. The U.S. Food and Drug Administration recently issued guidance on racial preferences in the treatment of COVID-19.

“While our nation should seek to better understand and address real disparities that exist in health outcomes, that important work is a far cry from the rationing of vital medicines based on race and ethnicity,” U.S. Sen. Marco Rubio (R-Fla.) wrote in a letter to Dr. Janet Woodcock, Acting Commissioner of the FDA.  “Rationing life-saving drug treatments based on race and ethnicity is racist and un-American. There is no other way to put it.”

A severe supply shortage of the treatments is forcing health care providers to make tough decisions.

But should the color of a patient’s skin determine who’s next in line?

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