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Saturday, November 26th, 2022
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MADISON — A bill introduced by U.S. Rep. Tom Tiffany would prohibit federal, state and local governments from prioritizing potentially life-saving drugs based on race and ethnicity, “equity”-based preferential treatment being pushed by the Biden administration and states like New York.

The Medical Equality and Discrimination Stoppage Act, (MEDS Act) would prohibit “the Biden administration, states, U.S. territories, or any other recipient of federal funds from intentionally discriminating against or granting a preference to any person based on race in connection with the distribution of, or access to, medical treatment,” according to a press release from the northern Wisconsin congressman.

Tiffany says he introduced the bill in response to troubling reports that several states are rationing monoclonal antibody treatments, vaccines and other forms of care based on skin color.

The race-based policies prioritize COVID-19 care for “non-whites and Hispanics” through “equity-based’ risk assessments.

“Denying life-saving medical care to Americans based on skin color is wrong, it is illegal, and it is un-American,” Tiffany said.

‘Racial hierarchy’

In Minnesota, health authorities openly declared that “race and ethnicity alone, apart from other underlying health conditions,” will be considered when determining access to monoclonal antibodies (mABs) – with “BIPOC status” carrying more weight than Covid risk factors such as age and some pre-existing conditions. Minnesota recently paused the policy on threat of lawsuit.

Cornell Law School Professor William A. Jacobson recently filed a lawsuit challenging the constitutionality of a similar directive in the state of New York. Gov. Kathy Hochul’s administration declared, “Non-white race or Hispanic/Latino ethnicity should be considered a risk factor, as longstanding systemic health and social inequities have contributed to an increased risk of severe illness and death from COVID-19.”

Jacobson, creator of the popular conservative blog site, Legal Insurrection,  argues New York’s race-driven healthcare policy runs afoul of the constitution.

“Directing medical professionals to award or deny medical care based on immutable characteristics such as skin color, without regard to the actual health condition of the individual who is seeking these antiviral treatments, is nothing more than an attempt to establish a racial hierarchy in the provision of life-saving medicine,” Jacobson states in the lawsuit.

Risk calculator

Last week, the Wisconsin Institute for Law & Liberty (WILL) 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 advised 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.

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.

SSM did not return Wisconsin Spotlight’s requests for comment. The health care system did send WILL a response insisting the risk scoring calculator was “inadvertently” included in SSM’s Dec. 30 email. But Lennington said the email contained more than just the calculator.

“It included a narrative description of why they were using the calculator. If they accidentally included it, then why did they have 2 separate paragraphs explaining why it was being included?” Lennington said.

“They say they have stopped using race, but in another sentence they say that using race is entirely appropriate. If it is appropriate then why did they stop using it?” the attorney added. If SSM administrators stopped using race and ethnicity as a major factor in delivering treatments, they forgot to tell the doctors who prescribe mAbs, Lennington said.

WILL has received complaints about other health systems and states, the attorney said.

“We are continuing our work on the Equality Under The Law Project to find and fight race discrimination in healthcare and many other areas,” Lennington said.

The problem is more pronounced given the severe shortage of the vital medications thanks to the supply-chain crisis gripping the nation.

In the letter to WILL, SSM Interim Regional President Matt Hanley, M.D. wrote that the health system does not discriminate against any patient based on age, race, ethnicity, and a long list of other characteristics. But Hanley acknowledged that the risk-scoring calculators are used when the supply of mAB therapy “is limited.”

“Risk-scoring calculators, which included race and gender, were developed by numerous health systems across the U.S. early in the pandemic when evidence-based medicine suggested it was appropriate,” Hanley notes in defense.

Racist policies

The Biden administration set the pace early on in delivering guidance on the distribution of COVID-19 treatments. In a fact sheet issued for healthcare providers by the Food and Drug Administration, the federal agency approved emergency use authorizations of sotrovimab – a monoclonal antibody proven to be effective against the Omicron variant – only to patients considered “high risk.” And individuals more quickly qualify as “high risk” based on their “race or ethnicity.”

Tiffany notes this isn’t the first time the Biden administration has tried to make race a determining factor in distributing government assistance. Last year, the U.S. Department of Agriculture launched a program that earmarked billions of dollars in agricultural aid that explicitly excluded white farmers. A federal judge in June blocked the $4 billion exclusionary loan forgiveness program in response to a lawsuit by WILL.

Tiffany has introduced legislation to repeal the USDA program.

“Our constitution guarantees equal protection under the law for all Americans without regard to race, color or creed,” the congressman said.. “It is long past time for the government to get out of the business of state-sanctioned racial discrimination.”

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