Abstract
As the coronavirus pandemic intensified, many communities in the United States experienced shortages of ventilators, intensive care beds, and other medical supplies and treatments. Currently, there is no single national response to provide guidance on allocation of scarce health care resources. Accordingly, 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."1 The actual utility of this utilitarian ethics approach is questionable, however, leaving many questions about what is "fair" unanswered. Saving as many people as possible during a health care crisis is a laudable goal but not at the expense of ignoring patients's legal rights, which are not suspended during the crisis. This Article examines the triage protocols from six states to determine whose rights are being recognized and whose rights are being denied, answering the pivotal question: If there is potential for disparate impact of facially neutral state triage protocols against Black Americans and other ethnic groups, is this legally actionable discrimination? This may be a case of first impression for the courts to resolve."[B]lack Americans are3.5 timesmore likely to die of COVID-19 than [W]hite Americans … . Latinx people are almost twice as likely to die of the disease, compared with [W]hite people." 2 "Our civil rights laws protect the equal dignity of every human life from ruthless utilitarianism … . HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal." - Roger Severino, Office of Civil Rights Director, U.S. Department of Health and Human Services. 3.
Highlights
As COVID-19,4 referred to as coronavirus, intensified, many communities in the United States experienced shortages of ventilators and intensive care unit (“ICU”) beds.5 The virus has placed unprecedented demand on the nation’s health care systems.6 Conservative estimates7 show that the health needs created by COVID-19 far exceed the capacity of U.S hospitals.8 Such demands have created the need to ration, or plan for rationing, medical equipment and interventions
Hospitals that receive federal financial assistance remain obligated to comply with federal civil rights laws, including section 504 of the Rehabilitation Act, Title VI of the Civil Rights Act of 1964, section 1557 of the Patient Protection and Affordable Care Act (“ACA”), and the Hill-Burton Act
Regulations that prohibit discrimination on the basis of race, color, national origin, disability, age, sex, and exercise of conscience and religion in HHS-funded programs.”71 The bulletin cautioned that the “laudable goal” of “providing care quickly and efficiently must be guided by the fundamental principles of fairness, equality, and compassion that animate our civil rights laws.”72 Likewise, the Office for Civil Rights (OCR) Director emphasized that “HHS is committed to leaving no one behind during an emergency, and this guidance is designed to help health care providers meet that goal
Summary
As COVID-19,4 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. Intensifies, Kaiser Health News (Mar. 20, 2020), https://khn.org/news/as-coronavirus-spreads-widelymillions-of-older-americans-live-in-counties-with-no-icu-beds/ [https://perma.cc/QV3H-W9TS] (“More than half the counties in America have no intensive care beds, posing a particular danger for more than 7 million people who are age 60 and up ― older patients who face the highest risk of serious illness or death from the rapid spread of COVID-19...”). 2-3 2021 that limited medical resources should be allocated to do the greatest good for the greatest number of people.10 This Article examines whether the triage protocols from six states, facially race neutral, result in a discriminatory disparate impact based on race when applied. 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
Sign-in/Register to view highlights & summary Sign-in/Register to access full text options 
Talk to us
Join us for a 30 min session where you can share your feedback and ask us any queries you have
Schedule a callDisclaimer: All third-party content on this website/platform is and will remain the property of their respective owners and is provided on "as is" basis without any warranties, express or implied. Use of third-party content does not indicate any affiliation, sponsorship with or endorsement by them. Any references to third-party content is to identify the corresponding services and shall be considered fair use under The CopyrightLaw.
