MN Dept. of Health walks back clearly unethical, illegal policy to ration COVID treatment based on race

Minnesota’s Department of Health (MDH) removed race as a factor to ration monoclonal antibodies to treat COVID-19 this week. This decision came on the same day America First Legal sent MDH Commissioner Jan Malcom a letter threatening legal action if MDH failed to rescind what they described as “blatantly unconstitutional, immoral, and racist policies.”

Due to short supply, health care providers across the country have been forced to prioritize who can access the treatment. On December 23, 2021, MDH issued this “Ethical Framework for Allocation of Monoclonal Antibodies during the COVID-19 Pandemic” which adopted an adapted version of the Mayo Clinic’s Monoclonal Antibody Screening Score (MASS). This adapted version added “BIPOC”—black, indigenous, people of color—as a weighting factor alongside age and health status factors like diabetes and chronic kidney disease.

Despite quietly issuing this new policy the day before Christmas eve, the public eventually noticed. While the Star Tribune reports the agency “did not explain the timing or reason for the change,” they no doubt were inundated with severe criticism well before America First Legal got involved. Setting aside America First Legal’s well founded legal concerns, MDH failed to cite any substantive research to support their manifestly racist policy and it directly violated prior MDH ethics guidelines.

To support this racist policy, MDH cites the FDA’s conclusion that “Other medical conditions or factors (for example, race or ethnicity) may also place individual patients at high risk for progression to severe COVID-19.” The FDA made this statement without citing any research that race or ethnicity is itself a factor independent from other underlying medical conditions. Moreover, the FDA certainly did not suggest race would be an appropriate factor to ration treatment.

In a footnote, MDH states a University of Minnesota analysis of 41,000 patient records found “that both pregnancy and BIPOC status, after accounting for other covariates, were independently associated with poor clinical outcomes from COVID-19 infection.” Yet this analysis is not public. Moreover, there is no way this analysis accounted for all the covariates, the other independent factors and medical conditions that contribute to poorer clinical outcomes for certain races and ethnicities. The fact is, there is no research suggesting that some genetic condition, such as the case for sickle cell disease, exposes certain races to higher risk for more severe COVID-19.

No doubt, an analysis of those 41,000 patients would have also found gender is independently associated with poor clinical outcomes. CDC data show that men are about as likely to get COVID-19 as women, but far more likely to die. Men between 50 to 64 years old accounted for 48.6 percent of the population and accounted for 48.1 percent of COVID-19 cases. Nonetheless, men accounted for 62.8 percent of COVID-19 deaths. Similar disparities exist for men up and down the age scale.

There is simply no way any analysis can account for all the independent factors that lead men to substantially poorer health outcomes. That’s why no one is suggesting that doctors should ration monoclonal antibodies based on gender. Instead, doctors and health providers identify the men who are more at risk based on their individual health factors, such as their weight or the presence of cardiovascular disease, that increase their risk and not simply because they are a man. Likewise, a person’s race should not be given extra weight.

Therefore, there is no basis for MDH to deviate from the agency’s long-held policy to not ration care based on “race, gender, religion or citizenship.” In 2007, MDH contracted with ethicists at the Minnesota Center for Health Care Ethics and the University of Minnesota to lead the Minnesota Pandemic Ethics Project. This project culminated in the publication of an ethical framework in 2010 entitled, “For the Good of Us All: Ethically Rationing Health Resources in Minnesota in a Severe Influenza Pandemic.” This project developed recommendations after consulting with a wide variety of Minnesotans from public comments and community forums held across the state. As this ethical framework explains:

Protecting the population from unfairness requires proactively identifying the health and social factors that heighten risks of flu-related complications. Statewide rationing guidance should not systematically deprioritize or exclude any demographic group from protection and benefit. The panel expressly rejected prioritizations based on personal judgments by individuals in control of the resource and criteria such as gender, race, socioeconomic status or citizenship. Moreover, it calls for proactive efforts to remove barriers to fair access by everyone prioritized to receive resources.

In short, this framework instructs the state to proactively identify the individual factors that truly increase a person’s risk versus resorting to overly broad demographic factors that deprioritize access to treatment based on race, gender, or other socioeconomic factors.

The MDH policy issued in December clearly violated this well-established policy and, as such, was clearly unethical. Moreover, as American First Legal outlined in their letter to MDH, the policy was also illegal. Fortunately, MDH walked this policy back. Nonetheless, the fact that MDH established a clearly unethical and illegal policy in the first place suggests there is something deeply wrong and misguided within the agency that deserves further scrutiny.