MODERNIZE: Within hours of WILL's letter, SSM Health backed down and said they would no longer use race and gender in the risk calculator to determine who receives treatments for COVID-19.
SSM Health uses a risk calculator with preferential treatment based on race
The news: Attorneys for the Wisconsin Institute for Law & Liberty (WILL) issued a letter to SSM Health warning the health care provider that it is illegal to distribute COVID-19 treatments based on race. SSM Health is a large, Midwest healthcare system with 23 hospitals in four states, including Madison, Janesville, Baraboo, Fond du Lac and Ripon, Wisconsin. In December, SSM Health sent an email to its Wisconsin doctors with a “risk score calculator” that includes race-based preferential treatment for the distribution of COVID-19 treatments. Federal and state law prohibits racial discrimination in health care.
The quote: WILL deputy counsel Dan Lennington said: “Racial discrimination has no place in health care, especially when policies prevent the distribution of life-saving treatments to patients based on the color of their skin. A patient's race is not a disease, comorbidity, or treatable symptom. SSM should immediately reverse course and comply with the law.”
WILL President and General Counsel Rick Esenberg said, “It would be ironic if, despite the long battle to see members of racial minority groups as individuals rather than a reflection of stereotypes, we would now allow those stereotypes to effectively override the individual characteristics. “
Record: On December 30, 2021, SSM Health sent an email to Wisconsin physicians regarding the distribution of monoclonal antibody products (“mAbs”), a therapeutic used to treat COVID-19. Due to the limited supply of monoclonal antibody products, SSM uses a new “risk score calculator” that assigns points for various risk factors.
To be eligible for monoclonal antibody products, patients must score at least 20 points. However, according to SSM Health's current risk scoring calculator, patients will receive a significant preference based on race, with the patient's skin color more important than medically recognized comorbidities or symptoms. The risk score calculator (below) gives a 7-point bonus to all patients who are “non-white or Hispanic.” But having “non-white” skin color is not a medical condition, co-morbidity or treatable symptom.
The approach taken by SSM Health's calculator is not only deeply unethical and unethical, but also illegal. Federal law prohibits racial discrimination. According to Section 1557 of the Affordable Care Act (42 USC § 18116), patients must not be discriminated against on the basis of race in any health program or activity “a part of which receives federal financial assistance.” Title VI of the Civil Rights Act of 1964 contains a similar prohibition. And in Wisconsin, state law prohibits “preferential treatment” or denial of “full and equal enjoyment” on the basis of race in any “clinic” or any other place where “services are available either free or for a fee.”
WILL urges SSM Health to immediately suspend use of the risk score calculator and develop a new tool that evaluates patients based on their individual health history and symptoms, not their race.
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