As health care resources grow increasingly scarce amid the COVID-19 pandemic, states, hospitals, and individuals are forced to make tough decisions about the rationing of care. These decisions are often framed in terms of medical and/or legal criteria. However, many people, especially the physicians who make the difficult decisions, realize they have a huge moral component related to perceptions of the value of an individual’s life.
Various states have triage guidelines in place, which differ somewhat, but primarily reflect a utilitarian goal of saving the most people with the least expenditure of finite resources. This is where the societal issue of the value of the life of a person with a disability comes into play.
On March 28, 2020, the Department of Health and Human Services issued guidance regarding the application of antidiscrimination law to triage policies — that is, policies for fairly allocating scarce medical treatments, like ventilators, in the COVID-19 pandemic.
Inclusionary zoning (IZ) laws are one such approach, and are intended to create affordable housing through collaboration between public and private developers. These laws create requirements and incentives for developers, such as unit size minimums and establishing income eligibility criteria. IZ laws counter preceding ‘exclusionary zoning’ policy where large-lot zoning is used to prevent low-income integration into rising developments. Contrary to the original intent, IZ laws have been criticized for creating potential financial disincentives to develop in low-income areas and increasing housing price inflation.
To combat this risk, states like New Jersey, Massachusetts, and California have added additional incentives such as density bonuses, expedited approvals, and fee waivers. These have been presented to developers as part of state ordinances and regulations. Under its Affordable Housing Act, Illinois seeks to create grants, mortgages, and loans to rehabilitate, develop, operate, and maintain housing for low-income and very-low-income families. The Act requires local governments to create affordable housing plans based upon their municipalities’ median incomes. For example, based upon population median incomes and housing values, the town of Evanston, Illinois is required to provide 4,993 affordable housing units to accommodate its population of 75,472 who have an area median income of $63,327.
The Cook County Health Department in Illinois just published a dataset to LawAtlas.org as part of a yearlong legal epidemiology project funded by the CDC Public Health Law Program and ChangeLab Solutions. The health department created a policy surveillance dataset tracking IZ laws in 10 municipalities across the country, concentrating on residential areas around Cook County and the Chicago Metropolitan area: Boulder, Colorado; Burlington, Vermont; Cambridge, Massachusetts; Evanston, Illinois; Highland Park-Lake County, Illinois; Irvine, California; Lake Forest-Lake County, Illinois; San Diego, California; Santa Fe, California; Stamford, Connecticut.
One common provision of IZ policies are set-asides. These are ordinances that require developers to reserve a portion of the new development for low-income residents. Through its policy surveillance project, the health department found that nine of the jurisdictions have implemented mandatory IZ policies and six jurisdictions have established preferences for who can live in set-aside units. The percentage of set-aside required for low-income housing varies by jurisdiction – from 10 percent in two jurisdictions, up to 25 percent in one. Of the 10 jurisdictions studied, one (Stamford, Connecticut) doesn’t require any set-aside, and nine allow for alternatives to set-asides, such as fee-in-lieu (nine jurisdictions), land dedication (six jurisdictions), and alternative proposals (four jurisdictions). For those jurisdictions with fee-in-lieu alternatives, seven provide those payments to Affordable Housing Funds.
While extensive literature provides evidence for a positive association between levels of wealth in an area and the levels of health in that area, more research is needed to establish the efficacy of IZ laws. Governments are increasingly implementing relevant policies to combat the negative effects of gentrification and IZ policies could be part of the mix, particularly when used in conjunction with efforts to preserve existing community culture beyond property interest, as neighborhoods provide important social support networks for residents. “Revitalization without displacement” is a rising standard for preserving the positive economic benefits of gentrification without destroying communities through displacement. This policy advocates increasing the total population by filling vacancies and increasing housing densities and preserving community bonds. Experts consider ‘social mix’ to be a common good.
The ten policies in this dataset are just the tip of the iceberg, but they do offer an interesting, important look into the complexity and variation of these laws.
In recent months, advocates have alleged that discrimination on the basis of health status in health insurance continues, notwithstanding the Affordable Care Act’s attempts to level the playing field for people with chronic health conditions. How the government and industry should respond to the allegations is not clear, however, in part because what constitutes “discrimination” is not clear in this context. As Jessica Roberts has noted, there is an “intrinsic tension between an antidiscrimination framework and the practices of the private, for-profit health-insurance industry.” This tension makes it difficult to pinpoint where permissible cost-consciousness ends and impermissible discrimination begins.
As has been widely reported, at the end of May, the National Health Law Program, along with the Tampa-based organization The AIDS Institute, filed an administrative complaint with the United States Department of Health and Human Services’ Office of Civil Rights in which they allege that four qualified health plans offered through the federally-facilitated marketplace in Florida discriminate by “charg[ing] inordinately high co-payments and co-insurance for medications used in the treatment of HIV and AIDS.” The complainants go on to allege that because “[o]ther issuers vary tiering or place HIV drugs on more affordable tiers,” “the practice of placing all anti-retrovirals on the highest tier is not a market-norm or necessity.”
The complaint’s emphasis on whether the plans’ actions reflect a “market-norm or necessity” tracks the Centers for Medicare & Medicaid Services’ 2015 Letter to Issuers in the Federally-Facilitated Marketplaces, in which CMS writes that “to ensure nondiscrimination in [qualified health plan (“QHP”)] benefit design, CMS will perform an outlier analysis on QHP cost sharing (e.g., co-payments and co-insurance) as part of the QHP certification application process.” CMS goes on to specify that, with regard to prescription drugs, a plan will be considered an “outlier” if it has “an unusually large number of drugs subject to prior authorization and/or step therapy requirements in a particular category and class.”
As Sarah Rosenbaum has noted, “CMS does not provide a review methodology or define what is ‘unusually large’.” Even if it had, what if subjecting a large number of drugs to prior authorization or step therapy requirements did not make a plan unusual? Would that mean that doing so was not “discrimination”? Read More
The Hurley Medical Center in Flint, Michigan is being sued for accommodating the request made by a parent that no African Americans tend to his newborn. The father, who allegedly sported a swastika tattoo, alerted a nurse that blacks were not to care for his baby.
To comply with the father’s request, nurse Tonya Battle, who was caring for the child in the Neonatal Intensive Care Unit (NICU) of the hospital was removed or reassigned from tending to the child. A news video reporting on the incident can be found here. Battle is now suing the hospital. According to her lawsuit, hospital staff complied with the father’s demand, posting a note next to the baby’s name on the assignment clipboard: “No African American nurse to take care of baby.”
Nurse Battle’s lawsuit claims that she was deeply shocked and offended–she’s worked for at the hospital for 25 years. Professor Kimani Paul-Emile writes that such requests–based on race or ethnicity–are not unusual at U.S. hospitals and medical clinics. See her article, Patients’ Racial Preferences and the Medical Cultureof Accommodation, which is published in the U.C.L.A. Law Reviewhere. However, such instances of using racial preferences in the medical setting raise questions about the permissibility of such practices–not only as a legal matter, but also as matters of health and bioethics. Some patients believe that the quality of their care is enhanced when provided by someone represented by their ethnic group; some even fear that their healthcare is compromised when delivered by medical staff outside of their ethnic group. Should the law tolerate these forms of discrimination? What about if racial perceptions have a positive placebo effect? Post a comment.