AHLA's Speaking of Health Law
AHLA's Speaking of Health Law
AHLA Convener on Racial Disparities in Health Care, Part 3: Equity in COVID Vaccine Distribution
AHLA hosted a one-day virtual convener on April 12, 2021 where participants discussed all aspects of health disparities and equity in health care, social determinants of health, the impact of law on these issues, and what can be done to address these issues now and in the future.
In Part 3, Ruqaiijah Yearby, Professor, St. Louis University School of Law, and Dru Battacharya, Vice President of Diversity and Inclusion, Advocate Aurora Health, moderate this discussion that delves into distribution of COVID vaccines, and how to attain equity, crisis standards of care, and ethical decision making.
Watch the full conversation here. Access full video and audio recordings of the proceedings at americanhealthlaw.org/racialdisparitiesinhealthcare.
To learn more about AHLA and the educational resources available to the health law community, visit americanhealthlaw.org.
On April 12th, 2021, a H L A hosted a one day virtual convenor, where a panel of distinguished participants discussed important aspects of racial disparities in equity, in healthcare, social determinants of health, the impact of law on these issues, and what can be done to address these critical issues. This five part series presents each recorded session of the convener, full video and audio of the proceedings are available@americanhealthlaw.org slash racial disparities in healthcare.
Speaker 2:Great. Thank you. Um, so the next panel, uh, that we have is going to be the Equity and Covid vaccine distribution. Um, and so I'd like to welcome everybody to that. I will briefly, um, introduce the panelist and, uh, and then turn it over to Drew. Let me apologize already for mispronouncing anybody's name. Um, and feel free if you mispronounce mine. It's fine. Uh, my name is Rukaya Ybe. I am a professor at St. Louis University School of Law Center for the Health Law Studies. Our panelist today will be Dr. Dana Bowen, Matthew, the Dean of the George Wadges Chan University School of Law. Uh, we have Professor James Hodge, who is the Peter Kiwi Foundation Professor of Law at this Sandra Day O'Connor College of Law, um, Arizona State University. Uh, we have Dr. Harold Schmidt, uh, who was previously introduced. Uh, we have also, uh, Dr. Andrea Gonzalez, who was previously introduced, um, and, uh, Francis Crave. I know I said that wrong, so I apologize. Um, and I am going to turn it over to Drew, who's going to introduce himself and then open up, uh, the discussion.
Speaker 3:Uh, thank you Roka. I'm Drew Bachar. It's nice to be with you everyone. I'm the Vice President of Diversity, equity and Inclusion at Advocate Aurora Health. And, uh, let's, uh, hit the ground, uh, running here. So our topic today is focused on equity and covid vaccine distribution, and we've broken it down into eight sub-topics, which allows us about five or six minutes for each one. And, uh, professor Yu and I will take turns, um, facilitating that discussion. And so we'll begin, uh, on the topic of vaccine prioritization. So, uh, professor Schmidt, um, we know that there are geographic disparities in risk and access to vaccines, and we've seen how some hospitals and health systems have used zip codes to prioritize patients. Others have adopted, uh, the social vulnerability index. Others have, uh, also integrated was known as the area deprivation index. So is is something better than nothing? Is it more acceptable, uh, to adopt one, uh, criteria and over the others? And so, uh, thank you in advance for your participation.
Speaker 4:Sure. Um, yeah, and so just to orient everybody briefly, what these indices are, just in case that's not your, your bread and butter, they're basically different compound measures that try to, uh, give you a numeric score for capturing how, uh, disadvantage or not people living in a particular area are. And the, the ones that were mentioned now are the sort of main players. I think that's exactly right. We have the sort of scholarly version, which is the error deprivation index integrates around 17 different variables, is very structured in the sense that you can't pick and choose individual elements. The, the score that your compute is done in a very mathematical way. The Social Vulnerability Act was developed by the C D C for disaster preparedness. Not at all for something like covid. So for hurricanes and floods and things like that is however the most widely adopted one. Um, and then there, there's a whole range of other ones that, that have been set out. California developed its own index. And I think to your initial point, that would indeed be my, my response here. That one is better than none. We with colleagues, we're in the process of doing a systematic review, understanding the way these indices are constructed and how they conceptualize disadvantage. But the really important thing to understand is that for basically until last year, the way we thought about equity and vaccine allocation was through the priority sequence of groups, right? Everybody knows, oh, who gets it first? That was what everybody got upset about for the last half year. But the important thing that disadvantage agencies tells us is that the equity story doesn't end when we allocate vaccines to the entire population in a few weeks, right? Next week. In fact, uh, within each of the groups, people are at different levels of disadvantage within all the group, within older people who are of course, have more disadvantage than younger people. Some people can easily socially distance, and if they're well off and live in the suburbs, other people who live in crowded in the city settings cannot. So that's the point that the National Academies really recognize in saying within each phase, we have to recognize, uh, that people differ in their levels of disadvantage. And simultaneously, this is important for public health and equity, such that we prioritize people who are worse off in vaccine access. And that can be done in a number of ways that I think we'll also still talk about.
Speaker 3:We appreciate that. You know, one of the things that, um, necessarily flows for the guidance, um, whether it's the federal or state level, is that there's no clear algorithm. So many of the considerations that are put forth are just that they are considerations. Um, so mindful of that and against that, uh, backdrop of Professor Hodge, um, some states have actually encouraged consideration of protected classes. And, um, considering, you know, considering that, you know, what are the, the practical implications, um, of that kind of geographic prioritization with or independent dov, those other protected classes, um, for either other organizations or the communities they serve?
Speaker 5:Yeah, drew, great question. Listen back several months ago when I had the chance working with the National Academies to review the vaccine allocation plan before it went out, Harold's Harold's seen it and many others on this call is I alerted them, you know, to exactly what Harold was talking about with the distribution. I said, listen, from an equity perspective, a lot of what you're suggesting in this specific plan looks on target, and it's solidly backed by good scientific approaches to what we knew about Covid spread and other arenas. But I told them in regards to that, I said to the committee, don't expect politicians to follow. So what are how you're going to actually attempt to follow these specific equitable recommendations, uh, across the United States with different geographic issues, geographic political priorities, and otherwise I knew was gonna be a major challenge. You're seeing exactly that in the sort of first six to eight month of implementation of the vaccines themselves. Drew, your question really raises a great point for us all to consider, and that is in a federalist structure of which states get to call the shots largely about who's in line when and under what circumstances, how much tolerance should we have for specific set aside for groups acknowledging that states won't all follow the same script. They clearly haven't with regards to Covid 19 vaccine. And most importantly, you cannot trip up on the sort of issues that get you into court on equal protection or due process or other specific fronts as well. The moment you do that, you're delaying actual vaccination implementation in a way that can only be deleterious as well. Those are the tripping points we've been watching all along. And to be sure they continue, even as you know, we're about ready to launch into a sort of national program to make sure everybody has some access, these issues aren't going anywhere for sure.
Speaker 4:Great, thank you. Can you add one quick point there? Please Go. So this is a really remarkable thing in the way this has played out. Um, as, as, uh, we just heard this was National Academies that recommended to adopt this in a Broadway, but formally it's an c D C committee, the advisory committee organization practice that provides guidance to states who were, let's just say, not so hot on this. And they simply didn't really embrace it to a full extent, but the states went with us, right? In a situation where they have a lot on their plate. We now have a majority of states use their disa disadvantage index one way or the other colleagues knighted a couple of reviews of that, and it evidently means something for them. So that's what's really remarkable that within all the other variations that we've seen, this is something they weren't asked to do, they didn't have to do, and they still saw immediate value in it. And I think it is precisely because of this recognition that we had last year, that if we continue the allocating vaccines in ways that maximizes benefits, we're not going to reduce inequities. We're gonna maintain them or worse exacerbate them. And I think that's the potential that that is really remarkable that we're seeing there.
Speaker 5:Harold's points, excellent to be sure. Some states have followed the script pretty closely, even without having to, in other words, words, the Fed's saying, you don't get vaccines unless you follow this script. So obviously the feds have not done that and probably will never, however, some states have gone way off script two flatly saying, we're not sending this to prisons first. We're not going in that priority order. We're not making sure that we set aside 10% of the allocations for persons to actually gain access for equitable purposes on racial or other specific lines. Uh, listen, those have been tripping points legally. I'd love to hear from the dean as well as to her thoughts.
Speaker 3:Thank you so much, Dean. Matthew. Let's, let's rope you in there. So, as you know, it's not, it's, it's not just about, uh, disparities, which we're all familiar about in healthcare, but it's about the unjust disparity and where you live matters. And so mindful of that is race in place, so inextricably intertwined, um, that they necessarily considering both overcomes those concerns about prioritizing communities. Thank you for, for joining us.
Speaker 6:Thank you very much for asking me. I wanna jump in and do two things. One, I'm gonna defend the honor of the A C I P, the Advisory Committee on Immunization practices. I was on that committee. And, uh, I do wanna give a little bit of insight as to what we thought about race, specifically race in place and race in this vaccine. And then I wanna be just a little bit provocative, if I may, and talk about what Vermont has done specifically to identify race as a criteria for prioritization. So first, with respect to the A C I P, you're right, we weren't as operationalized as you at the National Academies were. It was admirable. There's nothing that, uh, either James or Harold has said that I would disagree with. I would say that there is, in the A C I P effort, a much more focused, broadly addressed justice, uh, uh, justice focus than was on those operationalized, uh, definitions that the national Academies were looking at. In other words, we were concerned not just with lists of prioritizations, but those larger issues of injustice by race and by class. And so we focused on questions of not only injustice, but inequality, unfairness, and the kinds of conceptual problems that would go beyond this vaccination. Very much to your point, Harold, that we don't solve the problem simply by prioritizing people because race and place continues to matter with respect to the distribution of comorbidities. The morbidity and mortality dis uh, uh, inequalities were a reflection of fundamental inequalities in housing, food, security, employment, every one of the social determinants of health. And so we were talking about injustice much more broadly than respect to prioritizing a list with respect to the vaccines. Let me turn to, and I, I think because I only have a minute, I'm gonna use a provocative phrase. When we look at vaccine distribution today, we see white supremacy in action. We see a problem of morbidity and mortality that is disproportionately affecting communities of color. And we see the solution listed in priorities that disadvantage, uh, communities of color. If you look at the 66% of people who have already received this vaccine, it is white people, right? White people are the only group that have a higher level of vaccination than they have cases, deaths, hospitalizations, people of color, African Americans, indigenous populations, Asians. All of us have a lower level of vaccination than we have an incidence of prevalence or incidents or prevalence of the disease that is white supremacy all over again. And so simply listing the occupations, or simply listing the prioritization doesn't get to the bottom of the issue. I dare say we'd better be doing more with respect to structural racism than just telling people what occupation, what age, and where they have to go. Um, if, if they're on a list for priority, this is a bigger problem than that.
Speaker 3:Thank you so much, Dean Matthew. And I think that this, this really piggybacks on the, on the last discussion very well, because trust really begins with transparency. And that transparency means, uh, honesty, integrity across the board with all the indicators and how they relate, and not just singling out some, uh, at the preference of others. And so I appreciate your, your insight. And so we're turning now, uh, focusing on the race-based allocation of, of Covid belief and, and ethical decision making alternative, uh, Rikka to, to continue that discussion.
Speaker 2:Yes. Uh, so let's go into the discussion. Uh, building off of that, uh, and maybe coming back to you, uh, Dean Matthew, just about, uh, this race-based allocation. I actually would like to talk about how we begin to address legally, um, how we can attain equity.
Speaker 6:Uh, we, I, I think we're gonna need some, uh, more, uh, radical, um, and, uh, forthright, um, uh, dramatic cooperation and collaboration between law, medicine, um, and health. Uh, we cannot leave just to the people who are activists on the streets, uh, to ask for black lives to matter. Uh, we cannot leave to those of us who are doing, uh, civil rights law to advocate for, uh, the a c a section 1557 to be enforced. We need people who are in health healthcare. I loved the, uh, earlier panel where Ms. Mills was talking about the pharmaceutical injur, uh, industry and the medical device industry. We need the conversation about race inequality to be enlarged so that it doesn't just include the theoretical, uh, uh, uh, discussion with academics, um, young people marching in the streets, um, or those of us who are writing articles inside of the academy. We need people like the people on this call to begin to care not just about the tip of the iceberg, but about the very fundamental structures of racism that are affecting health outcomes. How would that look? Well, Vermont has shown one of the ways that it would look, they have pushed the envelope and said the trope that says, we are allowed to identify race and ethnicity when we are disadvantaging populations, but not allowed to identify race and ethnicity when we are advantaging populations is unacceptable. I don't care who's on the Supreme Court. I don't care who's been appointed to the Fourth Circuit. If the people on this call would say that we were perfectly happy during 1937 when we were redlining districts to say that they were infiltrated by foreign born, they were infiltrated by racial minorities. And that needs to be reversed because those are empirically connected to health outcomes. Why? Because education is determined by place matters. Food access, access to clean air, to breathe, and water to drink. If those connections were made, then we could begin to convince the Supreme Court and lawmakers that they are wrong with respect to whether we can or cannot mention race and ethnicity. Specifically when we talk about vaccine distribution, we've been too passive. We've been too accepting, and we've been too, uh, siloed. We've thought this aggressive address of racial discrimination belongs to one and not the other. Uh, one of our industries, it's all of our problem. I'll close by saying this, structural racism kills everybody. So if you think about interest convergence, just to borrow from Derek Bell, right? We have plenty of data that tell us that death from myocardial infarction or infant mortality rates increase for blacks and whites where there is explicit racism measured higher in one county than another county. If it's not because this is the right thing to do, if it's not because inequity is distributed along racial lines in every one of the social determinants of health that we swing into action, then do it outta self-preservation, racism kills everyone. And structural racism is something all of us need to get much more serious and much more aggressive about addressing.
Speaker 2:Thank you. I will turn the question over to, uh, Dr. Gonzalez.
Speaker 7:It's a, it's a great point, um, that Dean Matthew just made, and I will tell you being very transparent here in our discussion, that, uh, we made that faux pa here in Milwaukee, um, when we started actually looking at the allocation of our vaccines in the grid Milwaukee area, and I'm sure many of you remember, you know, over a year ago, Milwaukee was actually on the, uh, center stage because we had the highest percentage of black males who were losing the battle, who were actually dying. Um, and as they were coming through the doors through our systems, some of us were doing a better job than others in terms of understanding the issues, right? In providing equitable care, right? So if, if we were committed to that, right, it actually meant that then we're providing more services to those individuals and populations, right? Uh, based on their symptomology and their, the realities of those patients and communities. And yet, um, there was not actually, um, how we actually approached that. And so for our own system, as we actually looked at even advocating for the vaccines, actually our enterprise chief medical officer tells the story that we actually were, uh, fighting for that we were able to get allocations for some of our most vulnerable communities, right? Our bipo communities. And yet when we opened the portals primarily through the electronic medical records, who was actually benefiting from that? It was primarily whites, right? Uh, because we did not understand the digital divide, right? Some of the issues that some of our communities, vulnerable communities actually were experiencing. And so it actually then, um, showed us not only that reality, um, but then what were we gonna do, right in terms of that call to action? So we took the stance of then setting aside vaccinations or vaccines, I'm sorry, and then running vaccine clinics, very targeted for our bipo C communities. And so we had to engage our community at large, some of our community, uh, partners, and it was actually through them that were able to actually make some inroads, uh, whether it was the federal qualified health centers or some of the committee-based organizations. And actually, I have to give a shout out to Drew cuz Drew and I actually are the co-chairs for one of the, um, regional efforts here in Milwaukee, which is the Milwaukee Healthcare Partnership that brings health healthcare systems and the federal qualified health centers together in tandem to really address not only Covid 19, but any issue related to health or healthcare in our community. Very unique model here. And, and he and I know cuz we have heard from our, uh, our own federal qualified health centers where they actually, and it paints us to hear that even, um, their, their fight for getting their staff vaccinated when they were actually in the frying pan was actually an uphill battle. And so it actually took advocate Aurora, uh, Drew's, uh, system and my system and other systems to come, come alongside and say, listen, yeah, you know, we would certainly be privileged right in honor if you would send those vaccines to our health systems, right? And for us to vaccinate our healthcare workers. But what about those folks who are the front line folks who are right day in and day out fighting this, who are actually exposing themselves at a much higher level on rates to get actually contracting that virus? And so it really took advocacy locally, regionally, uh, at the state level to make that happen. And so certainly it was actually one of those, uh, mistakes that we made. It was actually a great, uh, lesson learned for us, but certainly a great opportunity moving forward that we have built as a lesson learned for us not to repeat. Moving forward. One more point that I wanna make, because I think it has been critical for us as well, you know, cuz it's actually related to equity, diversity, and inclusion. One of the things that I have learned that has been so critical for us and profound is having representation of our communities at the board level. Board governance is key. And that is actually something that I want to stress in terms of the importance, one of the key strategies that I think is gonna become important for us. Um, and so in our own system, having, uh, iPOC leaders who are sitting at that level, right, who are being obviously, uh, unapologetic about keeping that agenda item for our c e o to have to report it, right? And to have to be, uh, transparent and accountable to, has become critical, uh, and probably the game changer for us. So I bring that up because honestly, one of our board members said to me, uh, recently and said, Andreas, if we would not build this as an standing agenda item, then we're gonna, actually, unfortunately this will be diluted, we're gonna move on to something else, something probably as critical as, you know, vaccine, right? Which is probably our, the civil rights issue of our era. And yet, you know, we would be shy away from commitments and, and issues that we need to actually address and be accountable and be a, and, and have authentic conversations and certainly have transparency around. And so I think that that has been a key for us here at Freighter. And I know that I talked to a number of other colleagues nationally, and everyone has, I think, um, repeated the same thing, that having that board governance in place has spoken volume, especially in this particular pandemic.
Speaker 3:Thank you Andres. And let me, um, follow, um, to, to your point as a question, uh, to professor, uh, to Dean Matthew. And I'll, I'll also, uh, welcome Professor Urby as we, we talk about this in the context of, uh, addressing the, the distrust and the mistrust in our, in our communities. Because, you know, it is a fact as Dean Matthew, you've said that there was a disparate impact in what has happened. Not only the disproportionate burden on the front end, disproportionate access on the, on the backend as we've rolled out the vaccine. Um, absent that kind of heightened self-accountability,<laugh> that onto a certain systems or hospitals, what can we do to scale up those kinds of models? What can we do, um, to actually, uh, overcome those barriers as they exist so we can kind of get ourselves on that pathway, as you've alluded to, to make this, um, culture shift as it were, absent that legal mandate.
Speaker 6:So I'll get started. I think there are others on the call that have, uh, more, uh, uh, to say about this. But let me<laugh> continue in the vein of being the provocateur here. First of all, we can stop the myth of, uh, vaccine hesitancy. It's not true. People of color want to live just like white people wanna live. People from indigenous communities, people from African American communities, people from Latinx communities are not thinking about Tuskegee in order to figure out whether they will or will not get a vaccine. They're thinking about what's happening today in healthcare that is not crediting their views, that is not respecting them as humans, that is not creating structures that protect their health. So you don't have to look back at the Tuskegee. We need to fix today's trust relationships, number one. Number two, the Pew Foundation did a study about two weeks ago and reported that just like whites lacks, about 61% of them are wanting to look for this vaccine. So this myth of vaccine hesitancy has much more to do with access, has much more to do with transportation, has much more to do with whether community health workers are actually sending out the messages to community members in ways that they can trust and relate to. It has much more to do with the location of hubs and the distribution of information online or not online, right? Southeast dc which is right down the street for me, bred for the, uh, cities has vaccine distribution. There are more white people online down there. They have never made it down towards seven and eight in previous settings, but they're down there now taking up vaccine. Why? Because they're on the internet and they're able to sit and do the refresh regularly, right? So these are the structural issues that really do matter with respect to what we can do. And let me make no mistake about it, none of this is a surprise. We saw with H one N one that uptake by race was severely disparate. It is unethical and immoral that we weren't ready then and we aren't ready now to intentionally address racial disparities with respect to uptake. And telling ourselves the myth of vaccine hesitancy is one of the biggest problems and barriers that I think we need to fix.
Speaker 2:And I'll jump in just to add on, uh, to that, right? That it also is about what we are providing for people to do to get the vaccine. We are not providing for paid time off to get the vaccine and Right. Even the option once you get the vaccine, if you need to take time off, right? I recently got the vaccine, I was out for two days and that was just the first shot, right? And I have, uh, the privilege to be able to do that. Many of our essential workers don't. And what is really sad about that is many of our essential workers working with and for healthcare institutions do not, right? So if you are wondering why, uh, a traveling nurse or a nurse direct care worker who's providing care in a nursing home or somebody's home doesn't wanna get the shots because they can't afford to take off work, right? You may be giving out the shots to the people in the nursing home, but you are not ensuring that they could take off time if they need to, to actually, uh, deal with the symptoms of it. And so the hesitancy is really about what has happened, and not just in how people have been denied care, how they have been blamed for these inequities and infections and deaths based on what black culture or Latinx culture that is somehow their fault. And now all of a sudden you want them to rush to get the vaccine where you're not even ensuring that they're going to have what they need to be able to get it, which is time off and paid sick leave. So I would add to that. I also, I see, uh, Harold's hand up, but, uh, Francis, I wanted, uh, Francis Mills or Francis, I wanted to give you the opportunity also to speak in, uh, about these, uh, topics as well.
Speaker 8:Well, ra I'll jump in and say, for the city of Cleveland, one of the challenges is that you do hear that terminology vaccine hesitancy, uh, being bandied around as a challenge. We are seeing in our African-American community and Latino communities that numbers are down. But it's a matter of how well has information regarding availability been communicated to, uh, folks on the ground, but also utilizing traditional media, radio, media, media in language that people can understand. And so to date, from December, we've probably set up probably over a hundred pods in the community and have really distributed all of what's been allocated to us. Now, do we have those sites where aggressive, uh, outreach and community engagement needs to happen? Absolutely. How we're doing it, we're doing it through partnerships with nonprofits, partnerships with faith-based community, partnership with grassroots activists, partnerships. We're letting people tell us where to go, uh, when we're making that decision. Because where are new cases happening, uh, in a place like Cleveland? What, what good is social vulnerability index when everybody's socially vulnerable? And so we could go anywhere, but we have to go to places and hold those pods where it is convenient for individuals to come. So that's the way we're handling it. It's a daily challenge. Uh, we're more likely to take all who, who comes, whoever wants it. We wanna make sure that it's there. And then we wanna apply aggressive education for those who in the event, they might be hesitant and people will tell you why, um, they're not interested or at this time, or we would like to delay our, uh, app scheduling of our appointment. They'll tell you that. But, um, not shutting the door and making it difficult for people as they are ready to come in the door and get the vaccine.
Speaker 9:And I, I could add to that, that, um, so one of our facilities in Spokane, um, they had, they vaccinated the whole native community and they were like, what else are we gonna do? And so they, they went to naacp, they went to local Asian organizations and started vaccinating those folks. And I, I do think prioritizing is a little, you know, is, is gonna be, is essential or has been essential or figuring out how that works. Um, I did wanna talk a little bit about the digital divide. Um, we've, in, in with Covid, we've seen that, I mean, obviously with the, with telehealth and everything, I think a lot of folks have, you know, we've all had to move really quick to be comfortable online. But we did see that, um, a lot of our patients didn't have access to, um, internet or did not have a smartphone or a laptop, um, and could not access those telehealth services that they may need, um, that, you know, that may be hit during. And so we know, we know that, I mean, we're talking about infrastructure a lot these days in DC we know that, um, Indian Health Service is severely underfunded. We know that tribes are severely underfunded. And so, um, the access to internet broadband is just a huge, huge, huge problem. Now, my organization represents the urban component of that, which has a lot of problems there. One being that legislature, the, the legislature does not think that Indians live off reservations. They think all of us live on reservations when 70% of us live in urban settings. And so a lot of the resources that are considered for our community are only considered for reservation based, um, because they think that we all still live there. And so that just becomes a communications challenge, even to get the resources to folks as well, um, to make sure that the feds are accounting for. And thinking about the 70% of us in urban settings who still have, you know, uh, we were at some point collecting old cell phones to try to give to people, so at least they had a phone that they could call. And, and that became a policy issue at the very beginning when they were just like, oh, telehealth, but not telephone<laugh>. Um, and so there's a lot of, a lot of investment I think that needs to be done, um, in, in infrastructure to help, um, bridge that access. And, and we've seen some things happen, but I def I mean, I, I'm happy to see that, I guess the infrastructure package that they're trying to tackle things like this now, because I, I, you know, it's, and H one n one, I mean, um, urban Indians at least were completely forgotten about the whole system did Yeah. Not even account for the Urban Indians. And so, um, we were one of the highest to die, um, in that, in that pandemic as well. And so it, you know, it, the numbers are always gonna be the same as long as we are trying to respond to inequity versus implement equity in our systems, I think is is, that's kind of one of the challenges I'm really seeing.
Speaker 3:Francis, thank you so much for that observation. Um, on the digital divide, and just a couple observations from my end, um, this is exactly what we saw unfold in our own system when we did that pivot and we started to do more live outbound calling. Uh, we saw the vaccination uptake go from something as low as 20% in some pockets to 100% of the, just because folks would pick up the c phone<laugh> and just make the calls as opposed to relying on email other things. Um, another point that was seeing in the chats, the grip point that the Francis, uh, mills has raised as looking at, um, call-ins walk-up opportunities for access. Um, this is exceptionally important in certain communities when, um, earlier they'd introduced me as overseeing a lot of our community-based flu initiatives, what we noticed is that of the 55 clinics that we had set up last fall in the communities, the ones that had, um, they were all walk-ups, all free of charge, but we were also other social needs at the time. And so the one clinic that also had voter registration as part of that kind of package of service, the highest uptake of all the clinics. So it was recognizing that the needs that we were prioritizing aren't always the needs of community might be prioritizing. We need to look at this, the context, um, of what, uh, communities want, um, at a given time as well. And so having that community focus, um, community view at the table, give you a chance to chime in there, but also, um, rakaia just, uh, hand it back over to you as we transition to the next.
Speaker 2:Great. Um, I wanna turn it over to Harold. I know you wanted to speak on this. Um, and then I'm gonna follow up with the question about, uh, crisis standards of care.
Speaker 4:And sorry, is this, when you said speak about this, was that the trust point? Because I think I'm just gonna do this got me all through, uh, middle school that I always wait until the smart kids have spoken and then I would say that's just what I wanted to say. You, you said it so much better. So I I'm not gonna say more on that. Um, but happy to talk about crisis center of care if you'd like to. Yes, yes. Tell me a little more about that. So, so I think in many ways there is a very direct relationship, but also in a very interesting difference, the direct relationship that in my world, in bioethics, we've really seen, I would call it a seismic shift that pretty much a year ago the received wisdom was, well, you know, absolute scarcity. So we're maximized benefits. Not everybody can have everything. That's the way it goes. And I think within less than a year, we've just come to this realization that if we do that for ventilators of other things, what that means is we'll either maintain or worse exacerbate inequities that, that we see, right? And, and so we've really seen the shake around switch around in quite a way that the, the need to mitigate this inequitable outcomes has been recognized within the field. So, you know, again, to be fair, what happened year goes that was that many people were very concerned that if we have first come, first serve, that would be highly inequitable. We had some states that would exclude particular, um, people from access to ventilator, and that was bad. That was clearly, you know, very bad. But the problem is that some of the guidance that have been set out in response also had issues. And so I initially wrote an up and in times that I put in, in the chat at a moment looking at one influential model guidance that drew on the SOFA score, which is a clinical measure to assess your likelihood of surviving the I C U and considered life expectancy in ways that I felt would disadvantage in particular the chances of African-American people who were more disadvantaged to get a ventilator. Um, the later I followed it up with a piece with Amma outstanding nephrologist and Dorothy Roberts, who many of you know as a legal scholar and a sociologist of course, and we looked less at crisis standard care, but just at sofa and made, um, six concrete recommendations. What you should do. And the main problem is, and I put that early in the chat too with, uh, the SOFA score and integrating creatinine, is that in measuring creatinine as an indicator of kidney function, we're measuring simultaneously social disadvantage and an objective clinical measure, right? Many clinicians will just say, well, we're just doing objective science here. But the fact is you are measuring disadvantage. And the question then is, well, what do you do about this? Because as we hypothesize initially in our paper, it can make the difference between being assigned the highest priority and nod. And more recently, and I'll be sure to put that in the paper too, we have empirical evidence for this being true where, uh, uh, Dr. Sha and colleagues looked at a large study set of a hundred more than a hundred thousand, um, patients, and found that, and, and this is a site here, I think I have it up, yes, that in 81% of cases black patients included in lower priority crisis, standard of care categories, and in 9.4, uh, percent of all black patients were erroneously excluded from receiving the highest prioritization, right? So there's no question in my world and in medical world now that using creatinine within the SOFA score has these harmful consequences will from the start disadvantage worse off, uh, African-American people. But the question is, what do you do about it? And one interesting thing here is that much as we rightly obsessed with vaccines or focus, let's say on vaccines, when I raised this initially last year, many of my colleagues would say, well, look, we're in the middle of a pandemic. Can you please, you know, leave that for later. So, you know, I, I thought, okay, that's interesting. Now we're luckily, and hopefully we'll stay that way, can't avoid needing to think about rushing ventilators, but we can't leave things stand that way. And I'm heartened that the National Covid Plan did ask the Health Equity Task force to provide federal guidance on stands of care on crisis standard of care. We made six suggestions for what you could do that I'm not gonna work through. But I'll just give you the titles that you can improve diversity in decision processes. You can adjust creatinine scores, uh, you can drop the scores, you can find alternative measures, you can add equity weights. Again, that's how I first thought of using a disadvantage index. Or you can reject the dominant sofa model altogether. So this is six constructive elements that we feel you should at least think about.<laugh>. And doing nothing is not an option, right? We've established the fact that these protocols have inequitable outcomes. We can't hide between objectives behind objective science, and we need to figure out what we do as a society about it. But the bottom line again, for me is that we've made this recognition that simply maximizing benefits is no longer acceptable. And we now have to really learn something from this, uh, period and, uh, be clear about how we want to do this better.
Speaker 2:And I'll just jump in and to say that now is the time, right? Because as we're looking at Michigan, as we're looking at the Midwest, we are ramping back up, unfortunately to a lack of, um, ventilators, lack of access to beds, right? And so it becomes a question that we have to handle now. Um, I'll turn it over to you, drew, unless somebody else wants to hop in.
Speaker 3:Great. You know, it seems that many of the, um, the obstacles that we're seeing are, are really part of a broader issue of justice. Um, and Professor OJ kind of brought, bring you back into this discussion here. We talk about justice because we know that the failure to justly allocate, um, whether it was ventilators in the front end or not, vaccines in the back end contribute to these higher rates of, of morbidity and mortality. And you noted back in 2004 that we've seen this before, this is not unprecedented. We saw this with the influenza outbreaks for high priority groups. Uh, we're not always vaccinated ahead of healthy individuals. So what have we learned from these prior missteps? What are your suggestions, uh, for going forward?
Speaker 5:Let's be clear about a couple of things with Covid 19. It is unprecedented. It blows away everything else we've seen before. It is a totally different scale, and it will forever set for this century what we have and have not done well in response to allocating scarce resources. That what Harold's talking about with crisis standards of care. I've worked with the National Academies on that. We have some new work to be done there. What Dana's talking about with some of these really just structural issues underlying it, COVID 19 blows all that off the roof. And it, it just does it because of the magnitude of what we're seeing. This is that big event, drew, you're right, what we observed back in the past we're even seen perpetuated to this day. And some of it, I dare say, we're going to resolve post covid. I think we actually have seen enough nationally to understand with leaders like Dana and Rakaia and, and Dawn and others, we've got a chance now to actually set a new, you know, a new scale going forward. But let's also be conscientious of a couple of things as we do. So first, ethics will get us so far in relation to what we should do or how we should respond or what, or how it could be a good thing to actually allocate like this. You gotta make it stick legally. And we're gonna see, I think, massive legal changes in response to how we respond or how we actually handle these types of pandemics or other issues going forward. That's what Covid 19 will actually address. We're talking about a very different national infrastructure for how we should proceed. There's gonna be some changes from our Federalist system and approach that may help remedy some of what Dana's just been so eloquent in talking about and Herald's addressed and so many others. But I think the one critical facet we've seen is that there has been a couple achievements. Let's not lose stock of, first of all, we're passing out Covid vaccine for free. We're handing this stuff out nationally. That's a good objective. We've set that all along and it's been done. We have safe vaccines. That's another objective. Thank heavens. These vaccines are safe. Throw a little in more in there about AstraZeneca's related issues in regards to that. Oh, it's just gonna be more problematic than ever. What we've gotta solve is the allocation conundrum that's solvable. It's gonna take a heavier approach at the federal level, I predict for the long term. And we're gonna need to see a lot more outlets extensively across the country, able to doll out vaccines. Now they're gonna be open wide to the US population. In other words, any access issues we've seen so far might be remedied. If every Walgreens, every cvs, and every Walmart can actually do these vaccines in real time, those can make critical differences. We've learned a lot. True. But the next part of this century is where we'll see it effectuated. That's I think where we're going. And law will be absolutely critical to that in reflecting the ethical balance as well.
Speaker 3:Thank you so much. I think that the, that key point, you know, meeting people where they are physically, financially, um, across their own knowledge base, because as, uh, Dean Matthew pointed out, it's not just about it, it's not about these presumptions of hesitancy and that narrow way that has been portrayed, but also across that continuum of folks who have legitimate concerns. If I have so-and-so health condition or if I have these access issues of transportation, please help address those. Right? Um, Ricardo, let, lemme bring you back in here, um, as we talk about equity and the law and, uh, and kind of lead it off with you, uh, as we, as we wrap on.
Speaker 2:Yeah. And I'm going to turn it over to Dean Matthew, who I know is going to give us the answers, or at least<laugh> be provocative and telling us what we need to do.
Speaker 6:Okay? So, um, uh, there's no way to live up to that, but I do have something<laugh> that I'd like to close to say. First, thank you for having me on this panel. One of the reasons I was so excited to get this, uh, the honor of having this invitation was because of the audience. Uh, not only the people in this, uh, panel, uh, it's an honor to be here with this group of, um, I, I'm gonna call you activists because your intellectual work is, is activism. Um, but the people, uh, from the American Health Law Association and those that listen are the answer in my view. And let me just lay that out theoretically first and then touch on it. Pragmatically, everything that Harold and James and others have been talking about supports a theory called fundamental cause theory that link and Fain reported 1995, 2015, they identified structural racism as a fundamental cause of health disparities. Now, Rachel win, Rachel, uh, the C recently said structural racism is a public health, uh, threat and crisis. But let me just break down what that means. From a theoretical standpoint. It means that if we attempt to address a crisis without deliberately, intentionally addressing the structural racism that envelops that con, that's crisis. We're gonna see exactly what Harold described. The inequities are going to get worse. And this is not news. This is not news at all. We've seen it. The classic example is cigarette cessation, right? So when you put resources out without thinking about race, gender, economics, all you do is put those resources out into an inequitable cent, uh, system and they get inequitably distributed. And so people who are disadvantaged are worse off after the solution has been found than they were before. So the only way to attack this, and I share James' optimism, the only way to attack this is to recognize that we are at a crossroads, at an inflection point. Either we take structural racism seriously and attack it intentionally or we make it worse. And when I say intentionally, I mean the kind of bold moves that Vermont has made. I mean the kind of attacks on race and race discrimination on white supremacy that Vermont and even West Virginia has made. The reason I love what West Virginia has done is because they looked across their rural communities and said, I'm gonna use your your word. I thought it was so beautiful. Francis says, ain't nobody coming to get this vaccine unless we do something deliberate. The only way we're gonna get this vaccine out is to use community pharmacies that people already trust. And that's why West Virginia and Alaska have been so successful. The only way we're going to get rid of structural racism is if people in the health community make the empirical connection between inequality, racism, discrimination, and housing education, food employment, you have to make that connection with health outcomes because that's the way policy people are gonna listen. That's the way lawmakers are gonna listen. They are not gonna listen just because the academy is saying that educational deficits produce health inequality. They're not gonna listen only because communities are marching in the street. They're gonna listen when you empirically show the connection that health outcomes are directly related to racism, to people not getting promoted, not getting jobs, not getting educational equality, not getting the right to breathe free and clear air. I come from the South Bronx Asthma alley. Why? Because the law permits waste transfer systems, highway systems, all of those are connected to health. And if you, the health industry, you, health lawyers, you health providers begin to become civil rights advocates to change the laws that are creating discrimination in each and every one of the social determinants of health intentionally. That's the only way we're gonna beat this inequality. It will just continue to get worse. Otherwise, in my view.
Speaker 9:Francis, did you wanna add something? Yes, thank you. Even though I can't follow her. And Dean Matthew's absolutely amazing. You are my new favorite person. Um, I, I wanted to put a plug in here as we are thinking about diversity and being our, the our own agents for change, one of the things that, um, I have, I, um, I'm, I went to the University of Arizona James, so we're natural enemies. But one of the things I advocated when I was in law school was, um, man mandating, um, critical race theory. Um, and I definitely think that this is something, I mean, I'm talking to all the lawyers, so I want to just say that. Like, if any, I think, you know, and, and one of our things was I, you know, I walked into a white law school. I thought it was gonna be a whole bunch of Indians like me, and it was a whole bunch of white people. And um, I grew up in an all black area, so I was like, where are all, where, where are all the minorities? And I grew up in South Florida. There's like, we had everybody who was wonderful. And I was like, wait a minute, what's going on here? And um, and, and what I learned was, you know, we are part of this cog, we are part of this system. And if we don't acknowledge that race is a factor in this, then we've already lost. And I spoke, um, you know, a few years later after law school I spoke to um, George Zimmerman's attorney, um, who presented at my undergrad. And I wanted to ask him about this. And he said that he had served, he's like, I had served black men my entire life and the system has always failed them. Always, always. And um, I'm surprised to hear that from George Zimmerman's lawyer, however, but needless to say, and he did say that, he did say he thinks that as long as people are still pretending that things are colorblind, like you're never, and you know, that case changed my life cuz I saw how race, you know, would, how if you don't talk about it, things can happen. Um, and so I just wanna put that plug for the law, the deans here and any law students or future law students, um, to push for critical race theory because I think we have to, like, we can't just pretend that grace doesn't matter in our own clients or any of these other things. So I just wanted to put that out there as well.
Speaker 5:Francis, I can't speak for U of A down in Tucson<laugh>, but I bet you every single law school represented on this call from the deans to to, uh, St. Louis to my own here at ASU do have strong new affirmative initiatives towards that specific objective. Now those, these cannot be flash in the pan initiatives. These need to be permanent fixtures, but to be sure, yeah, we're, we're increasingly on board with it at asu and I've at every other law school as well.
Speaker 9:I'm glad to hear that cuz Arizona needs it<laugh>. So,
Speaker 2:And with that, I am going to close this session and maybe turn it over to you, Cindy. I know we are supposed to be taking a break before we pick up the the next panel.
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