Healthcare and law have always had an uneasy relationship, but it has become especially uneasy during the pandemic, when long held assumptions of public policy fell apart, when the assumed regulatory authority overseeing healthcare lost credibility.
Healthcare has become so regulated in recent years that it has become defined by the regulations. Regulations that failed to withstand the pandemic. So now that we are approaching a new post-pandemic normal, how will this new relationship play out?
How will healthcare and law now interact?
It is imperative that medical licensing boards across the country take the opportunity to revisit long held assumptions about healthcare statutes and regulatory policies, and assess the benefit of these statutes and policies. In much the same way we evaluated the financial systems through stress tests after the Great Recession, we should evaluate the medical appropriateness of healthcare law as it pertains to actual patient behavior.
It must begin with medical licensing boards. Long relegated to the role of administrative bureaucrats, medical licensing boards theoretically contain significant sway with their respective state’s office of attorney general – the top prosecutorial body in each state – and have the potential to influence the interpretation of many healthcare statutes.
Yet we often find medical licensing boards serving as glorified agents of the state, rubber stamping laws already agreed upon by attorney generals, and acquiescing without much resistance to federal policies. During the pandemic we saw a slew of regulatory policies coming and going seemingly by the day, yet never once did any medical licensing board question the medical efficacy of these policies.
When states mandated widespread lockdowns, not a single medical licensing board warned of the effects to patients. Yet academic physicians throughout the country were cautioning against the effects of such extreme measures and predicting what soon proved to be true – that the emotional aspects of the pandemic will overwhelm the actual effects of the pandemic itself.
What Milton Friedman cautioned, “the cure is worse than the disease”.
What this pandemic has shown is that healthcare is decidedly local and that the laws we have enacted to regulate healthcare at a federal level simply do not work unless they are tailored for local populations. We need an administrative body, localized to the level of the state, to oversee the appropriate implementation of healthcare laws and policies – to ensure they are fundamentally medically appropriate.
This organization should be the medical licensing board. It comprises of state appointed physicians who are spread across the state and include successful physicians who are leaders in their community.
Their voices matter and their voices should be more active in healthcare policy going forward.
But to empower the physicians on the medical licensing boards, there needs to be a shift in how medical licensing boards work with the state’s legislatures – namely the state’s attorney generals.
Typically when an issue is presented to the medical licensing board, it passes through a swath of attorneys, nominally to organize the process for the board. But in reality, it limits the context through which medical licensing boards make decisions.
This is a critical distinction that limits the overall effectiveness of medical licensing boards. When the framework of any decision is limited, the opportunity to discuss the issues related to that decision are also limited. For many issues presented to the board, the topic has already been decided.
Say a physician challenges a patient lawsuit. The medical licensing board only weighs in on the issue if the state’s attorney general requests that they be included. Otherwise, the medical licensing board plays no consistent role, nor provides any structured input for these cases.
But the federal and state courts have venues through which independent third parties can influence the decision of judges. These are called amicus curiae briefs, or independent documents by third parties who have an interest in the outcome of states. Often these briefs are submitted by interested independent third parties who confer with the legal parties prior to submitting the documents. They help the judge better understand key issues that may impact the impartiality of the ruling.
Medical licensing boards can provide some variation of these documents for healthcare legal cases to ensure that the interpretation of the law is medically appropriate. Which would help in situations as we saw during the pandemic when states were uncertain how to proceed and often made decisions based upon political rhetoric.
Many states relied upon their departments of health, but often those physicians are appointed by the politicians themselves and are reluctant to speak out against political leaders openly. The medical licensing board is different, they have longer appointments and are less influenced by the political rhetoric.
Furthermore, medical licensing boards do not necessarily have to weigh in on the specifics of the case, they can focus on the medical fundamentals underlying the case.
Often many legal battles are fought by lawyers who simply lack the medical context necessary to properly adjudicate the law, and develop novel interpretations of the law that may run contrary to effective patient care. Precisely because the lawyers do not understand the underlying medical fundamentals in the issue.
Creating a direct mechanism through which state medical licensing boards can actively engage in legal issues, be it public policy or direct legal cases, will enable an authorized, recognized legal body – the medical licensing board – to impart medical context to a legal system that is severely lacking the appropriate medical context.
It would ensure the legal system operates in a manner conducive towards patient care.
If legal interpretations lack appropriate medical context, they can be interpreted in medically harmful ways. And if that interpretation is upheld in court, it eventually creates case law.
Medical licensing boards have a duty to regulate the practice of medicine. Normally we assume that to mean regulating the behavior of individual physicians. But that also includes regulating the interpretation of healthcare laws in court. For the two are not mutually exclusive and clearly influence one another.
As physicians behave according to the interpretations of healthcare laws. So medical licensing boards should have the authority to oversee both.
Vaccine Passports: what we need to know
The COVID-19 pandemic has killed more than half a million people in the US and has seriously impacted our daily lives. The granting of Emergency Use Authorizations for COVID-19 vaccines has been a game changer in helping to reverse the pandemic onslaught. Demand for the vaccines currently far exceeds supply nationwide. They have become the golden ticket that can transport us back to a time when routine activities, such as attending school or taking vacations, didn’t seem fraught with danger. What’s the best way to go about re-establishing these activities? One idea that’s getting discussed seriously is giving those who have been immunized a vaccination passport (VP).
What is a vaccination passport?
Let’s start by clarifying some terminology. VPs are documents that show that someone has been given a vaccine(s) and is therefore presumed to be immune from getting and sharing that disease. These are distinct from diagnostic tests to determine if a person is or is not infected with a particular virus (PCR and viral antigen tests) or has been exposed to a virus (antibody tests). VPs are the modern day equivalents of the “letters of transit” that played a key role in the film Casablanca. They’ll enable you to travel freely.
Why give vaccine passports?
Vaccinated people are unlikely to transmit the virus that causes COVID-19 with others, though this has yet to be definitely proven. So, what’s the primary rationale for giving vaccination passports? It seems the goal is to incentivize people to get vaccinated. Folks might be more likely to seek out the vaccine if it bestows upon them certain privileges, such as being able to travel freely. While the idea might sound appealing at one level, the road to vaccine passports is pockmarked with political potholes and littered with logistical land mines.
There are a lot of important questions that need to be answered before VPs can become widespread; it’s unlikely there will be a “one size fits all” solution. What might VPs look like? Pieces of paper (that could easily be lost or counterfeited), or a digital key or document you store on your smartphone (that many older folks still don’t have)? If you lost one, how would you get it replaced? Would your vaccination records be tied to your other medical records, and if so, what kind of privacy and security protections would be needed to safeguard your data? How would the passport administrator verify that you got vaccinated in the first place? Who is responsible for correcting any errors that crop up? Given how much we’ve struggled as a nation to simply solve the scheduling of vaccinations, VPs might be significantly more difficult to manage.
Who’s going to run the program?
A coalition of health tech leaders (including Epic, the Mayo Clinic, Microsoft and Salesforce) has started the Vaccination Credential Initiative to create an internationally accepted digital health card. Its vision – as stated on its website – is “to empower individuals to obtain an encrypted digital copy of their immunization credentials to store in a digital wallet of their choice. Those without smartphones could receive paper printed with QR codes containing World Wide Web Consortium (W3C) verifiable credentials.” Some European countries (e.g. Denmark) are working on developing their own immunization passports, and the President of the European Union Commission has voiced support for them.
We already have a hodgepodge system designed to keep folks with COVID-19 from traveling. Many airlines are requiring proof of non-infectivity to board a plane – these are distinct from VPs. The methods adopted vary from airline to airline: United uses Travel Ready Center, American uses VeriFly while others use Common Pass. Saga cruises are the first in the UK to demand proof of vaccination, but not everyone is on board with the concept. The World Travel and Tourism Council stated its opposition to allowing travel only by those who have been vaccinated, on the grounds that it is discriminatory.
The concept of gaining advantage from one’s immunological status is not a new one. In New Orleans in the mid 19th century, great economic value was attached to those who survived the onslaught of epidemic waves of yellow fever. A mix of structural racism and a system valuing “immunocapital” ranked men and women highly if they were yellow fever survivors. Those that had not had the disease yet found it difficult to obtain work or obtain credit and women could not marry. Slaves were similarly revalued, with larger assessments attached to survivors. This legacy of viral discrimination casts a long shadow over current discussions surrounding vaccination passports.
Also problematic is the fact that not everyone will be eligible for VPs. Some people can’t be vaccinated for medical reasons but would still like to participate in whatever activities the passports enable (such as travel opportunities). These individuals will likely file complaints if they are denied VPs, arguing that they’re discriminatory in nature. Vaccine opponents will no doubt also file lawsuits seeking to block the use of VPs, claiming they represent an attack on their freedoms and personal choice.
Others may be shut out of VP programs because they don’t have the computer skills to register online, a problem that’s turned out to be widespread with the vaccinations. Don’t have any ID? In some places this prevents the most vulnerable from getting the COVID-19 vaccine, and therefore VPs as well. Many Black and marginalized communities are already deeply suspicious of the medical establishment, and wary of receiving a COVID-19 vaccine. Restrictions that prevent these groups from participating in various societal activities because they don’t have VPs will echo the Jim Crow days of poll taxes and literacy tests that were required to vote.
VPs bring up a similar issue as mask mandates: who is going to enforce them? It is one thing for a cruise line to do so, since reservations are required and extensive paperwork needs to be filled out in advance. Who is going to keep non-vaccinated people out of restaurants or concerts that require proof of vaccination? We’ve already seen anti-maskers storm department stores, ignore requirements to wear masks on planes and even kill a security guard who confronted them.
Black market for vaccine passports
Many airlines are now requiring proof of a negative COVID-19 test before they will let their customers fly. This has led to a black market for fake negative COVID-19 test results for those who are looking to game the system. Similarly, bogus cards claiming that the cardholder was exempt– for medical reasons – from having to wear a mask, have been manufactured and distributed. It’s not hard to imagine that a similar market will emerge for VPs.
Overcoming vaccine hesitancy
Given the multitude of issues and concerns listed above, moving forward with issuing vaccination passports seems highly problematic. If the primary purpose of having VPs is to drive up immunization rates, that can be better accomplished by running public service announcements and ads illustrating how liberating it is to start doing normal activities once vaccinated. A nationwide campaign to do just that is already in the works. I personally can think of a better use for the time and money that will be spent on establishing VPs: use them to focus efforts on overcoming vaccine hesitancy in concert with combatting the high tide of online vaccine misinformation and disinformation.
Source: Technology Networks