Hospitals Urge Appeals Court to Halt New Policy for Allocating Kidneys

(CN) --- A group of hospitals that perform kidney transplants urged a federal appeals court in St. Louis to block the federal government’s enforcement of a new policy that changes the way donated kidneys are distributed to patients in need of the life-saving transplants.

The U.S. Department of Health and Human Services changed the organ distribution policy from allocating organs within 57 regions that generally follow state lines to a “fixed circle policy” that gives priority to candidates at transplant centers within a 250-nautical-mile circle around an organ donor’s hospital.

Adventist Health System/Sunbelt Inc. of Orlando, Florida, and five state university hospitals in the South and Midwest that operate kidney transplant programs sued HHS over the shift in policy last year. They argue the change from distributing organs within designated regions to a national system will not only create winners and losers among the states within the current regions – diverting donated kidneys from less populated areas to large urban centers – but will cause a decline in the overall number of transplants.

The government argues that the previous policy advocated by the hospitals was heavily reliant on “arbitrary geographic boundaries that created stark differences in access to transplants across the country.” The new policy, the HHS claims, “is expected to sharply reduce those disparities.”

U.S. District Judge Stephanie Rose in Des Moines, Iowa, denied the hospitals' petition for a preliminary injunction in March, prompting the appeal to the Eighth Circuit.

In arguments before a panel of three judges Thursday, lawyers for both the hospitals and the government spent most of their allotted time debating the complex procedural administrative rules questions raised in this case.

Both sides acknowledged, however, that with a limited number of donated organs available, there will be winners and losers on both sides of this issue, and the question is how best to allocate that limited number of organs across the country.

U.S. Circuit Judge James Loken, a George W. Bush appointee, pressed the hospitals' counsel on their motivation in bringing the lawsuit.

“How do we compare the adverse impact on people who don’t get the transplant at your hospitals with those who do?” he asked, raising the question of whether “this is all about money” for the affected hospitals, not people who need organ transplants.

In response, Yaakov Roth of Jones Day said there will be fewer transplants nationwide under the new policy than the old policy, even by the government's own estimates.

Brad Hinshelwood, an attorney for the U.S. Justice Department arguing on behalf of HHS, told the judges that the hospitals are wrong about projections on how many transplants will be affected by the new policy. He also argued that the hospitals' delay in challenging the new policy is enough for the St. Louis-based appellate court to affirm the lower court’s denial of an injunction.

U.S. Circuit Judge Ralph Erickson, a Donald Trump appointee, questioned whether the new organ distribution rule in fact poses a harm to the public.

Yaakov replied that there is no record yet of the actual impact of the change, but he argued earlier that even based on the HHS’s own modeling, there will be an overall decline in the number of transplants under the new rule.

In a brief filed with the Eighth Circuit, the hospitals said the new policy will result in 250 fewer kidney transplants per year – from an average of 13,080 to an average of 12,830 – although the government argued at the trial court that some of those lost transplants would be offset by a projected increase in kidney-pancreas transplants.

“But even combining the figures, defendants’ models still predict a net decrease in transplants — as well as an increase in the number of patients expected to die on the waitlist each year” under the new policy, the brief said.

The attorneys who argued at the hearing, Yaakov and Hinshelwood, did not respond to a request for comment Thursday.

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