This doesn’t justify the NYDH guidance.
In a recent post, I criticized the New York Department of Health for using race/ethnicity as risk factors when determining eligibility for Paxlovid without providing evidence that Black/Hispanic people are more likely to die if they get Covid-19 than similar White people.
My criticism is not based on a Panglossian view of racial/ethnic equality. I think it is quite unlikely that Blacks/Hispanics will have equal access to Paxlovid during the current omicron wave. Unfortunately, the NYDH policy seem unlikely to do much to fix this problem, it will lead to a backlash that will benefit Republicans, and there are other policies that might be more effective and would certainly be less controversial and vulnerable to legal attack.
Why Blacks and Hispanics are unlikely to have fair access to Paxlovid
If you get Covid-19, whether you get Paxlovid depends on
1) whether you go to a doctor within 5 days of symptom onset and before your symptoms become serious,
2) whether you qualify for Paxlovid based on your risk factors and your doctor prescribes it,
3) whether the pharmacy in your neighborhood has Paxlovid in stock, and, if not,
4) whether you have the knowledge and resources to search out other pharmacies not in your neighborhood that have Paxlovid in stock.
In the real world, I suspect that these factors will all work against Black and Hispanic people, especially if they are low income.
Whites (especially upper-class Whites) are more likely to have primary care doctors and to be aware of the need to get tested immediately to get Paxlovid. They are therefore more likely than Blacks and Hispanics to be eligible for Paxlovid when they get diagnosed (within 5 days of symptom onset, symptoms not serious). Consistent with this, the CDC reports that Blacks appear to be sicker at the time they are hospitalized for Covid-19, which suggests less/later access to medical care, and less eligibility for Paxlovid. I suspect that testing capacity is higher in White neighborhoods (especially upper income neighborhoods), which will be critical to getting diagnosed in time to qualify for Paxlovid.
The NYDH guidance does not address this problem.
Once patients get a Covid-19 diagnosis, their doctors will have discretion in deciding whether to prescribe Paxlovid, for example by fudging diagnosis codes and risk factors. It seems likely that White patients will be more likely to get Paxlovid prescriptions in borderline cases than Black or Hispanic patients, due to a combination of factors (prejudice, patient sense of entitlement and lobbying, longer and stronger personal relationships with doctors, better insurance, etc.).
Perhaps the NYDH emphasis on race/ethnicity as a risk factor will counteract this to some extent. If this is the real rationale for the policy, it would be helpful to state it clearly and present the evidence that supports it. There are also alternative policy approaches NYDH could have used to prevent unequal prescribing. They could have warned doctors that they tend to under-diagnose Black/Hispanic people. They could have set up an automatic audit process that kicks in whenever an unvaccinated Black/Hispanic person over 65 is denied Paxlovid. This might have been too difficult to implement administratively, but it would have the considerable political advantage of fighting discrimination rather than creating the appearance of a racial/ethnic preference.
After they get a prescription, patients will need to find a pharmacy with Paxlovid in stock. I would personally be surprised if Paxlovid is as plentiful in Black/Hispanic neighborhoods as in White neighborhoods, but perhaps the NYDH has addressed this issue. (In NYC, it appears that allocation is centralized, which might help.)
Finally, it seems likely that Whites – especially upper-class Whites – will be resourceful in finding pharmacies with Paxlovid in stock, possibly at the expense of people in Black and Hispanic neighborhoods. Again, it is possible that the NYDH has addressed this (and the NYC allocation process may prevent it).
An alternative way to avoid Black/Hispanic deaths
Here is an alternative way NYDH could have responded to legitimate concerns about unequal access to Paxlovid.
First, NYDH could have made a big push to vaccinate Black/Hispanics as soon as it was clear that an omicron surge was coming. They could have enlisted the governor to lead the charge. This might well have saved more Black/Hispanic lives than the NYDH guidelines on Paxlovid will, with little if any political or legal cost. Donald Trump is unlikely to complain to his rally-goers that New York state spent money on public service announcements aimed at persuading Black New Yorkers to get vaccinated.
Second, NYDH could launch a campaign to educate vulnerable Black/Hispanic people about the need to get tested immediately if they have any Covid-19 symptoms. They could have made sure PCR testing with rapid turnaround is available in Black/Hispanic neighborhoods. Widespread lags in getting PCR test results means that many people will get a positive result when they no longer qualify for Paxlovid. This will continue to be relevant even when supplies of Paxlovid increase.
Third, as I noted above, rather than using race/ethnicity as risk factors, the NYDH could have tried to educate doctors about biases in diagnosing and prescribing, and implemented an audit process to protect Blacks/Hispanics from unfair denials of care.
Racial disparities in health are real and important. This doesn’t justify the NYDH guidance, which will benefit Republicans in their efforts to win elections by stoking racial animus, and may well do less to save Black and Hispanic lives than alternative policies.