When the Department of Health and Human Services moved forward Tuesday, Totenberg apparently decided to step in. She said patients on the liver transplant list and a group of hospitals, which together filed the lawsuit, would be harmed if the new rules were used.
“Given the gravity of the medical issues and risk of disruption in the transplant system and the concrete likelihood of harm to the plaintiffs and the public at large if the status quo is not maintained, the Court finds that the public interest is best served” by keeping the old policy in place, Totenberg wrote.
The transplant system has struggled for decades to find a fair way to distribute livers, kidney, hearts and other organs in the United States, where a severe donor shortage has created a waiting list of about 114,000.
About 13,500 people are on the list for livers; in 2018, 8,250 of the organs were transplanted, according to the United Network for Organ Sharing (UNOS), a nonprofit organization that runs the transplant system. At least three people die each day while waiting for livers.
For years, transplant hospitals generally had first claim to organs donated in their areas. The new policy offers livers to the sickest patients as far as 500 nautical miles from the donor. It was approved after a lawsuit was filed in New York by patients who said they were waiting longer for livers than less-ill people in other parts of the country. The government, concerned that the policy in place was illegal, ordered transplant authorities to consider another approach.
The plaintiffs — which include transplant centers in Georgia, Michigan, Kansas and Missouri, as well as people on the waiting list for livers — say the rules will leave patients in those places with about 20 percent fewer organs than the current policy, resulting in an increase in waiting-list deaths.
The plaintiffs contend the new policy will allow big-city transplant centers, where demand is greater, to reach far into areas where the shortage is less severe and take livers that otherwise would go to patients in those regions.
Supporters of the new policy maintain, however, that regional disparities have become too great. For example, they have said, a moderately ill patient in Kansas has a 60 percent chance of receiving a liver within 30 days, while a similar patient in California has just a 1 percent chance.
On Monday, Totenberg had told both sides that the Supreme Court would decide soon whether to overturn a 22-year-old precedent that says judges generally should defer to a federal agency’s interpretation of regulations governing that agency. That ruling may have a direct bearing on the transplant dispute, she warned, and asked HHS and the agency running the transplant system to voluntarily delay the new policy until the justices ruled.
“Instead, the Government has insisted on forging ahead despite the obvious likelihood of enormous disruption in operation of the medical and liver transplant system and the plaintiff transplant centers, especially if the Court determines in a matter of weeks . . . that it must enjoin implementation of the challenged policy and review procedures,” she wrote.
The Justice Department, which represented the government, declined to comment Wednesday evening.