Hope is on the horizon as the first COVID-19 vaccines arrive in Washington State. The Washington State Department of Health has released a carefully-considered phased distribution plan, with Phase 1a  already underway. High-risk first responders, medical workers, and elders in nursing facilities are now beginning to receive the vaccine. And just this week, a second vaccine received safety authorization, increasing the supply that can be available to Washington communities. Washington officials are working in overdrive to make information available to the public about these leaps forward in the pandemic battle. 

But there’s a big problem no one is talking about: exactly who decides who gets the vaccine when? You might be surprised to find out that decisions about who qualifies for particular phases of vaccine administration will be largely left up to on-the-ground providers at administration sites. 

That’s why NoHLA is calling on the Department of Health to establish a grievance process to support Washington residents with concerns about when they are eligible to receive the vaccine, and which approved vaccine they may receive. State guidance suggests that “clinical judgment should be applied to identify who is at greatest risk,” while also suggesting that providers may rely upon letters from employers to determine eligibility. This may seem reasonable at first blush: the scale, speed, and complexity of vaccine administration requires placing some degree of decision-making in the hands of individual vaccine providers. 

But it is deeply concerning that the state has not yet established any protections for Washington residents who have concerns that a vaccine provider has not appropriately gauged their eligibility for a vaccine. This is particularly troubling given: (1) the limited availability of vaccine administration sites (making “second opinions” less likely); (2) the fact that front-line vaccine providers may not have the expertise to follow rapidly-evolving guidance (if, for example, they have been “recruited” to the vaccination effort from a different medical specialty or setting), and (3) the possibility that vaccine providers may need to make vaccination decisions about coworkers, family members, and friends. 

The vaccine is a life-or-death benefit being conferred by the federal government using eligibility criteria set by the state to members of the public. Basic principles of administrative law dictate that individuals must have procedural protections in such circumstances, including the ability to contest eligibility determinations before a neutral fact-finder. Moreover, without such protections in place, the state’s efforts to contain the virus and slow its deadly effect could be ineffective, as individuals who know they are at high risk will not have a way to escalate their concerns. 

That’s why we are calling on the Department of Health to address this issue by quickly implementing a grievance, exception, and appeals process for individuals who believe they meet vaccination criteria but have been denied, are not yet included in a given vaccine phase but have uniquely risky circumstances which might warrant additional review, or have concerns that the particular vaccine they have been offered is not medically appropriate. In addition to the self-assessment tool that the Department is considering, NoHLA is calling for customer service tools to help people understand their eligibility, a state-administered appeals process, and communications materials about the appeals process. 
NoHLA will deliver these recommendations, along with other equity priorities related to the growing evidence that COVID-19 disparities are due to access concerns rather than underlying health conditions, to incoming Department of Health Secretary Dr. Umair Shah this week, calling on him to build trust with Washington residents by ensuring that every individual is assured of their place in line for the vaccine.

–Emily Brice, NoHLA Senior Attorney & Policy Advisor