Setting the record straight

Our responses to The Markup

Review our statements regarding questions and claims about the liver acuity circles policy.

On liver allocation policy

Published Feb. 28, 2023; last updated March 21, 2023

The nation’s liver allocation policy, which has been in place for three years, continues to save more of the sickest patients’ lives.

A recent article on the policy in The Washington Post, in partnership with an outlet called The Markup, left out essential context and data.

Over the past few weeks, we have answered an extensive list of questions by providing a fact-based assessment of the policy and its development. While some of our answers were used, much of our analysis and data were excluded from the piece.

In the interest of transparency, we are sharing both The Markup’s questions and assumptions and our own responses, in addition to the letter that accompanied our responses.

Teal circle with white outline drawing of a liver

Fact-based assessment of the policy and its development

Find The Markup’s questions and assumptions and our own responses, in addition to this letter that accompanied our responses:

“We cannot emphasize enough just how complicated and carefully considered the process is for developing organ allocation policies that are as equitable as possible.”

UNOS response letter to The Markup

Feb. 27, 2023

To the editorial staff:

UNOS has reviewed your questions regarding the liver acuity circles policy and provided specific answers.

The irrefutable fact is that under the acuity circle allocation policies, the sickest patients in the U.S. and children are getting transplants more quickly than ever before. This includes a 6 percent increase among our nation’s patients of color waiting for a liver, who historically have waited much longer for organs than other patients with equivalent health concerns. Where people live and receive treatment does not determine the severity of their illness nor priority for a lifesaving organ. Patients get transplants, not states.

Relative to all your questions, we want to make one essential point at the outset: As established by federal law, explicated in what is known as the OPTN Final Rule, the OPTN has an obligation to design policies to achieve equitable organ allocation by distributing organs over as broad a geographic area as possible and with the sickest patients being served first regardless of location. In 2010, the Secretary’s Advisory Committee on Organ Transplantation (ACOT) explicitly recommended that the OPTN develop evidence-based allocation policies not determined by arbitrary administrative boundaries such as donation service areas (DSAs), OPTN regions and state boundaries. And in 2018, the HHS Secretary wrote that: “the OPTN has not justified and cannot justify the use of DSAs and OPTN regions in the current liver allocation policy and the revised liver allocation policy approved by the OPTN Board of Directors (OPTN Board) on December 4, 2017, under the HHS Final Rule affecting the OPTN.”

In developing your story, we urge you to do so with federal law clearly stated and top of mind. Your questions lead us to believe you already have determined that a number of institutions and individuals within the system colluded to design a liver allocation policy that would redistribute deceased donor livers from poor states/areas to wealthy ones. You have asked no questions about settled law established more than two decades ago.

Further, you also appear to be selecting and analyzing data points in a vacuum. We urge you, instead, to use the most complete/updated data rather than data that has been cherry-picked to support a pre-ordained conclusion. In our responses, we have either supplied that data or provided a source for it.

We cannot emphasize enough just how complicated and carefully considered the process is for developing organ allocation policies that are as equitable as possible. Federal law has consistently come down on the side of individual patients, and it is those patients that must be given precedence rather than geographic regions where equity is concerned.

Every single volunteer sitting on every OPTN board and committee — volunteers who represent all backgrounds, disciplines, viewpoints and roles within the transplant and donation process — takes their responsibilities very seriously and approaches policy discussions from a particular perspective. Not all are in agreement and feelings run strong on the subject of acuity circles. But ultimately and over time, federal law has and should prevail, and constant analysis is undertaken by the OPTN to assess how well its organ allocation policies comply with the letter and the spirit of the OPTN Final Rule. This is done, not with a particular bias in mind but to ensure patients are best served across the widest possible area.

Therefore, assessing the liver policy in isolation, without regard to decades of federal law and using incomplete or outdated data, undermines not only the intent of years of work to develop liver policy, but also any unbiased, agenda-free analysis of the strengths and weaknesses of all related policies and procedures. We welcome the latter. The former plays with people’s lives. Extremely sick patients depend on the most equitable system possible and if those in the media or political sphere assess it with anything other than the most complete and comprehensive data — and an open mind about interpreting it — they are putting those lives in jeopardy.

Unfortunately, the scope of your questions demonstrates you have already drawn your own conclusions before the story is even completed. That is bias against any meaningful response we could offer for a process that was years in the making. We ask that you and your editors take a step back, read our answers with unbiased eyes, and produce a story based on the facts.

View UNOS’ full responses on liver acuity circles, focusing on the policy’s impact and its development.

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