Americans are dying in ICUs in far greater numbers than would otherwise be if not for a newly misapplied 57-year-old rule banning the only American board-certified ICU doctors available in many cities from providing critical care, leaving only nurses to do the doctor’s job in treating ICU patients.

There is a severe national shortage of only 25 percent of the needed board-certified intensive care unit doctors — known as critical care doctors or “intensivists” — for the number of ICU patients in the country. There are only 8,000 intensivists on the frontline of the COVID-19 pandemic for a population of 330 million people. When hospitals refer to ICUs being full, they are often referring not to physical hospital space but rather to having enough ICU specialist physicians to treat the volume of critically ill patients.

To counter the shortage, telehealth ICU care has been increasingly used over the last 20 years throughout the country. Tele-ICU enables one ICU doctor in one location to provide care for patients located in several hospitals’ ICUs simultaneously by video instead of having an additional individual ICU doctor physically in each hospital location.

The telemedicine ICU arrangement maximizes the capacity utilization of each ICU doctor as a scarce resource, by using teleconference, remote lung ventilator management, providing prescription and procedure orders to be placed on the ICU patient. This method also provides expert advice to non-specialist, more general doctors in the ICU on how best to treat critically ill patients.

Whether an ICU specialist doctor treats an ICU remotely or in-person, they reduce deaths by 30 percent versus having a generalist doctor or nurse treat the ICU patient alone.

Medicare and Medicaid have also recently officially agreed that either an in-person (bedside) intensivist or a tele-ICU intensivist treating ICU patients is the minimum standard of care and “medically necessary,” meaning a patient is more likely to die without such a doctor.

The shortage of intensivists is so severe that although tele-ICU helps with shortages, there are not even enough intensivists for Tele-ICU computer workstation shifts.

So, each licensed ICU doctor who is banned from treating patients due only to an obscure technicality about the doctor’s location when providing care — having nothing to do with what is best for the patient — leads to more ICU deaths because the ban often means having no intensivist at all treating ICU patients.

The “Biden ban” on critical care continues the “Trump Ban” on critical care, misapplying the same nearly 60-year-old Medicare rule intended by Congress to disallow a different situation: Patients from traveling outside the U.S. for non-emergency care in non-American hospitals.

The “Biden ban” misapplies that rule to tele-ICU for American patients in U.S. hospitals. Licensed ICU doctors doing tele-ICU shift work from their locations abroad like Canada for patients all over the U.S. are disallowed such that Medicare and Medicaid do not pay American hospitals for treating the elderly and poor in the American ICUs.

While the elderly and poor are directly dying in greater numbers due to the “Biden ban,” ultimately, patients from rich to poor and of every age are also more likely to die because the hospitals are less likely to be able to afford coverage by an ICU doctor period.

The same American ICU doctors on one day of the week might be in the U.S. and treating Louisiana ICU patients via telehealth, and then the next day go to be with family in Canada and are then banned from remotely treating ICU patients in the U.S. This rule exists even though the doctors are the only critical care doctors available to treat ICU patients in many American cities, are ready and desiring to continue treating critically ill patients, but the hospitals cannot get paid for their work. Is the remote care they provide to Louisiana ICU patients any different if they do their work from Detroit instead of Vancouver?

Perhaps worse than perishing in the ICU or having a family member die in an ICU is the patient or family not even being aware that the patient did not receive the standard of care in the ICU and might have been saved even though a qualified ICU doctor was ready to save the patient’s life.

There can be tremendous emotion and chaos in an ICU, especially when they run at or over capacity during a pandemic as with COVID-19. For a potentially unconscious patient or their family, even to decipher whether an actual doctor is doing the doctor’s job in the ICU is far beyond what is reasonable to expect from an unconscious ICU patient or their family who may very well not even be allowed to enter the ICU.

Seth Rabinowitz is a health care executive.

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