Sens. Roy Blunt (R-Mo.) and Jerry Moran (R-Kan.) have asked U.S. Comptroller General Gene Dodaro to conduct a thorough review of the new rule. Simultaneously, they are seeking another delay to its implementation from HHS Secretary Alex Azar until the Government Accountability Office's review is complete.
"We believe the new liver policy is shortsighted and simply wrong," the senators told Azar. "As you have shown with the temporary delay, you have the authority to delay the allocation policy."
The independent stakeholder board contracted to the Organ Procurement and Transplantation Network (OPTN) voted to approve the new policy last December. It was slated to go into effect April 30, but major medical centers and patients in states that would lose livers under the change sued to block it last week. HHS agreed to a two-week delay to give the federal court time to review the lawsuit.
In their letter to Azar, Blunt and Moran told the secretary they believe he has more jurisdiction over the rule than he's said that he has, most lately in an April Senate health appropriations hearing.
"While you responded at the hearing, 'I do believe my cards are played out here,' you subsequently found authority to temporarily delay the implementation," the senators wrote. "It appears there is more you can do."
Meanwhile, Reps. Eliot Engel (D-N.Y.) and Doug LaMalfa (R-Calif.), who represent states that wanted the change, issued statements on Thursday that blasted the delay and the courts' involvement. In March, they led 81 House lawmakers in a letter to Azar that supports the new policy.
"I am deeply disappointed that opponents of OPTN's new liver allocation policy have thrown an issue that should be handled by transplant and public health experts to the courts," Engel said in his statement. "Current law is clear: allocation of organs should be based on patients' medical need, not where they live. It's shameful to think a patient in New York or California in dire need of a new liver can be prevented from receiving the care they need due to their zip code."
Engel said Thursday that he worries the two weeks could turn into a longer delay, and he plans to "make noise about it" until the new distribution system launches.
"People's lives are on the line," he said. "It's not the kind of thing we can argue about for the next five years. But I think we've got to make noise about it or it'll never change."
On Thursday he didn't have specifics about his own next steps but said he and other proponents of the change will keep strategizing depending on what happens next.
"I'll be sitting down with some of the groups that are pushing this, with which I agree, and we'll work with them and see what makes sense," Engel said. "One thing we're not going to do is be quiet."
A federal district court in Atlanta will hear arguments over the policy May 7, where hospital systems in states that benefited under the former policy allege that the change will lead to at least 20% fewer liver transplants performed within "the most socioeconomically disadvantaged regions in the country."
A lot of money is at stake for hospital systems in the regions that are pitted against one another in the debate. Liver transplants on average cost more than $800,000 and according to Milliman analysis the hospital admission costs alone account for more than half of those charges, or $463,200.