7.11.24

The News: The Wisconsin Institute for Law & Liberty (WILL) has submitted a “Public Comment” condemning a newly proposed federal rule that would incentivize a racially discriminatory prioritization of organ transplant access and services.

The Centers for Medicare & Medicaid Services (CMS) has proposed the Increasing Organ Transplant Access Model (“IOTA Model”) to pilot a scoring system that would inform Medicare payments to (or from) kidney transplant hospitals. Highlighting racial disparities in kidney transplantation, the proposed rule advances the Biden Administration’s initiatives and priorities for racial equity, seeking to promote health equity and reduce disparities through a series of new requirements and incentives. Among other requirements, kidney transplant hospitals would be obligated to implement “health equity plans” to identify and address health disparities.

Because the proposed regulation allows—and even motivates—transplant hospitals to employ racially discriminatory considerations against potential kidney transplant candidates and recipients, WILL has significant constitutional and legal concerns about the model.

The Quotes: WILL Associate Counsel, Cara Tolliver, explained: “CMS’s new proposal all but invites transplant hospitals to violate numerous anti-discrimination laws and could lead to lifesaving kidney transplants being apportioned on the basis of race. A critically-ill patient’s level of need does not change according to their skin color; and one’s race does not make them more or less worthy of an organ transplant. WILL has urged CMS to withdraw its unconstitutional proposal to achieve racially balanced outcomes in kidney transplantation and encourages more Americans to speak out on this disastrous policy.”

Additional Background: The proposed IOTA Model expands on earlier race-conscious programs already at work to reduce racial disparities in kidney transplantation access. Now, under the IOTA Model’s requirement for “health equity plans,” participating kidney transplant hospitals would need to identify health disparities and implement “interventions” to address them. The proposed rule discusses racial disparities at length, expressing CMS’s belief that interventions targeting racial disparities can help to achieve “the desired outcomes of greater overall kidney transplant numbers and equity.” A hospital’s health equity plan would require CMS approval, and the penalties for noncompliance are steep.

However, despite the serious consequences of noncompliance, the proposed rule provides no clear guidance on what precisely the “health equity plan” must assess, what it must improve, or how it must do so. Instead, the significant discussion on purported racial disparities frames the basis for the proposed rule and is left to form expectations regarding the “health equity plan” requirement.

The lack of clear standards, coupled with the agency’s focus on racial disparities and goals to reduce them and promote health equity, creates a high risk for the implementation of racially discriminatory health equity plans as hospitals work to comply with the regulation.

Numerous anti-discrimination prohibitions bar government agencies, like CMS, and private hospitals from engaging in discrimination based on race, color, ethnicity, and national origin. Among others, these include the Equal Protection guarantee of the Fifth Amendment, the Affordable Care Act, Title VI of the Civil Rights Act of 1964, and the Civil Rights Act of 1866.

Additionally, the United States Supreme Court has recently reiterated that the government must treat citizens as individuals, not simply as components of a racial class. In fact, the Supreme Court has warned that there would be “a very strong case for prompt review by this Court,” should any government entity resort to racially
motivated action to ration medical treatment.

While incentivizing hospitals to boost performance for transplantation access and services would be laudable, the proposed rule is steeped, at least in part, in a racially discriminatory purpose and goal; and it is, accordingly, difficult to separate out any remaining legitimacy at all.

WILL’s public comment against the new CMS proposal was made pursuant to WILL’s Healthcare Initiative and Equality Under the Law Project, which oppose discriminatory programs and policies that would prioritize characteristics such as race in decision-making over fairness, equality, and quality outcomes.

Click here to review the proposed rule and submit your own public comment. Comments must be submitted by July 16, 2024.

Read More:

• WILL’s Public Comment on CMS Proposed Rule, “Medicare Program; Alternative Payment Model Updates and the Increasing Organ Transplant Access (IOTA) Model,” Docket Number CMS-5535-P (May 17, 2024).