{"id":11577,"date":"2024-07-10T17:41:20","date_gmt":"2024-07-10T17:41:20","guid":{"rendered":"https:\/\/wifamily.news\/?p=11577"},"modified":"2024-07-11T13:05:27","modified_gmt":"2024-07-11T13:05:27","slug":"will-denounces-proposed-federal-effort-to-allocate-kidney-transplants-based-on-race","status":"publish","type":"post","link":"https:\/\/wifamily.news\/?p=11577","title":{"rendered":"WILL Denounces Proposed Federal Effort to Allocate Kidney Transplants Based on Race"},"content":{"rendered":"

This post originally appeared at https:\/\/will-law.org\/will-denounces-proposed-federal-effort-to-allocate-kidney-transplants-based-on-race\/<\/a><\/p>\n

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7.11.24<\/p>\n

The News:<\/strong> The Wisconsin Institute for Law & Liberty (WILL) has submitted a \u201cPublic Comment\u201d condemning a newly proposed federal rule that would incentivize a racially discriminatory prioritization of organ transplant access and services.<\/p>\n

The Centers for Medicare & Medicaid Services (CMS) has proposed the Increasing Organ Transplant Access Model (\u201cIOTA Model\u201d) 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\u2019s 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 \u201chealth equity plans\u201d to identify and address health disparities.<\/p>\n

Because the proposed regulation allows\u2014and even motivates\u2014transplant hospitals to employ racially discriminatory considerations against potential kidney transplant candidates and recipients, WILL has significant constitutional and legal concerns about the model.<\/p>\n

The Quotes:<\/strong> WILL Associate Counsel, Cara Tolliver, explained: \u201cCMS\u2019s 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\u2019s level of need does not change according to their skin color; and one\u2019s 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.\u201d<\/p>\n

Additional Background:<\/strong> 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\u2019s requirement for \u201chealth equity plans,\u201d participating kidney transplant hospitals would need to identify health disparities and implement \u201cinterventions\u201d to address them. The proposed rule discusses racial disparities at length, expressing CMS\u2019s belief that interventions targeting racial disparities can help to achieve \u201cthe desired outcomes of greater overall kidney transplant numbers and equity.\u201d A hospital\u2019s health equity plan would require CMS approval, and the penalties for noncompliance are steep.<\/p>\n

However, despite the serious consequences of noncompliance, the proposed rule provides no clear guidance on what precisely the \u201chealth equity plan\u201d 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 \u201chealth equity plan\u201d requirement.<\/p>\n

The lack of clear standards, coupled with the agency\u2019s 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.<\/p>\n

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.<\/p>\n

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 \u201ca very strong case for prompt review by this Court,\u201d should any government entity resort to racially
motivated action to ration medical treatment.<\/p>\n

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.<\/p>\n

WILL\u2019s public comment against the new CMS proposal was made pursuant to WILL\u2019s 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.<\/p>\n

Click here to review the proposed rule and submit your own public comment. Comments must be submitted by July 16, 2024.<\/a><\/strong><\/p>\n

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