MAGA law group seeks records on potential race-based organ transplant policies

A conservative legal group is trying to uncover whether the former Biden administration’s focus on diversity, equity and inclusion (DEI) initiatives seeped into the nation’s organ transplant system and led to prioritizing patients based on race. 

MAGA law group America First Legal is suing a number of federal health agencies to obtain documents related to the nation’s organ transplant system. 

Specifically, they’re targeting the Department of Health and Human Services, the Centers for Medicare and Medicaid Services and the Health Resources Services Administration, in an attempt to compel them to turn over documents related to the Organ Procurement and Transplantation Network (OPTN).

In April 2023, AFL filed a Freedom of Information Act (FOIA) request seeking documents relevant to the Biden administration’s efforts to infuse DEI into the organ transplant system. However, to date, AFL says it has not received any of the requested information and, as a result, decided to sue in an effort to compel the release of it.

“The Biden Administration infected the federal government with ‘equity,’ replacing traditional principles of fairness and need with race-conscious criteria,” said America First Legal Counsel Will Scolinos. “AFL is determined to uncover the complete scope of Biden-era DEI policies and will continue to take decisive action to restore colorblind healthcare.” 

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Just days after taking office in 2021, former President Joe Biden signed Executive Order 13985, directing all federal agencies to conduct “Equity Assessments” to determine whether “underserved communities and their members” faced systemic barriers to accessing federal programs. The order also required each agency to develop an action plan to address those barriers.

As part of this effort, in December 2021, CMS issued a request to the public for comments on how the agency could “Advance Equity and Reduce Disparities in Organ Transplantation.”

“CMS is focused on identifying potential system-wide improvements that would increase organ donations, improve transplants, enhance the quality of care in dialysis facilities, increase access to dialysis services, and advance equity in organ donation and transplantation,” the agency said at the time. 

“Communities of color have much higher rates of high blood pressure, diabetes, obesity, and heart disease, all of which increase the risk for kidney disease. Black Americans are almost four times more likely, and Latinos are 1.3 times more likely, to have kidney failure compared to White Americans. Despite the higher risk, data shows that Black and Latino patients on dialysis are less likely to be placed on the transplant waitlist and have a lower likelihood of transplantation. Because of these stark inequities, CMS’ [Request For Information] asks the public for specific ideas on advancing equity within the organ transplantation system.”

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Meanwhile, several weeks later, the HRSA announced that the “labeling of race and ethnicity information for organ donors” would “change on a number of data reports available on the Organ Procurement and Transplantation Network (OPTN) website.” According to the HRSA, the move made the data “clearer, more consistent and easier for users to interpret,” and did not impact the manner in which data is collected. OPTN collects and manages data pertaining to the patient waiting list, organ donation, matching and transplantation in the U.S.

HRSA also announced a “modernization initiative” for OPTN around the same time, which included plans to strengthen “equity, and performance in the organ donation and transplantation system.”

In its lawsuit, AFL chronicled a series of delays, non-responses and incomplete communications following its April 2023 FOIA request. AFL is hoping to obtain a judge’s order requiring the release of the records it is seeking, as well as an index of any withheld material and explanations for why it could not be provided. 

“The last administration’s pervasive directives requiring consideration of immutable characteristics like race, color, and ethnicity — to make healthcare more ‘equitable’ — should concern all Americans,” Scolinos said Tuesday. “AFL is determined to uncover the complete scope of Biden-era DEI policies and will continue to take decisive action to restore colorblind healthcare.”

HHS declined to comment on AFL’s lawsuit.