The Trump-aligned lawfare group founded by White House aide Stephen Miller is petitioning two of the government’s top federal health agencies to immediately repeal a Biden-era regulation they claim promotes organ transplantation allocation based on race, not medical need.
Initially, the proposed rule from the Health and Human Services Department (HHS) and the Centers for Medicare and Medicaid Services (CMS) had an equity performance adjustment, but that part of the rule was scrapped before it was finalized.
The Increasing Organ Transplant Access (IOTA) Model in question scores selected hospitals, which are required to participate, across three domains as it relates to kidney organ transplantation: achievement, efficiency and quality. Based on the scores, hospitals will either get money for their efforts, owe money back to the federal government for not meeting expectations, or neither receive nor owe anything.
Rather than an explicit score adjustment, the rule’s equity agenda was embedded more subtly through a ‘voluntary’ health equity plan that mandatory participating hospitals are encouraged to complete. The plan pushes hospitals to identify ‘health disparities’ and identify ‘equity goals to monitor and evaluate progress in reducing targeted health disparities,’ which will be measured by ‘one or more quantitative metrics that the IOTA participant uses to measure the reductions in target health disparities arising from the health equity plan interventions.’
‘A federal rule cannot invite or normalize discrimination—not even under the guise of improving ‘equity,” stated an America First Legal (AFL) press release accompanying the group’s petition. ‘Although CMS ultimately made Health Equity Plans ‘voluntary,’ the agency embedded them inside a mandatory federal model that encourages hospitals to integrate race and identity into transplant decision-making.’
The six-year mandatory payment program builds on earlier payment experiments, testing whether financial rewards and penalties can improve care and expand access for Medicare and Medicaid patients. The rule was published in the Federal Register on Dec. 4, and began operating on July 1,
Meanwhile, according to AFL, 67 of the 103 hospitals mandated to participate in the IOTA Model are ‘still engaging’ in diversity, equity and inclusion (DEI) efforts. The conservative lawfare group argues this is normalizing ‘identity-based preferences’ within the nation’s organ transplant system.
‘The IOTA Model is a leftover remnant of an unlawful equity agenda that encouraged hospitals to view lifesaving care through a DEI lens,’ said AFL attorney Megan Redshaw. ‘Federal law requires that organ allocation be based on established medical criteria, not race or identity, and no rule should push hospitals to pursue transplant volume while layering race-based pressures onto a system already plagued by ethical failures.’
Just days after Biden took office in 2021, he 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 federal agencies 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. ‘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.’
Trump officials and allies, including AFL, have questioned the role outside groups played during the process of drafting the final IOTA Model rule, prompting AFL to file FOIA requests as part of a broader investigation into the new IOTA model and the Biden administration’s alleged push to infuse DEI into the nation’s organ transplant framework.
One example AFL has pointed to is a ‘modernization initiative’ for the national organ transplant system under the Biden administration, which included plans to strengthen ‘equity, and performance in the organ donation and transplantation system.’ The Biden admin also announced changes to the ‘labeling of race and ethnicity information for organ donors,’ on numerous data reports used by the Organ Procurement and Transplantation Network (OPTN).
The nation’s organ transplant system has also recently been targeted for prematurely initiating organ retrievals while patients were still alive, or improving. In July, HHS released a statement announcing an initiative to reform the Organ Procurement and Transplantation Network (OPTN), following a federal investigation that found ‘disturbing practices by a major organ procurement organization.’
AFL argues that the IOTA Model final rule, specifically, violates Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act, the equal protection clause, precedent established by the U.S. Supreme Court, and executive orders issued by President Donald Trump.
The lawfare group added that the rule also exceeds CMS’ statutory authority under the Social Security Act, and is ‘arbitrary and capricious’ under the Administrative Procedure Act.
‘The Biden Administration built this kidney transplant policy on the false premise that fairness requires discrimination,’ Redshaw said. ‘This rule treats race as a substitute for medical judgment, and it risks condemning patients to die on waitlists based on immutable traits instead of clinical need. Every American deserves equal treatment under the law, especially when life and death are at stake.’
HHS and CMS didn’t reply to Fox News Digital’s requests for comment on this story in time for publication.
Fox News Digital’s Breanne Deppisch, Melissa Rudy, and Angelica Stabile contributed to this report.