Lankford, Colleagues Press HHS to Prevent Discrimination of Individuals with Disabilities in Health Care

WASHINGTON, DC – Senator James Lankford (R-OK) today joined Senator Kirsten Gillibrand (D-NY) to lead a bicameral letter along with Representatives Chris Smith (R-NJ), Katie Porter (D-CA), and their colleagues to Secretary of Health and Human Services (HHS) Xavier Becerra to push for action on the Department’s stalled Request for Information (RFI) regarding Section 504 of the Rehabilitation Act, “Discrimination on the Basis of Disability in Critical Health and Human Services Programs or Activities.” The members also call on the HHS Office for Civil Rights (OCR) to issue a proposed rule on the topics addressed in the RFI.

Under the Trump Administration, HHS’ OCR issued an RFI on disability discrimination in the context of health care and child welfare, with respect to discrimination in organ transplants, life-saving or life-sustaining care, suicide prevention and treatment programs, crisis standards of care, health care value assessment methodologies, the child welfare system, and the availability of auxiliary aids and accessible medical equipment. With the Biden Administration’s decision to put a hold on all rulemaking and regulations, this RFI was also placed on hold.

The members wrote in their letter, “While we understand that the Biden Administration has placed a freeze on various regulatory actions taken near the end of the previous Administration, we are in full support of this RFI and the Department’s previous efforts and urge your Administration to prioritize them. As such, we also encourage HHS, under your stewardship, to pursue interim steps to clarify, emphasize, and enforce existing disability anti-discrimination requirements in health care, especially during the ongoing COVID-19 pandemic.”

Lankford, Gillibrand, Smith, and Porter were joined in sending the letter by Senators Maggie Hassan (D-NH), Steve Daines (R-MT), Jerry Moran (R-KS), Tammy Duckworth (D-IL), and Bob Casey, Jr. (D-PA) as well as Representatives Jim Langevin (D-RI-02), Brad Wenstrup (R-OH-2), Lauren Underwood (D-IL-14), Brian Fitzpatrick (R-PA-01), Ralph Norman (R-SC-05), Doug LaMalfa (R-CA-01), Bob Latta (R-OH-05), Andy Harris (R-MD-01), Russ Fulcher (R-ID-01), Brian Babin (R-TX-36), Vicky Hartzler (R-MO-04), and Don Young (R-AK).

Last year, Lankford led a bipartisan, bicameral letter to call on HHS OCR and the Department of Justice to protect against disability discrimination in state and health provider responses to COVID-19. In a letter to former HHS Secretary Alex Azar and former Attorney General William Barr, the bipartisan coalition called for HHS to notify states of their obligations to adhere to anti-discrimination laws—including the Americans with Disabilities Act and Section 504 of the Rehabilitation Act—as they reviewed and developed their “crisis standards of care.”

A copy of the letter is available HERE and below.

Dear Secretary Becerra:

We write to you today to express our strong encouragement for continued action on the Department of Health and Human Services’ (HHS) Request for Information (RFI) regarding Section 504 of the Rehabilitation Act, “Discrimination on the Basis of Disability in Critical Health and Human Services Programs or Activities” (RIN: 0945-AA15). While we understand that the Biden Administration has placed a freeze on various regulatory actions taken near the end of the previous Administration, we are in full support of this RFI and the Department’s previous efforts and urge your Administration to prioritize them. Despite the best efforts of the authors of this important civil rights legislation, we know that discrimination is still all too common in the provision of health care services. As such, we also encourage HHS, under your stewardship, to pursue interim steps to clarify, emphasize, and enforce existing disability anti-discrimination requirements in health care, especially during the ongoing COVID-19 pandemic.

In 2019, the National Council on Disability (NCD), an independent federal advisory agency, released a series of reports to policymakers that provided extensive documentation of persistent and prevalent forms of disability discrimination in medical decision-making across the whole of the US health care system. Individuals with disabilities are less likely to receive vitally needed organ transplants, are less likely to receive suicide prevention services, are highly likely to visit doctors or other health care providers who can’t serve their needs, and to be discriminated against by insurers. In addition, the COVID-19 pandemic has exposed numerous chilling examples of systemic discrimination against people with disabilities with respect to crisis standards of care, quality of life assessments, and access to treatment.

In addition to the strong body of research substantiating the need for such regulatory action, several diverse coalitions of disability rights, civil and human rights, and racial justice groups have also indicated to HHS Office for Civil Rights (OCR) their strong support for further regulatory action on the topics addressed in the Section 504 RFI in the last month during the regulatory freeze. HHS OCR is uniquely poised to address the ongoing discrimination of those with disabilities in the delivery of health care services, as outlined in the Section 504 RFI in its entirety. Regulatory action will help our nation take great strides forward to help people with disabilities make health care decisions in a non-coercive environment, in which their lives will be rightfully valued on an equal basis with others. We urge you to issue a proposed rule without delay and to prioritize this RFI and interim guidance given all that is at stake, particularly in view of the ongoing COVID-19 pandemic.

Thank you for prompt attention to this matter, and we look forward to working with you on this critical issue.

Respectfully,

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