Equal Health Care for All Act

I 116TH CONGRESS 2D SESSION H. R. 8436 To prohibit discrimination in health care and require the provision of equitable health care, and for other purposes. IN THE HOUSE OF REPRESENTATIVES SEPTEMBER 29, 2020 Mr. SCHIFF (for himself, Ms. BASS, Mr. GRIJALVA, Mr. COOPER, Mrs. HAYES, Mr. KHANNA, Ms. SCANLON, Ms. NORTON, and Ms. LEE of Cali- fornia) introduced the following bill; which was referred to the Committee on Energy and Commerce, and in addition to the Committee on Ways and Means, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the juris- diction of the committee concerned A BILL To prohibit discrimination in health care and require the provision of equitable health care, and for other purposes. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Equal Health Care 4 for All Act’’. 5 SEC. 2. FINDINGS. 6 Congress finds the following: 7 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 2 •HR 8436 IH (1) In 1966, Martin Luther King, Jr., said, ‘‘Of 1 all the forms of inequality, injustice in health care 2 is the most shocking and inhuman because it often 3 results in physical death.’’. 4 (2) Inequality in health care remains a per- 5 sistent and devastating reality for many commu- 6 nities, but, in particular, communities of color. 7 (3) Unequal health care has complex causes, 8 many stemming from systemic inequality in access 9 to health care, housing, nutrition, economic oppor- 10 tunity, education, and other factors. 11 (4) Health care outcomes for African-American 12 communities in particular lag far behind those of the 13 population as a whole. 14 (5) Dr. Anthony Fauci, director of the National 15 Institute of Allergy and Infectious Diseases, said on 16 April 7, 2020, the coronavirus outbreak is ‘‘shining 17 a bright light’’ on ‘‘unacceptable’’ health disparities 18 in the African-American community. 19 (6) A contributing factor in health disparities is 20 explicit and implicit bias in the delivery of health 21 care, resulting in inferior care and poorer outcomes 22 for some patients on the basis of race or ethnicity. 23 (7) The Institute of Medicine issued a report in 24 2002 titled ‘‘Unequal Treatment’’, finding that ra- 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 3 •HR 8436 IH cial and ethnic minorities receive lower-quality 1 health care than Whites do, even when insurance 2 status, income, age, and severity of condition is com- 3 parable. 4 (8) Just as Congress has sought to eliminate 5 bias, both explicit and implicit, in employment, hous- 6 ing, and other parts of our society, the elimination 7 of bias and the legacy of structural racism in health 8 care is of paramount importance. 9 SEC. 3. DATA COLLECTION AND REPORTING. 10 (a) REQUIRED REPORTING.— 11 (1) IN GENERAL.—The Secretary of Health and 12 Human Services, in consultation with Director of the 13 National Institutes of Health, the Director of the 14 Centers for Medicare & Medicaid Services, the Di- 15 rector of the Agency for Healthcare Research and 16 Quality, the Deputy Assistant Secretary for Minority 17 Health, and the Director of the National Center for 18 Health Statistics, shall by regulation require all 19 health care providers and facilities that are required 20 under other provisions of law to report data on 21 health outcomes to the Department of Health and 22 Human Services to disaggregate such data by demo- 23 graphic characteristics, including by race, ethnicity, 24 sex, sexual orientation, disability status, gender 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 4 •HR 8436 IH identity, age, and any other factor that the Sec- 1 retary determines would be useful for determining a 2 pattern of inequitable health care. 3 (2) PROPOSED REGULATIONS.—Not later than 4 90 days after the date of enactment of this Act, the 5 Secretary of Health and Human Services shall issue 6 proposed regulations to carry out paragraph (1). 7 (b) REPOSITORY.—The Secretary of Health and 8 Human Services shall— 9 (1) not later than 1 year after the date of en- 10 actment of this Act, establish a repository of the 11 disaggregated data reported pursuant to subsection 12 (a); 13 (2) subject to paragraph (3), make the data in 14 such repository publicly available; and 15 (3) ensure that such repository does not contain 16 any data that is individually identifiable. 17 SEC. 4. REQUIRING EQUITABLE HEALTH CARE IN THE HOS- 18 PITAL VALUE-BASED PURCHASING PRO- 19 GRAM. 20 (a) EQUITABLE HEALTH CARE AS VALUE MEASURE- 21 MENT.—Section 1886(b)(3)(B)(viii) of the Social Security 22 Act (42 U.S.C. 1395ww(b)(3)(B)(viii)) is amended by 23 adding at the end the following new subclause: 24 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 5 •HR 8436 IH ‘‘(XIII)(aa) Effective for pay- 1 ments beginning with fiscal year 2 2022, in expanding the number of 3 measures under subclause (III), the 4 Secretary shall adopt measures that 5 relate to equitable health care fur- 6 nished by hospitals in inpatient set- 7 tings. 8 ‘‘(bb) In carrying out this sub- 9 clause, the Secretary shall solicit 10 input and recommendations from indi- 11 viduals and groups representing com- 12 munities of color and ensure measures 13 adopted pursuant to this subclause ac- 14 count for social determinants of 15 health care outcomes. 16 ‘‘(cc) For purposes of this sub- 17 clause, the term ‘equitable health 18 care’ refers to the principle that qual- 19 ity of care provided to an individual 20 shall not vary on account of the real 21 or perceived race, ethnicity, sex, sex- 22 ual orientation, disability status, gen- 23 der identity, or age of such indi- 24 vidual.’’. 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 6 •HR 8436 IH (b) INCLUSION OF EQUITABLE HEALTH CARE MEAS- 1 URES.—Section 1886(o)(2)(B) of the Social Security Act 2 (42 U.S.C. 1395ww(o)(2)(B)) is amended by adding at the 3 end the following new clause: 4 ‘‘(iv) INCLUSION OF EQUITABLE 5 HEALTH CARE MEASURES.—Beginning in 6 fiscal year 2021, measures selected under 7 subparagraph (A) shall include the equi- 8 table health care measures described under 9 subsection (b)(3)(B)(viii)(XIII).’’. 10 SEC. 5. PROVISION OF INEQUITABLE HEALTH CARE AS A 11 BASIS FOR PERMISSIVE EXCLUSION FROM 12 MEDICARE AND STATE HEALTH CARE PRO- 13 GRAMS. 14 Section 1128(b) of the Social Security Act (42 U.S.C. 15 1320a–7(b)) is amended by adding at the end the fol- 16 lowing new paragraph: 17 ‘‘(18) PROVISION OF INEQUITABLE HEALTH 18 CARE.—Any individual or entity that the Secretary 19 determines has engaged in a pattern of providing in- 20 equitable health care (as defined in section 7 of the 21 Equality in Health Care for All Act) on the basis of 22 race, ethnicity, sex, sexual orientation, disability sta- 23 tus, gender identity, age, or any other protected 24 class.’’. 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 7 •HR 8436 IH SEC. 6. OFFICE OF CIVIL RIGHTS AND HEALTH EQUITY OF 1 THE DEPARTMENT OF HEALTH AND HUMAN 2 SERVICES. 3 (a) NAME OF OFFICE.—The Office for Civil Rights 4 of the Department of Health and Human Services shall, 5 beginning on the date of enactment of this Act, be known 6 as the Office of Civil Rights and Health Equity. Any ref- 7 erence to the Office for Civil Rights in any law, regulation, 8 map, document, record, or other paper of the United 9 States shall be deemed to be a reference to the Office of 10 Civil Rights and Health Equity. 11 (b) HEAD OF OFFICE.—The head of the Office of 12 Civil Rights and Health Equity shall be the Assistant Sec- 13 retary for Civil Rights and Health Equity, to be appointed 14 by the President with advice and consent of the Senate. 15 Any reference to the head of the Office for Civil Rights 16 of the Department of Health and Human Services in any 17 law, regulation, map, document, record, or other paper of 18 the United States shall be deemed to be a reference to 19 the Assistant Secretary for Civil Rights and Health Eq- 20 uity. 21 SEC. 7. PROHIBITING DISCRIMINATION IN HEALTH CARE. 22 (a) IN GENERAL.—No health care provider or entity 23 providing health care may, on the basis of race, ethnicity, 24 sex, sexual orientation, disability status, gender identity, 25 age, subject another to inequitable health care. 26 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00007 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 8 •HR 8436 IH (b) DEFINITION.—In this section, the term ‘‘inequi- 1 table health care’’ means any service provided by a health 2 care provider or entity providing health care that— 3 (1) is discriminatory in intent or effect; and 4 (2) results in a disparate outcome for an indi- 5 vidual based at least in part on their membership in 6 a protected class. 7 SEC. 8. ADMINISTRATIVE COMPLAINT AND CONCILIATION 8 PROCESS. 9 (a) COMPLAINTS AND ANSWERS.— 10 (1) IN GENERAL.—An aggrieved person may, 11 not later than one year after an alleged violation of 12 section 7 has occurred or terminated, file a com- 13 plaint with the Assistant Secretary alleging discrimi- 14 natory health care by a health care provider. 15 (2) COMPLAINT.—A complaint submitted pur- 16 suant to paragraph (1) shall be in writing and shall 17 contain such information and be in such form as the 18 Assistant Secretary requires. 19 (3) PROCEDURE.—Upon the filing of such a 20 complaint— 21 (A) the Assistant Secretary shall serve no- 22 tice upon the aggrieved person acknowledging 23 receipt of such filing and advising the aggrieved 24 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00008 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 9 •HR 8436 IH person of the time limits and procedures pro- 1 vided under this section and sections 9 and 10; 2 (B) the Assistant Secretary shall, not later 3 than 10 days after receipt of such filing serve 4 on the respondent alleged to have provided dis- 5 criminatory care a notice of the complaint and 6 advise the provider of the procedural rights and 7 obligations of respondents under this section 8 and sections 9 and 10, together with a copy of 9 the original complaint; 10 (C) a respondent may file, not later than 11 30 days after receipt of notice from the Assist- 12 ant Secretary, an answer to such complaint; 13 (D) the Assistant Secretary shall make an 14 investigation of the alleged discriminatory 15 health care practice and complete such inves- 16 tigation within 100 days after the filing of the 17 complaint, unless it is impracticable to do so; 18 and 19 (E) the Assistant Secretary shall notify 20 State licensing authorities with authority over 21 the respondent of the complaint and provide a 22 copy of the complaint and the final disposition 23 of the complaint. 24 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00009 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 10 •HR 8436 IH (4) INVESTIGATION.—If the Assistant Secretary 1 is unable to complete the investigation within 100 2 days after the filing of the complaint (or, when the 3 Secretary takes further action under subsection 4 (f)(2) with respect to a complaint, within 100 days 5 after the commencement of such further action), the 6 Assistant Secretary shall notify the complainant and 7 respondent in writing of the reasons for not doing 8 so. 9 (5) OATH OR AFFIRMATION.—Complaints and 10 answers shall be under oath or affirmation, and may 11 be reasonably and fairly modified at any time. 12 (6) PATTERN OF CARE.—In the course of inves- 13 tigating a complaint, the Assistant Secretary may 14 seek records of care provided to patients other than 15 the complainant if necessary to demonstrate or dis- 16 prove an allegation of inequitable health care. 17 (7) ACCOUNTING FOR SOCIAL DETERMINANTS 18 OF HEALTH.—In investigating a complaint and 19 reaching a determination, the Assistant Secretary 20 shall account for social determinants of health and 21 their effect on health care outcomes. 22 (b) INVESTIGATIVE REPORT AND CONCILIATION.— 23 (1) CONCILIATION.—During the period begin- 24 ning with the filing of such complaint and ending 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00010 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 11 •HR 8436 IH with the resolution of a complaint or a dismissal by 1 the Assistant Secretary, the Assistant Secretary 2 shall, to the extent feasible, engage in conciliation 3 with respect to such complaint. 4 (2) CONCILIATION AGREEMENT.—A conciliation 5 agreement arising out of such conciliation shall be 6 an agreement between the respondent and the com- 7 plainant, and shall be subject to approval by the As- 8 sistant Secretary. 9 (3) RIGHTS PROTECTED.—The Assistant Sec- 10 retary shall approve a conciliation agreement only if 11 it protects the rights of the aggrieved person and 12 other persons similarly situated. 13 (4) PUBLICLY AVAILABLE.— 14 (A) IN GENERAL.—Subject to subpara- 15 graph (B), a redacted copy of a conciliation 16 agreement entered into pursuant to this section 17 shall be made available to the public unless the 18 complainant and respondent otherwise agree, 19 and the Secretary determines, that disclosure is 20 not required to further the purposes of this sec- 21 tion. 22 (B) LIMITATION.—A conciliation agree- 23 ment that is made available to the public pursu- 24 ant to subparagraph (A) may not disclose per- 25 VerDate Sep 11 2014 23:31 Nov 13, 2020 Jkt 019200 PO 00000 Frm 00011 Fmt 6652 Sfmt 6201 E:\BILLS\H8436.IH H8436 SSpencer on DSK126QN23PROD with BILLS 12 •HR 8436 IH sonally identifiable information or individually 1 identifiable health information. 2 (5) REPORT.— 3 (A) FINAL REPORT.—At the end of each 4 investigation under this section, the Assistant 5 Secretary shall prepare a final investigative re- 6 port. 7 (B) MODIFICATION OF REPORT.—A final 8 report under this paragraph may be modified if 9 additional evidence is later discovered. 10 (c) FAILURE TO COMPLY [Text truncated for display. 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