I 116th CONGRESS 2d Session H. R. 8436 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 California ) 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 jurisdiction of the committee concerned A BILL To prohibit discrimination in health care and require the provision of equitable health care, and for other purposes.

1. Short title This Act may be cited as the Equal Health Care for All Act . 2. Findings Congress finds the following: (1) In 1966, Martin Luther King, Jr., said, Of all the forms of inequality, injustice in health care is the most shocking and inhuman because it often results in physical death. . (2) Inequality in health care remains a persistent and devastating reality for many communities, but, in particular, communities of color. (3) Unequal health care has complex causes, many stemming from systemic inequality in access to health care, housing, nutrition, economic opportunity, education, and other factors. (4) Health care outcomes for African-American communities in particular lag far behind those of the population as a whole. (5) Dr. Anthony Fauci, director of the National Institute of Allergy and Infectious Diseases, said on April 7, 2020, the coronavirus outbreak is shining a bright light on unacceptable health disparities in the African-American community. (6) A contributing factor in health disparities is explicit and implicit bias in the delivery of health care, resulting in inferior care and poorer outcomes for some patients on the basis of race or ethnicity. (7) The Institute of Medicine issued a report in 2002 titled Unequal Treatment , finding that racial and ethnic minorities receive lower-quality health care than Whites do, even when insurance status, income, age, and severity of condition is comparable. (8) Just as Congress has sought to eliminate bias, both explicit and implicit, in employment, housing, and other parts of our society, the elimination of bias and the legacy of structural racism in health care is of paramount importance. 3. Data collection and reporting (a) Required reporting (1) In general The Secretary of Health and Human Services, in consultation with Director of the National Institutes of Health, the Director of the Centers for Medicare & Medicaid Services, the Director of the Agency for Healthcare Research and Quality, the Deputy Assistant Secretary for Minority Health, and the Director of the National Center for Health Statistics, shall by regulation require all health care providers and facilities that are required under other provisions of law to report data on health outcomes to the Department of Health and Human Services to disaggregate such data by demographic characteristics, including by race, ethnicity, sex, sexual orientation, disability status, gender identity, age, and any other factor that the Secretary determines would be useful for determining a pattern of inequitable health care. (2) Proposed regulations Not later than 90 days after the date of enactment of this Act, the Secretary of Health and Human Services shall issue proposed regulations to carry out paragraph (1). (b) Repository The Secretary of Health and Human Services shall— (1) not later than 1 year after the date of enactment of this Act, establish a repository of the disaggregated data reported pursuant to subsection (a); (2) subject to paragraph (3), make the data in such repository publicly available; and (3) ensure that such repository does not contain any data that is individually identifiable. 4. Requiring equitable health care in the hospital value-based purchasing program (a) Equitable health care as value measurement Section 1886(b)(3)(B)(viii) of the Social Security Act ( 42 U.S.C. 1395ww(b)(3)(B)(viii) ) is amended by adding at the end the following new subclause: (XIII) (aa) Effective for payments beginning with fiscal year 2022, in expanding the number of measures under subclause (III), the Secretary shall adopt measures that relate to equitable health care furnished by hospitals in inpatient settings. (bb) In carrying out this subclause, the Secretary shall solicit input and recommendations from individuals and groups representing communities of color and ensure measures adopted pursuant to this subclause account for social determinants of health care outcomes. (cc) For purposes of this subclause, the term equitable health care refers to the principle that quality of care provided to an individual shall not vary on account of the real or perceived race, ethnicity, sex, sexual orientation, disability status, gender identity, or age of such individual. . (b) Inclusion of equitable health care measures Section 1886(o)(2)(B) of the Social Security Act ( 42 U.S.C. 1395ww(o)(2)(B) ) is amended by adding at the end the following new clause: (iv) Inclusion of equitable health care measures Beginning in fiscal year 2021, measures selected under subparagraph (A) shall include the equitable health care measures described under subsection (b)(3)(B)(viii)(XIII). . 5. Provision of inequitable health care as a basis for permissive exclusion from Medicare and State health care programs Section 1128(b) of the Social Security Act ( 42 U.S.C. 1320a–7(b) ) is amended by adding at the end the following new paragraph: (18) Provision of inequitable health care Any individual or entity that the Secretary determines has engaged in a pattern of providing inequitable health care (as defined in section 7 of the Equality in Health Care for All Act ) on the basis of race, ethnicity, sex, sexual orientation, disability status, gender identity, age, or any other protected class. . 6. Office of Civil Rights and Health Equity of the Department of Health and Human Services (a) Name of office The Office for Civil Rights of the Department of Health and Human Services shall, beginning on the date of enactment of this Act, be known as the Office of Civil Rights and Health Equity. Any reference to the Office for Civil Rights in any law, regulation, map, document, record, or other paper of the United States shall be deemed to be a reference to the Office of Civil Rights and Health Equity. (b) Head of office The head of the Office of Civil Rights and Health Equity shall be the Assistant Secretary for Civil Rights and Health Equity, to be appointed by the President with advice and consent of the Senate. Any reference to the head of the Office for Civil Rights of the Department of Health and Human Services in any law, regulation, map, document, record, or other paper of the United States shall be deemed to be a reference to the Assistant Secretary for Civil Rights and Health Equity. 7. Prohibiting discrimination in health care (a) In general No health care provider or entity providing health care may, on the basis of race, ethnicity, sex, sexual orientation, disability status, gender identity, age, subject another to inequitable health care. (b) Definition In this section, the term inequitable health care means any service provided by a health care provider or entity providing health care that— (1) is discriminatory in intent or effect; and (2) results in a disparate outcome for an individual based at least in part on their membership in a protected class. 8. Administrative complaint and conciliation process (a) Complaints and answers (1) In general An aggrieved person may, not later than one year after an alleged violation of section 7 has occurred or terminated, file a complaint with the Assistant Secretary alleging discriminatory health care by a health care provider. (2) Complaint A complaint submitted pursuant to paragraph (1) shall be in writing and shall contain such information and be in such form as the Assistant Secretary requires. (3) Procedure Upon the filing of such a complaint— (A) the Assistant Secretary shall serve notice upon the aggrieved person acknowledging receipt of such filing and advising the aggrieved person of the time limits and procedures provided under this section and sections 9 and 10; (B) the Assistant Secretary shall, not later than 10 days after receipt of such filing serve on the respondent alleged to have provided discriminatory care a notice of the complaint and advise the provider of the procedural rights and obligations of respondents under this section and sections 9 and 10, together with a copy of the original complaint; (C) a respondent may file, not later than 30 days after receipt of notice from the Assistant Secretary, an answer to such complaint; (D) the Assistant Secretary shall make an investigation of the alleged discriminatory health care practice and complete such investigation within 100 days after the filing of the complaint, unless it is impracticable to do so; and (E) the Assistant Secretary shall notify State licensing authorities with authority over the respondent of the complaint and provide a copy of the complaint and the final disposition of the complaint. (4) Investigation If the Assistant Secretary is unable to complete the investigation within 100 days after the filing of the complaint (or, when the Secretary takes further action under subsection (f)(2) with respect to a complaint, within 100 days after the commencement of such further action), the Assistant Secretary shall notify the complainant and respondent in writing of the reasons for not doing so. (5) Oath or affirmation Complaints and answers shall be under oath or affirmation, and may be reasonably and fairly modified at any time. (6) Pattern of care In the course of investigating a complaint, the Assistant Secretary may seek records of care provided to patients other than the complainant if necessary to demonstrate or disprove an allegation of inequitable health care. (7) Accounting for social determinants of health In investigating a complaint and reaching a determination, the Assistant Secretary shall account for social determinants of health and their effect on health care outcomes. (b) Investigative report and conciliation (1) Conciliation During the period beginning with the filing of such complaint and ending with the resolution of a complaint or a dismissal by the Assistant Secretary, the Assistant Secretary shall, to the extent feasible, engage in conciliation with respect to such complaint. (2) Conciliation agreement A conciliation agreement arising out of such conciliation shall be an agreement between the respondent and the complainant, and shall be subject to approval by the Assistant Secretary. (3) Rights protected The Assistant Secretary shall approve a conciliation agreement only if it protects the rights of the aggrieved person and other persons similarly situated. (4) Publicly available (A) In general Subject to subparagraph (B), a redacted copy of a conciliation agreement entered into pursuant to this section shall be made available to the public unless the complainant and respondent otherwise agree, and the Secretary determines, that disclosure is not required to further the purposes of this section. (B) Limitation A conciliation agreement that is made available to the public pursuant to subparagraph (A) may not disclose personally identifiable information or individually identifiable health information. (5) Report (A) Final report At the end of each investigation under this section, the Assistant Secretary shall prepare a final investigative report. (B) Modification of report A final report under this paragraph may be modified if additional evidence is later discovered. (c) Failure To comply with conciliation agreement Whenever the Assistant Secretary has reasonable cause to believe that a health care provider has breached a conciliation agreement, the Assistant Secretary shall refer the matter to the Attorney General for consideration of the filing of a civil action for the enforcement of such agreement. (d) Prohibitions and requirements with respect to disclosure of information (1) Written consent for disclosure Nothing said or done in the course of conciliation under this section may be made public or used as evidence in a subsequent proceeding under this section or section 9 or 10 without the written consent of the persons concerned. (2) Investigation disclosures Notwithstanding paragraph (1), the Assistant Secretary shall make available to the aggrieved person and the respondent, at any time, upon request following completion of the Assistant Secretary’s investigation, information derived from an investigation and any final investigative report relating to that investigation. (e) Prompt judicial action (1) In general If the Assistant Secretary concludes at any time following the filing of a complaint that prompt judicial action is necessary to carry out the purposes of this section or section 9 or 10, the Assistant Secretary may recommend that the Attorney General promptly commence an action. (2) Immediate suit If the Assistant Secretary determines that the public interest would be served by allowing the complainant to bring a civil action in a State or Federal court immediately, the Assistant Secretary shall certify that the administrative process has concluded and that the complainant may file such a suit immediately. (f) Annual report Not later than 1 year after the date of the enactment of this Act, and annually thereafter, the Assistant Secretary shall make publicly available a report detailing the activities of the Office under this section, including— (1) the number of complaints filed and the basis on which they were filed; (2) the number of investigations undertaken as a result of such complaints; and (3) the disposition of all investigations. (g) Definitions In this section and sections 9 and 10: (1) Assistant Secretary The term Assistant Secretary refers to the Assistant Secretary of Health and Human Services for Civil Rights and Health Equity. (2) Aggrieved person The term aggrieved person means a person who believes that they were injured by a violation of section 7, or the personal representative or estate of the deceased person. (3) Conciliation The term conciliation means the attempted resolution of issues raised by a complaint, or by the investigation of such complaint, through informal negotiations involving the aggrieved person, the respondent, and the Secretary. (4) Conciliation agreement The term conciliation agreement means a written agreement setting forth the resolution of the issues in conciliation. (5) Individually identifiable health information The term individually identifiable health information means any information, including demographic information collected from an individual, that— (A) is created or received by a health care provider, health plan, employer, or health care clearinghouse; and (B) relates to the past, present, or future physical or mental health or condition of an individual, the provision of health care to an individual, or the past, present, or future payment for the provision of health care to an individual, and— (i) identifies the individual; or (ii) with respect to which there is a reasonable basis to believe that the information can be used to identify the individual. (6) Inequitable health care The term inequitable health care has the meaning given the term under section 7. (7) Personally identifiable information The term personally identifiable information has the meaning given such term under the regulations promulgated under section 264(c) of the Health Insurance Portability and Accountability Act of 1996. (8) Respondent The term respondent means the person or other entity accused in a complaint of a violation of section 7. 9. Enforcement by private persons (a) In general (1) Civil action (A) In suit An aggrieved person may commence a civil action to obtain appropriate relief with respect to an alleged violation of section 7 or an enforcement action for breach of a conciliation agreement in an appropriate United States district court or State court— (i) not later than 2 years after the occurrence or termination of the alleged violation; and (ii) not sooner than the earlier of the conclusion of the administrative process and 180 days after the alleged violation. (B) Statute of limitations The computation of such 2-year period shall not include any time during which an administrative proceeding under section 8 was pending with respect to a complaint under such section. (2) Barring suit If the Assistant Secretary has obtained a conciliation agreement with the consent of an aggrieved person, no action may be filed under this subsection by such aggrieved person with respect to the alleged violation of section 7 except for the purpose of enforcing the terms of such an agreement. (b) Relief which may be granted (1) In general In a civil action under subsection (a), if the court finds that a violation of section 7 or breach of a conciliation agreement has occurred, the court may award to the plaintiff actual and punitive damages, and may grant as relief, as the court deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order (including an order enjoining the defendant from engaging in such practice or ordering such affirmative action as may be appropriate). (2) Fees and costs In a civil action under subsection (a), the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the same extent as a private person. (c) Intervention by Attorney General Upon timely application, the Attorney General may intervene in such civil action, if the Attorney General certifies that the case is of general public importance. 10. Enforcement by the Attorney General (a) Pattern or practice cases Whenever the Attorney General has reasonable cause to believe that any person or entity is engaged in a pattern or practice that denies the rights specified in section 7 and such denial raises an issue of general public importance, the Attorney General may commence a civil action in any appropriate United States district court. (b) Consultation The Assistant Secretary may determine, based on a pattern of complaints, a pattern of violations, a review of data reported by a health care provider, or any others mean, that there is reasonable cause to believe a health care provider is engaged in a pattern or practice that denies the rights specified in section 7. If the Assistant Secretary makes such a determination, they shall refer their findings to the Attorney General. (c) Enforcement of subpoenas The Attorney General, on behalf of the Assistant Secretary, or other party at whose request a subpoena is issued, under this section, may enforce such subpoena in appropriate proceedings in the United States district court for the district in which the person to whom the subpoena was addressed resides, was served, or transacts business. (d) Relief which may be granted in civil actions under subsections (a) and (b) (1) In general In a civil action under subsection (a) or (b), the court— (A) may award such preventive relief, including a permanent or temporary injunction, restraining order, or other order against the person responsible for a violation of section 7 as is necessary to assure the full enjoyment of the rights granted by this section and sections 8 and 9; (B) may award such other relief as the court deems appropriate, including monetary damages to persons aggrieved; and (C) may, to vindicate the public interest, assess a civil penalty against the respondent— (i) in an amount not exceeding $500,000, for a first violation; and (ii) in an amount not exceeding $1,000,000, for any subsequent violation. (2) Fees and costs In a civil action under this section, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee and costs. The United States shall be liable for such fees and costs to the extent provided by section 2412 of title 28, United States Code. (e) Intervention in civil actions Upon timely application, any person may intervene in a civil action commenced by the Attorney General under subsection (a) or (b) which involves an alleged violation of section 7 with respect to which such person is an aggrieved person or a conciliation agreement to which such person is a party. 11. Federal Health Equity Commission (a) Establishment of Commission (1) In general There is established the Federal Health Equity Commission (hereinafter in this section referred to as the Commission ). (2) Membership The Commission shall be composed of 8 members. Not more than 4 of the members shall at any one time be of the same political party. Members shall have recognized expertise in and personal experience with racial and ethnic health disparities, health care needs of vulnerable and marginalized populations, and health equity as a vehicle for improving health status and health outcomes. Members shall be appointed to the commission as follows: (A) Four members of the Commission shall be appointed by the President. (B) Two members of the Commission shall be appointed by the President pro tempore of the Senate, upon the recommendations of the majority leader and the minority leader of the Senate, and of the members appointed pursuant to this subparagraph not more than one shall be appointed from the same political party. (C) Two members of the Commission shall be appointed by the Speaker of the House of Representatives upon the recommendations of the majority leader and the minority leader of the House of Representatives, and of the members appointed pursuant to this subparagraph not more than one shall be appointed from the same political party. (3) Terms The term of office of each member of the Commission shall be 6 years. (4) Chairperson; Vice Chairperson (A) Chairperson The President shall, with the concurrence of a majority of the Commission’s members, designate a Chairperson from among the Commission’s members. (B) Vice Chairperson (i) Designation The Speaker of the House of Representatives shall, in consultation with the majority leader and the minority leader of the House of Representatives and with the concurrence of a majority of the Commission’s members, designate a Vice Chairperson from among the Commission’s members. The Vice Chairperson may not be a member of the same political party as the Chairperson. (ii) Duty The Vice Chairperson shall act in place of the Chairperson in the absence of the Chairperson. (5) Removal of members The President may remove a member of the Commission only for neglect of duty or malfeasance in office. (6) Quorum Five members of the Commission constitute a quorum of the Commission. (7) Ex-officio members In addition to the members appointed under paragraph (2), the Commission shall have the following nonvoting ex officio members: (A) The Assistant Secretary for Civil Rights and Health Equity of the Department of Health and Human Services. (B) The Deputy Assistant Secretary for Minority Health of the Department of Health and Human Services. (C) The Director of the National Institute for Minority Health and Health Disparities. (D) The Chairperson of the Advisory Committee on Minority Health established under section 1707 of the Public Health Service Act ( 42 U.S.C. 300u–6 ). (b) Duties of the Commission (1) In general The Commission shall— (A) monitor and report on the implementation of the Equality in Health Care for All Act ; and (B) investigate, monitor, and report on progress towards health equity and the elimination of health disparities. (2) Annual report The Commission shall— (A) submit to the President and Congress at least one report annually on health equity and health disparities; and (B) include in such report— (i) a description of actions taken by the Department of Health and Human Services and any other Federal agency related to health equity or health disparities; and (ii) recommendations on ensuring equal health care and eliminating health disparities. (3) Hearings and Authorities (A) Power to hold hearings The Commission may, for the purpose of carrying out this section, hold such hearings as the Commission deems advisable. Each member of the Commission shall have the power to administer oaths and affirmations in connection with the proceedings of the Commission. The Commission may hold a hearing only if the hearing is approved by a majority of the Commission, or by a majority of the members present at a meeting when a quorum is present. (B) Power to issue subpoenas The Commission may issue subpoenas for the attendance of witnesses and the production of written or other matter. (C) Witness fees A witness attending any proceeding of the Commission shall be paid the same fees and mileage that are paid witnesses in the courts of the United States. (D) Depositions and interrogatories The Commission may use depositions and written interrogatories to obtain information and testimony about matters that are the subject of a Commission hearing or report. (c) Administrative Provisions (1) Staff (A) Director There shall be a full-time staff director for the Commission who shall— (i) serve as the administrative head of the Commission; and (ii) be appointed by the Chairperson with the concurrence of the Vice Chairperson. (B) Other personnel The Commission may— (i) appoint such other personnel as it deems advisable, subject to the provisions of title 5, United States Code, governing appointments in the competitive service, and the provisions of chapter 51 and subchapter III of chapter 53 of that title relating to classification and General Schedule pay rates; and (ii) may procure temporary and intermittent services under section 3109(b) of title 5, United States Code, at rates for individuals not in excess of the daily equivalent paid for positions at the maximum rate for GS–15 of the General Schedule under section 5332 of title 5, United States Code. (2) Compensation of members (A) In general Each member of the Commission who is not otherwise in the service of the Government of the United States shall receive a sum equivalent to the compensation paid at level IV of the Executive Schedule under section 5315 of title 5, United States Code, prorated on a daily basis for time spent in the work of the Commission. (B) Persons otherwise in government service Each member of the Commission who is otherwise in the service of the Government of the United States shall serve without compensation in addition to that received for such other service, but while engaged in the work of the Commission shall be paid actual travel expenses and per diem in lieu of subsistence expenses when away from such member’s usual place of residence, under subchapter I of chapter 57 of title 5, United States Code. (3) Rules The Commission may make such rules as are necessary to carry out the purposes of this section. (4) Cooperation All Federal agencies shall cooperate fully with the Commission to the end that it may effectively carry out its functions and duties. (d) Authorization of appropriations There are authorized to be appropriated such sums as may be necessary to carry out the duties of the Commission for each of fiscal years 2021 through 2025. 12. Grants for hospitals to promote equitable health care and outcomes (a) In general Not later than 180 days after the date of the enactment of this Act, the Secretary of Health and Human Services (in this section referred to as the Secretary ) shall award grants to hospitals to promote equitable health care and reduce disparities in care and outcomes. (b) Consultation In establishing the criteria for grants under this section and evaluating applications for such grants, the Secretary shall consult with the Assistant Secretary for Civil Rights and Health Equity of the Department of Health and Human Services. (c) Use of funds A hospital shall use funds received from a grant under this section to establish or expand programs to provide equal care to all patients and to ensure equitable health care outcomes. Such uses may include— (1) providing explicit and implicit bias training to medical providers and staff; (2) providing translation or interpretation services for patients; (3) recruiting and training a diverse workforce; (4) tracking data related to care and outcomes; and (5) training on cultural sensitivity. (d) Priority In awarding grants under this section, the Secretary shall give priority to hospitals that have received disproportionate share hospital payments under section 1886(r) of the Social Security Act ( 42 U.S.C. 1395ww ) or section 1925 of such Act ( 42 U.S.C. 1396r–6 ) with respect to fiscal year 2020. (e) Supplement, not supplant Grants awarded under this section shall be used to supplement, not supplant, any other Federal funds provided to a recipient. (f) Equitable health care defined The term equitable health care has the meaning given the term in section 1886(b)(3)(B)(viii)(XIII)(cc) of the Social Security Act (42 U.S.C. 1395ww(b)(3)(B)(viii)(XIII)(cc)), as amended by this Act. (g) Authorization of appropriations To carry out this section, there are authorized to be appropriated such sums as may be necessary for fiscal years 2021 through 2026.