Minority Access and Health Reform: A Civil Right to Health Care

Council on Ethical and Judicial Affairs, AMA, “Black-White Disparities in Health Care,” JAMA, 263 (1990): 2346.

Universal financing will not automatically ensure the end of economic discrimination. As long as programs that insure the poor contain restrictive eligibility levels, cost-sharing requirements, and low reimbursement rates, providers will have financial incentives to avoid treating publicly insured patients. See also Watson Sidney D. , “Health Care in the Inner City: Asking the Right Question,” N. Car. L. Rev., 71 (1993): 1661–63.

Health reform programs such as managed competition and capitated payments may create additional barriers to access for minorities and actually reduce minority health access. Capitated payment systems can create strong incentives to serve healthier populations and to avoid sicker groups—like racial and ethnic minorities. A capitated payment rate that fails to reflect accurately the generally higher costs of treating minority patients inevitably causes providers and insurers to discriminate against minority patients in subtle, but effective, ways. For instance, plans can avoid enrolling minority consumers by defining their service areas to exclude predominately minority neighborhoods. Plans also can avoid treating minority patients by locating facilities in predominately white communities not easily accessed by the minority population. Plans that fail to hire minority physicians effectively discourage minority enrollment because minority physicians are more likely than white doctors to treat minority patients. Plans can further discourage minority enrollment by failing to have specialists who treat particular diseases, like sickle cell anemia, that affect certain racial groups. See Watson , supra note 2, at 1662–63.

42 U.S.C. § 2000d (1988).

The life expectancy of Black males is almost seven years less than that for white males; for Black females it is approximately five years less than that for white females. See Johnson R.W. , Special Report, The Foundation's Minority Medical Training Programs (Princeton: Robert Wood Johnson Foundation, Vol. 1, 1987), at 5. Blacks have higher death rates from all three of the major killers—heart disease, cancer, and stroke. See Andersen Donald H. , “Health Status and Medical Care Utilization,” Health Affairs, 6 (1987): 149. Black infant mortality continues to be nearly twice that of white infants. See Johnson R.W. , op. cit.

See Freeman Howard E. , “Americans Report on Their Access to Health Care,” Health Affairs, 6 (1987): 12–18. In 1986, whites in fair to poor health averaged 10.1 doctor visits, whereas the average number of visits for Blacks was only 6.8 and for Hispanics, 9.8. See id. at 12.

Id. at 12–13. These percentages still underestimate the discrepancy between white and minority hospital care because they do not take into account that 15.3 percent of Blacks and 19.4 percent of Hispanics surveyed were in fair to poor health as compared to only 10.6 percent of whites. Id.

Minorities are less likely to see private physicians, regardless of the patient's income level or type of insurance. Minorities are also less likely than whites to see specialists. See Institute of Medicine, Health Care in a Context of Civil Rights (Washington, D.C.: National Academy, 1981), at 38–39; see also Janes Gerald D. Williams Robin M. Jr. , A Common Destiny: Blacks and American Society (Washington, D.C.: National Academy, 1989), at 431; and U.S. Dept. of Health and Human Services, Report of the Secretary's Task Force on Black and Minority Health, Executive Summary (Washington, D.C.: U.S. Department of Health and Human Services, Vol. I, 1985), at 189.

See Davis Karen , “Health Care for Black Americans: The Public Sector Role,” Milbank Q., 65, Supp. 1 (1987): 214. In 1983, 27 percent of Blacks, but only 13 percent of whites, reported a hospital outpatient department or emergency room as their usual source of care. See Janes Williams , supra note 8, at 431.

Perkins Jane , “Race Discrimination in America's Health Care System,” Clearinghouse Rev., 27 (1993): 373. See also Watson , supra note 2.

See Schlesinger Mark , “Paying the Price: Medical Care, Minorities, and the Newly Competitive Health Care System,” Milbank Q., 65, Supp. 2 (1987): 276.

The poverty rate for African-American families is three times that for white families. Jones Woodrow Jr. Rice Mitchell F. , “Black Health Care: An Overview,” in Jones Woodrow Jr. Rice Mitchell F. , eds., Health Care Issues in Black America (New York: Greenwood Press, 1987), at 7.

Schlesinger , supra note 11, at 276.

See Diehr Paula , “Use of Ambulatory Care Services in Three Provider Plans: Interaction Between Patient Characteristics and Plans,” Am. J. Public Health, 74 (1984): 49 (race was found to be correlated significantly to use in the three health care plans studied; Black use was ten percentage points less in an independent practice association (IPA), fourteen in a health maintenance organization (HMO), and twenty in a Blue Cross plan).

See Randall Vernellia R. , “Racist Health Care: Reforming An Unjust Health Care System to Meet the Needs of African-Americans,” Health Matrix, 3 (1994): 155–56 (citing NAACP Legal Defense & Education Fund, Inc., “An African American Health Care Agenda: Strategies for Reforming an Unjust System, Racial Disparities in Medicaid Coverage for Nursing Home Care” (1991)). See also Smith David Barton , “The Racial Integration of Health Facilities,” Journal of Health Politics, Policy and Law, 18 (1993): 850. In fact, the nursing home industry has been described as America's most segregated, publicly licensed health care facility. See Butts Cassandra Q. , “The Color of Money: Barriers to Access to Private Health Care Facilities for African-Americans,” Clearinghouse Rev., 26 (1992): 163–64 (citing Smith David B. , Discrimination in Access to Nursing Homes in Pennsylvania (1991), at 5–7). Licensed nursing homes, primarily funded by the Medicaid program, serve whites; substandard boarding homes, for which Medicaid does not pay, serve Blacks. See Linton v. Tennessee Commissioner of Health & Environment, 779 F. Supp. 925, 932 (M.D. Tenn. 1990). Private nursing homes are more segregated than state-run homes, and when blacks do gain access to nursing homes, they are more likely to reside in nursing homes that have been cited as substandard. See Smith David B. (1993), op. cit., at 857–61.

Goldberg Kenneth C. , “Racial and Community Factors Influencing Coronary Artery Bypass Graft Surgery Rates for All 1986 Medicare Patients,” JAMA, 267 (1992): 1474 (comparing elderly Medicare patients who have comparable myocardial infarction rates.)

Council on Ethical and Judicial Affairs, AMA, supra note 1, at 2344–45.

See Seddon Johanna M. , “The Differential Burden of Blindness in the United States,” N. Engl. J. Med., 325 (1991): 1440; and Javitt Jonathan C. , “Undertreatment of Glaucoma Among Black Americans,” N. Engl. J. Med., 325 (1991): 1418.

Council on Ethical and Judicial Affairs, AMA, supra note 1, at 2345.

Diehr Paula , “Treatment Modality and Quality Differences for Black and White Breast-Cancer Patients Treated in Community Hospitals,” Medical Care, 17 (1989): 942.

Council on Ethical and Judicial Affairs, AMA, supra note 1, at 2345.

See Diehr , supra note 20, at 951.

Moore Richard D. , “Racial Differences in the Use of Drug Therapy for HIV Disease in An Urban Community,” N. Engl. J. Med., 11 (1994): 763.

See Council on Ethical and Judicial Affairs, AMA, supra note 1, at 2345. See also Jones Woodrow Jr. Clifford Patrick , “The Privatization of Treatment Services for Alcohol Abusers: Effect on the Black Community,” JAMA, 82 (1990): 337.

See Watson , supra note 2, at 1649–51; see also Lin-Fu Jane D. , “Population Characteristics and Health Care Needs of Asian Pacific Americans,” Public Health Reports, 103 (1988): 18.

Butts , supra note 15, at 161.

Smith (1993), supra note 15, at 863.

See Randall , supra note 15, at 158.

See Lin-Fu , supra note 26, at 25.

Uba Laura , “Cultural Barriers to Health Care for Southeast Asian Refugees,” Public Health Reports, 107 (1992): 545. Among Southeast Asians, the belief that suffering is inevitable and that one's life span is predetermined can cause them to eschew seeking health care. Id.

Id., at 546–47. See also Lin-Fu , supra note 26, at 24; see, generally, Ruiz Pedro , “Cultural Barriers to Effective Medical Care Among Hispanic-American Patients,” Ann. Rev. Med., 36 (1985): 63–71; and Quesada Gustavo M. , “Language and Communication Barriers for Health Delivery to a Minority Group,” Soc. Sci. & Med., 10 (1976): 324.

Council on Ethical and Judicial Affairs, AMA, supra note 1, at 2345.

See Lin-Fu , supra note 26, at 20. See also Ruiz , supra note 32, at 323.

See Randall , supra note 15, at 136. See also Wolf Susan M. , “Toward a Theory of Process,” Law, Medicine & Health Care, 20 (1992): 283.

U.S. Department of Health and Human Services, Public Health Services, Healthy People 2000: National Health Promotion Disease Prevention Objectives (Washington, D.C.: U.S. Department of Health and Human Services, Sept. 1990), at 542.

See H.R. Rep. No. 804, 101st Cong., 2d Sess. 1990, reprinted in 1990 U.S.C.C.A.N. 3299. See also Janes Williams , supra note 8, at 436–37 (75 percent of African-American physicians practice in or near African-American communities).

U.S. Department of Health and Human Services, Public Health Services, supra note 36, at 542.

See Dorn Stan , “Anti-Discrimination Provisions and Health Care Access: New Slants on Old Approaches,” Clearinghouse Rev., 20 (1986): 441. This policy tends to exclude minority patients because they are less likely than white patients to be treated by private physicians, regardless of their income level or types of insurance coverage. See Institute of Medicine, supra note 8, at 38–39; see also Janes Williams , supra note 8, at 431.

See Dorn , supra note 39, at 441. While 79.6 percent of white women receive prenatal care during the first trimester, only 62 percent of Black women receive such care. While only 1.3 percent of white women receive no prenatal care, 4.4 percent of African-American women get no prenatal care. “Increasing Incidence of Low Birthweight—United States, 1981–1991,” MMWR, 43 (1994): 328. In a study of low-income women, white women were eleven percentage points more likely than any other racial or ethnic women's group to receive prenatal care during the first trimester: White − 73.9 percent; Black − 60.6 percent; Hispanics − 58.5 percent; Native Americans − 58.8 percent; Asian and others − 62.0 percent. Kim E. H. , “Pregnancy Nutrition Surveillance System—United States, 1979–1990,” MMWR, 41 (1992): 31.

See Dorn , supra note 39, at 441.

Id. Minority physicians are more likely to treat and admit minority patients, so a failure to employ minority physicians disparately impacts on minority patients.

See Randall , supra note 15, at 127.

See Council for Ethical and Judicial Affairs, AMA, supra note 1, at 2346; and see Perkins , supra note 10, at 383.

See Garcia Jorge L.A. , “African-American Perspectives, Cultural Relativism, and Normative Issues: Some Conceptual Questions,” in Flack Harley E. Pellegrino Edmund D. , eds., African-American Perspectives on Biomedical Ethics (Washington, D.C.: Georgetown University Press, 1992).

Wolf , supra note 35, at 283.

See Capron Alexander Morgan Michel Vicki , “Law and Bioethics,” Loyola of Los Angeles L. Rev., 27 (1993): 36.

Id. at 36.

Id. at 37. See Williams Patricia J. , “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” Harv. Civil Rights-Civil Liberties L. Rev., 22 (1987): 401.

42 U.S.C. § 2000d.

See 110 Cong. Rec. 1658 (1964).

See H.R. Rep. No. 914, 88th Cong., 1st Sess., pt. I, at 25–26, pt. II, at 24, reprinted in U.S. Code Cong. & Admin. News (1964): 2511.

Segregated facilities were eligible to receive federal funding as long as they certified that a “separate but equal” facility was available to treat Blacks. In 1963, the Fourth Circuit Court of Appeals struck down this “separate but equal” funding policy as a violation of equal protection. See Simkins v. Moses H. Cone Memorial Hospital, 323 F.2d 959, 969 (4th Cir. 1963) (en banc) cert. denied, 376 U.S. 938 (1974).

Both Medicaid and Medicare are considered federal financial assistance for purposes of Title VI. See Frazier v. Board of Trustees of Northwest Mississippi Regional Medical Center, 765 F.2d 1278, 1289 (5th Cir. 1985), cert. denied, 476 U.S. 1142 (1986); and United States v. Baylor University Medical Ctr., 736 F.2d 1039, 1046 (5th Cir. 1984), cert. denied, 469 U.S. 1189 (1985). The Title VI regulations list a number of other health grant programs that also provide federal financial assistance, including health planning grants, loans and loan guarantees for hospitals and other medical facilities, Maternal and Child Health grants, and Crippled Children's Services grants. See 45 C.F.R. § 80 app. A (1983).

These regulations prohibit “criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect [sic] individuals of a particular race, color, or national origin.” 45 C.F.R. § 80.3(b) (1)(vii)(2) (1989). For a discussion of case law upholding the validity of this regulation, see Watson Sidney D. , “Reinvigorating Title VI: Defending Health Care Discrimination—It Shouldn't Be So Easy,” Fordham L. Rev., 58 (1990): 948–55.

45 C.F.R. § 80.3(b)(6)(i) (1989).

Id. §§ 80.3(b)(1)(iii), 80.5(a).

Id. 80.3(b)(3).

See Kenneth Wing, “Title VI and Health Facilities: Forms Without Substance,” Hastings L. J., 30 (1978): 157–61, 176.

See Singer Linda R. , “Title VI of the Civil Rights Act of 1964–Implementation and Impact,” Geo. Wash. L. Rev., 36 (1968): 824. Title VI's proponents saw it primarily as a means to secure administrative enforcement of school segregation in states where courts had been ineffective in dismantling segregation. Thus, Title VI's authors drafted an administrative compliance mechanism empowering the federal agencies which awarded federal financial assistance to refuse to grant funds and to terminate funding to a recipient found in violation of Title VI regulations after an opportunity for an administrative hearing. The federal agency does not need to obtain a court order, but the fund recipient may seek judicial review of agency action. See 42 U.S.C. § 2000d–1 and 2.

Prior to the establishment of the Department of Health and Human Services, health care civil rights enforcement was the responsibility of the Department of Health, Education and Welfare.

See Wing , supra note 59, at 138.

See Committee on Government Operations, Investigation of the Office for Civil Rights in the Department of Health and Human Services (Washington, D.C.: U.S. Government Printing Office, Fifth Report, 1987).

Id. at 5. “Of 61 cases reviewed by the committee, 50 were more than one year old, 30 were more than two years old, 16 were over three years old, two were more than four years old, and three were more than five and as many as seven years old.” Id.

Id. at 8–10.

Id. at 16.

Id. at 15.

See Institute of Medicine, supra note 8, at 36–39 (documenting racial disparities in those seeking professional health care); Janes Williams , supra note 8, at 431 (reporting that “Blacks are twice as likely as whites to be without a regular source of medical care”); U.S. Department of Health and Human Services, supra note 8, at 188–89 (comparing use of health professionals by Black, Hispanic, and white populations); Diehr , supra note 14, at 49 (noting that differences in rates of physician visitation cannot be attributed to differences in the ability to pay, because when middle class whites and Blacks are compared, Blacks still use doctors significantly less than whites); and Freeman , supra note 6, at 12–18 (recognizing that, although Blacks are generally in worse health than whites, they receive fewer services from doctors and hospitals).

See Wing , supra note 59, at 176–79.

See proceedings in Cook et al. v. Ochsner Foundation Hospital et al., U.S.D.C. No. 70–1969 (E.D. La. filed 1969).

See Smith (1993), supra note 15, at 851.

Academics, government task forces, and federal agencies all have criticized the lack of race-based utilization data and urged its collection. See, for example, U.S. Department of Health and Human Services, supra note 8. See also, for example, Smith (1993), supra note 15, at 851; Hahn Robert A. , “The State of Federal Health Statistics on Racial and Ethnic Groups,” JAMA, 267 (1992): 268; and Wing , supra note 59.

See Guardians Assn. v. Civil Service Comm. , 463 U.S. 582, 593–95 (1983) ( White J. , joined by Rehnquist J. ); id. at 639 ( Stevens J. , dissenting, joined by Brennan Blackmun J.J. ); and id. at 625 ( Marshall J. , dissenting).

See 42 U.S.C. § 2000d. Title VI's operative section provides that “No person shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” Id. § 2000d.

See Watson , supra note 55, at 948–55.

463 U.S. 582 (1983).

See Guardians Assn. v. Civil Service Comm. , 463 U.S. 582, 607–8 (1983) ( Powell Burger Rehnquist J.J. , concurring in judgment); and id. at 634 ( Stevens Brennan Blackmun J.J. , dissenting) (Title VI reaches only intentional discrimination). See id. 591–92 ( White J. ); id. at 643 ( Stevens Brennan Blackmun J.J. , dissenting); and id. at 623 (Marshall, J., dissenting) (Title VI implementing regulations that prohibit facially neutral policies from having an unjustified disparate impact are valid). See also Alexander v. Choate, 469 U.S. 287, 293 (1985) (referring to two-part holding in Guardians). For analysis of the Guardians opinion, see Watson , supra note 55, at 950–55.

See note 55, for text of 45 C.F.R. 80.3(b)(1)(vii)(2) (1989).

See Watson , supra note 55, at 964–71. Two early reported Title VI health care cases diverged from Title VII jurisprudence, and adopted a particularly undemanding standard for evaluating practices with a disparate impact—a rational relationship test. See Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980); and NAACP v. Medical Center, Inc., 657 F.2d 1322 (3d Cir. 1981).

See Watson , supra note 55.

A Title VI plaintiff must demonstrate that the defendant used a specific practice that causes a disproportionate adverse impact. The burden then shifts to the defendant to show that the challenged practice is an “educational necessity,” that is, that the challenged practice is “demonstrably necessary to meeting an important educational goal.” If this is shown, the plaintiff can still prevail by showing that a less discriminatory alternative exists. See, for example, Elston v. Talladega County Board of Education , 997 F.2d 1394 (11th Cir. 1993) (Title VI education case).

See, for example, Linton v. Tennessee Commissioner of Health & Environment , 79 F. Supp. 925 ( Tenn M.D. 1990) (Tennessee nursing homes threatened to withdraw from the Medicaid program if required to comply with Title VI regulatory requirements).

See Statistical Abstract of the United States (1993) 110, Table 154.

42 U.S.C. § 2000d–1.

Although controversy has surrounded the issue, it appears that Title VI plaintiffs who allege either intentional or unintentional discrimination may recover both prospective and retrospective equitable relief and also may be able to recover retrospective legal relief, including monetary damages. See Guardians Assn. v. Civil Service Comm., 463 U.S. 582, 624–34 (1983) (Marshall, J., dissenting); id. at 635–39 (Stevens, Brennan, Blackmun, J.J., dissenting); and id. at 612 ( O'Connor J. , concurring). See also Consolidated Rail Corp. v. Darrone, 465 U.S. 624, 630 n. 9 (1984) (observing that a majority in Guardians “agreed that retroactive relief is available to private plaintiffs for all discrimination … that is actionable under Title VI”). See also Franklin v. Gwinnett Country Public Schools, 112 S. Ct. 1028, 1035 (1992) (noting that in Guardians “a clear majority expressed the view that damages were available under Title VI in an action seeking remedies for an intentional violation and no Justice challenged the traditional presumption in favor of a federal court's power to award appropriate relief [including damages] in a cognizable cause of action”).

See Suter v. Artist M., 112 S. Ct. 1360 (1992), discussed in Rosenblatt Rand E. , “The Courts, Health Care Reform, and the Reconstruction of the American Social Legislation,” J. Health Politics, Policy and Law, 18 (1993): 462–74.

One of every three dollars spent on health care in this country is federal money. See Statistical Abstract of the United States (1993): 109. Federal money pays for 67.1 percent of hospital care, 60.4 percent of nursing home care, and 79 percent of doctors' fees. See id. at 110, Table 154.

The health care entity is the appropriate party to carry both the burden of proof and the burden of persuasion. The institution or individual using the challenged policy or practice has specific knowledge of the practices it uses, the rationale supporting their use, and the effect these practices have on patients, doctors, and staffs. Although the plaintiff often can obtain some of this information in the discovery process, it is expensive and inefficient to place the burden of persuasion on the plaintiff. After a discriminatory effect is shown, the defendant has both superior access to the data and intimate knowledge of its relevance. Therefore, the defendant should bear the ultimate burden of proof.

Tide VII analysis. See, for example, Jones v. Lee Way Motor Freight, Inc. , 431 F.2d 245, 250 (10th Cir. 1970), cert. denied, 401 U.S. 945 (1971); and Johnson v. Pike Corp. of America, 332 F. Supp. 490, 495 (C.D. Ca. 1971). For a discussion of lower courts' rejection of a cost defense in Title VII cases and the Supreme Court's increasing willingness to consider costs in Title VII cases, see Brodine Mark S. , “Costs, Profits and Equal Employment Opportunity,” Notre Dame L. Rev., 62 (1987): 344–53.

See Lamber Julia , “Alternatives to Challenged Employee Selection Criteria: The Significance of Nonstatistical Evidence in Disparate Impact Cases Under Title VII,” Wis. L. Rev., 1 (1985): 16–17.

Wards Cove Packing Co. v. Atonio , 109 S. Ct. 2115, 2126–27 (1989).

See Note, “Business Necessity Under Title VII of the Civil Rights Act of 1964: A No-Alternative Approach,” Yale L. J., 98 (1974): 115 (quoting Jones v. Lee Way Motor Freight, Inc. , 431 F.2d 245, 249 (10th Cir. 1970), cert. denied, 401 U.S. 954 (1971)). The author proposes a “not insubstantial” test for Title VII: The phrase “not insubstantial” refers to a difference in costs that is not trivial or de minimis. This standard is relative and includes consideration of the economic situation of the specific employer. For example, a cost differential may be truly insubstantial for a large business with many employees but not for a small employer with fewer workers. Id. at 115, note 72.

The administration's Health Security Act provides for the broad collection of data on enrollment, utilization, outcome, health care provider certification, and consumer satisfaction. Significantly, however, it does not provide for collection and dissemination of data on enrollment, utilization, and treatment of racial and ethnic minorities.

This uniform claim form is likely to be modeled after the recently promulgated UB–92 for hospital billing. The UB–92 collects information on gender and age. However, it does not record the race or ethnicity of the consumer. The UB–92 recently received Office of Management and Budget clearance, and it is being disseminated for use by HHS/OCR, despite complaints from civil rights organizations that the form fails to collect race- or ethnicity-based utilization data and, as a result, fails to allow enforcement of Title VI of the 1964 Civil Rights Act, which prohibits health care providers who receive federal financial assistance from discriminating on the basis of race, color, or national origin.