Sunday, July 23, 2017

Eliminating Barriers to Access

Medicaid & Race: An Annotated Bibliography

Student Note

 

Thesis:

This annotated bibliography will explore the primary federally and state-funded healthcare programs, Medicare and Medicaid, from a number of perspectives. First, this annotation will develop a broad understanding of the programs, including: the purpose of the programs, the intended beneficiaries of the program, how these programs are funded, and how costs of the program are allocated. Also, and perhaps of most immediate interest, this annotation attempts to create a comprehensive understanding of how the Affordable Care Act will affect Medicare and Medicaid and on what grounds the proposed healthcare program is potentially violating the Constitution.

Specific attention will be paid to the Medicaid program and its role in providing increased access to affordable health services to underserved and underprivileged minority groups in America. Blacks represent a disproportionate portion of enrollment in Medicaid which brings about a number of unintended results, including Blacks having less access to facilities and providers of comparable quality to whites. Additionally, because states have some latitude in determining what services and resources are available through Medicaid, Blacks are adversely affected because many diseases and infirmities that fall more heavily on Blacks may not be covered as comprehensively as those that do not. Also, availability of, and access to, quality health care facilities is another hurdle that tends to fall disproportionately on Blacks and people of color. This annotation will explore what the Affordable Care Act will do, via federally funded programs, to reduce the number of uninsured Blacks and reduce the health disparities between Blacks and the rest of the population.

 

The following resources are included in this bibliography:

Statutes – Federal:

  • Civil Rights Act of 1964, Title VI – Nondiscrimination in Federally Assisted Programs §601, 42 United States Code Annotated §2000d (1964).
  • Civil Rights Act of 1964, Title VI – Nondiscrimination in Federally Assisted Programs §602, 42 United States Code Annotated §2000d-1 (1964).

Regulations:

  • Nondiscrimination in Federally Assisted Programs – Implementation of Title VI of the Civil Rights Act of 1964, 28 Code of Federal Regulations §42.104 (Westlaw current through March 11, 2012).

Cases:

  • Alexander v. Sandoval, 532 United States Supreme Court 275 (2001).
  • Bryan v. Koch, 627 United States Court of Appeals, Second Circuit 612 (1980).
  • NAACP v. The Medical Center, 657 United States Court of Appeals, Third Circuit 1322 (1981).

Law Review Articles:

  • Maxwell Mehlman & Karen Visocan, Medicare and Medicaid: Are They Just Health Care Systems?, 29 Houston Law Review 835 (1992).
  • Walter L. Stiehm, Poverty Law: Access to Healthcare and Barriers to the Poor, 4 Quinnipiac Health Law Journal 279 (2001).
  • Carol Ewald Bowen, Medicare and Medicaid: An Overview of Existing Programs and Compliance Issues, 2009 Westlaw 534744 (2009).
  • Melanie K. Gross, Invisible Shackles and the Compromise to the Medical Civil Rights Movement, 47 Howard Law Journal 943 (2004).
  • Gwendolyn Roberts Majette, Access to Health Care: What a Difference Shades of Color Make, 12 Annals of Health Law 121 (2003).
  • M. Gregg Bloche, Race and Discretion in American Medicine, 1 Yale Journal of Health Policy, Law, and Ethics 95 (2001).
  • Michael Campbell, Did I Do That? An Argument for Requiring Pennsylvania to Evaluate the Racial Impact of Medicaid Policy Decisions Prior to Implementation, 82 Temple Law Review 1163 (2010).
  • Thad Kousser, The Politics of Discretionary Spending, 1980-1993, 27 Journal of Health Politics, Policy & Law 639 (2002).
  • Ruqaiijah Yearby, African Americans Can’t Win, Break Even, or Get Out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (2010).
  • Laura Hermer, The States’ Challenge to the Affordable Care Act’s Medicaid Expansion, 33 Whittier Law Review 1 (2011).
  • Matthew McKennan, Medicaid Access After Health Reform: The Shifting Legal Basis for Equal Access, 7 Seton Hall Circuit Review 477 (2011).
  • Sara Rosenbaum & Benjamin D. Sommers, Rethinking Medicaid in the New Normal, 5 St. Louis University Journal of Health Law & Policy 127 (2011).
  • Renee M. Landers & Patrick A. Leeman, Medicaid Expansion Under the 2010 Health Care Reform Legislation: The Continuing Evolution of Medicaid’s Central Role in American Health Care, 7 National Academy of Elder Law Attorneys Journal 143 (2011).

Websites:

 


 

 

Annotations

Statutes:

 

Civil Rights Act of 1964, Title VI – Nondiscrimination in Federally Assisted Programs §601, 42 United States Code Annotated §2000d (1964). Pages: 1.

Section 601 is in place as a broad prohibition against discrimination of persons, on the bases of race, color, or national origin, by programs that receive federal funds. This section serves two basic functions: first, it prohibits intentional discrimination by programs receiving federal funds and second, it allows for private individuals to sue for enforcement of this section.

Civil Rights Act of 1964, Title VI – Nondiscrimination in Federally Assisted Programs §602, 42 United States Code Annotated §2000d-1 (1964). Pages: 1.

Section 602 provides the authority to government departments and agencies to promulgate rules and regulations effectuating section 601 of Title VI. In addition to listing the procedural requirements associated with promulgating rules, section 602 also indicates that discrimination can result in penalties as severe as discontinuation of receiving federal funds. Finally, regulations promulgated pursuant to this section may prohibit activities that have a disparate impact on persons because of their color, race, or national origin. While only intentional discrimination is prohibited by section 601, section 602 extends to activities, rules, or regulations that are not intentionally discriminatory but have a discriminatory impact on the basis of the aforementioned protected classes.

Regulations:

Nondiscrimination in Federally Assisted Programs – Implementation of Title VI of the Civil Rights Act of 1964, 28 Code of Federal Regulations §42.104 (Westlaw current through March 11, 2012). Pages: 3.

The regulation is promulgated by the Department of Justice to enforce the Civil Rights Act of 1964 against federal departments and agencies that receive federal funds. Generally, this regulation prohibits federal programs, including Medicare and Medicaid, from being arranged or functioning in such a way as to subject persons to discrimination on the basis of color, race, or national origin. Also, programs are prohibited from selecting the location of facilities with the purpose of impairing the benefits, or access to services, of persons on the basis of color, race, or national origin. More broadly, this regulation is in place to ensure that the goals of nondiscrimination of the Civil Rights Act of 1964 effectuated by government agencies.


Cases:

 

Alexander v. Sandoval, 532 United States Supreme Court. 275 (2001). Pages: 29

In Alexander, the Alabama Department of Public Safety put a rule in place that required the driver’s license test be administered only in English. Sandoval brought suit under the Civil Rights Act of 1964 claiming that this rule has a disparate impact on those not born in the United States (i.e. national origin). This case solidifies a couple of propositions in relation to the Civil Rights Act of 1964: first, a person has a private right of action of intentional discrimination under section 601 and second, a person does not have a private right of action for disparate impact under section 602. The rationale for this conclusion is that private actions under section 602 are barred because there are enumerated penalties, such as termination of federal funds, for programs operating in a way that has a disparate impact on persons because of race, color, or national origin. The court concluded that because a private right of action was not expressly mentioned, the likely intent of Congress was for this remedy to be intentionally excluded.

Bryan v. Koch, 627 United States Court of Appeals, Second Circuit 612 (1980). Pages: 19.

The plaintiffs in this case challenged the closing of a municipal hospital that served a predominantly minority population, consisting of low-income Blacks and Hispanics. The closing of the facility was challenged under Title VI of the Civil Rights Act of 1964 as having a disparate impact on the basis of race. The closing of the hospital initially arose during lean financial times in the late 1970s when then-mayor of New York City Ed Koch assembled a Health Policy Task Force which conducted a thorough analysis of the 17 facilities in the municipal hospital system.

The closing of the hospital quite easily failed the intent requirement under Title VI, however the court also reviewed the decision under an “effects” test which will allow for a claim of racial discrimination to stand if it has a disparate impact on a minority group that is not justified by a legitimate governmental purpose. The concern of the low-income minority plaintiffs was that there would not be adequate facilities to take the uninsured and Medicaid patients in the community who primarily used the hospital slated for closing. Under a disparate impact theory, the court found that the decision to close the hospital did have a disparate impact on low-income minorities. After reviewing the findings of the Task Force, the court concluded that the closure was justified by the need for efficient operation of the municipal hospital system. This case shows the difficulty in proving discrimination, intentional and disparate impact, under Title VI and the rather easy “justifiability hurdle” placed on the State in disparate impact claims.

NAACP v. The Medical Center, 657 United States Court of Appeals, Third Circuit 1322 (1981). Pages: 31.

A group of advocacy organizations brought a claim of Title VI discrimination against the Wilmington Medical Center, consisting of a group of three non-profit healthcare facilities. The plaintiffs challenged the medical center’s decision to reorganize, moving many of the Medical Center’s services to suburbs away from the inner-city location. The court spent minimal time discussing the plaintiffs’ claim of intentional discrimination, finding no evidence of the requisite intent in the Medical Center’s decision to relocate.

The court discussed at length the framework for arguing a claim of disparate impact under Title VI. The plaintiff bears the initial burden of making a prima facie case, proving that the defendant’s action, although facially neutral, has a disparate impact on a protected class. However, even if a prima facie case is proved, the defendant may escape liability by demonstrating that less discriminatory means would not accomplish the defendant’s business purposes.

This case makes clear that most Title VI plaintiffs claiming disparate treatment or impact by a healthcare facility will likely find themselves between a rock and a hard place. Absent extreme carelessness by the defendant, proof of intentional discrimination by the defendant will not be readily available. On the other hand, a defendant can justify its business decisions that fall more harshly on minorities by showing that there was no other way to accomplish its goals or continuing to serve that population is expense prohibitive.


Law Review Articles:


Maxwell Mehlman & Karen Visocan, Medicare and Medicaid: Are They Just Health Care Systems?, 29 Houston Law Review 835 (1992). Total pages: 27.

This article explores whether, and how, the Medicare and Medicaid programs abide by and promote concepts of justice. The article focuses on three primary concepts of justice: equality, redistributive justice, and equity.

Equality. The article intimates that there may be some inefficiencies in Medicaid system because eligibility is determined, among other things, by financial standing and not on medical need. Additionally, the authors state that the Medicaid program is incomplete. Medicaid is jointly funded by states and the federal government. States have some latitude in deciding what services and how much of those services will be covered by Medicaid funds, which effectively bars some who otherwise meet the eligibility requirements of the Medicaid program.

Redistributive Justice. The authors point out that while the goal of the Medicaid program is to pool resources from those who have available resources and distribute it to those with little to no resources, the system is being gamed by those in the former category. In the case of long-term care, some who would be ineligible for Medicaid coverage are able to get creative with their assets and wealth to become eligible for Medicaid coverage of long-term care costs.

Equity. Finally, the authors bring to light the fact that Medicaid program may be sufficiently complex so as to bar those who would otherwise be eligible. This could be the result of socioeconomic factors and educational disparities between those who are eligible for Medicaid and those who are not.

 

Walter L. Stiehm, Poverty Law: Access to Healthcare and Barriers to the Poor, 4 Quinnipiac Health Law Journal 279 (2001). Pages: 26.

This article identifies and explores a number of direct and indirect economic and non-economic barriers to access to healthcare services imposed on the low-income population. Well-documented factors such as race, ethnicity, culture, language, and education were explored. The article also discusses a number of other factors that are less well-known such as: ability to take time off of work, availability of child care services, and coverage of select services by Medicaid.

The article discusses the economic pitfall that much of the “working poor” population falls into by working low-income jobs that do not offer employer-funded healthcare programs but that same population makes too much money to be eligible for the Medicaid safety net. Also, education level is an important factor in barriers to access to healthcare services. These two factors are significant to the Black population because Blacks tend to be less educated and have lower income than whites, contributing to an imbalance in access to adequate healthcare services.

Also, the article discusses the lack of availability of physicians in low-income urban areas. Low reimbursement from the Medicaid program causes many physicians to not serve such populations, of which Blacks are a significant portion of enrollees.

 

Carol Ewald Bowen, Medicare and Medicaid: An Overview of Existing Programs and Compliance Issues, 2009 Westlaw 534744 (2009). Pages: 12.

This article provides a summary of the Medicare and Medicaid programs but primarily focuses on common compliance issues that arise in relation to practitioners and healthcare facilities. One of the more interesting points raised in the article is that the most common type of fraud under these programs are related to billing and coding (i.e. billing for services not actually provided, ect). As has been found in other readings, there seems to be diminishing incentives for providers to take patients enrolled in the federal programs, which could lead to attempts by providers to “up-charge” patients enrolled in these programs.

 

Melanie K. Gross, Invisible Shackles and the Compromise to the Medical Civil Rights Movement, 47 Howard Law Journal 943 (2004). Pages: 40

This primary focus of this article is an analysis of the Alexander v. Sandoval case and the implications that case has had, and continues to have, on the ability to combat racial discrimination in healthcare. This article also identified some of the prominent results of racial discrimination in healthcare. Specifically, the author purports that the issue of “access” today is less about Blacks getting in the door of healthcare facilities and more about what happens once they get in the door. The author points to racial disparities in disease areas such as: maternal and child care, cardiovascular care, cancer screening and diagnosis, and HIV/AIDS. Also, access to adequate healthcare providers and facilities contribute to the resultant racial disparities in health outcomes. The article also points out that Blacks tend to rely heavily on public clinics and ambulatory care centers that are being closed in favor of for-profit facilities outside of communities where reliance on Medicaid is heaviest.

 

Gwendolyn Roberts Majette, Access to Health Care: What a Difference Shades of Color Make, 12 Annals of Health Law 121 (2003). Pages: 18.

This article explores the racial basis of disparities in access to adequate health care. The author identifies four components that help define access: Affordability, availability, usability, and acceptability. The author contends that health disparities based on race are inevitable because the health care system is based on, and run by, a white male paradigm which fails to identify with those who fall significantly outside of that classification. The author points out, among other things, two facts that contribute to the discrimination experienced by minorities in access to health care: Availability of insurance and availability of health care providers and facilities. First, minorities are disproportionately represented in marginal low-paying positions that skimp on the provision of health care benefits to employees. The inference can be made that these “working poor” may have an income that is too high to be eligible for Medicaid and not significant enough to warrant an employer-sponsored health benefit plan. This represents a huge gap in coverage for many minorities.

Second, the author addresses some significant cases representing failed attempts by minorities to use Title VI to keep health care facilities in minority communities. The barriers to bring a winning claim of disparate impact against a health care provider are almost insurmountable, seeming to frustrate the purpose of Title VI to prohibit federally funded entities from acting in ways that tend to discriminate a population based on a protected class.

 

M. Gregg Bloche, Race and Discretion in American Medicine, 1 Yale Journal of Health Policy, Law, and Ethics 95 (2001). Pages: 27.

This article explores the racial and socioeconomic disparities in America’s health care system. The author proffers that American politics has a fascination with overt discrimination based on quality and access experienced by people of color while ignoring the disparate impact a discriminatory health care system has on those of a lower socioeconomic status, even though there is an identifiable link between race, socioeconomic status, and access to health care resources. The author believes that the issue should be framed in the context of the “race-related economic disadvantage arising from pervasive racial bias.”

Concerning Medicaid, the author believes that the reimbursement rates that physician’s receive for performing services to Medicaid enrollees serves as one barrier that creates an inherent disadvantage to those of lower socioeconomic status. Additionally, because private physicians are not compelled to accept Medicaid rates (private physicians, even those that accept Medicare patients, are generally not considered entities that receive federal funds according to Title VI) many enrollees are confined to public hospitals and clinics that are limited by tight financial constraints.

 

Michael Campbell, Did I Do That? An Argument for Requiring Pennsylvania to Evaluate the Racial Impact of Medicaid Policy Decisions Prior to Implementation, 82 Temple Law Review 1163 (2010). Pages: 15.

This article explores Medicaid policy decisions and the subsequent effects, both positive and negative, that such policy decisions have on minority communities in Pennsylvania. While the article focuses on state policies promulgated Pennsylvania, there are relevant solutions that apply to Medicaid as a federal policy on a broader level.

Throughout the country, Medicaid is a dominant force in residents’ payment for long-term nursing home care. However, Medicaid payments to non-government facilities are limited to Medicare reimbursement rates. Thus, there is little financial incentive for nursing homes to take residents enrolled in Medicaid. The interaction between the financial constraints and strategic financial maneuvering by nursing home administrators creates an interesting phenomenon which adversely impacts people of color. First, private nursing homes know that Medicaid reimburse rates are limited by federal regulations. Thus, the nursing homes move out of the urban areas (if they were even there in the first place) to the more affluent areas where Blacks are disproportionately underrepresented and nursing home residents pay for their services with private funds. Eventually, if the residents live long enough, those private funds will run out, requiring the residents to enroll in Medicaid to continue receiving services. Federal law prohibits nursing homes from discharging residents because they become enrolled in Medicaid. Thus, the private pay beds are converted to Medicaid beds, but the people in those Medicaid beds are not those originally intended to be beneficiaries of Medicaid, rather it’s the formely-affluent white resident who ran out of money, leaving historically-poor Blacks to find other, likely substandard, means of long-term care.

 

Thad Kousser, The Politics of Discretionary Spending, 1980-1993, 27 Journal of Health Politics, Policy & Law 639 (2002). Pages: 26.

Through detailed analysis the author attempts to demonstrate the influence that state politics have on funds allocated to the Medicaid program. The author makes clear that by “political power” the author means which party controls (greater than 50%) the state legislature, not the political party of the governor. Additionally, the author indicates that his focus is only on discretionary spending of the Medicaid program over which the states have considerable latitude.

One of the interesting findings that supported the author’s initial research was that studies have shown that the larger a state’s nonwhite population is, the less money the state’s leaders allocate to welfare program that tend to disproportionately benefit minorities. This seems somewhat backwards because, as statistics have shown, minorities are heavily depended on state welfare programs, including Medicaid. The proffered explanation for this phenomenon is that race is a more politicized issue in those states and state leaders, in an effort to not polarize white voters, curtail spending on such social benefit programs.

 

Ruqaiijah Yearby, African Americans Can’t Win, Break Even, or Get Out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (2010). Pages: 29.

This article focuses primarily on the disproportionate representation of African Americans in low quality long-term nursing homes as compared to whites. As a basic foundation for the author’s argument, three levels of racial bias are identified: Structural, institutional, and interpersonal. The author’s argument of structural racial bias is of particular relevance in regard to the impact of structural barriers on African Americans’ ability to receive equal treatment via the federally funded health programs.

A national study of nursing homes conducted in 2004 concluded that the nursing home system consists of two tiers: high and low. The low tier nursing homes generally have Medicaid as the primary source of payment, poor quality of care, fewer nurses than high-tier counterparts, and a number of other unfavorable characteristics. Alarmingly, albeit not surprisingly, nine per cent of whites reside in these low tier facilities compared to 40 per cent of African Americans.

African Americans are disproportionately represented in the Medicaid program. The Medicaid program only provides limited resources to nursing home facilities that tend to serve a majority of Medicaid enrollees, sometimes paying less than the cost of services rendered. Consequently, because Blacks are over-represented in Medicaid and nursing home facilities that cater to a predominantly African American populations tend to be of lower quality, African Americans are adversely impacted in quality of care and resources allocated to long-term care facilities.

 

Laura Hermer, The States’ Challenge to the Affordable Care Act’s Medicaid Expansion, 33 Whittier Law Review 1 (2011). Pages: 10.

The author outlines the challenges that have been raised by a number of states to the Affordable Care Act [“ACA”]. These challenges arise as a result of fundamental tension between state and federal interests and authority [“Your money, my rules”]. Most famously, cases have arisen in Florida challenging the ACA’s eligibility expansion of the Medicaid program to include childless adults who are under 65. Additionally, the Constitutional challenges to the ACA focus on the ACA’s attempt to implement a near-universal program system of health care coverage. A controversial way the ACA seeks to accomplish this goal is by imposing a penalty, effective in 2014, on individuals who do not have some source of health care coverage. States claim that this is effectively Congress over-stepping its boundaries and regulating what should be considered a matter of state concern.

The author proposes that Medicaid be federalized. Under the current structure, Medicaid is funded by state and federal funds. States are required to provide a minimum level of coverage to a federally-mandated population but retain some latitude in who is covered and what services are covered. The author suggests changing the system to be wholly-run by the Federal Government and funded by a payroll tax, similar to the Medicare program. The increase in funding through this structure would allocate a portion of funds to increase provider reimbursement to at least match Medicare levels.

 

Matthew McKennan, Medicaid Access After Health Reform: The Shifting Legal Basis for Equal Access, 7 Seton Hall Circuit Review 477 (2011). Pages: 30.

The author focuses on the changes to the Medicaid that have been, and will continue to be, implemented as a result of the passing of President Obama’s Patient Protection and Affordable Care Act in 2010. The author identifies many of the well-known deficiencies of the Medicaid program, including low reimbursement rates that serve as strong disincentives to provide care, and subsequently access, to the low income population enrolled in the Medicaid program.

The crux of the author’s work is the fact that there need to be changes to the legal framework for holding the state and federal governments responsible for running a Medicaid program that doesn’t create a chasm between the care and services received by those enrolled in Medicaid and those covered by private insurance. The author suggests a private right of action to enforce the Medicaid Act, most specifically, §30(A) which requires that Medicaid rates be maintained at a level above that which becomes cost-prohibitive for providers treating Medicaid enrollees. The author proposes that this would hold states accountable for ensuring that the low income population’s access isn’t hampered by private physicians electing to not participate in the Medicaid program because of low reimbursement rates.

 

Sara Rosenbaum & Benjamin D. Sommers, Rethinking Medicaid in the New Normal, 5 St. Louis University Journal of Health Law & Policy 127 (2011). Pages: 20.

This article focuses on a discussion of the concerns related to the proposed expansion of Medicaid eligibility as a result of the Patient Protection and Affordable Care Act (“ACA”). The concern of particular relevance and importance is whether the proposed expansions will simultaneously expand access, rather than simply increase eligibility to a program that only nominally provides access to the intended populations. Low rates of provider reimbursement, leading to provider non-participation, serves as a significant barrier to access to many of Medicaid’s intended low-income beneficiaries.

As a remedy to the history of categorical exclusion, the authors address some of the proposed changes to Medicaid that are expected to increase access to the low-income individuals, including: Financial support from the Federal Government to support new enrollees and simplification of the Medicaid enrollment process coupled with streamlined eligibility determination. Ultimately, the authors conclude that the continuation of Medicaid is vital to the support of low-income individuals and that the ACA makes respectable efforts to increase access while eliminating barriers that have been a staple of the program.

 

Renee M. Landers & Patrick A. Leeman, Medicaid Expansion Under the 2010 Health Care Reform Legislation: The Continuing Evolution of Medicaid’s Central Role in American Health Care, 7 National Academy of Elder Law Attorneys Journal 143 (2011). Pages: 24.

This article provides a solid summary of the changes to the Medicaid program via the eligibility expansion provisions implemented under the Patient Protection and Affordable Care Act (“ACA”). The article also provides information on how these expansion provisions are supported financially as a result of covering “new” populations with a basic level of health care services. The article also addresses the opposition to the changes to the Medicaid program via the ACA. Of most recent interest, the ACA has been challenged by the states on the ground that the “penalty” is not a constitutional exercise of the Federal Government’s authority under the Commerce Clause.


Websites:

The Henry J. Kaiser Family Foundation, Medicaid’s Role for Black Americans, http://www.kff.org/medicaid/upload/8188.pdf (accessed Feb. 11, 2012). Pages: 2.

This article provides census data and analysis related to the insurance coverage of Black Americans. The articles points out that, in 2009*, almost one in three Blacks were covered by Medicaid. Additionally, more than one in five Blacks was completely uninsured. Approximately 75% of poor and near-poor Blacks were covered by Medicaid. What about the other 25%? Finally, there are substantial revisions to the Medicaid program, via the APA, that will make an additional four million Blacks eligible for Medicaid.

*All data is taken from 2009


The Henry J. Kaiser Family Foundation, A Guide to the Supreme Court’s Review of the 2010 Health Care Reform Law, http://www.kff.org/healthreform/upload/8270-2.pdf (accessed Feb. 20, 2012). Pages: 10.

This article addresses the main issues to be addressed in oral arguments to the Supreme Court in late March 2012. The primary issues of Constitutional concern are: The individual mandate of insurance coverage and the expansion of Medicaid coverage.

Medicaid generally covers pregnant women and children under the age of six at or below 133% of the federal poverty level (FPL), children ages six through 18 with family incomes at or below 100% of the FPL, and adults who qualify for social security based on low income and disability status (population is generally 65 or older). The expansion to Medicaid eligibility seems to extend to most low income people (not just women and children) who are at or below 133% of the FPL. This expansion is anticipated to provide eligibility for an additional 16 million Americans. It seems that one of the concerns from the perspective of the states is the cost associated with coverage of this additional population as Medicaid funding is supplied jointly by states and the federal government. The government will initially foot the bill of the expanded coverage, but the government’s contributions will decrease in subsequent years, pushing the cost to the states.

 

The Henry J. Kaiser Family Foundation, Explaining Health Care Reform: Questions about Medicaid’s Role, http://www.kff.org/healthreform/upload/7920-02.pdf (accessed Jan. 23, 2012). Pages: 4.

This article addresses a number of the widely-discussed revisions to the Medicaid program that are scheduled to take place under the Affordable Care Act, including: the expansion in Mediciad eligibility, the individual mandate for insurance coverage, subsidies provided to help low-income persons obtain health insurance.

 

U.S. Department of Health and Human Services, Medical Loss Ratio: Getting Your Money’s Worth on Health Insurance, http://www.healthcare.gov/news/factsheets/2010/11/medical-loss-ratio.html (accessed Feb. 11, 2012). Pages: 4.

Insurance companies have been portrayed as villains in the healthcare industry because of the profits that continue to grow even as the country has struggled through the recent recession. This article addresses a number of the changes in the Affordable Care Act that will increase the transparency and accountability of insurance companies.

In addition to requiring insurance companies to report how premium dollars are spent, insurance companies are required to spend at least 80% of premium dollars received on medical care and quality improvements. These requirements will serve one the Affordable Care Act’s many goals – To arm consumers with information about their health care options thus causing consumers to take a more active role in the health care status.

One problem experienced by low income people of color is limited access to quality health services. The Affordable Care Act contains provisions to increase financial investment in community health centers, one of the more common location where low-income individuals go to receive care. Subsequently, this is expected to improve the number of visits by low-income individuals, as well as the care received at these locations.

 

The Henry J. Kaiser Family Foundation, The Digital Divide and Access to Health Information Online, http://www.kff.org/kaiserpolls/upload/8176.pdf (April 2011). Pages: 2.

The Affordable Care Act contains provisions that require the health information related to the federal programs and insurance alternatives be posted on the internet. This article provided demographic data that showed that almost four of 10 Blacks that earn less than $40K per year do not have a computer in the home. Additionally, of the same population, only four of 10 have used the internet to access health information. This leads to the conclusion that efforts should be made to increase awareness of the availability of health resources online, specifically targeting low income individuals who will likely be impacted by the expansion of the Affordable Care Act.

 

Lisa Potetz, Juliette Cubanski and Tricia Neuman, Medicare Spending and Financing, http://www.kff.org/medicare/upload/7731-03.pdf (accessed Feb. 7, 2012). Pages: 20.

This article provides a very broad overview of the Medicare program and many of the financial components of the program. The Medicare program is administered and funded entirely by the federal government. The program is pervasive, with Medicare spending accounting for 20% of all dollars spent on health services in 2008. Additionally, Medicare spending represented 15% of the United States’ federal budget in 2010 and is expected to account for more than 17% of the federal budget by 2020. One of the most prominent financial burdens on the Medicare program is the aging population in the United States. Between the years of 1995 and 2009 Medicare enrollment grew by an average of 623,000 enrollees each year. Between the years 2010 and 2030, Medicare enrollment is expected to grow by an average of 1.6 million enrollees each year, putting additional strain on resources.

 

The Henry J. Kaiser Family Foundation, Health Reform and Communities of Color: Implications for Racial and Ethnic Health Disparities, http://www.kff.org/medicare/upload/8016-02.pdf (accessed Feb. 11, 2012). Pages: 14.

People of color comprise 50% of the total uninsured population in the United States. This article explores the efforts made in the Affordable Care Act to address the cultural and racial disparities in healthcare coverage and access to healthcare resources.

This article quite adeptly points out that the Affordable Care Act’s provisions related to Medicaid’s eligibility expansion do not necessarily equate to an identical increase in enrollment. States will retain considerable latitude in enrollment procedures which currently work to exclude at least some eligible persons that would enroll in Medicaid with more simple procedures.

Another problem that disproportionately affects low income persons enrolled in Medicaid is limited availability of quality physicians providing care to Medicaid enrollees. This problem is generally related to reimbursement rates under Medicaid. The Affordable Care Act imposes a temporary increase in rates to fall more closely in line with Medicare reimbursement rates to incentivize physicians to provide services to enrollees.

 

The Henry J. Kaiser Family Foundation, Explaining Health Care Reform: How Will the Affordable Care Act Affect Small Businesses and Their Employees?, http://www.kff.org/medicare/upload/8275.pdf (accessed Feb. 11, 2012). Pages: 3.

Small businesses (businesses with no more than 50 employees) have notoriously failed to provide employees with adequate employer-sponsored health benefits. In 2011 more than 40% of small businesses offered no health benefits to employees compared to three per cent of businesses with more than 100 employees that did not provide health benefits to employees. The Affordable Care Act attempts to increase the availability of employer-sponsored health benefits to employees in small businesses. Insurance plans purchased by small businesses will be required to provide a minimum level of coverage to employees.

To increase the availability of employer-sponsored health benefits plans of small businesses, the Affordable Care Act imposes penalties on small businesses that do not provide employees with access to affordable insurance plans. Additionally, some small businesses with fewer than 25 employees will be eligible for tax credits for providing employer-sponsored plans (with some limitations).

 

Marsha Lillie-Blanton, Julia Paradise, Megan Thomas, Paul Jacobs and Bianca DiJulio, Racial/Ethnic Disparities in Access to Care Among Children: How Does Medicaid Do in Closing the Gaps?, http://www.kff.org/minorityhealth/upload/8031.pdf (accessed Feb. 14, 2012). Pages: 15.

This article examines the health disparities among children enrolled in the Medicaid program as compared to children who are either uninsured or covered by private insurance. The four indicators of access used in the analysis include: usual source of care, failure to have at least one ambulatory medical visit in the past year, persons reporting problems getting to necessary care, and persons reporting problems seeing a specialist. One of the more notable findings in this report is that while insurance increases access to care for children of color, barriers to access to care tend to disproportionately affect children of color.

 

The Henry J. Kaiser Family Foundation, Medicaid and the Uninsured: Key Questions About Medicaid and Its Role in State/Federal Budgets and Health Reform, http://www.kff.org/medicaid/upload/8139.pdf (accessed Mar. 18, 2012). Pages: 6.

The Affordable Care Act makes significant changes to the Medicaid program and this article serves as an overview of some of the changes incorporated in the statute. The article begins by providing a baseline review of Medicaid and its intended purpose, which is to provide a base level of healthcare coverage for low income and high need Americans. A problem that becomes evident, perhaps unwittingly, from the information in this article is the relationship between populations enrolled in Medicaid and the proportion of the total dollars spent on the respective populations. For example, dual eligibles (those who are eligible for Medicare and Medicaid) account for approximately 15% of Medicaid spending, but take up approximately 40% of all Medicaid spending. Additionally, elderly and disabled enrollees account for 25% of total Medicaid enrollment but consume about 66% of Medicaid dollars. This implores the observation that Medicaid dollars may be diverted from the intended beneficiaries and given to another population. The Affordable Care Act takes strides to remedy this disparity by expanding the eligibility of Medicaid by eliminating the requirement of having a dependent and increasing the income eligibility thresholds.

 

The Henry J. Kaiser Family Foundation, Income-relating Medicare Part B and Part D Premiums Under Current Law and Recent Proposals: What are the Implications for Beneficiaries?, http://www.kff.org/medicare/upload/8276.pdf (accessed Feb. 20, 2012). Pages: 11.

This article provides an overview of Medicare Parts B & D, respectively, outlining the efforts of policymakers to subsidize the increasing cost of the Medicare program. Some proposals seek to increase enrollment premiums across the board, while other proposals implement income-related increases in premiums. It is estimated that, with implementation of the income-related proposals to Medicare Parts B &D, more than 20 million beneficiaries will be subject to the income-related premiums, compared to approximately 7 million beneficiaries under current law.

 

Office of the Legislative Counsel, Compilation of Patient Protection and Affordable Care Act, http://housedocs.house.gov/energycommerce/ppacacon.pdf (accessed 4/13/12). Pages: 24.

One of the key provisions of the Patient Protection and Affordable Care Act (“ACA”) is the law’s eligibility expansion provision. Eligibility expands to include persons under the age of 65, who are not pregnant, and whose income does not exceed 133% of the federal poverty line. This expansion serves as a significant departure from Medicaid’s initial eligibility ties to the welfare program. The significant cost of covering newly eligible persons will, initially, be borne solely by the federal government through increased federal contribution for this new population of beneficiaries.

Through the law, the government takes a more purpose-focused approach by providing financial incentives for states to implement preventive programs and meeting health outcomes targets. This seems to show the government’s desire to provide more than a healthcare program in name only, but focusing on creating a healthier population.

The ACA also contains provisions that specifically relate to improving the access to health services and the health status of minorities. The federal government will appropriate funds for the improvement of minority health through increased access and education until the year 2016.

The ACA also addresses provider enrollment by increasing the reimbursement rate for Medicaid to at least match the Medicare rate. This will specifically address the issue of primary care physicians electing to not provide care to Medicaid populations because of low reimbursement rates. It must be noted that these increased rates are only in effect for 2013 and 2014.

Translating Rights into Access: Language Access and the Affordable Care Act,

Joel Teitelbaum, Lara Cartwright-Smith and Sara Rosenbaum

Excerpted from: Joel Teitelbaum, Lara Cartwright-Smith and Sara Rosenbaum, Translating Rights into Access: Language Access and the Affordable Care Act, 38 American Journal of Law & Medicine 348 (2012) (179 Footnotes omitted)

 

More than twenty-four million people in the United States are considered limited English proficient (LEP), and numerous studies have documented the consequences of communication barriers in healthcare. These consequences include: patients' inability to become engaged and involved in their care; the absence of crucial information--including cultural information--essential to healthcare quality; risks to patient safety arising from the misunderstanding of physician instructions; and ethical and legal lapses stemming from the absence of informed consent. Addressing healthcare rights necessarily entails coming to grips with how to facilitate communication and the exchange of information between the healthcare system and an increasingly diverse patient population.

The history of language access services in healthcare is grounded in two distinct bodies of law: the law of informed consent and civil rights law. Modern notions of informed consent law--which have their roots in the Nuremberg trials of the late 1940s--would recognize a cause of action in tort where a lack of adequate communication creates a barrier to an LEP patient's ability to consent to care. In modern healthcare law, the ability of patients to affirmatively give informed consent to treatment is considered a fundamental element of healthcare quality. In addition, a substantial body of civil rights law--specifically, Title VI of the 1964 Civil Rights Act, which bars discrimination in federally supported healthcare activities on the basis of race or national origin, and section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), which together prohibit discrimination against qualified persons with disabilities in public programs and by public accommodations--has extended the principle of language access in healthcare by establishing the concept of communication-related rights.

The Patient Protection and Affordable Care Act (commonly known as the Affordable Care Act, and referred to as the ACA in this Article) borrows from the traditions of both race- and disability-based anti-discrimination law and, in the process, gives new resonance to the nexus of healthcare quality and civil rights law. It does so by introducing a new legal structure for healthcare that seeks to realign the system away from concepts of largesse and toward an expectation of equity, not just in access to health insurance coverage, but in the receipt of healthcare that is appropriate in both level and quality. With time, careful implementation, and effective oversight and enforcement, the ACA has the potential to improve healthcare access and quality for LEP individuals and to reduce communication barriers between patients and providers. The ACA positions the nation for this important advance through a series of reforms, some aimed at reducing barriers to health insurance coverage, some directly aimed at building health system capacity in communities in which it is needed, and some by focusing the nation on the development of national standards that permit the evaluation of quality at the critical sub-population level, where disparities in health and healthcare appear. In essence, the ACA attempts to bend the health equity curve by introducing a legal architecture within the healthcare system that seeks to place its financial transaction dimensions within the broader context of patient outcomes. Viewing the ACA through this lens, it is possible to see its eventual promise even for the most vulnerable populations.

Nonetheless, individual enforcement actions will continue to play a crucial role in defining the rights of patients and the responsibilities of providers. The ACA creates no federal right to healthcare of a certain quality, nor does it immediately broaden the armament of civil rights enforcement tools through new rights of action or a realignment of the burden of proof in disparate impact litigation, the most common type of civil rights case. The ACA offers a heightened set of global and systemic expectations about how the healthcare system will respond to patients, even patients who require some redesigned systems and practices to ensure the achievement of high quality healthcare.

This Article focuses on several aspects of language services law and policy in healthcare. Part II presents evidence regarding the role of communication in healthcare quality as well as evidence of the scope of the language access problem. It also presents a brief overview of the rise of the concept of informed consent as a basic dimension of the law of healthcare quality. Part III traces the evolution of relevant language services in health law and policy, including the Civil Rights Act, the ADA, and other sources of law. Part IV reviews the various ways in which the ACA presents opportunities to advance effective communication in healthcare. Part V concludes with a discussion of the legal, policy, and delivery challenges that remain, including the need for vigilant oversight of relevant ACA provisions and strong enforcement of extant laws to ensure LEP individuals' meaningful access to care.

Breaking the Barriers of Access to Health Care: The Role of Civil Rights Litigation

Marianne L. Engelman Lado


Excerpted from: Marianne L. Engelman Lado, Breaking the Barriers of Access to Health Care: A Discussion of the Role of Civil Rights Litigation and the Relationship Between Burdens of Proof and the Experience of Denial, 60 Brooklyn Law Review 239, 252-273 (1994)(109 Footnotes Omitted)



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      [W]hat roles can civil rights advocates play on behalf of their clients to address inequalities in the provision of health services? Clearly, the time has arrived for an overhaul of the health care system. During the legislative process, Congress must address issues of access, including how the President's Health Security Act and other legislative proposals deal with the inadequate number of health professionals and facilities that provide care in poor areas, and what protection each measure offers against racial discrimination. Advocates must find ways of helping their clients play a role in shaping the law and, also, participate in the process themselves.

      Significantly, while a number of the proposals currently on the table promise to bring about major improvements in the nation's health delivery system, none would put an end to the segregation, racial discrimination, or policies and practices of exclusion that have characterized the provision of medical care in the United States from its inception. As Derrick Bell cautions [p253] us, we must acknowledge the fact that ‘racism is a permanent component of American life.‘ And, to the extent that the reform packages retain divisions in the financing and delivery of services between the employed and the unemployed, or between the employed and those on public assistance-divisions that correspond to strata in our society-advocacy, including litigation, targeted at structural forms of discrimination will continue to be crucial.

      Most generally, litigation can play a critical role in challenging practices that result in an unjust distribution of health services. Ironically, the sheer number of laws on the books suggest that poor people should already have adequate access to health care facilities. Many of the exclusionary policies and practices employed today are illegal and remediable. Indeed, civil rights statutes and equal access laws expressly prohibit discrimination on the basis of race and, in some cases, payor status. These statutes place affirmative obligations on the states not only to enforce civil rights laws but to ensure access to health care for Medicaid participants. Unfortunately, [p254] these statutes are not being enforced with any regularity, as the federal government and the states routinely fail to take enforcement action. Fortunately, however, most of these statutes permit private plaintiffs to bring lawsuits to challenge barriers of access to services for the poor. It is part of the lawyer's job to press for enforcement of the law and, where necessary, to litigate.

      Lawsuits have at least three interrelated purposes. First, and, perhaps most importantly, as individual challenges to discriminatory or exclusionary practices, lawsuits bring relief to a plaintiff or group of plaintiffs.

      Second, suits build a record of discriminatory and exclusionary practices, a record that can be used by advocates to educate the public and to support legislative and administrative change. This function requires lawyers to listen [p255] carefully to their clients and, then, to use their legal skills to make the stories public.

      Third, collectively, these suits constitute a direct assault on the wall separating care for individuals of different racial or ethnic backgrounds and different income levels. This third point, in essence, suggests that enforcement of civil rights and access-oriented laws will help to undermine the viability of the current separation between the high-tech, quality care that wealthy, middle-class and predominantly white America has come to expect and the under-financed, inadequate and delayed health services so often provided to the poor and many people of color. Such litigation will contribute to a more equitable spread of the economic burden of serving the poor, thus adding to the already mounting pressure for change.

      This approach to litigation is, in a sense, a descendant and an adaptation of the law reform model developed by Charles Hamilton Houston and Thurgood Marshall to challenge segregation in the 1930s, 1940s and early 1950s. These legal pioneers developed a record of cases that challenged unequal conditions experienced by African Americans as violative of the law, pursuant to the ‘separate but equal‘ doctrine of Plessy v. Ferguson. By so doing, they sought to undermine the basis for and legality of the prevailing doctrine. The strategy, together with changing mores and societal pressure, forced the Supreme Court to address the fundamental inequity of segregation and to bring its interpretation of the Constitution in line with a morality of human equality.

      Unlike the effort that led to Brown v. Board of Education, however, the stream of litigation addressing inequality in access to health care does not flow directly to the Supreme [p256] Court. Civil rights litigation in the health care area is designed, instead, to enforce existing law and, thereby, to inform and contribute to the movement for national health reform, not only this year but in the future, as new financing and delivery systems develop. The wall of separation between health care for rich and poor, privately insured and uninsured, and white and black, has been a bulwark against a tide of true reform, as the poor and people of color lack political clout and the multi- tiered system has insulated many middle-class whites from sharing experiences of deprivation and denial.

      Litigation is only one of a number of approaches that must be taken to close the gap. The attack must be coordinated and multi-faceted, and it must include not only lawsuits, but legislative work, public education and outreach efforts, community action, and greater emphasis on the direct provision of care by health professionals in low-income communities. Although the recent judicial climate does not preclude the development and implementation of an effective litigation strategy, litigators must be cognizant of the increased importance of placing lawsuits in the context of multipronged advocacy. Litigation must not displace community involvement but, instead, be a means of community organizing and empowerment.

* * *

[A]dvocates must find ways to span the gulf between the realities of denial experienced by the poor and recognition of such harm, in law and fact, by courts. Since prior judicial findings against plaintiffs who previously challenged barriers of access quite obviously neither prevent nor nullify the very real experiences of exclusion sustained by our clients, it is the advocate's challenge to relate these experiences in a way that will be more meaningful in the realm of the law.

      At first blush, civil rights and other laws that protect against racial discrimination and against the infringement of rights of access would seem to prohibit the erection of structural barriers to access. Legal standards under regulations promulgated pursuant to Title VI of the Civil Rights Act of 1964, for example, explicitly prohibit denials of access and actions with discriminatory effects, as do the community service [p258] regulations promulgated pursuant to the Hill-Burton Act. Similarly, recent Supreme Court opinions have focused on the impact of laws regulating abortion services in determining whether these laws violate the judicially recognized right to privacy under the due process clauses of the Constitution's Fifth and Fourteenth Amendments. Specifically, the opinions examine whether statutory provisions produce an ‘undue burden‘ on the ability of women to obtain abortions.

      Yet time and time again, courts have looked askance at plaintiffs' challenges to denials of access and, specifically, at evidence of how defendants' methods of structuring the provision of health care burdens the poor. The problem has arisen in a number of contexts. This discussion will consider two: [p259] hospital relocation cases brought pursuant to Title VI, and challenges to restrictions on the provision of abortion services, restrictions that have particular effects on the ability of poor women to access reproductive health services. In both contexts, the challenged actions place barriers of access in the paths of the poor and burden their ability to obtain care. In both, facial readings of the applicable legal standards suggest that plaintiffs would be able to meet their burdens of proof. But in each, the experience of the poor has been devalued. Courts dismiss hardships faced by poor patients as (a) mere inconveniences or slight alterations in the options available, to be overcome by increased effort to obtain services on the part of poor individuals; or (b) issues of money, outside the purview of the courts. In each case, court assessments [p260] delegitimize or trivialize denials of access faced by the poor.

      In practice, judicial devaluation of the significance of barriers of access can take a number of forms. First, courts ‘up the ante‘, transforming a standard that requires proof of adverse impact, or evidence that defendant's decision, action, policy or practice ‘burdens‘ an activity, into a more stringent requirement, one that compels plaintiffs to demonstrate that they were foreclosed or barred from access. While under the more stringent test plaintiffs remain able to challenge some flagrant forms of exclusion, the use of an ‘effective foreclosure‘ or ‘bar‘ test rarely, if ever, allows plaintiffs to be successful on claims against structural forms of discrimination. Second, courts look dismissively at factual evidence of harm presented by plaintiffs, thereby ensuring that plaintiffs' proof will be deemed insufficient to meet the requirement that plaintiffs show the adversity or burden caused by defendant's action.

A. Challenges to Discriminatory Hospital Relocations: Mussington v. St. Luke's Roosevelt Hospital Center

      Mussington v. St. Luke's Roosevelt Hospital Center was filed in the Southern District of New York on behalf of community residents to challenge the movement of obstetric, neonatal intensive care, pediatric and other inpatient services out of the Harlem area. In 1986, New York's St. Luke's Roosevelt Hospital [p261] Center had announced plans to transfer its maternal and child care beds from a site near the medically underserved communities of Central and West Harlem to the hospital's downtown location, which serves a community that is less populated, in larger proportion white, generally healthier and of higher average income. The complaint alleged violations of Title VI and the Hill-Burton Act. In many ways, this case was a civil rights litigator's dream-lawyers represented community residents and groups that struggled on their own for five years before attorneys appeared on the scene. Community members fought in the political arena, held candlelight vigils, and otherwise demonstrated their strong commitment to retaining services that are accessible to Harlem residents. The client group had very clear ideas about how they were being harmed. They felt that, given the high incidence of illness in their communities and the shortage of providers, they could not afford the loss of a single hospital bed, much less the loss of the 300 or so-including all beds in the pediatric, obstetric and neonatal intensive care units-that were slated for removal from the Harlem area at the time.

      Moreover, the mandates of statutory law were on [p262] plaintiffs' side, except that plaintiffs faced unfavorable precedent set by a few past hospital relocation cases. Although the precedent could easily be distinguished, its presence created an imposing hurdle for this kind of litigation. Specifically, courts in three cases, United States v. Bexar County Hospital District, NAACP v. Wilmington Medical Center, Inc., and Bryan v. Koch, refused to enjoin the removal of services by health care providers from African American and Latino to white communities, despite strong evidence of discrimination and, significantly for this discussion, evidence of the need for those services in the communities of color, as well as of the harm that would be caused by their departure. Despite impressive [p263] demonstrations of fact, the issue of harm was a sticking point in these cases and as preparation for Mussington began, plaintiffs' lawyers realized that they needed to reformulate how to prove that moving hospital services away from those in greatest need-and away, not incidentally, from those with the least mobility-would have adverse effects.

      The fact that the loss of beds would adversely effect Harlem residents in need of inpatient care was obvious to the Mussington plaintiffs and other coalition members. For example, community residents stressed how important time can be to treatment. For a child with severe asthma or a seizure that causes respiratory failure, a few minutes might affect his or her chances for survival. Women in labor most often do not have the time or ability to take a bus or ride a subway to the hospital; and, for high-risk patients in labor, travel time by car influences choice of facility and, in turn, has an impact on the [p264] likelihood of delivering healthy babies. Area residents spoke about how location affects accessibility-greater distances not only increase travel time, but also the cost of transportation. Currently, for example, at least one local tenants' association keeps a few dollars on hand in case of emergency. If a resident needs to take a cab to the nearest hospital, people lend or donate the necessary four to six dollars. The supply of money is based on contributions from low-income tenants and is limited.

      Moreover, residents had particular concerns about the loss of pediatric beds. When children are in the hospital, their parents need to make frequent visits. How, the residents asked, can people visit their children, keep their jobs and watch their other children if travel time and expenses are increased? Parents already borrow money to cover the costs of transportation and babysitting. The farther the hospital, the more resistent parents become to bringing their children to the hospital, even though there are few, if any, alternative sources of health care.

      Community members became impassioned when discussing the extent to which Harlem is so grossly underserved and, also, how the area had already lost approximately ten hospitals. They felt strongly that St. Luke's Roosevelt Hospital Center was moving services in order both to reduce the number of African American and Latino patients and to try to attract more middle-class whites.

      In fact, studies in medical geography conducted in the past two decades confirm what the clients knew: the loss of beds would limit access and change patterns of hospital use, with harmful effect. Research has shown that proximity, familiarity, [p265] and socioeconomic and cultural factors are determinants of access, as evidenced by hospital utilization.

       [p266] The primary obstacle we, as lawyers, face in hospital relocation and closure cases is no longer the adoption of appropriate statutory language, the promulgation of regulations to prohibit actions with disparate effects, nor judicial recognition of such standards. Applicable anti-discrimination provisions now clearly require demonstrations of disparate effects and not evidence of discriminatory intent. Today, however, we must confront the mismatch between the experiences of our clients, who must contend with barriers of access, and the unwillingness of courts to acknowledge these experiences and to accord them weight. When a facility moves away from an African American or Latino community, particularly one with a high demand for medical services, thereby curtailing access, advocates must find ways of proving the element of harm to the courts, and, thus, of demonstrating the discriminatory nature of the action.

B. Challenges to Restrictions on the Provision of Abortion Services: Planned Parenthood of Southeastern Pennsylvania v. Casey

      The challenge is similar for advocates representing low- income women of color in suits against restrictions on access to abortion services. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court affirmed the constitutionality [p267] of a provision of the Pennsylvania Abortion Control Act that imposed a 24-hour waiting period before the performance of an abortion. The joint opinion by Justices O'Connor, Kennedy and Souter states clearly, ‘A finding of undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus.‘ Despite evidence before the Court that the waiting period and other restrictions would actively interfere with the ability of poor women to obtain abortions, the Court, with little discussion and seemingly little consideration, concluded that these provisions were not substantial obstacles to obtaining an abortion.

      It is clear that the 24-hour waiting period, for example, will significantly increase the costs and accessibility of abortions [p268] for poor women because of the limited availability of abortion services. As one brief for amici curiae suggested:

       For poor women, it is already more difficult to find the necessary financial resources, medical information, child care and time away from work. The additional delay imposed by the 24-hour waiting period-exacerbated by the likelihood of scheduling difficulties at overcrowded facilities at which poor women receive care, as well as barriers of distance and mobility-will actively interfere with the ability of poor women and women of color to obtain abortions.

      Again, the problem is less the standard, if one takes it at face value, and more the mismatch between the actual hardships faced by the poor as a result of restrictions on the provision of services and what is accepted as proof by courts, which have a tendency to dismiss the particular experiences of low-income people of color.

[p269] CONCLUSIONS

      What conclusions can be drawn from these examples? First, we must acknowledge that courts are not applying impact-oriented standards in a neutral way. Perhaps such standards were not meant to pertain to the experiences of deprivation felt by poor people of color. Perhaps, simply put, judges administer or apply the standards in a biased manner, whether conscious or unconscious of the bias. As advocates, we must, nevertheless, find ways of demonstrating the harm in fact and of highlighting, in Cornel West's words, ‘the legal system's internal contradictions and blatant hypocrisy, using the very ideals-fairness, protection, formal equality-it heralds. ‘ [p270] We must build on our evidentiary base and make our case with greater force.

      To be more effective in demonstrating harm, we need to consider strengthening relationships with social scientists working in such fields as health planning and epidemiology. For instance, although current medical geography literature is relevant to the hospital relocation issue, much could be done to demonstrate more conclusively the impact of moving services and, specifically, the effect of relocations and closures on utilization. First, medical geographers and health planners might be able to assist one another in developing a sound methodology for determining where inpatient beds and outpatient services are needed, one that takes into account both medical need, i.e., the incidence of illness in the population, and utilization patterns. Experts could then apply the methodology and present their findings in court. Such testimony might provide: (a) a sound means of assessing the legitimacy of defendants' claims that medical need justified the relocation or closure of services; (b) a measure for determining whether defendants' action represented the least discriminatory alternative; and (c) an additional indicator of the impact of the movement or closure of services on the ability of a population to obtain needed medical care.

      Second, advocates might consider using the results of surveys and [p271] in-depth interviews to supplement current information on hospital utilization. While statistical analyses of the impact of relocating or closing services on patterns of utilization can demonstrate where patients are treated after the movement or closure of beds, the numbers fail to explain adequately the causes of the impact. The statistical studies, and the expert witnesses who testify to their results, leave courts wondering why patients so often do not go for treatment to the suburbs or to the gentrified areas of town that now house new or modernized facilities. Of course, plaintiffs and area residents do testify about the impact of a relocation or closure on their ability to obtain timely and appropriate care. This testimony can be crucial, but may also be dismissed by courts as anecdotal or amounting only to demonstration of inconvenience for a few select members of the population. Expert testimony on this issue may lend support for plaintiffs' statements, diminishing the possibility that courts will discount them as idiosyncratic or unrepresentative, and can help to refute defendants' claims that patients will, in fact, follow the beds. Surveys and in-depth interviews of community members might, thus, help to fill the gap. One such study of women of childbearing age in low socioeconomic neighborhoods in the vicinity of the uptown site of St. Luke's Roosevelt Hospital Center, for example, found that no more than 34% of those surveyed-no more than 34% of a sample that was sociodemographically representative of women who would otherwise use the uptown site, the location situated near Harlem-could be expected to seek obstetric care downtown once [p272] services were moved. This study was also able to identify factors, such as distance to care and past experience, that appeared to influence the population's health care seeking behavior.

      And while there are already tremendous efforts to gather materials on the use of family planning and abortion services and the impact of regulations on the provision of abortions, generally, advocates must ensure that research focuses on the particular impact on low-income women of color. Where do women in poor counties and in rural and urban areas go for services? How do low-income women of color travel to providers? How do parental consent provisions affect the choices of adolescents from low-income families? How do such provisions affect their rates of utilization? How do mandatory waiting periods affect the choices of low-income women of color? And what has been the impact of past state restrictions on utilization by low-income women of color? In order to demonstrate the undue burden that restrictions place on our clients, we must present relevant anecdotal evidence in court [p273] and, also, must consult with researchers who can collect comprehensive data on the experiences of low-income women of color and can study how particular regulations will impact their ability to obtain services.

      In anti-discrimination suits challenging hospital relocations and closures and in litigation against statutes that place restrictions on the provision of abortion services, courts have a duty to take seriously evidence of the ways in which structural barriers preclude meaningful access to care for the poor. Whatever the prospects for a fair hearing, however, we, as advocates, must find the means to present our cases more effectively. We must develop our proof to increase the probability of prevailing on behalf of our clients and, also, to serve the broader goals of litigation. Given the tremendous barriers of access faced by low-income people of color, the pervasiveness of discriminatory practices in the provision of health care, and the less than successful judicial record in health care access cases thus far, advocates must rethink strategies and conceive of new approaches. We should, for example, augment our information base and work with epidemiologists, other social scientists, demographers and medical specialists to develop the record. Then, with greater evidentiary power, we must build our cases in the courts by relating the realities faced by our clients.


Staff Attorney for the NAACP Legal Defense & Educational Fund, Inc. (‘LDF‘).


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Access to Health Care: What a Difference Shades of Color Make

Gwendolyn Roberts Majette


From: Gwendolyn Roberts Majette, Access to Health Care: What a Difference Shades of Color Make, 12 Annals of Health Law 121 (2003) (114 Footnotes Omitted)



      In 1999, Congress provided funding to the Office of Minority Health “for a one-time Institute of Medicine study of the prevalence and impact of ethnic bias in medicine.” On March 20, 2002, the Institute of Medicine reported its findings. The report attracted worldwide attention and confirmed what minority communities have known for years: that race and ethnicity affect access to, and the quality of, health care received. Prognostications of these findings existed in 1999 when the New England Journal of Medicine published a study designed specifically to evaluate the effect of a patient's race and sex on the physician's recommendation for cardiac catheterization. The study concluded that race and sex are important, independent factors that influence how physicians manage chest pain.

      Access to health care encompasses at least four aspects of health care coverage: affordability, availability, usability, and acceptability.   More simply, access is entry into the health care system.  Gaining access is difficult for people of color because the United States health care system is based on a white male paradigm.  This paradigm explicitly highlights race, ethnicity and sex, and implicitly economic status, due to the dominance of white males in employment positions of power and high compensation.

      This article outlines some of the major issues that affect access to health  care for various minority communities, focusing on barriers to access for four distinct racial/ethnic groups: African Americans, Asian Americans, Hispanic Americans, and Native Americans.  This comparative analysis shows that race, ethnicity, and sex affect whether one receives health care, as well as the quality of health care received.  The only difference among the various ethnic groups is how the adverse effect manifests itself.

      Part I outlines two key factors affecting access to care - race and ethnicity - and defines access to care.  Part II defines the barriers to access of health care and discusses some of the previously unsuccessful legal solutions and remedies.  Part III outlines how practitioners in various disciplines can combine their knowledge to develop a strategy that will end the use of a patient's race and ethnicity as a determinative factor in one's receipt of quality health care.


II. Barriers to Access to Health Care

A. Availability of Insurance

      Studies have repeatedly shown that persistent barriers to health care access are a major cause of the poor health status of people of color.   Because health care is expensive, the main determinant to accessing health care is the availability of insurance.  In the United States, availability of insurance is almost inextricably tied to employment.   Because people of color, and especially women, are stereotyped into marginal, low or no-skilled, low paying jobs, or are unemployed, they represent a disproportionate number of the uninsured population.   For example, the uninsured rate for Hispanics is 35% and 32.8% for Native Americans.   For African Americans and Asian Pacific Islanders, the rates are 22.8% and 22%, respectively.   In contrast, the uninsured rate for Caucasians is 12.7%.

      Financing health care for the Native American community is a significant problem, despite the federal government's responsibility to provide health care for American Indians and Alaska Natives from federally recognized tribes.   This is because financing for Native American health programs is dependent upon adequate congressional appropriations, and Congress has consistently failed to provide resources sufficient to address the health care needs of the Native American community.

      An additional insurance barrier for racial and ethnic minorities is immigration status.   Recent changes to Medicaid, a public insurance program, deny services to immigrants, even though they are legal residents.   Moreover, immigrants are less likely to have employer-sponsored health insurance because they often work in low-wage, low-benefit jobs.   This issue is especially important for the immigrant-dominant, Hispanic, and Asian Pacific Islander populations.

      For those minorities fortunate enough to have insurance, additional barriers exist with respect to the type of insurance typically purchased by minorities.  Studies show that “racial and ethnic minorities are more likely than whites to be enrolled in ‘lower-end’ health plans.” These plans generally have fewer resources and place more restrictions on services covered by the policies.


B. Availability of Health Care Providers

      Another barrier to health care is the lack of accessible medical providers.  Studies show that there is a limited supply of health resources in poor, racial, and ethnic minority communities, thus necessitating the creation of hospital-based providers and community health centers.   Geographic proximity is critical for Hispanic and African American communities, because people in these communities are more likely to rely on public transportation, which increases the time and costs required to receive care.   This is also an important issue in the Native American community, because most health care services provided by the Indian Health Service are provided in rural areas and on reservations.  Yet, over 50% of Native Americans live in urban areas. Additionally, many non-Native health care providers refuse to serve Native Americans because of uncertainty about reimbursement.

      The lack of accessible medical providers is exacerbated by two obstacles: (1) difficulty in maintaining health care facilities within the community and, (2) difficulty in training sufficient numbers of physicians of color, who are the health care providers that typically provide health care to people of color.

(i) Health Care Facilities

      The main reason minority communities have difficulty maintaining health care facilities within their boundaries is economics--their clientele cannot afford to pay for the services provided.  Consider, for example, the June 25, 2001, closing of D.C. General Hospital, located in the southeastern quadrant of the District of Columbia, an area that is characterized by poverty and poor health status.  Southeast D.C. has the highest concentrations of low-income and Black residents in the city, and is plagued by high incidences of heart disease, infant mortality, and cancer.   Of the eleven hospitals located in the District of Columbia, D.C. General was one of three located in southeast D.C.

      For years there were rumblings from Congress and some quarters of the District Government about closing the hospital as a cost-cutting measure, in spite of the fact that the hospital saw over half of the trauma cases in the District and provided the bulk of uncompensated care (36%) to D.C. residents.   The crux of the financial problem was that the hospital was treating a significant number of patients who were uninsured, the hospital was mismanaged, and the facility was poorly maintained and obsolete.   Additionally, there was evidence that the services D.C. General provided to its uninsured patients could be purchased at half the cost from private hospitals and clinics in other parts of the District.   In light of these circumstances and factors, the closing of D.C. General was inevitable.

      When these communities have sought legal recourse to keep health care providers, like hospitals, from closing or moving to seemingly more prosperous areas like the suburbs, they have largely been unsuccessful.   Typically, aggrieved community members assert an action against the hospital under Title VI of the Civil Rights Act of 1964 in an attempt to block the hospital's pending move. Title VI provides, “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” The Supreme Court has held that the Title VI statute prohibits only intentional discrimination. However, the regulations enforcing the statute go even further and specifically prohibit recipients from determining the site or location of a facility:

       with the effect of excluding individuals from, denying them the  benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin, or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of [Title VI] or [its implementing regulations].

      Unfortunately, due to a recent Supreme Court case, Alexander v. Sandoval, the regulations will not be as powerful a tool in eradicating discrimination based on discriminatory effects because private litigants, including advocacy organizations, can no longer bring a private right of action under the regulations.   Private litigants can only bring suits for intentional discrimination under Title VI and its implementing regulations.   Sandoval does not prevent the Office of Civil Rights from bringing discriminatory effects cases under the Title VI regulations.   Additionally, while the regulations are still valid, several justices on the Supreme Court have also questioned the validity of the regulation prohibiting discriminatory impact.

      Courts analyzing Title VI regulation claims use a burden-shifting model, which requires that the plaintiffs make a prima facie showing that the relocation of the hospital discriminatorily impacts minorities.   If plaintiffs meet this burden, the burden shifts to the defendants to show that the disproportionate impact is a matter of necessity, or that the relocation is manifestly related to the facility's legitimate goals.  The plaintiffs may rebut the defendant's necessity claim by showing that other less discriminatory relocation alternatives exist.

      Bryan v. Koch exemplifies the typical unsuccessful Title VI action challenging a hospital's closure decision.   There, despite the court's finding that the plaintiffs sufficiently established that the closure of a hospital disproportionately impacted African Americans and Latinos, the Second Circuit ultimately held that there was no Title VI violation.  If a Title VI violation were found, it would have allowed the court to block the closure of the hospital.  Specifically, in Bryan, the Sydenham Hospital was located in central Harlem, New York City, and 98% of its patients were African American or Latino.   The City argued that it needed to close Sydenham to reduce expenditures and increase efficiency within the municipal hospital system.   In particular, it argued that Sydenham was the smallest hospital within the system, operated under a large deficit, had an obsolete facility in need of costly renovation, and was thirty minutes away from other hospitals that offered comparable services and accepted Medicaid patients.   The majority opinion rejected the plaintiffs' argument that less discriminatory alternatives existed, such as hospital mergers, regionalization of services, increasing Sydenham's service, or increasing Medicaid reimbursement.   The court focused solely on whether Sydenham was the most appropriate hospital to close among the seventeen municipal hospitals.

      Justice Kearse, who dissented in part, criticized the majority's decision because it did not carefully scrutinize the city's decision-making process, nor its decision.   Judge Kearse stated:

       No one would contest the fact that the City must assign priorities among competing economic demands and evaluate political and economic alternatives.  But in my view, when a recipient of federal moneys makes a decision to use those moneys in a way which has disparate racial impact Title VI requires that the recipient show, at the very least, that its decision was the product of a rational decision-making process.  The City has made no such showing here as to its decision to close Sydenham.

      According to Judge Kearse, the city's decision to close Sydenham was not the product of a rational decision-making process, because there was no consideration of cost saving techniques other than closure of a hospital within the city's hospital system.   Additionally, Judge Kearse found that the evidence showed that the hospitals in the surrounding area (allegedly adequate alternatives to Sydenham hospital) would not be able to treat the number of patients left by Sydenham's closure.   The facts showed that the hospital beds at these nearby hospitals were full, and that these hospitals would not accept uninsured or underinsured patients if these beds were otherwise occupied.

(ii) Minority Health Care Professionals

      Not only do minority communities have difficulty retaining health care facilities, but they also have difficulty finding health care professionals willing to provide health care services.  Studies show that “minority doctors open practices in minority neighborhoods in far greater numbers (nearly three-to-one) than do whites.” However, there is a shortage of minority physicians, and their rate of enrollment in medical schools is declining. In the United States, for most minority groups there is a disparity between the percentage of practicing minority physicians and the percentage of minorities within the population. For example, in 1998, Blacks, Hispanics, and American Indian/Alaska Natives constituted less than 6% of medical school graduates, yet these three groups made up 28% of the U.S. population. Additionally, recent court challenges to the use of race as an admission criterion to colleges and universities, such as the case of Hopwood v. Texas, adversely impacted the numbers of minorities enrolling in medical school. For example, between 1994 and 1996, enrollment of African American students in medical schools declined 8.7%, and enrollment of African Americans in Texas' public medical schools alone dropped 54%. This trend is likely to exacerbate the existing disparity between minority physicians and the number of minorities within the United States population.

      The medical school enrollment of minorities in the 1990s increased and peaked in 1995 with an enrollment rate of 12.4%.   This increase was due in part to affirmative action programs, which most medical schools implemented in the 1970s in order to increase the number of minority physicians.   According to Michael Scotti, the Vice President of the American Medical Association's professional standards division, affirmative action programs significantly increased the numbers of women and Asians in medical schools, but did little to increase the number of African Americans and Hispanics.   In 2000, while African Americans made up 12.3% of the United States population, they made up only 7.4% of students enrolled in medical school.   The medical school enrollment rate for Native Americans was 0.8%, in contrast to their United States population percentage of 0.9%, and the rate for Mexican Americans and Puerto Rican-Mainlanders, who represent 8.5% of the population, was 3.3%.   Asian Americans, on the other hand, are not underrepresented in the medical profession.  In 2000, Asian Americans were 3.7% of the U.S. population, yet represented 19.8% of medical school graduates.

      Despite the disparities between the number of minorities enrolling in and graduating from medical school, and the number of minorities within the United States population, voluntary efforts to rectify these disparities have faced legal challenges.  The first and only Supreme Court challenge to a medical admissions program designed to increase the number of minority applicants was Regents of the University of California v. Bakke.   In Bakke, the medical school operated a two-track admission policy, with a general admissions track, and a special admissions track for disadvantaged minority students.   According to the University, the special admissions system was designed to (i) reduce the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession, (ii) counter the effects of societal discrimination, (iii) increase the number of physicians who will practice in communities currently underserved; and (iv) obtain the education benefits that flow from an ethnically diverse student body.   A white male whose application to medical school was rejected challenged the legality of the school's special admissions program under the Equal Protection Clause of the Fourteenth Amendment.

      The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court rendered a splintered plurality opinion, with Justice Powell providing the swing vote to affirm the California Supreme Court's finding that the University's admissions program was unconstitutional, and to reverse the California Supreme Court order enjoining the University from giving any consideration to race in the admissions process. However, writing for the Court, Justice Powell did state that race may be one of a number of factors considered by the school in considering applications. While Justices Brennan, White, Marshall, and Blackmun supported the use of race in the admissions process, they did so for different reasons.

      Prior to May 14, 2002, only one federal Court of Appeals followed Justice Powell's rationale in Bakke when determining the constitutionality of a professional school's use of race in its admissions policy.   In Smith v. University of Washington, the Ninth Circuit held that a “properly designed and operated race-conscious admissions program . . . would not be in violation of Title VI or the Fourteenth Amendment.” The court declined to follow other admission cases that found violations of the Fourteenth Amendment. The Ninth Circuit followed Marks v. United States and stated that the holding from a fragmented decision of the Supreme Court should be viewed as the position taken by those members concurring in the judgments on the narrowest grounds. Additionally, the Supreme Court has stated that “if precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”

      Since Bakke, several federal courts of appeal have found race-based admissions programs to be unconstitutional.   These courts have either rejected the notion that diversity in the student body is a compelling interest and found that the use of race as an admission criterion is per se violative of the Fourteenth Amendment, or have found that the admissions program at issue was not narrowly tailored to survive strict scrutiny.

      Additionally, several states have passed legislation barring the use of race in admissions policies.  In 1996, California voters passed Proposition 209, which bars the use of race in public education policies.   Thereafter, in 1998, voters in the State of Washington passed Initiative Measure 200, which provides, “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of ... public education.” These initiatives further limit the use of affirmative action programs designed to increase the numbers of minority physicians. The effect of court challenges and legislative initiatives on medical school enrollment of minority students is devastating. In 1998, two years after the passage of Proposition 209 in California, the enrollment of underrepresented minorities in California medical schools declined 32% from the mid-1990s.


C. Cultural Sensitivity and Communication

      Another aspect of accessibility is cultural sensitivity.  Studies show that “racial concordance of patient and provider is associated with greater patient participation in care processes, higher patient satisfaction, and greater adherence to treatment.” As discussed previously, while studies show that physicians of color generally provide care to people of color, they are underrepresented in the health care profession, and their numbers are insufficient to meet the health care needs of people of color. Access difficulties are compounded by the fact that prospective patients may also refuse to visit health care providers who are racially or ethnically different from them. Establishing a trusting and productive provider-patient relationship between persons who share different values, beliefs, and languages is difficult. Studies show that Native Americans are hesitant to use non-Native American providers. In fact, Native Americans living in urban areas will often travel back to their reservations for health care treatment. Additionally, Hispanic Americans who value family and holistic and personal health care may be less apt to go to bureaucratic providers that treat patients as objects.

      Language barriers may also affect access to health care.  Communication between patients and physicians is more problematic for Hispanics (33%), Asian Americans (27%), and African Americans (23%) than for Caucasians (16%).   For Asians and Hispanics, an inability to speak English coupled with a scarcity of multi-lingual health care providers poses a significant hardship on patients.   An inability to communicate can be a complete barrier to care, or it may cause misdiagnosis and inappropriate treatment of the patient's symptoms.   A recent survey revealed the following communication problems among minority patients: “(1) the doctor did not listen to everything that the [patient] said, (2) the patient did not fully understand the doctor, or (3) the patient had questions during the visit but did not ask them.”

      Another barrier to receipt of health care is the patient's lack of awareness that care is needed.  Oftentimes, formal educational resources do not portray people of color as patients.  Thus, people of color may not perceive themselves as persons needing treatment and may not seek preventative or appropriate care.   This is especially problematic, because studies show that patient education materials improve patients' knowledge about clinical encounters and their participation in health care decisions.


D. Discrimination

      The final barrier to care is discrimination.  Discrimination is the differential and negative treatment of individuals on the basis of race, ethnicity, gender, or other group membership.   In health care delivery there are three possible causes of discriminatory treatment: (1) bias or prejudice, (2) stereotyping, and (3) uncertainty in communication and clinical decision-making.” Prejudice is conscious behavior defined as an “unjustified negative attitude based on a person's group membership.” In contrast, stereotyping can be conscious or unconscious. Stereotyping is the “process by which people use social categories (e.g., race, sex) in acquiring, processing, and recalling information about others.” Uncertainty in communication and clinical decision-making is a result of the dissonance that results from intergroup communication. Here, physicians might provide less than appropriate treatment, because they must make diagnosis and treatment decisions in a short amount of time with limited or inaccurate information, including missing or misinterpreting patients' verbal and nonverbal communications.

      Discrimination in the health care system is merely a reflection of the discrimination that exists in American society.  Racial discrimination persists in several important aspects of American life, such as mortgage lending, housing, employment, and criminal justice.   Access to quality health care is no different.  For example, a recent study published in the February 25, 1999 New England Journal of Medicine found that the race and sex of a patient independently influence how physicians manage cardiac care and the use of cardiac catheterization.   The hypothesis of this study was to evaluate how a patient's race and sex influenced a physician's recommendation for cardiac catheterization.   The study also controlled the effect of differing socioeconomic status on the physician's treatment decision to avoid challenges to the study, based upon the argument that socioeconomic status was the basis for differing treatment decisions between the races.

      The conclusions of the New England Journal of Medicine study were supported by a study on physicians' perceptions about patients.  This study, by van Ryn and Burke, surveyed physicians to assess their perceptions of white and African American patients following a hospital visit.   The study found that a patient's race and socioeconomic background influence physicians' perceptions.   According to the study, physicians rated African American patients “as less intelligent, less educated, more likely to abuse drugs and alcohol, more likely to fail to comply with medical advice, and less likely to participate in . . . [treatment] than white patients.”

      The van Ryn and Burke Study reveals that an obvious consequence of a physician holding negative perceptions about ethnic minorities is that the doctor is less likely to recommend treatments, or less likely to put effort into discerning the true nature of the patient's problems.   The study also shows that a physician's stereotypical expectations may cause the doctor to engage in behavior toward the patient that causes the patient to respond in a way that confirms the negative perception held by the health care provider.

      Health care professionals, like many individuals, are reluctant to believe that they themselves engage in discriminatory behavior.  While minority communities have asserted for years that racial discrimination affects health care, the health care profession as a whole has refused to believe or admit it.  In 1998, two major reports by the United States Department of Health and Human Services, one of which was the Department's Response to the President's Initiative on Race, failed to acknowledge racial discrimination as a substantial cause of disparities in health care.   These reports merely listed (1) level of education, (2) environment, (3) income, and (4) type of occupation as substantial causes of the disparities.  Similarly, the Institute of Medicine's recent report on Unequal Treatment: Confronting Racial and Ethnic Disparities in Health Care, assumes without direct evidence that the vast majority of health care providers finds “prejudice morally abhorrent and at odds with their professional values.” However, this assumption brings little comfort to minority patients when the survey also finds that well-meaning whites, not overtly biased or prejudiced, typically demonstrate “unconscious, implicit negative racial attitudes.” Thus, from the minority patient's point of view, it does not matter whether the health care provider subconsciously or consciously engages in racial or ethnically discriminatory behavior, because the effect on the patient is the same: receipt of health care that does not meet the patient's needs.


III. Interdisciplinary Solutions

      As discussed in Part II of this article, people of color encounter several barriers to accessing health care: inability to pay for health care, including a lack of adequate insurance; a shortage of health care providers; cultural insensitivity and miscommunication with health care providers; and discrimination.  In an effort to remove these barriers to health care, there are four areas of study that should be examined and integrated: economics, business, law, and medicine.  By partnering people from these four areas of expertise, a comprehensive strategy can be developed to eliminate the role that a patient's race and ethnicity plays in one's ability to access  health  care.  Of course, to ensure that the solutions developed are practical and feasible in light of each unique culture, people of color should be integrally involved in developing the solutions.

      Economists should be consulted, because they can provide objective data that can be used to make the case for equalizing access to health  care for all Americans, regardless of ethnic and racial background.  Specifically, economists can help quantify the cost to society if we fail to remove barriers to health care, as well as the cost to society to remove the barriers.

      Business people should be consulted to help develop economic wealth in low-income minority communities so that the people will have the economic means to pay for health care services.  Business people can design programs to attract industry to the communities, so that there will be better paying jobs with good employment benefits such as health insurance.  They can also provide job training to the people in the minority communities, so that the people have the skills needed to acquire better paying jobs with benefits.

      Business people can also help reduce the shortage of health care providers available to people of color and their communities.  Business people can do this by designing business models and educational programs that show administrators of health care facilities and providers how to grow and operate a successful business that serves the uninsured, underinsured, and minority communities.  First and foremost, it must be remembered that health care delivery is a business.  As such, the facility or practice must adhere to basic business practices.  The facility or practice must provide high quality services.  Additionally, the facility or practice must market itself to patients that have the ability to pay for services, as well as to those who do not.

      A prerequisite to developing a successful business model to operate a facility or practice that serves the needs of racial and ethnic minorities is to overcome the assumption that only certain people, instead of all people, deserve high quality health care that is provided in the best environment possible.  This means that the staff is knowledgeable, friendly, and service oriented.  It also means that the facilities are aesthetically pleasing and well maintained.

      It is imperative that facilities and practices located in poorer neighborhoods are operated to attract patients from all economic levels.  This will ensure that the facility or practice receives reimbursement at all levels, high, middle, and low, instead of only low to non-existent reimbursement.  A facility or practice simply cannot continue to operate with little to no revenue.  Only facilities and practices that receive adequate reimbursement can routinely maintain their physical structure and equipment, comply with accreditation standards (facilities, operations, and residency programs), and provide appropriate compensation to the health care staff to attract and keep a highly qualified and caring staff.

      Lawyers can help define what legal remedies exist to removing barriers to care, as well as the success and failures of those remedies.  For example, lawyers can help eliminate discrimination and increase the number of health care providers accessible to people of color.  Lawyers can help minority communities use Title VI of the Civil Rights Act of 1964 to combat intentional and unintentional discrimination that impedes access to care.  For intentional discrimination, lawyers can bring suit on behalf of patients that are discriminated against.  For unintentional discrimination that results in an adverse impact on minority communities, lawyers can help advocacy groups pressure the Office of Civil Rights of the Department of Health and Human Services to more actively monitor facilities that receive federal funds to ensure compliance with Title VI of the Civil Rights Act and to pursue complaints of discrimination by patients.  Lawyers can also help minority communities combat unintentional discrimination that results in an adverse impact on the community by helping the community negotiate with the administrators and owners of health care facilities to avoid, eliminate, and reduce business decisions and practices that create barriers to health care.  For example, if a health care facility decides to relocate, lawyers can help develop and present alternative plans to the administrators and owners for achieving their same goals.

      Lawyers can also help reduce the shortage of health care providers that treat people of color by assisting educational institutions in their attempts to increase the number of providers that traditionally serve people of color-- underrepresented minority health care providers.  Lawyers can help these institutions design race-conscious admissions programs consistent with the dictates of the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act.  Lawyers can also help advocacy groups lobby against future anti-affirmative action legislation that prohibits efforts by educational institutions that actively seek to increase the number of underrepresented health care providers.

      Physicians and other health care providers should be consulted to help develop courses to train providers to be culturally sensitive, and to encourage providers to serve communities that have provider shortages.  To make health care providers culturally sensitive, diversity training should become an integral part of their training.  These courses should be offered throughout the health care provider's professional development: during the educational training; the practical training, such as residency programs; and upon completion of training through continuing education.  These courses should be designed to expose and eradicate conscious and subconscious prejudicial and stereotypical thinking about racial and ethnic minority groups.  It is also important that health care providers be routinely educated about the need to provide health care to patient populations that consistently suffer from health care provider shortages and the nobility of providing services to these communities.

      Health care providers can also identify the unique health care problems of various ethnic and racial populations.  Once the problems have been identified, the providers can then assist in the development of best practices to prevent and treat the problems.  One example of a prevention technique is to better educate the respective ethnic and racial populations on the health issues disproportionately affecting them.  Educational information should include the warning signs and symptoms of diseases, as well as information on healthy lifestyles, well-balanced diets, getting well-baby check-ups and physicals, etc.  Health care providers can also facilitate prevention and treatment of disease by educating communities on how to select the appropriate health insurance when a patient has a choice of insurance plans.  As already stated, the communities being assisted should be consulted in the development of preventative and treatment solutions to ensure that the solutions developed, although well intended, are not misguided in light of cultural differences.

      In conclusion, developing solutions to improve access to health care for people of color requires the development of a health care system that adequately responds to the needs of a socially and culturally diverse population.  Looking at the barriers to health care faced by several racial and ethnic groups-- African Americans, Asians Americans, Hispanic Americans, and Native Americans-- reveals the true prominence that color and ethnicity play in accessing health care in the United States.  Understanding this dynamic is critical to developing an effective solution, because effective solutions can only be developed once the problem is clearly defined.

      To form a comprehensive solution that removes the barriers to health care encountered by people of color requires a close examination of the barriers encountered by each group.  Developing a comprehensive solution is ideal because it promotes an integrated, collective response that efficiently deploys resources to eradicate access issues.  Additionally, taking an interdisciplinary look at the problem (economics, business, law, and medicine) is likely to result in an approach that is not only practical and feasible, but also economical.

 


 

. Legal Writing Instructor, Howard University School of Law. B.B.A, Emory University. J.D., George Washington University Law School..

The “Health Care Access” Rationale for Narrowly Tailored Race-conscious Admissions and Recruitment Policies in Health Professions Schools


Thomas E. Perez

excerpted from: Thomas E. Perez, Enhancing Access to Health Care and Eliminating Racial and Ethnic Disparities in Health Status: a Compelling Case for Health Professions Schools to Implement Race-conscious Admissions Policies, 9 Journal of Health Care Law and Policy 77, 88-104 (2006) (154 Footnotes).



A. Setting the Stage for Judicial Recognition of the “Health Care Access” Rationale for Race-Conscious Admissions and Recruitment Practices

      In the more than twenty-five years since the Bakke decision, courts and commentators have focused almost exclusively on Justice Powell's articulation of the diversity rationale and his discussion of the contours of a narrowly tailored admissions policy. Virtually no attention has been given to another rationale that the state articulated to support the policy at issue in Bakke. The Court noted in Bakke that one rationale articulated by the university to support its program was “increasing the number of physicians who will practice in communities currently underserved ....”

       The Court's discussion of this rationale was quite brief, but very instructive: Petitioner identifies, as another purpose of its program, improving the delivery of health-care services to communities currently underserved. It may be assumed that in some situations a State's interest in facilitating the health care of its citizens is sufficiently compelling to support the use of a suspect classification. But there is virtually no evidence in the record indicating that petitioner's special admissions program is either needed or geared to promote that goal ....
       Petitioner simply has not carried its burden of demonstrating that it must prefer members of particular ethnic groups over all other individuals in order to promote better health-care delivery to deprived citizens. *89 Indeed; petitioner has not shown that its preferential classification is likely to have any significant effect on the problem.

      The Court did not dismiss this rationale out of hand. In fact, the Court noted that “in some situations,” a state's interest in increasing access to health care in underserved communities “is sufficiently compelling to support the use of a suspect classification.” The Court dismissed this rationale because there was a failure of empirical proof of a relationship between this goal and a special admissions program for certain minority students.

      In the twenty-seven years since Bakke, a wealth of empirical data has emerged, demonstrating that increasing racial and ethnic diversity in the health professions will increase access to health care in underserved, minority communities and will increase access to health care for people with lower income and worse health status. Given the mountain of evidence documenting racial and ethnic disparities in health status, and the difficulties that minorities and low income populations have accessing health care, government in general and health professions schools in particular have a compelling need to identify and implement programs that will reduce disparities and increase access for communities of color. Race-conscious admissions programs will increase the number of minority health professionals, and this can reduce access gaps in minority communities.

      The bulk of the empirical data is in the physician context. This data shows that minority physicians are:

       • More likely to be in the primary care field;
       • More likely to work in health care physician shortage areas;
       • More likely to serve communities of color; and
       • More likely to serve Medicaid patients.


B. Primary Care Focus

      Increasing access to primary care services has been frequently cited as an important component of an overall strategy to eliminate racial and ethnic disparities in health status. Access to primary care services is the proverbial “ounce of prevention” that all too frequently is lacking in poor, underserved, and minority communities. The need for additional primary care physicians is a *90 chronic problem in many pockets across America. The absence of a sufficient number of primary care physicians means that scores of people do not have a regular source of health care and do not receive critical preventive health care. The challenge is most acute in minority communities. For instance, one study focusing on California documented that non-Latino whites have the highest percentage of generalist physicians per 100,000 people. Non-Latino whites have ninety generalist physicians per 100,000, whereas Latino, African American, and Asian residents have 52, 61, and 68, respectively.

      Studies demonstrate that minority physicians are substantially more likely to choose a primary care practice specialty than non-minorities. For instance, data from the Association of American Medical Colleges (AAMC) regarding practice patterns of minority graduates of American medical schools indicated that African American, Latino, Native American, and Asian medical school graduates were significantly more likely to be practicing primary care medicine than non-minority medical school graduates.

      Another team of researchers, led by Dr. Raynard Kington, who is now Deputy Director of the National Institutes of Health, reviewed the literature in this area and concluded:

       Strong, compelling evidence suggests that minority physicians are indeed more likely to provide precisely those services that may be most likely to reduce racial and ethnic health disparities, namely primary care services for underserved poor and minority populations. It is the opinion of the authors that the strength of that evidence alone is sufficient to support continued efforts to increase the numbers of physicians from underrepresented minority groups.

      Given the chronic shortages of health  care providers in so many of these communities, increasing the number of racial and ethnic minorities graduating from health professions schools is an effective and critical strategy for expanding access to primary care health services in underserved communities.


*91 C. Practice Location and Populations Served

      Thousands of communities across the United States have been designated as “Health Professionals Shortage Areas” (HPSA) by the Health Resources Services Administration of the United States Department of Health and Human Services. While these communities are by no means exclusively minority, they are disproportionately minority relative to percentage of population. In California, for instance, there is evidence that physician supply is inversely related to the concentration of African Americans and Latinos in the service area. This troubling inverse correlation appears to exist even after adjusting for community income level, and it exists in both rural and urban pockets of the state.

      This chronic access problem is not limited to California and is not limited to the African American and Latino communities. Simply stated, many minority communities have a chronic undersupply of health  care professionals, and this reality has an adverse impact on access to health  care and contributes to racial and ethnic disparities in health status.

      Although the Court in Bakke correctly noted the dearth of empirical data examining the practice patterns of minority physicians, researchers in the more than quarter century since Bakke have carefully examined practice patterns of minority physicians. The findings have been quite consistent and noteworthy: minority physicians are more likely to practice in underserved communities, and more likely to serve minority communities. Minority physicians have higher percentages of patients who are low income, covered by Medicaid, and sicker.

       *92 For instance, a 1985 study by Keith et al. of medical school graduates from the class of 1975 demonstrated that African American, Latino, and Native American physicians were almost twice as likely to be practicing in a HPSA as non-minority physicians, and were far more likely to be caring for patients of their own race or ethnicity. African American patients comprised 56% of the patient load of African American doctors and 8-14% of the caseload of non-African American physicians. Latinos comprised 30% of the caseload of Latino physicians, and 6% of the caseload of non-Latino white physicians.

      A 1996 study by Komaromy et al. focused on practice patterns of physicians in California and reached similar conclusions. African Americans comprised 52% of the caseload of African American physicians, and 9% of the caseload of non-African American physicians. Likewise, Latinos comprised 54% of the caseload of Latino physicians, and 20% of the caseload of non-Latino white physicians. This study controlled for the racial makeup of the community where the physicians practiced, and the findings nonetheless were quite stark and statistically significant.

      This study also showed that minority physicians cared for more poor people than non-minority physicians. African American doctors reported that 45% of their patients were Medicaid recipients; Asian physicians reported 30%; Latino physicians reported 24%, and non-Latino white physicians reported 18%.

      Both the Keith and Komaromy studies examined whether these practice patterns described above were by choice. Komaromy, for instance, examined minority graduates at the University of California-San Francisco, one of the most selective medical schools in the country. Graduates of UCSF have many career choices, and the researchers found that minority graduates at UCSF had substantially similar practice preferences to minority graduates elsewhere.

      A 1987 study of California physicians by Davidson and Montoya again confirmed that minority physicians care for higher percentages of Medicaid patients than non-minority doctors and see higher percentages of minority patients *93 than non-minority doctors. In this study, 32% of the minority physicians reported having Medicaid caseloads of greater than 40%, as opposed to 10% for non-minority physicians. Almost 60% of non-minority physicians reported having Medicaid caseloads of less than 10%, as opposed to 33% of minority physicians.

      In a 1995 study, Moy et al. analyzed data from a national survey that had over 15,000 respondents and found that minority physicians were more likely to provide care to racial and ethnic minority patients, poor people, and people who were sicker. Medicaid patients were 2.62 times as likely to receive their care from a minority physician as from a non-minority physician. Patients of minority physicians were much more likely to report being in poor health and having visited an emergency room than patients of non-minority physicians.

      More recently, the Association of American Medical Colleges (AAMC) released a report entitled “Minorities in Medical Education: Facts and Figures 2005.” This is the thirteenth edition of this critical compilation of data regarding minorities in medical education. In this report, the AAMC documented the findings of its 2004 Medical School Graduation Questionnaire. In this questionnaire, 21% of 2004 graduates reported that they intend to practice in an underserved community. There are noteworthy racial differences: 50% of African Americans, 41% of Native American/Alaska Natives, and 33% of Latino graduates reported an intent to practice in an underserved community, while 18.4% of white graduates reported such intent.

      The studies described herein are by no means the only bodies of research documenting the practice patterns of minority physicians. Many other studies have reached the same conclusion. In dismissing the access rationale put forth by the state, the Court in Bakke noted that there was insufficient evidence that a race-*94 conscious admissions program in question was “likely to have any significant effect on the problem” of improving access to health care in underserved communities. A quarter century later, there is a robust body of research demonstrating that increasing racial and ethnic diversity in the health professions will improve access to health care for underserved, poor, and minority communities.


D. Legal Analysis: Does the Interest in Expanding Access and Eliminating Disparities Rise to the Level of a “Compelling Interest” Justifying the Use of Narrowly Tailored Race-Conscious Admissions and Recruitment Practices?

      The concept that increasing racial and ethnic diversity in the health professions is a critical component of an overall strategy to eliminate racial and ethnic disparities in health status and improve access to health  care in underserved, minority communities is hardly novel. The famous Flexner Commission report of 1910 concluded that one of the most effective ways to meet the health care needs in African American communities was to increase the number of African American health care providers. This report was released in the context of widespread segregation in America.

      Today, while de jure segregation is unlawful, the challenges of eliminating health disparities and expanding access in underserved communities of color remain daunting. The evidence outlined in the preceding section makes the case that increasing racial and ethnic diversity in the health professions is a very effective strategy for addressing the access and disparities challenges. In fact, the Sullivan Commission on Diversity in the Healthcare Workforce, a nonpartisan, blue ribbon panel established by the Kellogg Foundation to study health care workforce diversity issues, released a report in 2004 entitled “Missing Persons: Minorities in the Health Professions.” In this report, the Sullivan Commission reached the noteworthy conclusion that the failure of the health professions to keep pace with the changing demographics in America “may be an even greater cause of disparities in health access and health outcomes than the persistent lack of health insurance for tens of millions of Americans.”

      The need to increase access and eliminate disparities is undoubtedly critical, but the question remains: would the Court conclude that this need is sufficiently “compelling” to justify the use of narrowly tailored race-conscious admissions and recruitment programs? There are three reasons for optimism that a court might *95 recognize such an interest. First, as the Court in Grutter noted, “[c]ontext matters when reviewing race-based governmental action under the Equal Protection Clause.” Health care presents a critical and appealing context from which to make the argument for recognition of such an interest. For millions of poor people and minorities in America, the health care system remains separate and unequal. This reality can have dire consequences, and the demographic transformation of America adds a heightened sense of urgency to the situation. It is necessary to implement every feasible intervention that has proven effective in increasing access to health care in underserved, poor, and minority communities. There is a robust evidence base establishing that increasing racial and ethnic diversity in the health professions will increase access to health care for poor, underserved, minority communities, and increase health outcomes. Race-conscious admissions and recruitment programs have a proven track record in increasing the number of minorities in the health professions. This context is critical.

      Second, the Court in Grutter, in adopting Justice Powell's diversity rationale, ratified a “forward looking” justification for race-conscious decision-making. Rather than limiting race-conscious decision-making to correcting past discrimination, the Court clarified that narrowly tailored race-conscious programs can be employed as a means of capturing the benefits to society of a particular compelling interest now and into the future. To put it differently, race-conscious approaches can be used in certain circumstances to address critical public policy or other societal challenges.

      Eliminating racial and ethnic disparities in health status, and expanding access to health  care for poor, underserved and minority communities, is a critical public policy and public health challenge. The Grutter Court has opened the door to consideration of other compelling interests that are not remedial in nature. The disparities and access challenges are undeniably critical challenges that must be addressed now and into the future.

      Third, there is evidence to suggest that race and ethnicity--as opposed to some other race-neutral proxy--is indeed a critical indicator in the determination of likelihood to practice in underserved communities. In examining whether courts would recognize the compelling interest in eliminating racial and ethnic disparities in health status and expanding access to health  care for poor, underserved and minority communities, it is important to analyze whether the race-conscious *96 framework is either “needed or geared to” solving the access and disparities challenges at hand. In other words, it is imperative to study whether there are race-neutral proxies that will accomplish the admittedly laudable goal of increasing access and reducing disparities by increasing racial and ethnic diversity in the health professions.

      Critics of the access framework described herein may contend that there are ample race-neutral alternatives that will increase the number of minorities graduating from health professions schools. For instance, a health professions school could simply probe an applicant's demonstrated commitment to practicing in underserved communities. Under this framework, there would be no need to consider an applicant's race or ethnicity.

      In dismissing the State's access rationale, the Court in Bakke discussed the availability of race-neutral means of measuring physicians' likelihood to practice in underserved communities:

       It may be correct to assume that some [minority doctors] will carry out this intention [to practice in underserved communities], and that it is more likely they will practice in minority communities than the average white doctor .... Nevertheless, there are more precise and reliable ways to identify applicants who are genuinely interested in the medical problems of minorities than by race. An applicant of whatever race who has demonstrated his concern for disadvantaged minorities in the past and who declares that practice in such a community is his primary professional goal would be more likely to contribute to the alleviation of the medical shortage [in underserved communities] than one who is chosen entirely on the basis of race and disadvantage. In short, there is no empirical data to demonstrate that one race is more selflessly socially oriented or by contrast that another is more selfishly acquisitive.

      There may be race-neutral alternatives that will assist in increasing racial and ethnic diversity in the health professions. However, there is evidence that race in and of itself is a powerful and better indicator and predictor of service to poor, underserved, and minority communities.

      A study in 2000 by Rabinowitz et al. focused on the practice patterns of primary care physicians and sought to identify which factors are the best predictors of their likelihood to practice in underserved communities. The research team analyzed which, if any, of the following factors predicted practice in underserved communities:

       *97 • Sex;
       • Status as underrepresented minority (defined as African American, Latino, Native American, Alaska native);
       • Family income when growing up;
       • Growing up in an inner-city or rural area;
       • National Health Service Corps participation;
       • Strong interest in underserved practice prior to medical school; and
       • Clinical experience with the underserved while in medical school.

      A number of factors correlated with increased likelihood to practice in an underserved community. However, the study team isolated the impact of each factor, and found that race was the greatest determinant of service to underrepresented communities, controlling for all other factors. This upshot of this study is that race and ethnicity matter, and matter more than any other factor in determining whether a physician will practice in an underserved community. Moreover, race and ethnicity matter independently of such other factors as socioeconomic status, prior interest in serving in underserved practice, and clinical experience with the underserved while in school. This study suggests that the Court's above-quoted pronouncement in Bakke about the availability of “more precise and reliable ways” than race or ethnicity to attack the access and disparities challenges is in fact incorrect. A nationally respected research team led by the Deputy Director of the National Institutes of Health reviewed the Rabinowitz study and noted:

       The primary intent of this study was not aimed solely at testing whether or not minority physicians provide more care to the underserved. However, the findings with respect to this study question appear quite robust.... [M]inority status [has] again emerged as significantly and independently associated with serving a substantial proportion of underserved patients in their caseloads.

      Race and ethnicity indeed appear to be the most “precise and reliable” ways of predicting practice in underserved communities, and the Rabinowitz study is not the only report to reach this conclusion. Given the health care emergencies that *98 exist in so many communities of color as a result of the lack of access to health care, it is imperative for health professions schools to be able to use race-conscious admissions and recruitment practices as a means of increasing racial and ethnic diversity in the health professions. The other indices do not appear to be as effective. Of course, such race-conscious policies and practices would have to comply with the narrow tailoring strictures set forth in Grutter. Among other things, this means that race is one of many factors that can be taken into account in a holistic review process.

      In terms of court precedents, no court has recognized the compelling interest outlined in this section. As noted earlier, courts have sanctioned non-remedial affirmative action, and have done so in settings other than simply the higher education and K-12 contexts. Police and corrections hiring are two settings in which courts have permitted race conscious decision-making. Wittmer v. Peters is the seminal case establishing that in the corrections hiring context, non-remedial race-conscious hiring policies are permissible as long as the government can demonstrate that such policies are necessary to accomplish important law enforcement objectives. Corrections experts agree that it can be very difficult to perform corrections functions effectively if the inmate population is predominantly one race or ethnicity, and the corrections officers are predominantly of a different race or ethnicity.

      In the police context, courts have upheld race-conscious hiring and promotions practices, noting that, “effective crime prevention and solution depend heavily on the public support and cooperation which result only from public respect and confidence in the police. In short, the focus is not on the superior performance of minority officers, but on the public's perception of law enforcement officials and institutions.” It is extremely difficult, if not impossible, to implement effective community policing strategies if the police force does not resemble the communities being served, because it is more difficult to earn the public trust and confidence necessary to preventing crime and building community support. Also, it can be extremely difficult to conduct effective undercover operations if a police force does not include officers of the same race or ethnicity as the community where the operations are being carried out. Citing *99 operational need, courts have repeatedly given latitude to police and corrections departments to implement narrowly tailored race-conscious hiring and promotion practices.

      The health  care setting is distinguishable from the police and corrections settings in the sense that it is at least theoretically possible to reduce health disparities and increase access to health  care for vulnerable communities without adopting race-conscious admissions policies designed to increase racial and ethnic diversity in the health professions. On the other hand, in the police setting, community policing simply does not work as effectively when a department does not reflect the community it serves. The case outlined above for judicial recognition of a compelling interest in reducing disparities and increasing access to health care for underserved, poor, minority communities is not premised on the “operational necessity” rationale set forth in the police and corrections settings. Such arguments in all likelihood would not withstand scrutiny in the health context.

      Overall, it is time for health professions schools to invest in affirmative action insurance policies by building the case for judicial recognition of the compelling interest in eliminating racial and ethnic disparities in health status and increasing access to health  care for poor, underserved, minority communities. Ample empirical evidence exists to support judicial recognition of such an interest, including evidence that race and ethnicity are the best indicators of a health care provider's likelihood of practicing in a poor, underserved, minority community. Time may be of the essence. The need to construct alternative defenses of race-conscious admissions and recruitment practices in higher education is greater in light of the fragile majority in Grutter and the retirement of Justice O'Connor, who was the architect of the Grutter framework and the decisive vote in the case.


*100 E. Does the Access Framework Have Application in the Legal Context?

      The health professions are the most effective contexts to put forth this access claim, because the evidence base is strongest. It is interesting to examine whether a similar case could be made in other professions. While the empirical basis is not as robust as in the health professions context, there is some evidence that lawyers of color are also more likely to provide service to underserved communities than their white counterparts.

      The findings of a 1997-98 survey examining the post-graduation performance and careers of minority alumni of the University of Michigan Law School found that minority alumni as a group provided much more service to minority clients than their white counterparts did. In addition, minority alumni who entered private practice tended to do more pro bono work, serve on more community boards, and exercise more community leadership through political activity than white graduates.

      This pattern of service has also been found among Asian and Pacific Islander American alumni from the UCLA School of Law. This school, which has been one of the leaders in promoting racial diversity in the legal field, implemented an affirmative action program in 1967 to give disadvantaged students of color a legal education subsidized by the state. A 1988 survey of Asian and Pacific Islander American law school alumni found that UCLA's Legal Education Opportunity Program (LEOP)/diversity alumni “contributed seven times more pro bono hours in the minority communities, and almost four times (3.7) the amount of time in minority civil or business organizations than their regular admit counterparts.” In addition, 46.7% of regular practice clients of the LEOP/diversity admittees were from ethnic or minority groups, compared to 25.2% of clients of regular Asian and Pacific Islander American admittees. LEOP/diversity admittees also served a much higher proportion (2.7 times) of low-income/working class clients in regular practice than regular admittees did. The findings suggest that excluding Asian and Pacific Islander Americans from affirmative action programs might have an adverse effect on the number of Asian and Pacific Islander American lawyers working with underserved communities.

       *101 Research conducted by the Task Force on Minorities in Legal Profession of the New Mexico State Bar combined with census data shows that minority graduates from the University of New Mexico School of Law tend to represent minority and underserved communities. The New Mexico Bar has even stated that the law school's race-sensitive admissions practices and racial diversity are “indispensable to a racially diverse state bar that can serve the legal needs of all citizens.”

      The results of these studies underscore the significant impact that law school diversity programs can have in improving access to justice for—and meeting the legal needs of—underserved communities. However, the findings are limited because they only examine several schools and certain groups of graduates. Additional research needs to be conducted to build a firm base of empirical knowledge that courts will recognize as being even more compelling. Therefore, law schools should invest in the research necessary to establish whether it is indeed accurate that lawyers of color are more likely to serve communities of color, and more likely to serve poor, underserved communities. It would be important to investigate the precise role that race and ethnicity—as compared with other race-neutral indicators—play in explaining the evidence.


III. TURNING THEORY INTO REALITY: GUIDANCE ON HOW TO MOVE THE “ACCESS” RATIONALE FORWARD

      Proponents of affirmative action in higher education owe a major debt of gratitude to Lee Bollinger, the former President of the University of Michigan, and others at the University of Michigan who made a large investment in building the case for diversity. The extensive record developed in the lower courts was a critical component of the successful defense of race-conscious admissions programs. Grutter is replete with references to the record developed in the lower court proceedings. The diversity rationale is potentially on thinner legal ice in light of Justice O'Connor's retirement, although nobody can state with any degree of certainty exactly how thin the ice has become. As a result, it is important *102 for health professions schools to build the case for judicial recognition of the access rationale.

      Schools interested in continuing the use of race-conscious admissions practices under the “access” rationale should consider the following strategies.

 

A. Research Agenda

      Despite the robust body of research outlined above regarding practice patterns of minority health care providers, a substantial research agenda remains. Although the evidence regarding practice patterns is similar across health professions, the research is most plentiful in the physician context. It is important for all health professions schools to invest in research around this question of practice patterns, so that one health profession is not in the position of having to rely primarily on data from another health profession to make the case for judicial recognition of the access rationale. The results of the research have been remarkably consistent across health professions. It is important to have a sufficient quantity of methodologically sound studies in each profession, so that schools will have the evidence base to proceed with race-conscious admissions policies designed to further the compelling interest in reducing disparities and increasing access to health  care for poor, underserved, minority communities.
 

 

B. Mission Statement Review

      Health professions schools interested in implementing race-conscious admissions and recruitment programs should re-examine their mission statements to determine how they have defined their institutional mission. Programs, policies, and practices at any institution should flow from the institution's mission statement, and it may be useful for health professions schools to conduct a self-assessment and reflect upon the importance of both diversity and service to underserved communities.

      A more explicit commitment in a mission statement to obtaining the educational benefits that flow from a diverse student body, and to producing a *103 well-trained health care professional committed to addressing the health care needs of the underserved, can form the basis of policies and practices, such as race-conscious admissions and recruitment policies, that will maximize the chances for success in achieving these goals.

 


 
C. Revamping Admissions and Recruitment Policies

      Reviewing mission statements and incorporating the elimination of disparities and improving access to underserved communities should invariably lead to the development of revised admission policies and practices. If a health professions school is contemplating race-conscious admissions policies using the access rationale, it is imperative to set forth the rationale in a written admissions policy.

      It is equally important to have the evidence base adequately developed and readily at hand in the event of a legal challenge. It is important to remember a basic adage of policy development: good facts make good law, and bad facts make bad law. Conclusory statements about the need to increase access to health  care for underserved populations—and eliminate racial and ethnic disparities— without more, will not justify the use of a race-conscious admissions policy or practice. The evidence base connecting race-conscious admissions policies and service to underserved communities exists, although it can certainly be buttressed further. Health professions schools must become conversant with this evidence base so that they are in the best position to defend against a constitutional challenge to this program.

CONCLUSION

      In the past two years, two seminal reports have been issued addressing health care workforce diversity—one by the Institute of Medicine (IOM) and one by the Sullivan Commission. The names of each report are instructive. The IOM Report is entitled In the Nation's Compelling Interest: Ensuring Diversity in the Healthcare Workforce. The Sullivan Commission Report is entitled Missing Persons: Minorities in the Health Professions. The blue ribbon panels that reviewed the health care landscape for vulnerable populations both concluded that it is indeed in the nation's compelling interest to develop a comprehensive strategy to increase the racial and ethnic diversity of the health care workforce. This is a life or death matter in so many communities across America.

      These reports were designed to be a wakeup call for policymakers, educators, communities, and other stakeholders to develop a comprehensive plan to increase racial and ethnic diversity in the health professions. This article reflects an effort to build upon the challenges outlined in these calls to action and construct an *104 additional legal framework to supplement the diversity rationale for race-conscious admissions and recruitment policies. Too many poor people and people of color simply do not have access to health care, and are suffering unnecessarily or in some cases, dying prematurely and tragically. As a nation, we must develop an aggressive strategy to expand access to health care for vulnerable people that rests on as many legal pillars as possible.

      This article has set forth the evidence base linking a race-conscious admissions program to progress in increasing access to health  care for poor, underserved, and minority communities and progress in eliminating racial and ethnic disparities in health status. It is time to put this evidence base into action and construct narrowly tailored race-conscious admissions programs on this framework. This access rationale for race-conscious decision-making in health professions schools has its roots in the Bakke decision itself. While this rationale may be untested in the courts, and would currently supplement the judicially sanctioned diversity rationale set forth in Grutter, the future status of the Grutter framework may hinge on the recent transition in the Supreme Court. As a result, while the insurance policy may not be necessary in the immediate future, it is important nonetheless to purchase this insurance policy for race-conscious admissions in the health professions.


Assistant Professor of Law, Former Director of Clinical Legal Programs, University of Maryland School of Law.


 

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