From: Vernellia Randall, Analysis of Health Care Reform and Eliminating Racial Discrimination, December 1, 2009.
“It’s a puzzlement,” sang Yul Brenner in “The King and I,” as he tried to understand the differences between the East and the West. Indeed, when it comes to prohibiting racial discrimination, Both Senate Bill 3590, Section 1557 and House Bill 3952, Section 252 are a puzzlement.
The problem with the Senate 2000+ plus page comprehensive health care reform bill is that it merely references Title VI without correcting any of the known inadequacy of Title VI in design or in enforcement.1 For instance, in 1999, The United States Commission on Civil Rights found:
There is substantial evidence that discrimination in health care delivery, financing and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by federal agencies. . . [Such failure has] . . . resulted in a failure to remove the historical barriers to access to quality health care for women and minorities, which, in turn has perpetuated these barriers.2
The House Bill, Section 252 is problematic because it departs from known civil rights language without defining the new standard. It states that:
“Except as otherwise explicitly permitted, . . . All health care and related services (including insurance coverage and public health activities) covered by this act shall be provided without regard to personal characteristics extraneous to the provision of high quality health care or related services.”
Both of the propose legislation has significant problems that can be corrected by:
Defining the Coverage broadly. The provision should cover any health or health care program, activity or related services (including insurance coverage and public health activities), that (1) receives any Federal financial assistance, funding or support, directly or indirectly, including, but not limited to, credits, subsidies, or contracts of insurance, guaranty or payments including payments on behalf of a beneficiary such as Medicaid or Medicare; or (2) is administered by any federal agency; or (3) that is administered by any entity established under the health care reform bill.
Defining the “personal characteristics” to include traditional civil rights prohibition. Personal characteristics as use in the house bill allows for a broader interpretation than traditional civil rights law. However, since the term “personal characteristics” is new terminology in discrimination law it will be open to interpretation on what constitutes personal characteristics. It should be as a matter of statute (and not regulation) that personal characteristics includes those characteristics identified in Title VI and Title VII of the Civil Rights Act. Specifically language could be “An individual shall not, on grounds related to personal characteristics extraneous to the provision of high quality health care or related services (including but not limited to age, race, color, ethnicity, sex, disability, or national origin) be discriminated in any health or health care program, activity or related services (including insurance coverage and public health activities)”.
Defining Prohibited Discrimination. One of the problems with Title VI is that it does specifically define what constitutes discrimination. The Supreme Court has held that disparate impact discrimination is not actionable by the individual because it is prohibited only through regulation. Health care should make disparate impact discrimination or effect discrimination actionable. Thus, Prohibited Discrimination should be define to include any distinction, exclusion, restriction or preference which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, access to or quality of health care program, activity or related services (including insurance coverage and public health activities). In fact, the most significant forms of health care discrimination is where institutions and individual adopt policies, practices and procedures that have a disproportionately negative impact, that is, disparate impact or effect.
Exempting special measures. Special measures are those actions taken to reduce or to eliminate health disparities or health care disparities, to overcome the effects of prior discrimination or to overcome the effects of conditions which resulted in limiting participation by persons of a particular group. To avoid lawsuits and encourage entities to undertake special measures, it is essential that any statute that prohibits discrimination recognizes that special measures are not discrimination.
Defining “an Aggrieved Person” broadly. An Aggrieved Person” are those individuals or organizations that can bring a lawsuit to enforce the law. To discourage health care discrimination, an 'aggrieved person' must have the right by statute to bring a suit on not only the statute, but its implementing regulations. An aggrieved person should be broadly define to enable action on disparate impact or effect discrimination. This should include: an individual who has been injured, an individual who reasonably believes they will be injured because of discrimination, individuals engaged as testers and organizations engaged in testing and non-profit organizations whose purpose is to protect the rights of others including, but not limited to, civil rights organizations, human rights organization, organizations whose purpose is to assure equality in health care or eliminate health disparities and other appropriate organizations.
Providing an Individual and Organizational Right of Action.. The private right of action would assure that an aggrieved person would have the ability to sue not only under the statute but also under any implementing regulations. In addition to the private right of action, an organizational right of action is essential to allowing litigation on the invisible discrimination. Providing an organizational right of action, for nonprofit civil rights and human rights organization, is essential to allowing litigation on the invisible discrimination that occurs in health care.
Assuring Adequate Fines and Regulatory Enforcement. The importance of rigorous enforcement of regulation as a primary vehicle for policing health services cannot be overemphasized. The collection of data and the development of a report care need the teeth of regulatory enforcement. Thus, a statute which allows significant civil penalty to be assessed for violation of regulations designed to eliminate racial inequities is important to compliance.
Allowing Prevailing Plaintiff Attorney Fees. The health care anti-discrimination statute would provide for attorneys' fees for a prevailing plaintiff. Under the catalyst theory, the focus is on whether the party obtained its desired result, despite whether the party obtained a favorable ruling. Prevailing Party Attorney Fees would help to provide the financial incentives needed to pursue the goal of eliminating discrimination in health care.
Establish Equality Health Care Council. The act should establish “Health Care Council,” patterned after Fair housing councils. This council could serve several distinct functions, including educating the public, training health care providers and institutions, providing counseling and health care-finding services to individuals, investigating discrimination complaints--mostly through testing--and pursuing legal remedies. Such council would provide a focal point, anti-discrimination work in health care.
1See, e.g., Committee on Understanding and Eliminating Racial and Ethnic Disparities in Health Care, Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare (Brian D. Smedley, Adrienne Y. Stith, and Alan R. Nelson eds., 2002)
2See, The United States Commission on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, The Role of Governmental and Private Health Care Programs and Initiatives, September 1999; The United States Commission on Civil Rights, Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Volume II, The Role of Federal Civil Rights Enforcement (1999)