Monday, September 25, 2017

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Does Clinton's Health Care Reform Proposal Ensure [E]qual[ity of HealthCare for Ethnic Americans and the Poor?

Vernellia R. Randall

Vernellia R. Randall, Does Clinton's Health Care Reform Proposal Ensure [E]qual[ity of Health Care for Ethnic Americans and the Poor?, 60 Brooklyn Law Review 167-237 (1994) (287 Footnotes Omitted)

 

 

On September 22, 1993, President Clinton appeared before the American people to discuss his plans to reform the health care system. On November 20, 1993, the Health Security Act (the Act or HSA) was introduced into Congress. The Act responded to concerns about the uninsured and underinsured, about uncompensated care and about cost containment. An implicit assumption has been that economic access is the most significant barrier to health care; and, in fact, it may be. However, there are many other barriers to access.

If equitable access means, or is defined as, the actual receipt of the quality and quantity of services needed, then access in America has been inequitable. Many individuals receive different health care (both quantity and quality) based on characteristics other than medical need. The care received by the wealthy is different than the care received by the poor; the care received by European Americans is different than the care received by ethnic Americans; and the care received by men is different than the care received by women.

Has the HSA designed a system that removes or minimizes inequities? Or will it provide the wealthy with one level of care and the poor with another? Does the HSA fashion a system that distributes health care resources so that ethnic Americans receive the same quantity and quality of care as European Americans? Will the system envisioned result in improved health status for ethnic Americans?

It is important that ethnic Americans do not accept an inadequate solution as a compromise. Once a significant reform package passes Congress and becomes law, the issue of major health care reform probably will not be addressed again for quite some time. Furthermore, as ethnic Americans begin to point out problems with the reformed system, European Americans, particularly those with upper-middle income, are likely to feel resentful toward ethnic Americans. European Americans, having expended a significant amount of energy, time and political capital on reforming the health care system, are likely to consider ethnic American concerns as undocumented complaints.

Consequently, despite the rhetoric of economics, ethnic Americans must ultimately evaluate health care reform on the potential to improve health status. Improving health status depends on improving access to both equal and quality health care. Ultimately, then, health care reform must be evaluated on how effectively it removes (or at least, significantly reduces) barriers to [e]qual[ity] health care.

Using the Health Security Act as a bases for analysis, this article analyzes the potential for health care reform, in its current from, to improve access to health care for ethnic Americans. Unfortunately, the article concludes that health care reform will fail ethnic Americans and the poor because it maintains a structurally and ideologically flawed system; it perpetuates a fragmented system with inadequate infrastructure; it maintains a culturally incompetent system based on illness care; it rations health care through a tiered system based on private interests; and it inadequately protects against health care discrimination.


I. DESCRIPTION OF THE HEALTH SECURITY ACT

Of the industrialized nations, only two, the United States and South Africa, do not have a national system of health care for their citizens. The Health Security Act sets the framework for a national health care system. It is a complex bill, over 1500 pages long. This description is intended to provide only a brief overview of the structure, coverage and benefits proposed by the Act.

A. Structure

According to the HSA, the federal government sets the basic framework for the system, including national standards on benefits, quality and access to care. States are given flexibility to implement health care reform within the federal framework, including designing and monitoring the system. That flexibility extends to designing a single-payer plan if a state desires.

The Act, however, clearly lays out each player's responsibilities under the health care plan. States must identify one or more regional alliances to serve as purchasing agents for health care insurance. The board of each regional alliance consists of employers and consumers, but providers are specifically prohibited from sitting on a regional alliance. Employers with more than 5000 employees may opt out of the regional alliance and develop their own corporate alliance. Those that do not are required to pay 80% of the average premium of a full-time employee's health care premium. Health plans that are selected by the alliances may market their product in the alliance. But, ultimately health plans are responsible for guaranteeing coverage for a basic comprehensive benefits package by contracting with providers to provide services. Providers may choose to participate in as many or as few health plans as they desire. Consumers are required to enroll in a health care plan, to obtain a health care card, and to make premium payments, co-payments and deductible payments. No eligible individual can be disenrolled from a health plan until that individual is enrolled in another health plan or becomes Medicare-eligible.

The Act offers three basic cost-sharing schedules-the lower, higher and combination types-for health plans, and each individual may sign up for only one of the schedules. Each of these schemes represents a different type of health care plan. The lower cost-sharing schedule represents a health maintenance organization (HMO). The higher cost-sharing schedule represents a fee-for-services plan. The combination cost sharing represents a preferred provider organization (PPO) without network options. Even though each of these plans assures basic coverage, consumers are free to purchase any health care services not covered by the health plan or purchase supplemental insurance to cover health care services not included within the basic benefit package.

In addition to the difference in cost sharing, the higher cost-sharing fee-for-service option and the combination options charge a higher premium. Premiums are based on family type. The general family share of the premium is computed based on the following components: the plan premium, alliance credit, excess premium credit and corporate alliance opt-in credit. The amount a family is required to pay is based on the general family share of the premium for the class of family, any income-related discount for the family, and whether the family receives Supplemental Security Income (SSI) or Aid to Families with Dependent Children (AFDC).

Full-time employees pay a maximum of 20% of the premium. Employers may pay 100% of the premium if they desire or provide additional benefits. In contrast, a part-time employee's premium is not limited to a certain percentage. It is based on the number of hours worked. For instance, if the employee works half-time, then the worker pays 60% of the premium-the employee's share (20%) plus half of the employer's share (40%). Unemployed individuals and self-employed individuals pay 100% of the premium. Individuals with incomes less than 150% of poverty, however, can obtain discounts or reductions in cost-sharing. Self-employed individuals obtain the same discounts as a small employer. Failure to pay amounts owed will not result in loss of coverage, however, regional alliances may use credit and collection procedures, including interest charges and late fees, to collect amounts owed.

B. Coverage

Eligible individuals include citizens or nationals of the United States; an alien permanently residing in the United States under color of law; or a long-term nonimmigrant. A Medicare-eligible individual is entitled to health benefits under the Medicare program. Military personnel and families, veterans and Indians have a choice of health plan coverage. Prisoners and undocumented aliens, however, are ineligible for benefits through enrollment in a health plan.

C. Benefits

The Health Security Act proposes to reform the health care system so that all Americans are guaranteed comprehensive health coverage. Subject to cost-sharing requirements, exclusions, and the National Health Board, the benefits package consists of the following items and services: hospital services, services of health professionals, emergency and ambulatory medical and surgical services, clinical preventive services, mental health and substance abuse services, family planning services and services for pregnant women, hospice care, home health care, extended care services, ambulance services, outpatient laboratory, radiology, and diagnostic services, outpatient prescription drugs and biologicals, outpatient rehabilitation services, durable medical equipment and prosthetic and orthotic devices, vision care, dental care, health education classes, and investigational treatments. The items and services in the comprehensive benefit package are not subject to any duration or scope limitation or any deductible, co-payment, or coinsurance amount that is not required or authorized under the HSA. However, each of the services or items is limited by the Act in some manner. For instance, routine screening for cancer of the cervix (pap smears) are authorized only every three years for women between the ages of 20 and 39. The comprehensive benefit package does not include: custodial care, cosmetic surgery, hearing aids, eyeglasses and contact lenses for individuals at least 18 years of age, in vitro fertilization services, sex change surgery and related services, private duty nursing, personal comfort items, or any dental procedures. Furthermore, the comprehensive benefits package does not include any item or service that is not medically necessary or appropriate.


II. THE HEALTH SECURITY ACT MAINTAINS A STRUCTURALLY AND IDEOLOGICALLY FLAWED SYSTEM

Unfortunately, for ethnic Americans and the poor, the ethical foundations of health reform are ideological, financial and legalistic terms. By framing the need for health care reform in terms designed to appeal to middle-class European Americans, the Clinton administration denies the existence of the health crisis among ethnic Americans and the poor. In particular, it fails to place the issues of race, class or culture at the forefront of health care reform.

Ethnic Americans need a health system that is structurally and ideologically focused on improving health status. Thus, for ethnic Americans, the reformed health care system proposed by the Act is structurally and ideologically flawed because its ethical foundations are incomplete and inadequate; it focuses on states' rights; it continues an employment- based health insurance system; it expands the private sector role in health care delivery; and it does not insure representation of ethnic Americans in policy-level decisions.

A. Incomplete and Inadequate Ethical Foundations

As articulated by President Clinton's administration, (t)he values and principles that shape the new health care system reflect fundamental national beliefs about community, equality, justice and liberty. The Administration articulates several principles forming the basis of its proposal. It is these principles that will direct the ongoing development of the reformed health care system. Two principles of particular significance to ethnic Americans are universal access and equality of care.

The HSA acknowledges that delivery of health care under the current system lacks equality. When it discusses the issue of equality, however, it does so in vague terms that indicate that the magnitude of barriers to health care for ethnic Americans were not adequately contemplated. Furthermore, the Act, itself, does not recognize equality as an essential component. Rather, essential foundations articulated in the Act clearly center on autonomy, regional independence and competition.

Unfortunately, rather than facilitate effective health reform for ethnic Americans, the foundations could actually serve to erect or maintain barriers. This will be particularly true when the needs of ethnic Americans can be met only by some restriction on either autonomy, regional independence or competition.

For instance, if providers are unwilling to practice in underserved communities, that service may need to be mandated. Such a requirement would certainly conflict with an essential Act element-autonomy. Similarly, regional independence may be restricted if states are required to do more than provide financial incentives to assure health services to ethnic Americans. Such requirements would necessarily restrict a state's option in designing and implementing a health care system.

In an effort to promote competition in the health care system, the HSA relies on the principles of managed competition. Although supported by many organizations and groups, the idea of managed competition has never been tested. Presumably, managed competition controls health care expenditures because consumers become more cost-conscious. Managed competition assumes large enrollment in managed care products, such as HMOs and PPOs. Since these organizational forms limit the number of participant providers, providers will compete for selection by charging less or providing services in a cost-effective manner or both. But, in reality, managed competition will not succeed in controlling U.S. health care expenditures.

A number of factors will contribute to its failure. First, many consumers will continue to purchase expensive health plans. Second, the greater enrollment in HMOs will provide few savings. At present, managed care organizations have not been successful in controlling the rate of increase in health care expenditures. Third, some providers will continue to have considerable bargaining power in their dealings with health plans. Consequently, as one commentator has noted, managed competition may be this decade's intellectual and moral equivalent of the Laffer Curve, the construct which purported to demonstrate that cutting federal taxes would increase federal revenues, inspiring George Bush to coin the phrase 'voodoo economics'.

Moreover, in an effort to be effective, the HSA may in fact promote behavior in the system that might be harmful to the interests of ethnic Americans and the poor. For instance, since fee-for-service plans lack the gatekeeping aspects of managed competition necessary for cost control, the Act must discourage enrollment in higher cost-sharing plans (fee-for-service plans) and encourage enrollment in the lower cost-sharing plans (HMOs). The HSA attempts to do this by requiring significantly higher premiums for fee-for-service plans and requiring significant co-insurance. But, many individuals who want to enroll in the lower cost plan may not be able to do so because it may be at capacity and unable to accept new enrollees, or its providers may not be accessible. While the HSA makes provisions for some consumers who cannot enroll in the lower cost- sharing plan to obtain subsidies, what will happen to ethnic Americans who cannot enroll in the lower cost-sharing plan and do not have adequate resources to pay for the other plans?

By defining the foundation for health care as centered on autonomy, regional independence and competition, the HSA becomes grounded in the rhetoric of choice and responsibility rather than the improved health status of Americans. Thus, this installment of health care reform is no more capable of rectifying the extensive race- and class-based health deficits suffered by ethnic Americans than the previous attempts at reform. The Act's failure to deal specifically with inequality and discrimination in the delivery of health care means that the reformed health care system will continue to place the concerns of ethnic Americans after other considerations.

B. Protecting States' Autonomy to the Detriment of Ethnic Americans

The HSA delegates the responsibility for ensuring that all eligible individuals have access to a health plan that delivers the nationally guaranteed comprehensive benefit package to the states. Although the Act provides states with significant flexibility, there are measures that ensure some structure to the state systems's development, and in the process, protect consumers. Ultimately, however, the HSA protects a state's right to develop its system as the state sees fit.

The potential exists that some states will exercise the flexibility in ways that will be counter-productive to the interests of ethnic Americans. In fact, traditionally ethnic Americans have not fared well under state's rights-supervised social programs. The possibility exists that states will fail to design programs that meet the needs of ethnic Americans.

For instance, states ultimately approve health alliance risk adjustments. In exercising this responsibility, states could provide for an alteration to the risk-adjustment methodology that would encourage (rather than discourage) health care plans to enroll ethnic Americans. This type of variation is important since, as a group, ethnic American patients are a medically high risk group. Those who are medically high risk are likely to need more medical services; consequently, ethnic American patients may be the least desirable financially, and health plans may try to avoid the risk posed by their enrollment by avoiding the patients. States, in exercising their ultimate power over health alliance risk adjustment, could provide inadequate or little adjustment to risk, resulting in health plans that might develop ways to avoid serving ethnic Americans.

More important than how the states might exercise their discretion, however, is that the HSA does not require states to assure that citizens have access to culturally competent care. Rather, the Act permits funding of special programs by the Department of Health and Human Services (HHS). These provisions are troubling. Are ethnic Americans a disadvantaged group? Since the Act doesn't define disadvantaged group, it is possible that regulations will focus, if at all, on income and not necessarily race, culture or language. If plans avoid serving ethnic Americans, and if disadvantaged is narrowly defined by income, many ethnic Americans will be hindered in their ability to obtain care. By including permissive provisions, one wonders to what extent the states will provide incentives.

Even without a clear definition, why doesn't the HSA require health care plans to enroll disadvantaged groups? Why continue to perpetuate the image that providing for ethnic Americans is an extra burden-an add-on service? Why must serving ethnic Americans be something that health care plans are enticed to undertake rather than something that they are expected to do? Why not bring ethnic Americans into the mainstream of the reformed health care system by stating flatly that states must assure that health care plans provide culturally competent services to all? Without these requirements, financial incentives merely open ethnic Americans and the poor to exploitation, without any assurance that their needs will be integrated into the mainstream of the health care delivery system.

Indeed, because ethnic Americans never fared well under state's rights-supervised social programs, as compared with the rest of the population, it is not likely that they will fare well under this system either. While providing states with flexibility, the plan lacks the necessary safeguards to assure that all eligible individuals have not only access to a health plan that delivers the nationally guaranteed comprehensive benefit package but in fact have access to culturally competent health care.

C. The Continuation of a Complex Employment-Based Health Insurance System with No Assurance of Cost Containment

The Act maintains that the health care system should build on the strength of the employment-based coverage arrangements that now exist in the United States. By expanding the employment-based health insurance system, the HSA perpetuates several problems. First, the distribution of jobs is based on race. Ethnic Americans are systematically excluded from trade and professional employment. By tying a person's health care insurance to the person's type of job, the Act imports the racism that exists in the employment system into the health insurance system. In particular, the HSA does not consider that ethnic Americans' unemployment and underemployment are at crisis levels. High unemployment and poverty levels among ethnic Americans suggest that many will be limited to the basic health care plan. But even when employed, ethnic Americans will continue to be limited to the basic plan in disproportionate numbers. An employment-based insurance system fragments the insurance market based on race and class, resulting in the channeling of a larger percentage of European Americans into the higher cost-sharing plan (fee-for- service) or the combination plan (preferred provider). This difference in plan distribution will result in different services, both in kind and quantity.

Second, an employment-based health care system is unstable for the individual because it does not factor in the likelihood of massive job cutbacks and a national economic recession. Consequently, some individual's type of health insurance could be in constant flux. Third, employees may have to change health care providers every time their provider changes plans, as nothing in the Act prevents the provider from changing plans as often as they wish. This may be particularly problematic if the employee has coverage through a corporate health alliance rather than a regional alliance. Since large employers are allowed to opt out by providing coverage through a corporate alliance, an employee's choice may be limited. Employees of these opt out firms are forced to accept coverage through corporate alliances.

Fourth, employers may reduce their health care coverage to the minimum requirements of the basic benefit package, thereby requiring many to obtain additional coverage through supplemental policies. If many ethnic Americans cannot afford those supplemental policies, then discrepancy in access to services based on race and class will continue. Fifth, even employees with supplemental, job-based health care coverage could be locked into a job because of insurance benefits. Cost- sharing plans provided by an employer could exceed the basic plan. If those benefits are needed by the individual or family, an individual may be unable to change jobs for fear of losing the necessary health coverage. Finally, complicated systems will be necessary to deal with the 38 million Americans who work neither full-year nor full-time.

Furthermore, many health economists maintain that an employer-based, market reform-based competitive approach will not achieve the cost savings necessary to provide high quality universal health care for the entire nation. Thus, an employment-based health insurance system raises many complex problems with no assurance of cost containment. As one observer has noted:

The current system of employer-based health insurance arose through historical events and accidents, rather than through a deliberate and morally thoughtful process. In its wake, patterns of injustice in the distribution of jobs linked to health insurance have compromised justice in health care. . . . [p]roposals that call for mandatory employer insurance and an expanded public system for the poor and unemployed do not eliminate justice concerns. Such proposals fall short because they do not ensure that the most vulnerable members of society receive adequate protection . . . .

D. Expanding the Role of the Private Sector Despite Its Past Failure to Provide Adequate Care to Ethnic Americans and the Poor

For [Prudential] the best-case scenario for reform-preferable to even the status quo-would be enactment of a managed competition proposal.

By employing a managed competition approach, the Act attempts to bring the growth in health care costs in line by increasing competition in health care. Under the HSA, regional health alliances are given the authority to entrust the care of ethnic American communities to corporate and institutional giants. The motives and interests of these health conglomerates are driven primarily by profit. The private sector is not committed necessarily to assuring culturally appropriate care to high-risk communities. Consequently, the transfer of the delivery of care to health care conglomerates has the potential for transforming ethnic American communities into a new generation of substandard medical ghettos at worst and peripheral colonial outpost health subsystems at best.

The HSA is based on the belief that competition will ensure that plans and providers will be efficient and charge reasonable prices. Both the private sector and major government programs (including Medicare and Medicaid) will operate under a budget restraining the growth of health care spending. This reliance on market forces to generate savings, improve quality, and generate efficiency is not based on objective justification but rather on unsupported ideology. As one author has suggested:

A careful search of employee-benefits experience . . . suggests that competitive markets in America have produced results that do bear out (or even contradict) predictions (that competition would reduce costs, increase efficiency, and increase quality). . . . These are the American facts . . . . But American health policy has long been dominated by ideology, and it remains so. America's destiny is supposed to lie in economic markets, and the market must be made to work successfully in health. If facts deviate, they must be forced to conform; if the facts prove recalcitrant, they can be imagined away, since only the theory is true. Perhaps at some date the facts will prove inescapable.

Thus, this enlargement of the role of the private sector is irrational given its role in creating the existing health care crisis. The insurance industry will seek to maximize its revenues; if it can't do so by raising premiums, it will do so by restricting access to care. In restricting access to health services, the target will be vulnerable populations: ethnic Americans and the poor. Furthermore, expanding the private sector's role is irrational since the private insurance industry is not as efficient as a publicly run system. For instance, while private health insurance policies divert an average 14% of their premium dollars to pay for administrative costs, Medicare spends only 4% of revenues for administration.

It is also irrational to delegate to private health plans the health policy information system (gathering, analyses, and interpretation). The government information system that exists today is considered one of the best. Yet, the HSA turns over the responsibility to an incomplete, inadequate, and inferior private system. Furthermore, from an ethnic American's perspective, reliance on the private sector for health data could be dangerous. Often the private sector fails to collect data about the impact of its policies on ethnic Americans, as such data would often reveal its inadequate service. For instance, although other demographic information is collected, the current claims form designed by the private sector for use with Medicare and Medicaid recipients has no field for collecting information about a patient's race.

Of course, the Act does require that states ensure that the private sector enroll ethnic Americans. Furthermore, states are allowed to administer financial incentives to achieve such objectives. Unfortunately, financial incentives are not a good substitute for requiring the private sector to serve adequately ethnic Americans. By not requiring the private sector to provide culturally competent health care to all populations, the health care system will maintain a second-class attitude toward serving ethnic Americans.

More importantly, the private sector, whose interests are more financial than service-oriented, may merely exploit ethnic American communities-and then leave. Health plans will leave when they no longer have the capacity or financial stability to serve the community. Ordinarily, each health plan must accept for enrollment every eligible individual. Furthermore, the plan may not engage in any practice that has the effect of limiting enrollees on the basis of personal characteristics such as health status, anticipated need for health care, age, occupation, or affiliation with any person or entity. With the state's approval, however, a health plan may limit enrollment because of the plan's capacity to deliver services or to maintain financial stability. Given the poor health status of ethnic Americans, it is likely this exception will allow plans to exclude many ethnic Americans. Private insurance has not competed to provide services to the uninsured, the homeless, the lower income, the ethnic minority populations, and the mentally ill. It is irrational to expect the reformed system run by the private sector to embrace these populations.

E. Failure to Insure Ethnic American Representation in Policy-Level Decisions

While the Act creates another bureaucracy and extends the power of the executive branch, there are no mandates or mechanisms to ensure that the historical pattern of the absence or underrepresentation of ethnic Americans in bureaucracy is not repeated. Unless there are specific provisions assuring representation on the National Health Board and the Regional Health Alliance Board, these boards are not only likely to be dominated by European American middle-class males, but will not articulate or advocate the needs of ethnic Americans.

Specifically, the HSA creates two new levels of bureaucracy: the National Health Board and the Regional Alliance Board. National Health Board members are to be selected on the basis of their experience and expertise in relevant subjects including the delivery of care to vulnerable populations. While the term vulnerable population is used in several provisions in the Act, it is not defined. Just who is in this category? Who will decide what is meant by a vulnerable population? Does it include all ethnic Americans or just low-income ethnic Americans? Without a definition there is no ongoing assurance that ethnic Americans will be represented on the National Health Board.

As to the Regional Alliance Board, the HSA requires that it consist of an equal representation of employers and consumers. However, nothing in the HSA requires representation of ethnic Americans or even vulnerable populations.

If the health care system is to be an evolving entity, it will only evolve into an equitable system if ethnic Americans who understand the needs of ethnic American communities are assured representation at policy-level positions. Appointing individuals who understand the needs of ethnic Americans will be particularly difficult since the Act prohibits the appointment of health care providers to the Regional Alliance Boards. From the ethnic American community perspective, this is unfortunate since ethnic American providers are often the most knowledgeable about ethnic American communities' needs.

F. Summary

As to ethnic Americans, the reformed health care system proposed by the Act is structurally and ideologically flawed because its ethical foundations are incomplete and inadequate; it focuses on state's rights; it continues an employment-based health insurance system; it expands the private sector role in health care delivery; and, it does not ensure representation of ethnic Americans in policy-level decisions. This is more than unfortunate for ethnic Americans. It is tragic. This race and class-based health care system has serious structural, medical, social and cultural deficits and it will not correct itself if left to serendipity.


III. THE HEALTH SECURITY ACT PERPETUATES A FRAGMENTED SYSTEM

One of the major problems with the current system is that it is a fragmented system. The current health care system is a puffed-up system providing unnecessary, indulgent services for the privileged, while basic critically needed services for the disadvantaged are rationed and often unavailable. Unfortunately, the Health Security Act continues the fragmentation of an inadequate infrastructure. Such inadequate infrastructure might not be so bad if the Health Security Act delivered on the Clinton administration's promises of universal coverage for comprehensive benefits. However, for ethnic Americans the Act provides less than universal coverage, and the benefits are not comprehensive enough.

A. Continuation of Inadequate Infrastructure

Despite the apparent importance of economics as a barrier to access to health care, the unavailability of providers and facilities from which to obtain health care is equally as devastating. Even persons with the ability to pay may not have quality health care. In fact, the more inaccessible the providers and facilities, the more likely the person will, at a minimum, delay seeking care.

Certainly, providers and facilities are not accessible if they are not located near the population they are intended to serve. Moreover, even if they are located in the community, they are unavailable if they refuse to accept patients. Both rural communities and inner city communities have significant problems with access due to inadequate infrastructure.

The Act does not require states, regional alliances or health plans to strengthen the bare-bones health care infrastructures in the nation's inner-city and rural areas. Rather, the HSA relies on temporary contracting provisions with essential community providers, grants and loans by HHS for public health and rural health initiatives, expansion of responsibility of academic health centers, and training grants for health care professionals. None of these methods will prove adequate.

1. Essential Community Providers

The HSA attempts to provide some continuity of care for ethnic Americans, as well as poor and rural communities, by requiring health care plans to contract with professional and institutional providers that have been the bulwark of the service provision for those communities. Unfortunately, the requirement for health plans to contract with essential community providers applies only for five years. While the Act contemplates the possible extension of this provision, it is uncertain and subject to the political process. Consequently, the essential community providers provisions are inadequate precisely because of the temporary nature of the protection. The historical problem of inadequate infrastructure will not be relieved in five years, especially if health care plans have to assure culturally competent care. Health care plans should be required to contract with essential community providers so long as there are an inadequate number of culturally appropriate health care providers in the community. Without such provisions, the protection of essential community providers will not be translated into culturally appropriate health care for ethnic Americans.

The HSA does provide some resources for essential community providers to become competitive participants against corporate health insurance. Furthermore, it attempts to eliminate the problem of providers who do not want to serve ethnic American communities because of a disparity in reimbursement rates. The HSA does so by creating a blended rate. To the extent that this blended rate will encourage plans and providers not to make distinctions based on reimbursement rates, it is critical to assuring equity in the system.

Nevertheless, regardless of the merit of these provisions, they are inadequate. They attempt to induce health plans by monetary incentive to focus on the provision of services to ethnic Americans, rather than requiring such behavior. Furthermore, there is no language specifying ethnic American inclusion, participation or set-asides in the grants, contracts or loans. Without such language, it is likely that those best able to serve their communities will be included in only a minimal capacity. With the temporary and waivable protections for essential community providers and the lack of specific affirmative action contracting goals, the Act gives only a superficial effort to protecting the pool of health care providers that traditionally serve ethnic Americans.

2. Public Health and Rural Infrastructure

Nothing in the HSA indicates that the public health structure for delivery of services will be preserved, expanded or revitalized. In fact, health reform shifts the emphasis away from the direct delivery of health services. Instead, it redirects the emphasis of public health to health-related data collection, surveillance and outcomes monitoring; protection of environment, housing, food and water; investigation and control of diseases and injuries; public information and education; accountability and quality assurance; laboratory services; training and education; and leadership, policy development and administration.

While these are important and necessary functions of public health, so is service delivery. The public health system developed as a result of the failure of the private sector to provide health services to the poor, to the underserved and to ethnic Americans. It is improbable that private corporations and voluntary health care organizations will build health care infrastructures in ethnic American, poor or rural communities. Thus, it is unlikely that private corporations and voluntary health care organizations can replace health care provided by the existing public health infrastructure. Apparently, recognizing this, the HSA provides for funding for community and migrant health centers, for initiatives to improve health care access, and for the development of plans and networks. Also, the Act proposes a number of measures to assure health care in medically underserved rural areas.

Notwithstanding the positive aspects of the public health and rural initiatives, they still present issues of concern. First, the funding of the initiatives requires special federal appropriations after the year 2000. Given political realities, it is unclear whether Congress will continue to fund special appropriations for public health initiatives as the cost of the Act becomes apparent. However, one thing is certain: in five years, the health care infrastructure needed by ethnic Americans will not be in place.

Second, the public health initiatives are just another set of grudgingly given special programs for disadvantaged and poor people. They constitute a tacit acknowledgment of the failure of this health reform, since special programs for ethnic Americans and the poor inevitably become programs that the European American middle class resent. Thus, the special programs approach preserves a multi-tiered health care system, and such a system necessarily results in an unequal and unjust system. Thus, the Act fails to create a truly universal unitary health system designed to meet the needs of all Americans. Arguably, the HSA restructures and reforms a system without changing the worst aspect of it. That is, the Act proposes a system that is a complex matrix of stigmatized special programs and categorical grants.

3. Academic Health Centers

The Act appears to be structured around the provisions of services in existing facilities. Although there are some provisions for the development of infrastructure outside of the discretionary grants by HHS, the HSA does not appear to contemplate the building of additional hospitals or clinics. This is unfortunate since prior hospital closure decisions have been made by a patently imperfect market and have affected ethnic American and poor communities disproportionately. Rather, the Act contemplates extending health care by requiring academic health centers to extend their programs in primary care to inner city and rural areas.

No doubt, these provisions could improve access to health care in ethnic American communities. But they will do so only if provisions are made for meaningful transportation and provider hours for inner city and rural residents. Furthermore, these linkages will prove beneficial only if the advisory and policymaking levels within the academic health centers are reflective of rural and ethnic American communities, and only if the academic health centers are required to provide culturally competent care.

Unfortunately, while the HSA provides incentives for academic health centers to establish outreach into ethnic American communities, they are under no requirement to provide culturally competent care or community participation. Furthermore, the financial incentives to the academic health centers produces the same stigma of making the provision of services to ethnic American communities outside the normal expectation of academic health centers. The Act should mandate that academic health centers include community-based goals that center on health, community participation and education. Furthermore, academic health centers must be forced to have ethnic Americans represented at advisory and policymaking levels within the academic health centers. Finally, academic health centers must be required to provide culturally competent care.

4. Training of Health Care Professionals

The HSA establishes the National Council on Graduate Medical Education to control nationally the number of individuals who can enroll in medical programs. Even though the Act contemplates training participants who are members of racial or ethnic minority, it does nothing to assure the viability of the primary source of black health care professionals-historically black schools. Historically black medical schools provide an irreplaceable means of providing access to culturally appropriate care to African Americans. Even though these institutions are financially and structurally threatened, the HSA makes no specific provision for sustaining or strengthening their roles.

Without sufficient measures to assure the development of an adequate infrastructure, ethnic American and poor communities face the disconcerting prospect of depending on private, competitive for-profit health providers for culturally competent health care. Access to health care requires actual services provided by physicians and hospitals. But, many physicians and hospitals are reluctant to serve ethnic Americans. Within a professional culture that is reluctant to serve ethnic Americans and poor communities, universal coverage, by itself, will not appreciably redistribute the physician supply in a way that would significantly improve access. In sum, infrastructure barriers, separate and distinct from the issue of financing, are not adequately addressed, and the promise of universal coverage is not a promise of equality of care.

B. Lack of Universal Coverage

The plan maintains a fragmented system by excluding large segments of the population, keeping them outside of the main system. Specifically, undocumented aliens, Medicare recipients, prison populations, employees of eligible corporate alliance sponsors, military personnel and families, veterans and Indians are all either excluded or kept outside of the main system.

These exclusions are problematic for several reasons. First, the exclusion of a large number of individuals threatens the financial integrity of the main health system by producing inefficiencies and duplications. Second, the exclusion of some individuals inevitably causes discrimination, because someone must determine who is not covered. Consequently, providers and facilities may use skin color or language as a de facto method of determining eligibility for citizens who do not have health security cards. Finally, a significant portion of ethnic American males will not be in the system since prison populations are specifically excluded and military personnel and veterans may opt out. This is particularly troubling because the HSA does not assure that individuals in alternative systems will receive at least the same comprehensive services.


IV. THE HEALTH SECURITY ACT MAINTAINS A CULTURALLY INCOMPETENT SYSTEM BASED ON ILLNESS CARE

A person does not have meaningful access to health care if that person is not provided health care within the context of his or her cultural background. Merely providing a person with a piece of paper (insurance) or a provider does not mean that that person will receive health care that assists in improving the person's health status. For centuries, Americans indulged in the fantasy that all persons (native Americans, immigrants and slaves) blended into one great melting pot to become Americans. While it is true that there are unique American cultural similarities that cut across all groups, this country has always had a diverse population of races, ethnic groups, subcultures and religions.

That diverse mix will continue. By the end of this century, 39% of the population will be from foreign-born parents. At the same time, 50% of all Americans will be either African American, Hispanic American, Asian American or Native American. America is a micro-world reflecting (the) cultural diversity of the entire world.

A. The Perpetuation of European American Culture

The medical care system is a representation of one subculture-the middle-class, middle-aged, European American. The system focuses on individual autonomy rather than family involvement. It assumes a basic trust in the health care system instead of distrust. It relies on a western European American concept of communications. It is built on a western European concept of wellness, illness and health care. Consequently, the more a patient differs from the cultural prototype (middle-class, middle-aged, European American) the more likely the person will not have meaningful access to health care.

Merely providing financial coverage for health care does nothing to assure that ethnic Americans will have access to care that is culturally competent. One barrier to culturally competent care is physicians' own negative perceptions about ethnic Americans. This barrier exists in part because the health care system is designed around the cultural needs of middle-class European Americans. Ethnic Americans and poor individuals seem less compliant and more difficult to care for because they have differing needs and problems in accessing care. The problem, however, is not poor patients or ethnic Americans, but the health care system's inability to provide effective care to diverse populations. If increased compliance and improved health status are the goals, then the health care system must be flexible enough to match a community's cultural, ethnic, lifestyle and socioeconomic needs.

The HSA does little to address the issue of assuring culturally competent care. For instance, despite the fact that ethnic Americans respond well to community-based health education programs, the Act fails to require health plans to provide such activities. Furthermore, it fails to require removal of the barriers to the effective utilization of such services. Rather, the Act permits, but does not require, states to provide financial incentives to ensure that health plans provide for extra services such as interpreting services. Finally, since the HSA never explicitly defines disadvantaged groups, the scope of the incentives is indeterminate.

Health care requires interaction between the patient seeking care and the provider. When individuals do not understand, speak or read English, they may avoid contact with the health care system. Although some Americans do not understand English well enough to be able to talk with their physicians, the Act does not require that health care plans address these language barriers. Language barriers can defeat the provision of health care if essential information cannot be conveyed. Consequently, although universal coverage makes it easier for many ethnic Americans to seek and obtain effective health services, language barriers will continue to inhibit their use of the health care system, unless the system is required to restructure itself to address those concerns.

B. Ineffective Comprehensive Coverage

The HSA's univeral coverage does not cover many of the services needed by poor Americans. For instance, it does not cover eyeglasses or hearing aids, and provides that no person 18 years or older can receive prevention, diagnosis or treatment of dental disease before January 1, 2001. These items may be of marginal expense to middle-income persons, but to the poor they are not only expensive but they are also essential corrective treatment.

The Act also provides insufficient comprehensive coverage for mental health and substance abuse. Although the Act covers inpatient and residential mental illness and substance abuse treatment, intensive nonresidential mental illness and substance abuse treatment, and outpatient mental illness and substance abuse treatment, these services are available subject to significant limitations. Given the serious significant mental health and substance abuse problems in ethnic American and poor communities, basic mental health services are inadequate. In addition, the proposal to phase-in mental health benefits over five years is particularly troubling since political changes may result in the non-delivery of benefits.

While the evidently cut-throat competition of a health care market will make ethnic American patients fair game, the HSA fails to assure that ethnic American communities have providers who can provide culturally competent care. Nor does the Act anticipate the need to direct the regional alliance and health plans to develop culturally competent policies for the treatment of ethnic Americans. While there is a generalized list of Uniform Conditions of Participation for health plans to be established by the National Health Board, these conditions are oriented to management, contract conflict resolution, financial and marketing. They are not patient- or service-oriented. More specifically, they do not require plans to show that they have the infrastructure to assure services to all population groups. To assure that health plans do serve the needs of ethnic Americans and poor communities, an additional conditions of participation should be added: to require health care plans to decrease the health status deficits of ethnic and disadvantaged Americans; to provide culturally competent care; and to prohibit adherence to rules, regulations and laws that discriminate on the based of race, class, ethnicity, language, gender or sexual preference.

While the Act certainly has a number of provisions that are beneficial to ethnic Americans, one wonders why the only sections which mention culturally appropriate care are those which provide for financial incentives, training of providers, and the funding of school-based health clinics. Why doesn't the HSA require health care plans to provide culturally appropriate care? Its failure to do so assures that the private sector will not provide culturally appropriate care to ethnic Americans.


V. THE HEALTH SECURITY ACT RATIONS HEALTH CARE THROUGH A TIERED SYSTEM BASED ON PRIVATE INTERESTS

It is only recently that the need for reform was characterized as a need for universal access. Health care reform was motivated not by the desire or need to provide better access, but by a concern for cost containment. More specifically, they were motivated by problems associated with uncompensated care and the cost of health care to employers and the government. To control costs, individuals, providers or health insurance plans will need to ration care. The Act places the rationing function in the hands of managed care plans owned by private enterprise. Private enterprise, however, will not be able to control cost if the majority of Americans do not elect managed care plans. Consequently, universal portable coverage has been offered as the quid pro quo for accepting managed care rationing. Snake oil salesmen are selling managed care with the following pitch:

Your doctor will still be responsible for making decisions about your health care. However, we all know that there is way too much waste in the health care system. This waste raises the cost of care for all of us. The managed care organization will merely look over your doctor's shoulders to assure that the waste stops. Look at what you are going to get in exchange for a little gatekeeping, a little utilization review-universal, portable coverage.

Sadly, the HSA envisions not across-the-board rationing, but the continuation of a tiered health care system with rationing only for some. The reformed health care system will continue to ration health care based on economics. It will continue to ration health care based on race. It will continue to ration health care based on class. Universal portable coverage, by itself, is not good if, in fact, the care received is discriminatory, inadequate, incompetent and inappropriate. The Act contains a number of provisions for federal funding in an attempt to assure care to ethnic Americans, but financial incentives will be inadequate, and as a result, a multi-tier system will continue to exist. A. Health Care Plan Tiering

In addition to the coverage difference between cost-sharing policies, the higher cost-sharing fee-for-service option and the combination option will charge higher premiums. It is assumed that cost-conscious consumers will respond to differences in premiums by not spending their own money to purchase relatively expensive fee-for-service or PPO plans. Many consumers, particularly middle-class consumers, however, will not be satisfied with minimal health benefits. Individuals with significant health problems are likely both to want comprehensive benefits and to stay with their current physicians. Furthermore, many consumers will not be responsive to the premium difference. But, those who are likely to be the most responsive to premiums are the ethnic Americans and the poor, resulting in a health care ghetto.

Will these plans use their higher premiums to provide different services to their clients? Supporters of the Act argue no. Proponents argue that because all plans are required to provide access to the same basic comprehensive services, these plans will provide more amenities, not more services, i.e., better carpet on the floor, quicker service. However, proponents fail to realize that these amenities can make a difference in quality of care. For instance, quicker service is vital. Quicker service can make a difference in health status, if quicker service means that a person can see the provider within a day or two and the alternative is a two-week wait for an appointment. Quicker service can make a difference in health care seeking behavior if a person has to wait in a waiting room for 2-3 hours to obtain service rather than 15-20 minutes.

Moreover, higher cost-sharing plans and combination plans will provide more than amenities; they will provide more services. For example, the basic health care benefits allow for a pap smear once every three years. Presumably, individuals with the higher cost-sharing plan could obtain a yearly pap smear. If yearly pap smears diagnose cervical cancer earlier than the basic health care benefits, then women in the higher cost-sharing and combination plans (primarily upper middle- income and European American women) will have better health care than women in the lower cost-sharing plan (largely ethnic American and poor). Furthermore, lower cost-sharing plans will be managed care plans while the higher cost-sharing plans will be fee-for-service plans. Managed care plans ration health care by using physicians as gatekeepers and by using strict utilization criteria. Fee-for-service plans ration care based on ability to pay.

Notwithstanding the explicit rationing that occurs based on the medically necessary concept, the plan also provides for implicit rationing based on economics. First, the plan has significant deductibles and co-payments. While health coverage is guaranteed, everyone will pay some out-of-pocket money for co-payments even if they are unemployed, homeless, disabled or poverty stricken. And while the HSA provides that failure to pay premiums will not result in loss of coverage, co-payments take place at the point-of-service. It is unclear whether inability to pay will restrict access at point-of- service. But even if it does not in theory, it may still serve as a barrier to service. Some individuals who are unable to pay will want to avoid being embarrassed at the point-of-service, while others may want to avoid the civil monetary penalties, which could amount to as much as $5000 for repeated failure to pay.

Second, the Act requires each family to pay 80% of the premium. One obvious problem is the potential growth of the insurance premiums. The HSA reduces the rate of growth to the overall level of inflation by capping the growth of the premiums. A cap on expenditures will provide a disproportionate advantage to higher income families because a smaller percentage of their income will be directed toward health care. Furthermore, a premium cap will probably result in rationing by health care plans as a method of maintaining profits. Consequently, higher income individuals and families with more disposable income will be able to buy themselves out of the rationing bind.

Families enrolled in Regional Health Alliances are entitled to a premium discount if the family is an AFDC or SSI family, has an adjusted family income below 150 percent of the applicable poverty level, or incurs a family obligation amount exceeding 3.9% of the adjusted family income. But what happens to a family whose income is 151% of poverty? Eligibility for subsidies is rigidly means-tested on an annual basis, and burdened with retroactive penalties and redetermination, including investigation of tax returns. Like Medicaid, the HSA excludes help for many who need a subsidy. Furthermore, federal subsidies are not available for families who choose to register in a corporate alliance. Corporate alliances are required to provide a premium discount to low-wage employees, defined as any full-time employee earning less than $15,000 annually. Consequently, a person earning less than $18,000 but more than $15,000 will be penalized for working; had they enrolled in a regional alliance they would have been eligible for premium discounts. The net result is that health care will be more illusory than real for many working poor.

The HSA allows the higher cost-sharing (fee-for-service) plans to perform utilization review, to require prior approval for specified service, and to exclude providers because of poor quality of care. While these provisions provide some aspects of managed care plans, the Act specifically provides that prior approval for specific services shall not be construed as permitting a plan to require prior approval for non-primary health care services through a gatekeeper or other process. Thus, the HSA allows a person to buy their way out of gatekeeping rationing. And so, when people pay higher premiums for a higher cost-sharing (fee-for-service) plan, they are actually saying: Don't ration my care. Don't use any gatekeeping mechanism that can ration care to me. I want to be able to get whatever I can afford to buy. Consequently, even with utilization review, individuals in higher cost-sharing plans will have greater access. As one commentator has noted:

These plans would entice middle- and upper-income groups to pay more of their after-tax income for more choice of physicians, shorter waits for appointments with primary care physicians and specialists, more conveniently located physicians, hospitals, and pharmacies, and/or broader coverage. Market segmentation would adversely affect people who are unable to afford more than a basic plan. They would find that there are not enough plans with enough capacity willing to participate; they would find few providers willing to serve them; and they would have less access to specialty care and expensive medical technologies.

Thus, many of the inequities in the current system will continue to exist: individuals will be tiered among health care plans; few plans will choose to market aggressively among ethnic Americans and the poor; physicians will refuse to join plans that have too many ethnic Americans and poor individuals. B. Health Care Service Tiering

Even where physicians and plans accept ethnic American patients, they may discriminate in dispensing medical services. This problem exists in the current system and will be aggravated by the HSA, because the Act places premium limits on health care plans, but does not place limits on the types of managed care that plans can institute to make a profit and provide services. Consequently, plans, through utilization review, may find it easier to deny services to ethnic American patients rather than to middle-class European American male patients. That is, even under the same health care plan, it will be easier to deny services to the less articulate, persons preceived as powerless, etc. Consequently, health care plans may, in fact, provide different services based on race and class. This is particularly true since the adjustment of premiums based on regional trends compared to national trends does not specifically include adjustments based on race and ethnicity. Thus, ethnic Americans who are sicker than European Americans will seek more services. Yet, health care plans may not be compensated adequately for the difference because of the failure to adjust the premium. Granted, the HSA allows for adjustment based on demographic characteristics. For instance, it requires age, gender, socioeconomic status and health status to be considered. However, socioeconomic status and health status are only partial and inadequate substitutes for race and ethnicity.

Arguably, this problem exists in the current health care delivery system. But the problem with the Act is not just that it retains the problem, it institutionalizes and condones it. Every poor person, every unemployed person, every person who does not have the money to get into the higher cost-sharing or combination plan will be in some form of managed care plan, if not by explicit choice, at least by economic reality.

Most middle-income Americans will obtain their health insurance through their employment. The Act is designed to economically tempt these individuals to choose a managed care or combination plan. Managed care plans will not only have a lower premium but also require a smaller out-of-pocket cost. Given the choice of going to the health care provider of your choice while paying a $3000 deductible and 20% of the cost afterwards (higher cost-sharing/combination plan), or paying no deductible and only $10 per physician visit (managed care), many middle-income persons will have to choose managed care. Although every health care plan will theoretically offer the same comprehensive basic services, they will do so through different organizational structures with different gatekeeping mechanisms and different utilization review standards. Currently many employers offer a traditional fee-for- service plan and a managed care plan as an alternative. The same incentives exist in the HSA. However, the Act goes beyond the existing system. It legally delegates to private enterprise (insurance companies) the rationing of health care in America. Thus, health care plans will ration health care differently, since theoretically in the current system private physicians still make the ultimate decision on medically necessary care.

Insurance companies will ration health care to those services deemed medically necessary, based on standards, guidelines or practice parameters. In fact, the Act specially provides that no benefits are available unless the benefit is medically necessary or appropriate. While the HSA gives authority to the National Health Board to determine when a specific item or type of service is not medically necessary or appropriate, it apparently leaves to the health care plan the authority to determine medical necessity on an individual basis.

Several issues are presented by limiting health care based on medical necessity. First, because medical necessity is based on utilization review decisions and financial risk-shifting at the insurance level, the patients are not likely to know that their treatment was reduced or a service was denied. Second, decisions which find that a service is not medically necessary at best will be based on a concept of utilization review, a series of working hypotheses and partial solutions that are continually revised, discarded, and even reinvented as changes occur in medical technology, social values, economic conditions and other circumstances. Third, given that most health care research has been based largely on European American males and that providers are largely European American males, medical care decision-making is culturally biased. This is particularly troublesome since ethnic Americans suffer from more health problems than middle-class European Americans. Finally, the most significant problem is the lack of any authoritative guidelines as to what constitutes medically necessary. Consequently, the decision is left to the whims of insurance companies. This arrangement invites discrimination.

Requiring the plans to rely on qualified physicians does little to protect the individual from the culturally biased vagrancies of utilization review. Plan physicians are not likely to contradict their employer's decision to deny service, which means that we are institutionalizing a decision-making process that is largely determined by middle-class European American males.

In sum, cost sharing, co-payments, supplementary policies, reliance on volunteerism instead of mandates, temporary special programs and set-asides continue institutionalized elitist health care. Because of barriers and tiering, ethnic Americans and poor communities with the worst health status and most complex health care problems will be penalized as they are forced to pay premiums, co-payments and deductibles that they cannot afford. To be effective, market choice requires the financial means to choose and requires plans to be willing to serve ethnic Americans. Absent these factors, managed competition would limit the choice of low income and ethnic Americans.

C. Health Care Physician Tiering

Even among physicians there will be tiering. Plans must limit the number of physicians who operate in the plan to control costs. They may limit participation to board certified physicians. Plans with lower premiums will have more restrictive utilization review and gatekeeping mechanisms. Managed care plans must have physicians willing to abide by their utilization review standards and gatekeeping guidelines. As a result, younger, less experienced physicians will begin their careers in the managed care plans, while the older, more experienced physicians will practice in fee-for-service plans, with obvious implications for ethnic Americans and the poor.

If quality of care is related to the experience of the providers, then the more costly fee-for-service plans will offer higher quality service because they will be more attractive to the more experienced physicians. Furthermore, even though physicians may participate in more than one plan, physicians may limit the number of patients from the lower cost-sharing plans if those plans pay them less than the higher cost-sharing, fee- for-service plans. Since nothing in the HSA requires that a physician accept any patient from any plan to which the physician belongs, eventually individuals may find that significantly fewer physicians are available in lower cost-sharing plans. The lack of adequate protections will inevitably result in limited access for ethnic Americans. As one author has noted, It is difficult to imagine how managed competition will not result in a class-based access through a multi-tiered system of benefits and eligibility. Moreover, both insurers and health service groups will find it easiest to compete via favorable selection of healthier groups.

In conclusion, although the lowest-cost plans will be the ones that are the least desirable, they are likely to be the only ones affordable to the poor. They may also be the only ones available to serve ethnic American communities. Although all plans would be required to provide a comprehensive benefit package, ethnic Americans enrolled in basic plans may find it difficult to obtain many of the services that are covered by the plan. Because low-cost plans would be unable to match the fees paid by higher-cost plans, many providers will not contract with them. Consequently, ethnic Americans and the poor enrolled in the basic plan will have limited-access and sometimes lower-quality health care.


VI. THE HEALTH SECURITY ACT INADEQUATELY PROTECTS AGAINST HEALTH CARE DISCRIMINATION

It is clear that the potential for continuing discrimination is significant. Any effort to create a just health care system will depend on the ability of advocates to litigate and prevent discrimination. Advocates' effectiveness will depend on the anti-discrimination provisions of the HSA. The Act contains express anti-discrimination enforcement provisions, but they are insufficient.

A. Potentially Counterproductive Provisions

1. National Health Board

The Health Security Act is silent on the prohibition of discrimination by the National Health Board.

2. States

States are expressly prohibited from discriminating based on race, ethnicity, language, religion, national origin, socioeconomic status, disability or perceived health status, but only when setting Regional Health Alliance boundaries. Furthermore, if a state chooses to operate a statewide single-payer system, the state may not discriminate against health plans on the basis of race, sex, national origin, religion, mix of health professionals, location of the plan's headquarters, or organizational arrangement.

As far as preventing discrimination by states, the Act has several flaws. First, it does not specifically forbid the states from discriminating in the design of the state system. The prohibition against discrimination focuses only on the drawing of boundaries of the regional alliance. No doubt many decisions will have the effect of discriminating, but will be difficult to challenge on constitutional grounds.

Second, the HSA has insufficient protections against redlining in developing the regional alliances. There are no limits on the number of regional alliances a state may create. On the other hand, the alliance area must be large enough to provide an adequate market share and thereby ensure effective negotiations with health plans. However, since health plans are not required to negotiate with all alliances within a state, insurance companies are likely to lobby to develop small, homogeneous alliances, so that they can target particular populations. While the Act includes a specific prohibition against establishing boundaries that discriminate, it is unclear whether this provision will apply to effect discrimination. That is, if a state does not draw lines with an evident intent to isolate ethnic American communities, will the fact that the boundaries have the effect of discriminating be sufficient for a cause of action?

Third, the prohibition against splitting Metropolitan Statistical Areas (MSAs ) may be insufficient to protect ethnic Americans. It is uncertain what would happen if states created separate regional alliances for each MSA. Furthermore, The Act does not include Primary Metropolitan Statistical Areas (PMSAs) which could be split. Splitting PMSAs would be devastating to many major cities that have significant ethnic American populations.

Finally, states are not required to narrow health status disparities among different population groups. Without such requirements, states could implement systems which, while technically nondiscriminatory, in fact have an effect of not improving the health status of ethnic Americans. Such consequence would be as devastating as discrimination.

3. Regional Health Alliances

Regional health alliances are not permitted to discriminate against health plans on the basis of race, gender, ethnicity, religion, mix of health professionals, location of the plan's headquarters or organizational arrangement. They must assure that all eligible individuals in the alliance area enroll in a health plan. The HSA extends 504 of the Rehabilitation Act of 1973, 303 of the Age Discrimination Act of 1975, and 601 of the Civil Rights Act of 1964 to Regional Health Alliances. Unfortunately, the provisions regarding discrimination by the regional health alliances are similarly inadequate. Specifically, regional health alliances are not forbidden to engage in practices that have the effect of discriminating. Furthermore, the current interpretation of Title VI of the Civil Rights Act has proven inadequate in protecting ethnic Americans from cost-containment health care discrimination.

4. Corporate Health Alliances

The HSA provides that the provisions applicable to regional alliances relating to redlining and metropolitan statistical areas apply to the establishment of premium areas by corporate alliances. However, the same problems exist with corporate alliances that exist with regional alliances. Moreover, the Act does not require corporate health alliances not to discriminate. This oversight is likely to have significant effect on health plans owned by ethnic Americans or plans that serve a large portion of ethnic Americans. Since only employers who have 5000 or more employees can opt out of the regional alliance, the corporate alliances will be predominately middle- class European Americans. In attempting to serve this distinct population, corporate alliances are likely to discriminate by not contracting with health plans owned by ethnic Americans or that otherwise serve a large portion of ethnic Americans.

5. Health Plans

There is no doubt that some health plans will try to avoid serving ethnic American and poor communities. These communities are often high-risk with a backlog of untreated or undertreated illness. There are a number of ways that a health plan can minimize or restrict, if not exclude, services to undesirable patients. Health plans could enroll individuals and then not provide meaningful access to covered services by either failing to provide supplemental support services needed to access services or by locating the services outside the immediate community. They could provide services in a culturally inadequate and inappropriate form. They could use utilization review and financial risk-shifting to deny or at least delay the receipt of specialist services. They could fill their rolls with European American middle-class enrollees and then claim a lack of capacity.

At first blush, provisions of the Act, as it relates to preventing these problems, appear comprehensive. For instance, the criteria for certifying plans includes evaluating each plan for its relationship with the community and its capacity to deliver the comprehensive benefits package, anti-discrimination protections, marketing, grievance procedures and quality assurance. These provisions, however, only help the states assure that plans have the general ability to serve ethnic American communities; they do not assure that the plans will not avoid the communities altogether, and nothing in the plan requires health plans to serve all parts of the regional alliance.

However, while health plans are allowed to serve only part of an alliance, health plans may not engage in any activity that has the effect of discriminating against an individual on the basis of race, national origin, gender, income, health status or anticipated need for health services. Furthermore, plans are prohibited either directly or through contractual arrangements from discriminating in the selection of providers. This provision is significant since it provides some protection in the event that a health plan refuses to contract with ethnic American providers. However, to provide additional protection for ethnic American communities, the HSA needs to protect the provider against discrimination based on the race, national origin, language, ethnicity and gender of the provider's patient.

Notwithstanding this important anti-discrimination language, the HSA includes language that substantially undermines the anti-discrimination protection. Except in the case of intentional discrimination, the Act specifically excuses a person from an action otherwise prohibited if the action is required because of business necessity. Furthermore, it fails to define business necessity. This is a significant problem for a health care system based on managed care (utilization review or financial risk-shifting). In such a system, plans have an inherent need to institute activities to contain cost. For instance, a plan may desire to contract with the most cost-effective physicians. The cost of providing services to inner-city patients is often higher than that of the urban patient. Inner- city patients require more testing and more services. Thus, in comparing the inner-city physician, whose patients are comprised largely of ethnic Americans, to a physician with a largely European American patient population, a plan might decide not to contract with the physician serving the ethnic American population because the patients were not cost-effective. If contracting based on cost-effectiveness is a business necessity, then the health care plan will be able to discriminate in a way that essentially bars physicians who serve primarily ethnic American and poor patients.

Similarly, health care plans could decide to contract only with board-certified physicians as a means to screen physicians and as a marketing tool. However, board certification does not establish quality. Furthermore, a large number of ethnic American physicians are not board-certified. But, if the requirement is deemed a business necessity, then the health care plan will be able to discriminate in a way that in effect bars physicians who serve primarily ethnic American patients.

Likewise, health care plans use utilization review to determine whether a procedure or treatment is medically necessary. Assume, for example, some type of cancer treatment (maybe a bone marrow transplant) is more often found not to be medically necessary for ethnic American males than for European American males. Assume further that the health plan can justify this discriminatory care on the basis of medical protocols. The use of the protocols, therefore, may be a business necessity, and the health care plan can discriminate in the authorization of this treatment decision. Consequently, such a business necessity requirement would have the effect of excluding minority physicians. While health plans will have a provider advisory board, unfortunately its members will be selected by the providers in the plan, and there are no provisions to assure representation of ethnic American providers and providers who serve the poor. Furthermore, these potential problems cannot be corrected with regulations since the Act specifically provides that no regulation can overcome a determination (presumably a court's) of business necessity. Thus, while the HSA has important language forbidding activity that has a discriminatory effect, it effectively nullifies the language by exempting activities that are done for a business necessity.

6. Enforcement

The key, of course, to the civil rights provision of the Health Security Act is the inclusion of substantial enforcement mechanisms. The Act has some significant provisions providing for a private cause of action for discrimination. Notwithstanding the significance of these provisions, substantial issues remain. For instance, merely incorporating by reference the standards for age and disability discrimination from the Age Discrimination Act and the Americans with Disabilities Act is not sufficient. Exactly what standards are being incorporated? Is the reasonable accommodation requirement of the Americans with Disabilities Act to be used with health plans? If so, why make reasonable accommodation a requirement of disability and not of other forms of discrimination?

Furthermore, the standards governing enforcement are incomplete. In particular, the Act does not address issues of burdens of proof or statutes of limitation. Given the importance of health care, the burden of proof should be shifted to the defendant to show that the practice is a business necessity. The level of proof should be heightened by requiring that the practice be substantially related to an essential business goal consistent with business necessity. The plaintiff should be able to overcome a business necessity defense by demonstrating that other less discriminatory alternatives were available that would have substantially met the business goal or showing that the articulation of business necessity is merely a subterfuge. Furthermore, when the defendant's defense of business necessity is based on cost containment, cost control or financial issues, the defendant should retain the burden of proof to show that no less discriminatory alternatives were available. Additionally, any motivation for undertaking an unlawful health care practice should be made per se irrelevant.

Moreover, just as in the area of fraud and abuse, the HSA should enumerate specific forms of unlawful health care practices. Such enumeration would assure that certain forms of health care discrimination are prevented. However, to prevent the court from limiting the definition of discrimination to the enumerated examples, the Act should specifically state that the enumeration of specific forms of discrimination does not limit the generality of the prohibition. At the same time, however, efforts to overcome the effects of discrimination, to reduce the disparity in health care, or to assure access to culturally competent care should not be labeled unlawful health care practices.

Finally, the HSA fails to define the identity of an aggrieved person. This lack of definition of an aggrieved person will result most certainly in a judicial interpretation which defines it as someone who has actually been the victim of discrimination. However, to discourage health care discrimination, an aggrieved person should include not only the individual who has been injured, but also one who believes that he or she will be injured, as well as individuals engaged as testers and organizations engaged in testing. This is important because much of health care discrimination goes unreported or undetected.

7. Data Collection

Effective enforcement of civil rights is dependent on the availability of reliable, relevant data. Currently, no such system of data collection exists. The HSA requires that the National Health Board develop a health information system to collect and disseminate information. This system will collect data on enrollment, utilization, outcome, health care provider certification and consumer satisfaction. Unfortunately, the Act does not make it clear that data must be collected with respect to race, ethnicity, gender and disability. As for ethnic Americans the collection of information will be of little benefit if information about the consumer's race, ethnicity, gender, disability and socioeconomic status is not routinely collected.

8. Summary

Ethnic Americans have always had to contend with discrimination in health care. That discrimination was based on the behavior of providers. Now individuals will have to contend with not only provider discrimination, but regional alliance and health plan discrimination. This is a significant change which has the potential of completely undermining access to care. As greater pressure is placed on physicians to curtail treatment services, physicians may not ration across the board. Rather, they may more strictly ration services to vulnerable populations (i.e., ethnic Americans). As health care plans find their premiums caps insufficient, not only will they place increasingly strict gatekeeping requirements on physicians, they may also significantly increase their utilization review denials and they may do so in a discriminatory manner. The Act will not prevent these practices.

B. General Failures

The HSA fails generally in several respects. First, it forbids only limited discrimination by states and alliances and contains no direct prohibition against discrimination by providers. Because of the historical problems with determining to whom a discrimination law is applicable, the prohibition should be applicable to both public and private organizations and for profit and not-for-profit organizations. It should also be applicable both to an individual person and to a broad range of organizational forms including private organizations, sole proprietorship, partnerships, associations and corporations. Furthermore, health care providers should be specifically responsible for their discrimination.

Second, the Act takes an inconsistent approach to banning discrimination. On the one hand, it significantly broadens equal access by prohibiting discrimination based not only on race, national origin, age and disability but also on language, socioeconomic status, health status, affiliation, mix of health professionals or anticipated need for services. Unfortunately, the listing of protected groups is not consistent throughout the HSA. For instance, prohibiting activities by health plans has the effect of attracting or limiting enrollees on the basis of personal characteristics. Only the following characteristics are identified: health status, anticipated need for health care, age, occupation, or affiliation with any person or entity. In the same section, in prohibiting health care discrimination the characteristics identified are: race, national origin, sex, language, socioeconomic status, age, disability, health status, or anticipated need for health services. Furthermore, while alliances are required to ensure enrollment of all eligible individuals, the anti-discrimination provisions include only race, sex, national origin, religion, mix of health professionals, location of the plan's headquarters, or organizational arrangement, but not language, socioeconomic status, age, disability, health status, or anticipated need for health services. To ensure the civil rights of individuals under the complex reformed system, the listing of protected groups should be broad and uniform throughout the Act.

Third, the HSA only uses the effects test to measure discrimination by health plans. While it specifically addresses forms of discrimination to the activities of the states and Alliance, the Act does not explicitly apply the effects test to those activities. By including the effects test in the health plan's prohibition against discrimination, some may argue that only intentional discrimination is prohibited in all other areas of the Act. This is a substantial problem since, in all likelihood, the type of discrimination which will be most prevalent by the National Health Board, States, Alliances (Regional and Corporate) and providers is effects discrimination.

Finally, the HSA also fails to provide comprehensive protection based on language discrimination. For instance, neither the National Health Board, alliances nor health plans are forbidden from discriminating based on language. This is important to a large number of ethnic Americans who are most likely to be incorrectly denied service as a direct result of the HSA's failure to cover undocumented aliens.


CONCLUSION

The current health care system is flawed in a number of ways. There are significant economic barriers, including no insurance, no money, co-payments and deductibles. People do not have universal portable health care coverage. Moreover, even the massive financing reforms of the Health Security Act that are aimed at increasing coverage do not automatically translate into broadened access and improved services. After some years, when government and private institutions encounter budgetary stringency, it is likely that they will economize by decertifying persons and placing limits on benefits.

Furthermore, the reformed system lacks adequate infrastructure to provide culturally competent care. Instead, it perpetuates a middle-class European American focus for the delivery of health care. Where services do exist, there is significant fragmentation with ill-defined or inadequately defined community health or public health programs. Furthermore, the Act permits different population groups to receive different health care treatment. This is due in part to the institutional racism in the system but also to the insufficient or nonexistent health research data that is race or culture-specific (including quality assurance or utilization review data). Given the focus of cost containment on middle-class health care needs, there exists the potential for significant health care discrimination. The existing anti-discrimination laws will not effectively combat this discrimination. For these reasons, the Health Care Security Act is only a partial answer and, in many ways, an inadequate answer to the need for health care reform.

 


 

. The term (e)qual(ity) menas equal and quality. It was coined by Professor Ann. C. McGinley of Brooklyn Law School.

. Assistant Professor, University of Dayton; J.D., Northwestern School of Law, Lewis and Clark College; M.S.N., University of Washington; B.S.N., University of Texas.

I wish to acknowledge the Edward V. Sparer Public Interest Fellowship Program Brooklyn Law School, for supporting the research for this article. I thank Professors Richard Saphire, Jeffrey Morris, Anna Williams Shavers and Douglas Wells for their useful review and comments, and the participants of the Fifth Annual Meeting of The Midwestern People of Color Legal Scholarship Conference for not only their review and comments, but also their support and mentoring. I also want to thank Drs. W. Michael Byrd and Linda Clayton for their pioneering research on racism in the health care system and health reform. Finally, I want to thank my sons, Tshaka and Issa for their support and good humor.

. The Health Security Act was introduced into the House as H.R. 3600, 103d Cong., 1st Sess. (1993), and into the Senate as S. 1757, 103d Cong., 1st Sess. (1993) (hereinafter the HSA).

Public Health Preparedness and theLaw in Communities of Color

Vernellia R. Randall, Glen Safford and Walter W. Williams

Vernellia R. Randall, Glen Safford and Walter W. Williams, Public Health Preparedness and the Law in Communities of Color, 3 Journal of Law, Medicine & Ethics 45 (Winter, 2003)

 

 

Public health preparedness must use a comprehensive approach that includes both communities and public health systems. There are three basic questions that should be asked when evaluating public health preparedness in communities of color: 1) Is the community basically healthy?; 2) Does the community have access to necessary information, resources and services?; and 3) Are the information, resources and services available and provided to the community in a nondiscriminatory manner?

Racial-based health disparities is a well documented fact for many communities of color. Individuals from these communities tend to have more morbidity and higher mortality. This health disparity is race based and not just a function of social class. Similarly, access to basic goods and health care is racialized and class based. For instance, 50% of non-white women have financial difficulty in obtaining food and more blacks than whites are in temporary and emergency shelters. Similarly access to health care resources is also impacted by race. For instance, more blacks than whites are without adequate health insurance. Most hospital and physicians offices are outside minority communities. In fact, since the 1960's as many as 70% of hospital closures are in minority communities. Finally, access to first responders is affected by race. While access is generally inequitable, it is further handicapped by lack of trust between first responders. This lack of trust is often caused by instances of racial profiling.

The bottom line is that institutional racism in basic goods, in health care, and in first responders impacts the ability of communities of color to be adequately prepared for a public health emergency. Institutional racism is a system of procedures, practices, and patterns that perpetuate and maintain the power, and influence the well-being of one group over another. A comprehensive public health law approach to preparedness would eliminate health disparities, increase health care utilization, ensure quality health care, enhance data collection in minority communities, eliminate discrimination, and increase first response effectiveness.

Glen Safford

Tribal sovereignty is based on the concept of nationhood. The Indian Self-Determination Act recognized that American Indian people needed to develop leadership skills crucial to the realization of self-governance, and a voice in the planning and implementation of programs.

Tribal health care systems are operated by tribes, under contract with federal and state governments and private entities. Staff must answer to tribal councils and health boards as well as the Great Lakes Boards. The level of collaboration varies, but most tribal health care systems report communicable diseases and collaborate during outbreak investigations and prophylaxis. Tribal health care systems also receive and use free vaccines from the state and other programs.

The Great Lakes Inter-Tribal Counsel's (GLITC) mission is to expand self-determination efforts, with deep respect for tribal sovereignty and reservation community values. There are three levels and functions to the system: provide technical assistance and support; provide input, ideas, and model procedures; and provide assistance with policy and planning approval with tribes. GLITC does not do anything the tribes want to *46 reserve for themselves. True community public health is provided through a mixture of professional and consumer perspectives, with bottom-up strategic planning, with an emphasis on prevention and education, and using a broad definition of health care.

Many lessons have been learned through working with tribal communities. For example, it is important to stress tribal sovereignty. To work together, strong and innovative systems, model approaches, and strong technical capabilities are essential. In addition, it is critical to develop informed, trusting relationships, and broaden mutually beneficial alliances. Most importantly, when working with tribal communities, partners need to have open attitudes, and learn from each other.

A Patient's Right to Choose Is Not Always Black and White: Long Term Care Facility Discrimination and the Color of Care

Sara Gronningsater

Sara Gronningsater, A Patient's Right to Choose Is Not Always Black and White: Long Term Care Facility Discrimination and the Color of Care, 26 Journal of Civil Rights & Economic Development 329(Winter 2012) ( Student Note)(192 Footnotes)


In recent years, employers in the medical field have been confronted with patients' requests to have a care provider of a specific race. Such requests have put these care providers in a legal and ethical bind, balancing the need to adhere to patient preferences while also protecting care providers' rights under Title VII of the Civil Rights Act of 1964. Health care employers that foster discriminatory practices by patients would violate the rights of their employees under Title VII. Because there is no way for a legal system to remain neutral to “preference formation,” it is completely legitimate for the government and the law to attempt to shape these preferences through laws forbidding racial discrimination. Title VII was enacted because it has long been believed that the achievement of social justice and protection of employees from discrimination in the workplace is valued higher than “free markets” or the “right” to choose based on racial preferences. On the contrary, “[t]he advent of the ‘patients rights' movement is a relatively recent phenomenon having first taken root in the early 1990's.” The Federal Nursing Home Reform Act (“OBRA 87”) established a set of national standards which certified nursing facilities must adhere to when dealing with patients' care and patients' rights. Giving patients some control over their care, OBRA 87 addressed “the widespread and well-documented abuse and neglect of residents in institutional care,” and legally permitted patients to choose their own care providers. Recently, the United States Court of Appeals for the Seventh Circuit in Chaney v. Plainfield Healthcare Center, held that the right to choose a care provider under OBRA 87 excludes the right to choose based on the race or ethnicity of a care provider.

Beyond the rigid legal boundaries implemented by Title VII, the Seventh Circuit recognizes that there are remedial measures that long-term health care facilities can take to avoid a similar situation as was faced in Chaney. These measures, including the implementation of cultural competency training and behavior contracts, will give care facilities some flexibility in dealing with hostile patients while protecting their employees from overt bigotry.

Brenda Chaney was a Certified Nursing Assistant (“CNA”) who committed herself to caring for others. Picture yourself in Chaney's shoes, making the same commitment that she has made. You had spent nearly five years caring for your ailing elderly mother, being at her bedside daily, watching her health deteriorate, and seeing her take her last breath. Your routine for the last five years has suddenly come to halt, and in the midst of grieving you have a revelation that your passion and devotion for caring for others did not have to end because of the passing of your mother; there were others out there who could use that same tender care. You decide to go back to school, after raising your own three children and having a successful career as a paralegal, to get your nursing degree. You continue to work full time as a paralegal and take night classes, and within a year and a half, you become a CNA. The excitement of finding your true passion is beyond words, and even more exciting is that you have landed your dream job, caring for the elderly just as you did your mother. But then, imagine everything crashing down around you, being referred to by co-workers as the “black bitch” rather than by name, being secluded from patients, and being reminded on a daily basis that you are different. Your dreams fall to the wayside because of the one thing you cannot control: the color of your skin.

This Comment focuses on the recent Seventh Circuit decision in Chaney v. Plainfield Healthcare Center, and the dichotomy between patients' rights and Title VII. This Comment asserts that Title VII trumps patients' rights under OBRA 87 and that a long-term health care provider may not adhere to the racial preferences of its residents under any circumstance. The Supremacy Clause dictates that when state and federal law conflict, the federal law will prevail. This Comment examines the Seventh Circuit's decision in Chaney, supporting the outcome, but discussing how the opinion articulated is vague, and thus further analyzing options for long-term care facilities confronted with a hostile resident like the one Chaney faced. Part I of this Comment addresses the facts of the case and the court's dispositions. Part II analyzes Title VII and establishes that a long term care facility's policy that adheres to the racial preferences of its residents violates employee's rights under Title VII, and any holding inconsistent with the Seventh Circuit's decision renders Congress's intent for enacting Title VII meaningless. Part II further highlights the fact that race is not a bona fide occupation qualification exception (“BFOQ”) under Title VII. Part III examines the Supremacy Clause and explains that the practices or policies set forth by Plainfield are unlawful employment practices under federally mandated law, and further addresses why under Title VII Plainfield cannot escape liability. Part IV takes a brief look at the demographics of nursing homes and discusses the influence of the “baby boomer” generation on racial disparities in nursing homes. Part V reviews the ethical “dilemma” that care providers and facilities face and the implications of the Seventh Circuit's decision in Chaney. Lastly, Part VI discusses and expands on the options available to health care providers who find themselves in an ethical bind when patients make race-based care requests, creating a hostile work environment in violation of Title VII

I. Overview: Chaney V. Planfield Health Center

Brenda Chaney, a CNA, brought an action against Plainfield Healthcare Center (“Plainfield”) under Title VII of the 1964 Civil Rights Act, claiming “that Plainfield's practice of acceding to the racial biases of its residents is illegal and created a hostile work environment.” Chaney was hired by Plainfield as a CNA and her duties included monitoring patients, responding to individual patient requests, and assisting with their general daily living needs. Chaney's daily assignments were noted on her shift sheet, which listed the resident patients that Chaney would be responsible for and their specific health care needs. One of Chaney's patients, Majorie Latshaw, requested that she not be cared for by any black CNAs. As a result, Plainfield specifically wrote “Prefers No Black CNAs” on Chaney's daily assignment sheet. Plainfield acknowledges to the court that it has a “policy of honoring the racial preferences of its residents in assigning health-care providers,” fearing that not adhering to the choices of its patients would violate state and federal laws concerning patient's rights. Chaney, despite her reluctance, refrained from assisting Latshaw and other similarly situated patients on her assignment sheet who had a similar aversion for black CNAs. These race-based limitations took an emotional toll on Chaney and often left her feeling depressed at the end of her work shifts.

Plainfield's practice of honoring the racial preferences of its patients not only left Chaney feeling alienated by the fact that she could not assist residents in her unit due to her race, but was further “accompanied by racially-tinged comments and epithets from co-workers.” A white nurse once called Chaney a “black bitch.” Another time a white co-worker looked at “Chaney and asked why Plainfield ‘ . . . keep[s] on hiring all of these black niggers?”’

Despite adhering to the patients' racial preferences and enduring abuse from co-workers, Chaney was fired after only three months of work. Asserting her employment rights under Title VII against discrimination in the workplace, Chaney brought an action against Plainfield in the United States District Court for the Southern District of Indiana. The district court granted summary judgment for Plainfield on Chaney's claim that Plainfield policies led to a hostile work environment, as defined under Title VII. Chaney and the Equal Employment Opportunity Commission (“EEOC”) appealed the district court's decision to the United States Court of Appeals for the Seventh Circuit. The Seventh Circuit reversed the district court's grant of summary judgment, finding that Chaney was faced with a “racially hostile environment, and the evidence presented at summary judgment allows a jury to conclude that Plainfield took insufficient measures to address it.”

II. Racism In The Workplace: Title Vii-History, Purpose, And Judicial Interpretation

“Racism is the belief that characteristics and abilities can be attributed to people simply on the basis of their race and that some racial groups are superior to others.” Discrimination in the workplace is not a foreign concept, and as long as it continues to exist in “the framework” of society, it will continue in the workplace. Although racism in the workplace exists at all levels of the economic ladder, from blue-collar workers to white-collar workers, it is not always a public overt action. The United States has made significant progress in overcoming racism in the workplace since the Civil Rights movement and the enactment of Title VII, but the issue is far from resolved.

A. Race Discrimination, Title VII Claims, and the EEOC

Section 703(a)(1) of Title VII makes it illegal “to discriminate against any individual with respect to his . . . terms, conditions, or privileges of employment, because of such individual's race.” One of the privileges of employment is the right to work in a non-racially discriminatory environment. “All workers, therefore, have a cognizable interest under Title VII in discrimination against any race.” The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federally mandated statutes such as Title VII. Title VII forbids discrimination in any aspect of employment, including but not limited to hiring and firing practices, promotions, pay, and job assignments. Title VII prohibits not only intentional discrimination, but also “neutral job policies that disproportionately exclude minorities and that are not job related.”

The EEOC guidelines have helped provide a framework as to race discrimination in the workplace for lower courts, and have been quite influential. When evaluating employment decisions based on race or color, courts, by analyzing the facts, determine whether the claim involves disparate impact or disparate treatment. Disparate treatment involves discrimination when race, as a protected trait, is the motivating factor with regards to the treatment of employees. Disparate impact discrimination is present when there is a neutral policy or practice that has a negative impact on a protected group and does not fit into the bona fide occupational qualification exceptions (“BFOQ”). Title VII does not allow racially motivated policies “driven by business concerns” or “the negative reactions of clients or customers.”

A plaintiff will only prevail in a Title VII hostile work environment claim when he or she proves: “(1) that the work environment was both subjectively and objectively offensive; (2) that the harassment was based on membership in a protected class; (3) that the conduct was severe or pervasive; and (4) that there is a basis for employer liability.” Furthermore, in O'Neal v. City of Chicago, the Seventh Circuit Court of Appeals of Illinois established three categories of materially adverse employment actions under Title VII:

(1) cases in which the employee's compensation, fringe benefits, or other financial terms of employment are diminished, including termination; (2) cases in which a nominally lateral transfer with no change in financial terms significantly reduces the employee's career prospects by preventing her from using her skills and experience, so that the skills are likely to atrophy and her career is likely to be stunted; and (3) cases in which the employee is not moved to a different job or the skill requirements of her present job altered, but the conditions in which she works are changed in a way that subjects her to a humiliating, degrading, unsafe, unhealthful, or otherwise significantly negative alteration in her workplace environment.

If an employer's conduct fits within any one of these three categories a litigant in the Seventh Circuit has a proper Title VII claim against that employer. Chaney's claim fits in the third category, for she was not permitted to care for those patients who specifically requested only white CNAs, and she was humiliated because of her race by other white CNAs.

B. Judicial Interpretation and Legislative History Do Not Lead To The Establishment of Race Based Bona Fide Occupational Qualification Exception Under Title VII

Section 703(e) sets out exceptional circumstances in which discrimination based on religion, sex, or national origin is lawful. Consequently, Congress and courts dealing with Title VII claims have recognized various exceptions to unlawful discrimination practices under Title VII. Employer, “as defined in Title VII excludes ‘a bona fide private membership club (other than a labor organization) that is exempt from taxation under 501(c) of the Internal Revenue Code.” Also excluded from the protection of Title VII's definition of employer and its ban on employment discrimination are Indian Tribes. Moreover, Title VII includes exceptions for state and local officials that are elected by qualified voters, religious organizations that hire individuals on the basis of religion if they are being hired to further the organization's religious activities, aliens employed outside the United States, members of the Communist Party, and employers engaged in national security in defined circumstances.

1. Well-Settled Case Law Supports the Contention that a Bona Fide Occupational Qualification Does Not Exist For Race

The district court, in essence, created a BFOQ exception for race, contrary to Title VII and well-settled case law, when it held that Plainfield is not liable for the “Prefers No Black CNAs” assignment sheet. “While religion, sex or national origin can, in exceptional cases, be a BFOQ, race cannot.” In Rucker v. Higher Educational Aids Board, the Seventh Circuit held that “Title VII is a blanket prohibition of racial discrimination, rational and irrational alike, even more so than of other forms of discrimination attacked in Title VII.”

Among various circuit courts, it has been consistently held that it is unlawful for an employer to discriminate based on race to accommodate clientele. The Second Circuit in Knight v. Nassau County Civil Service Commission, held the Commission's transfer of Knight, a black employee, to the Recruitment Division where he was assigned to specifically deal with minority recruitment, rather than being promoted within the Test Development Division where he originally excelled beyond his white co-workers, was solely based on Knight's race and was in violation of Title VII. Furthermore, the Eleventh Circuit in Ferrill v. The Parker Group Inc., found that a telephone marketing company that admittedly assigned black employees to make phone calls to black households, and white employees to make phone calls to white households, was liable for intentional discrimination under Title VII for making race-based job assignments.

As noted above, case law strongly supports the contention that no BFOQ exists for race. Consequently, Plainfield's belief that the BFOQ for discriminatory hiring practice based on gender translates into the same exception with regards to race is tenuous. Additionally, the contention that if patients' discriminatory preferences are not adhered to, the right to bodily integrity is violated due to the highly intrusive nature of health care services, is mere conjecture. The Seventh Circuit in Rucker reasoned that Congress failed to include race as a BFOQ because race discrimination was generally more common than other types of discrimination, such as gender discrimination. Gender discrimination is of a different sort than race discrimination. Unlike sex, Congress considered and explicitly rejected a race-based BFOQ. Furthermore, with the repeal of the Jim Crow Laws, “there are no recognized privacy rights based on race.” Contrary to the case law that Plainfield cited to support its assertion that race, like gender discrimination, is tolerated in the medical field, the Seventh Circuit properly noted that the “privacy interest that is offended when one undresses in front of a doctor or nurse of the opposite sex does not apply to race.”

2. Legislative History of Title VII Establishes that Congress Purposefully Excluded Race as a Bona Fide Occupational Qualification

It is apparent when looking at the legislative history behind the enactment of Title VII of

the Civil Rights Act of 1964, that this Act was established to protect individuals like Chaney from the exact treatment that Chaney endured while employed at Plainfield Healthcare Center. “Congress' primary concern in enacting the prohibition against racial discrimination in Title VII . . . was with ‘the plight of the [African American] in our economy.”’ Congress worried that with the integration of blacks into society, the goal of the Civil Rights Act of 1964 would not be achieved unless the trends that were evident prior to the Civil Rights movement were reversed. Consequently, during the Civil Rights movement, “it was clear to Congress that ‘the crux of the problem was to open employment opportunities for [African Americans] in occupations which have been traditionally closed to them,’ and it was to this problem that Title VII's prohibition against racial discrimination in employment was primarily addressed.”

Additionally, Congressional hearings preceding the enactment of Title VII support the assertion that Congress did not intend to include race as a BFOQ. The majority of courts agree that Congress's failure to include race as a BFOQ was intentional. Senator Williams offered an amendment to Title VII, requesting that race be included as a BFOQ. Senator Williams, in his attempt to get support for his amendment to Title VII, brought to the other Senators' attention the multimillion dollar businesses in the South that are operated solely by “[African American] citizens” and businesses that “cater exclusively to [African American] clientele.” Senator Williams believed that without this amendment those businesses would be destroyed. Congressman Celler responded to the offered amendment, stating, “[w]e did not include the word ‘race’ because we felt that race would not be a bona fide qualification, as would ‘national origin.’ That was left out. It should be left out.” The amendment was ultimately rejected, “ayes 70, noes 108.” Therefore, the legislative history of Title VII demonstrates that Congress considered a race-based BFOQ, but ultimately rejected its inclusion. Consequently, “the district court's Order [for summary judgment in favor of Plainfield] constitutes a judicial amendment to Title VII, which explicitly prohibits BFOQ's based on race.” The district court exceeded its bounds in creating an exception when Congress' intent in enacting Title VII was explicit.

III. Plainfield's Failure To Escape Liability

The district court wrongfully absolved Plainfield from liability. The court held that

Plainfield could not be held liable for creating a hostile work environment by implementing discriminatory staff assignments because the “policy clearly represented a good-faith effort to conform to the mandates of Indiana law.” In granting summary judgment the district court failed to realize that Plainfield's policy “is itself an unlawful employment practice and a per se violation of Title VII.”

A. Discriminatory Liability: Plainfield's Blatant Disregard for The Supremacy Clause, Long Standing Constitutional Principles & Section 708 of Title VII

Plainfield argued that the Supremacy Clause is inapplicable because Indiana's residential

rights do not conflict with federally mandated Title VII. Furthermore, the district court's holding that Plainfield's decision to leave the patient's preference on the assignment sheet was reasonable, as a good faith effort to conform to Indiana law, is a blatant disregard for constitutionally mandated principles. “The U.S. Supreme Court has interpreted the Supremacy Clause to stand for the proposition that ‘[a] state statute is void to the extent that it actually conflicts with a valid federal statute.”’ Indiana law governing long-term care facilities provides that a resident has a right to “choose a personal attending physician and other providers of service.” Allowing a patient to choose his or her care provider on the basis of race, in accordance with Indiana's patient's rights provisions, would render Title VII meaningless. Reconciliation of the overly broad rights granted to a patient to “choose its care provider” on the basis of race under Indiana law, with the limiting factor set forth under Title VII, that such choice cannot be manifested by a discriminatory preference, is not possible. Therefore, the Supremacy Clause renders the portion of Indiana statute allowing for discriminatory preferences in the care setting void.

Section 708 of Title VII specifically supersedes state laws that permit unlawful employment practices, which the following cases illustrate. For example, Utility Workers Union of America v. Southern California Edison Company dealt with this exact issue, holding that “Section 708 strongly implies that any state law which requires or permits the doing of an act which would be an unlawful employment practice under Title VII . . . whether or not it is ‘protective,’ is invalid.” The district court and Plainfield interpreted Indiana law to mandate job assignments and segregation on the basis of race. Allowing Plainfield to act in a manner consistent with this interpretation, as the Seventh Circuit properly observes, is a clear violation of Title VII. Consequently, consistent with Section 708, Plainfield remains liable, contrary to what it believed was required of them under Indiana law.

B. Neither Customer Preferences Nor The Business Necessity Doctrine Provide Support For Unlawful Employment Practices Against a Federally Mandated Law

Plainfield's assertion that the patients' privacy rights are paramount to any rights that Chaney had as an employee of Plainfield is unwarranted. Plainfield defends its unlawful acts, attempting to distinguish this case from cases in which customer preference was found to be unlawful under Title VII by stating that a long-term care facility has obligations to its patients that other employers do not have. The Seventh Circuit properly dismissed Plainfield's claim, recognizing that it is well settled that “racial preferences of . . . customers is not a defense under Title VII for treating employees differently based on race.” Furthermore, EEOC's guidance manual and case precedent have established that neither customer nor client preferences can ever excuse or rationalize disparate treatment of employees based on race.

Plainfield's use of the business necessity doctrine as a defense to its unlawful employment practices is misplaced. The “business necessity” defense is available only in cases involving disparate impact, and not cases that involve intentional discrimination. An case where the business necessity doctrine was a proper defense to unlawful discrimination in the employment sector came from the Fifth Circuit in Baker v. City of St. Petersburg. In Baker, the St. Petersburg Police Department restricted the work assignments of black officers to the policing of black citizens, which was found to violate equal protection and Title VII. However, the court noted two situations where the assignments of blacks to specific tasks based on their race would be acceptable: “For example, the undercover infiltration of an all-[African American] criminal organization or plainclothes work in an area where a white man could not pass without notice. Special assignments might also be justified during brief periods of unusually high racial tension.” The discrimination that Chaney faced as an employee of Plainfield cannot be justified under the business necessity doctrine. Chaney was a CNA with the same qualifications as her white co-workers, but she was restricted from performing her duties in the same respect because of her race. Consequently, by no means is Plainfield's use of racial preferences a “facially neutral policy.”

IV. The Demographics Of Nursing Homes And The “Baby Boomer” Generation

It is no revelation that the two largest groups of people found in long-term care facilities are nurse's aides and residents, who are often “racially and ethnically disparate.” One of the major factors that influence racial disparity between residents and their care providers is the overrepresentation of minorities working as nurse's aides, and the over-predominance of white nursing home residents. The underrepresentation of African Americans in nursing homes can be explained by two factors. First, among African Americans there is a cultural preference for home care. As a result of this preference, African American's generally use nursing homes at “a rate between one-half and three-quarters of that of Whites.” Second, the “baby boomer” generation, consisting of those people who were born between 1945 and 1964, is marching towards retirement. In 2009, 76% of the “baby boomer” generation was white, while only 10% was African American. The preference of African Americans to seek home care, the underrepresentation of African Americans in the “baby boomer” generation seeking long-term care, and the overrepresentation of minority care providers are factors that greatly influence the racial disparity of residents and care providers.

The majority of these individuals who seek refuge in long-term care were born during a time of racial isolation, and what was once legally and socially acceptable has drastically changed with the passage of the Civil Rights Act. Today, “baby boomers” are experiencing many changes, including those involving health care. The effects of aging are “increasingly defined and experienced as the gradual loss of autonomy culminating in admission to a nursing home.” The feeling of vulnerability caused by a loss of autonomy, which at times is coupled with the onset of illness, can lead to a more overt expression of racist views. However, the feeling of autonomy and onset of illness will not completely define or explain why some elderly patients overtly express their racist views because the “motivational foundations of human behavior have enormous complexity.” One researcher has described categorization of “irrational prejudice to be ambiguous” where those individuals who grew up during times of racial isolation have beliefs that members of a particular group have characteristics that they do not in fact have, or a belief that most members of a group have certain characteristics when only a few do.

V. Facing The Dilemma: Implications Of The Seventh Circuit Decision

Chaney has set precedent in the Seventh Circuit and established a bright line rule for the medical field: the right to choose a care provider does not lend itself to a right to choose based on the race of a care provider. The issue presented in Chaney is not novel; cases analogous to Chaney's have settled before a judicial opinion on the merits was rendered. Since this is the first time a judicial opinion has been rendered on this particular issue, it is imperative that the implications be discussed. It is also important that members of the medical field begin a dialogue on how to remedy the conflicting obligations set forth by OBRA 87 and Title VII.

A. Void for Vagueness?

The Seventh Circuit has established a bright line rule in Chaney that patients' rights are

not paramount to the rights of employees under Title VII, and that promoting a hostile work environment can lead to legal ramifications. However, the question still remains, what exactly would it take to be held legally responsible for the promotion of a hostile work environment? Justice Ginsberg, in her dissent in AMTRAK v. Morgan, makes clear that hostile work environment claims are “fundamentally different from claims based on ‘discrete facts' because the discrimination accumulates over an extended period of time.” However, despite the fact that such claims are not always easily identifiable at the outset, “[i]t is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined. . . . [because] [v]ague laws may trap the innocent by not providing fair warning.” The test set out by the court - that a minority employee must show that the work environment was both objectively and subjectively hostile, and that the conduct was severe - is vague, and allows for arbitrary opinions of whether a certain set of facts lends themselves to the creation of a hostile work environment. Consequently, “if arbitrary and discriminatory enforcement is to be prevented, laws must provide explicit standards for those who apply them.”

In Chaney's case, the bigotry was obvious, but it is not always going to be so clear. It is not the law that is vague in this instance, but the standard. The Seventh Circuit follows an overly flexible standard of how to identify a “hostile work environment,” and gives barely thought out suggestions on how to deal with hostile patients. If Plainfield had not written “Prefers No Black CNAs” on the assignment sheet, and instead pulled Chaney aside and voiced the patient's concerns with having Chaney as her care provider, and Chaney by her own free will chose to respect the patients request, would this have constituted the creation of a hostile work environment? Or, what happens if a patient is extremely ill but acting in a discriminatory manner towards the facility's health care staff. Would staffers have a claim against the care facility if they chose to let the patient remain because of his or her health condition? There is no quick bright line answer to any of these scenarios, but it is these scenarios that may lead to future claims, which is why the court's vague opinion needs to be fleshed out beyond the legalities of Title VII and hostile work claims.

B. The “Dilemma” Between Respecting Patient's Autonomy While Protecting The Rights of Health Care Employees

There are many psychological issues that patients and their families face when a loved one is admitted into a long-term care facility, but psychological issues do not give patients a free pass to act in a discriminatory manner towards their care providers. Chaney sheds light on the obvious “tensions within anti-discriminatory discourses in hospice care that are concerned both with fairness in policies and practices and with the need to combat discrimination.” The different “philosophies of hospice care and anti-discriminatory discourses play a significant role in constructing the nature of staff dilemma in their responses to incidents of racial harassment.” The recurring theme seems to be that of “dilemma.” There is Plainfield's dilemma, between adhering to patient preferences in accordance with Indiana law, while protecting the rights of its employees under Title VII. Additionally, there is Chaney's dilemma, choosing to abide by the patient's discriminatory request and Plainfield's instructions not to care for the patient, and her right to non-discriminatory treatment under Title VII. The term dilemma, as one researcher phrased it, refers “to potentially problematic and unresolvable tensions within representations of perceptions, emotions and actions.”

Condoning racial harassment or discriminatory preferences at the expense of care providers, as Plainfield did, cannot be justified. “Racist behavior needs to be addressed as an institutional issue, not a personal one.” Chaney has shed light on the fact that the management of hostile patients should be a “team decision.” Chaney was faced with repeated bigotry without the support of her colleagues or Plainfield. There was nowhere for Chaney to turn; her attempt to seek advice and remedy the situation was dismissed by the facility when it determined that the patient's preferences were paramount to her rights as an employee. The Seventh Circuit correctly dismissed Plainfield's theory of the superiority of patients' rights. A nurse's professional practice is founded on his or her code of professional conduct, respecting the autonomy and privacy of individual patients regardless of race, religion, values, or practices. However, the code of professional conduct is insufficient when racist abuse and bigotry is present, and where such action encroaches on the wellbeing of medical staffers and other patients.

The court's holding implicates the need to engage long-term care providers in a new way of thinking. It is important now that long-term care facilities promote a method of “[d]iagnostic thinking [to] help[] sort through the possible reasons or motivations of [a] patient [who asserts a discriminatory preference]. Was he feeling helpless, scared, or out of control?” Engaging in this type of diagnostic thinking will allow the facilities to take part in more appropriate responses oriented toward putting the patient at ease. If the patient's behavior cannot be managed, then further action need be taken, as discussed infra in Section VI.

A facility need not take the easy route and dismiss the discriminatory preferences by isolating the patient, “[t]o do so would be to miss the real tragedy and ignore the toxic legacy of racism.” In adhering to the patient's preferences, Plainfield ignored the “tragedy” at hand. The Seventh Circuit, by rendering its decision against Plainfield, has forced Plainfield and other similarly situated care facilities to confront the issue of discrimination in their facilities. Plainfield's solution, to isolate the hostile patient from Chaney, and shift the patient's care to a non-minority caregiver “has significant logistic disadvantages and sets a dangerous precedent,” because the accommodation of racist behavior breaches accepted standards of health care that have been acknowledged by society. If a patient fails to reform his or her behavior, it may be appropriate for a care facility to release the patient from its care. Since all patients are entitled by law to provide care in a reasonable manner, a physician that does not believe he or she can meet this standard of care for a particular patient is “entitled to terminate [the] healthcare relationship provided that [the physician and facility] act reasonably to ensure continuity of care for the patient.” Furthermore, “differences in the accounts of the same incident can be located in differences in professional caring roles, responsibilities and status, where doctors . . . can have significantly less day-to-day contact and emotional involvement with service users.” Because one health care professional is not entirely offended by the behavior of a patient does not discount the feelings of another health care professional, and facilities should be respectful of each individual employee's feelings.

The implications and the solutions discussed above, and infra in Part VI, are not necessarily applicable to situations involving emergency care or the presence of life-threatening illness. It is understood in the medical field that these types of situations influence the manner in which discriminatory confrontations are managed due to the level of care needed at that particular time. For example, if a cardiac arrest patient is about to go under for life saving heart surgery and is acting hostile towards the staff of an emergency facility, making requests for doctors based on race, the facility cannot refuse to treat the patient, but will also not be liable if they do not abide by the patient's request. However, in the long-term care setting, Chaney establishes the need for policy reform, as taking any action that promotes or allows discriminatory behavior to fall by the wayside will be a step backwards in terms of combating racial discrimination. Even though care facilities “have no jurisdiction over beliefs, prejudices, or comments made outside [of] treatment facilities, [they] can enforce a culture of tolerance and civility [[from] within.”

VI. Chaney Falls Short: How To Avoid The Legal And Ethical Bind Between Adhering To Patient's Rights Under The Nursing Home Reform Act And Employee's Rights Under Title Vii

The court was correct when it drew a line between patient's rights and the rights of employers, essentially finding that “[w]hen consumer direction comes up against choices based on race and ethnicity, workers' civil rights are implicated and they trump the right to choose health care providers.” However, the court fell short in its suggestion to long-term care facilities on how to avoid the dichotomy between unlawful employment practices and hostile residents. Health care providers have long been under the impression that patients are free to choose their care providers based on discriminatory characteristics until the Seventh Circuit's decision in Chaney. It is no secret that “[e]lderly residents who grew up in an era of racial intolerance . . . may revert to behavior learned in youth and young adulthood. The behavior may include racial slurs or demeaning behavior towards racial minorities,” which will consequently lead to a hostile work environment. Some solutions that the court suggested, including cultural competency and behavior contracting, are well-thought solutions; but their implementation needs to be developed. Cultural competency training generally focuses on the health care providers, while behavior contracting focuses on a shared initiative between the patient and care providers.

A. Cultural Competency Training

Cultural competency is a strategy that has recently gained attention as a method to

improve the quality of health care, as well as to eliminate both racial and ethnic disparities in health care. The broad range of patient perspectives in health care, influenced by patient's social or cultural backgrounds, is inevitable due to the increasing diversity of the United States. Patient preferences are driven by, but not limited to, shared languages, cultural preferences, and social experiences. Consequently, because of the vast spectrum of cultural attitudes and experiences, cultural competence on the part of the physician is necessary for they have taken on the responsibility of caring for these patients. “[C]ross-cultural competence - defined as ‘the knowledge, skills, attitudes, and behavior required of a practitioner to provide optimal health care services to persons from a wide range of cultural backgrounds' - is key to providing quality health care, [and] exposure to a racially diverse environment helps providers acquire such competence.” It would be much more difficult to implement a similar type of training with patients. If a patient has racist feelings due to a visceral aversion to African Americans, any opportunity for exchanges on controversial issues involving race would likely not advance a mutual understanding between the white patient and the African American care provider on issues of racial stereotyping and discrimination.

Many health care providers tend to justify discriminatory employment practices as a means to accommodate the preferences of patients, who tend to be more comfortable with same-race care providers. Even though many of the studies focusing on patient preferences have focused on the preferences of minorities, attitudes that shape these preferences are present in all patients, no matter their race, religion, or national origin. The studies that have demonstrated that patients of color prefer health care providers of the same race “also found that significant numbers of minorities prefer not to have doctors of their own race, perhaps reflecting ingrained racial stereotypes that would only be reinforced by accommodating such preferences.” Health care providers that emphasize to their patients that cross-cultural competence is a primary measure in their hiring and promotion decisions will ease patients' concerns that their health care provider will not understand their personal issues due to cultural barriers. A racially diverse workforce that is culturally competent will not only increase the trust that a patient has for his or her care provider, but will enhance the health institution's legitimacy by facilitating interactions among racially diverse colleagues, lending to the exchange of varying perspectives and approaches to improve patient health care. Race matching can facilitate deliberate discriminatory decisions that “reinforce[[] unconscious bias,” and can hurt medical professionals' relationships with their patients.

The importance of cultural competency is not a novel concept, but the discussion of mandating cultural competency training in the medical field is a recent phenomenon. “The goal of cultural competence is to create a health care system and workforce that is capable of delivering the highest-quality care to every patient regardless of race, ethnicity, culture, or language proficiency.” Cultural competency teachings are not meant to make care providers feel as if they are incompetent or racist, they are meant to enhance professional development and facilitate the education of care providers on the latest science in communications and communicating effectively across cultures. Cultural competency has been proven to make a difference in health care providers' knowledge, attitudes and skills, and leads to increased satisfaction in patient care. The vast amount of studies that have been done in the medical field “provide overwhelming evidence . . . [that] [m]inority patients appear to be getting worse care and having worse outcomes than white patients with the same health problems.” Even though Chaney dealt more specifically with patient preferences and not the resulting care of the patient, the court could have used the precedent set forth by its holding to send a message to the medical field that training such as cultural competency will relieve a lot of the problems that the medical field faces with regards to hostile patients and patient preferences.

Trust is a fundamental part of the patient-care provider relationship. To even begin to build trust between patients and their care providers, institutions such as Plainfield must facilitate interaction between the patient and the care provider, rather than hinder it by adhering to the racial preferences of their patients. A greater number of interactions between the patient and their care provider will generally lead to an increase in the patient's trust of that care provider. There is no telling whether this would have been the outcome in Chaney's case, but it would likely have alleviated any hostility that Latshaw had towards Chaney, potentially increasing her trust in Chaney as her care provider. It has been noted that “[w]hen patients are satisfied with their physicians' style, effective communication, leading to improved adherence and health outcomes, becomes more likely.”

In 1994, a survey found that only 13 out of 78 responding medical institutions offered cultural sensitivity courses. However, recent trends in health care are evidence that cultural competency training is a positive initiative for the medical field, and that it is important to teaching physicians to become more patient-centered by teaching them the relevant skills. In 2004 it was found that out of “8,000 graduate medical educational programs surveyed in the United States, 50.7 percent offered cultural competence training in 2003-2004, up from 35.7 percent in 2000-2001.”

To facilitate a growth in trust and understanding between patients and their care providers, a medical facility must understand what a cultural competency training program would include. The program training should not only discuss overall cultural competence, but should also focus on the specific population groups and health issues that are relevant to the particular community that their facility serves. An institution should also address the linguistic needs of its patients, including “organizational, clinical, and linguistic competence.” Additionally, there are a number of effective cultural competency training programs already in existence, including Cross- Cultural Health Care Program, Management Sciences for Health, and Center for Cross-Cultural Health. Established programs have proven to be very effective and generally provide a consultant as part of the package to explain the program and the best method of implementation. Lastly, an institution can choose to institute a cultural competency training program developed by them. The benefit of this method is that a specific institution's training department knows its organization's culture best, and would generally have a good grasp of what approaches are most effective. If this is the chosen method, it is important for the institution to seek the advice of a consultant who has the experience and expertise in cross-cultural health issues. No matter what, cultural competency training programs are an essential step in breaking the barriers of discrimination in the health field because “cultural issues are alive and well and constantly changing.”

While cultural competency is useful to the staff of long-term care facilities, giving them a better understanding of how patients' racial preferences can undermine staff morale while also educating them on religious and cultural practices of America's diverse population, it is unlikely that this type of training can completely change the racial attitudes ingrained in some patients. While cultural competency training may have advanced Chaney's understanding of her patients' culture and religion and increased the trust that her patients had in her ability to care for them, it may not have had any affect on the way Latshaw viewed Chaney.

Both racial isolation and the ideal that African Americans are undereducated and less intelligent than whites can have a potentially grave effect on patients, such as Latshaw's views on minority care providers. Individuals often have tendencies toward “remembering unfavorable behaviors associated with the outgroup.” Moreover, when weight is given to individuals who tend to confirm a given stereotype rather than those who disconfirm it, the result is the continued existence of a given stereotype, specifically that African Americans are inferior and less educated than whites. When a white patient has a superiority complex, the thought of having a care provider that a patient views as inferior to himself or herself is difficult for the patient to grasp, even if their care provider is “culturally competent.” Furthermore, if a patient generally adheres to egalitarian ideals, holding themselves out as non-racists, theorists believe that “unrecognized negative feelings and cognitive associations concerning persons of color [still exist], which can lead to prejudicial behavior.”

In situations where there is a visceral reaction towards a particular racial group, it is unlikely that cultural competency training alone will remedy a circumstance involving a hostile patient with discriminatory preferences. Issues involving race are sensitive matters, and it is difficult to get even young individuals “who are both old enough to understand concepts like stereotyping and fairness, and young enough, one would hope, to change their views-to communicate honestly and remain open to other groups' views.” In order to make any progress, in conjunction with cultural competency training, there must be inter-group dialogues and educational interventions. More frequent interactions between hostile patients and their minority care providers may allow for the diminishment of any distrust a patient may have in their care provider, while also promoting education in racial discourse. Dialogues and interventions of this nature are not going to have an immediate effect on race relations in long-term care facilities but can move race relations in long-term care facilities in a positive direction, towards defeating discriminatory stereotypes.

B. Behavior Contracting

The court, in discussing alternatives for Plainfield, suggested that not only should facilities notify patients of their nondiscrimination policy, “securing the resident's consent in writing,” but that health care facilities should “attempt to reform the resident's behavior after admission” if such behavior is leading to a hostile work environment. It is imperative that long-term care providers set forth their zero-tolerance discrimination policies at the outset of every patient's care. This will act as a notification to all patients that racist behavior will not be tolerated under any circumstances. Further, if a patient is hostile during his or her time at a facility, it is important for the facility to set forth some type of behavior contact with the patient to remedy his or her behavior. While the Chaney court found that behavior contracts might be appropriate under certain circumstances, the court failed to realize that it is difficult to implement behavior contracts when you have a “resident scream[ing] racial epithets at the minority employee while he or she is merely trying to do their job.” Due to the reality of these situations, the court should have had more developed suggestions for healthcare institutions, guiding them to appropriately contract with hostile patients. It may not be the court's responsibility to discuss the implementation of behavior contracts, but because the Seventh Circuit's decision will have far reaching implications, a more elaborate explanation is necessary to prevent an influx of similar litigation.

Behavior contracts can be an extremely effective tool for altering aggressive behavior, and can “be a positive learning experience leading to mutual understanding and improved relations between patients and staff.” Effective behavior contracts attempt to change a patient's problematic behavior. Problematic behavior is defined as any behavior that may lead to self-injury or that creates a hostile work environment. During Chaney's employment at Plainfield there was a point where she could not even render Latshaw assistance when she fell because of Latshaw's request for only white care providers. Latshaw's behavior was extremely problematic. Her restriction on who could render her immediate aide during a time of need could have led to the exacerbation of an injury or gravely affected her health. The implementation of a behavior contract to alter Latshaw's behavior could have effectively improved Chaney and Latshaw's relationship.

For a behavior contract to be effective, it must include statements of responsibility from both the patient and the facility, the use of behavioral terms, monitoring, review, utilization of a staff monitor, and a specified time frame. The behavior contract should set a goal, written with the patient's input, describing the desired behavior and not the behavior that they wish the patient to stop. Not only should the contract point out the role of the patient, but also the role the clinic will play in achieving the desired goals. It is the care facility's responsibility to “inform patients they have the right to make suggestions for improving the clinic.” The facility must set a time frame with the patient, as not doing so may make a patient feel as if they are on “probation” and could lead to a lack of commitment in trying to reform negative behaviors that lead to hostile work environments. A staff monitor can track the progress between the physician and the patient, noting whether either party is keeping its end of the agreement. The contract should also notify the patient of the consequences for non-compliance.

Behavior contracts have been found to be beneficial to both the patient and the care provider, allowing for the parties in the contract to communicate openly with one another, addressing and discussing the matter, and reaching a resolution that is satisfactory. If a satisfactory resolution is not reached, and the relationship between the patient and physician becomes “irretrievabl[y] broken,” a physician, along with the facility, may choose to terminate the relationship and discharge the patient from the care facility. If the care facility and physician collectively decide that such a drastic measure needs to be taken, the decision must be made with great care, possibly seeking the advice of an attorney to avoid potential claims of patient abandonment, or violations of antidiscrimination laws or ethical guidelines.

In cases similar to Chaney, behavior contracts would encourage the patient to allow any nurse to care for them, regardless of the nurse's race, culture, or religion. The contract could establish that the facility will put forth a support system for the patient, ensuring that the patient remains comfortable while working to overcome any fears he or she may have in allowing an individual of another race to care for them. However, it would be difficult to implement a rigid time frame for the contract. A facility like Plainfield could set an agreement with the patient that the contract will remain in place for a period of time, until the patient and care provider have the opportunity to build a positive relationship. It is important that the patient and the care provider get to know one another to enable the patient to begin to trust the care provider despite their differences. A patient's refusal to act in a manner consistent with the desired behavior expressed in the contract would be a breach of the contract. The contract would set forth the consequences of non-compliance, such as releasing the patient from the facility's care. However, the contract must specifically discuss and explain how the removal of the patient would be implemented, as to not violate the legal and ethical obligations owed to the patient.

Behavior contracts can be a means of averting a patient's focus away from discriminatory feelings, and instead toward obtaining the best health care possible. Also, at a time when a patient feels as though he or she is losing all control of their life, behavior contracts will give the patient a measure of satisfaction, knowing that he or she does have a say in his or her treatment, essentially reducing the power struggle between the patient and the care provider. A behavior contract is not a legally binding contract, but is a moral obligation on the part of both the care facility and patient that can only work if both parties are active in initiating change.

Conclusion

Title VII would be rendered meaningless if the Seventh Circuit held that a long-term care facility could grant patient preferences made on discriminatory grounds. The Seventh Circuit's holding allows the United States to continue to progress towards racial equality, rather than revert to the days when discrimination was rampant. Discrimination is the corollary of stigma, and it is evident that “[a]t the heart of stigma lies fear - fear that those who are stigmatized threaten society.” Both “[s]tigma and discrimination are self-perpetuating. A stigmatized group suffers discrimination, while discrimination underlines and reinforces stigma.” These “self-perpetuating” discriminatory attitudes and beliefs cannot be tolerated, nor afforded any preferential treatment under any circumstances, and the Seventh Circuit properly recognized this.

Complying with a patient's wish to have a white-only care provider leads to a hostile work environment for non-white employees. The Seventh Circuit, reversing the lower court, “pointed out that in order to impose liability for a racially hostile work environment, a minority [employee] must show that the work environment was both objectively and subjectively hostile, and that the conduct was severe and pervasive.” Any reasonable person would conclude that Chaney faced an abusive and hostile work environment while employed at Plainfield. “Plainfield's exclusion of Chaney from certain residents and work areas solely on account of her race created a racially-charged situation that ‘poisoned the work environment’ and created ‘fodder’ for co-workers' racially derogatory remarks.”

Setting precedent in this area of litigation, the Seventh Circuit asserted that the “ethical bind” between patient preferences and Title VII employment discrimination is avoidable when a long-term care facility is faced with a hostile resident. The court made vague suggestions to long-term care facilities that find themselves in the same position as Plainfield. The two options suggested by the court that seem the most promising when dealing with hostile patients, cultural competency training and behavioral contracting, can be very successful when implemented correctly.

The decision reached by the Seventh Circuit has brought to light the “dilemma” that medical care facilities face when hostile patients exercise their discriminatory preferences. Unfortunately, the Seventh Circuit's opinion left a huge gray area for care facilities, forcing facilities to determine when a specific situation promotes a hostile work environment and what within the parameters of the law the facility can do to remedy the situation. This Comment attempts to address the methods that a care facility can use to ensure compliance with Title VII and OBRA 87. The standard set forth by the Chaney court to identify the “promotion of a hostile work environment” may have been inadequate, however, the court's decision brought attention to these important “dilemmas.” Attention to these dilemmas of anti-discriminatory practice present society with positive opportunities to develop policy while focusing on the emotional ‘climate’ surrounding equal opportunities within organizations, which can ultimately lead to changes in hostile patients' behavior and the manner in which this behavior is dealt with.

 


 

. J.D. May 2012, St. John's University School of Law; Northeastern University B.S., summa cum laude, 2008.

Public Health Preparedness and the Law in Communities of Color

Vernellia R. Randall and Glen Safford


Vernellia R. Randall and Glen Safford, Public Health Preparedness and the Law in Communities of Color, 31 Journal of Law, Medicine & Ethics 45  (Winter, 2003).
 

Vernellia R. Randall

Public health preparedness must use a comprehensive approach that includes both communities and public health systems. There are three basic questions that should be asked when evaluating public health preparedness in communities of color: 1) Is the community basically healthy?; 2) Does the community have access to necessary information, resources and services?; and 3) Are the information, resources and services available and provided to the community in a nondiscriminatory manner?


Racial-based health disparities is a well documented fact for many communities of color. Individuals from these communities tend to have more morbidity and higher mortality. This health disparity is race based and not just a function of social class. Similarly, access to basic goods and health care is racialized and class based. For instance, 50% of non-white women have financial difficulty in obtaining food and more blacks than whites are in temporary and emergency shelters. Similarly access to health care resources is also impacted by race. For instance, more blacks than whites are without adequate health insurance. Most hospital and physicians offices are outside minority communities. In fact, since the 1960's as many as 70% of hospital closures are in minority communities. Finally, access to first responders is affected by race. While access is generally inequitable, it is further handicapped by lack of trust between first responders. This lack of trust is often caused by instances of racial profiling.

The bottom line is that institutional racism in basic goods, in health care, and in first responders impacts the ability of communities of color to be adequately prepared for a public health emergency. Institutional racism is a system of procedures, practices, and patterns that perpetuate and maintain the power, and influence the well-being of one group over another. A comprehensive public health law approach to preparedness would eliminate health disparities, increase health care utilization, ensure quality health care, enhance data collection in minority communities, eliminate discrimination, and increase first response effectiveness.

Glen Safford

Tribal sovereignty is based on the concept of nationhood. The Indian Self-Determination Act recognized that American Indian people needed to develop leadership skills crucial to the realization of self-governance, and a voice in the planning and implementation of programs.

Tribal health care systems are operated by tribes, under contract with federal and state governments and private entities. Staff must answer to tribal councils and health boards as well as the Great Lakes Boards. The level of collaboration varies, but most tribal health care systems report communicable diseases and collaborate during outbreak investigations and prophylaxis. Tribal health care systems also receive and use free vaccines from the state and other programs.

The Great Lakes Inter-Tribal Counsel's (GLITC) mission is to expand self-determination efforts, with deep respect for tribal sovereignty and reservation community values. There are three levels and functions to the system: provide technical assistance and support; provide input, ideas, and model procedures; and provide assistance with policy and planning approval with tribes. GLITC does not do anything the tribes want to *46 reserve for themselves. True community public health is provided through a mixture of professional and consumer perspectives, with bottom-up strategic planning, with an emphasis on prevention and education, and using a broad definition of health care.

Many lessons have been learned through working with tribal communities. For example, it is important to stress tribal sovereignty. To work together, strong and innovative systems, model approaches, and strong technical capabilities are essential. In addition, it is critical to develop informed, trusting relationships, and broaden mutually beneficial alliances. Most importantly, when working with tribal communities, partners need to have open attitudes, and learn from each other.

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