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Vernellia R. Randall , Racist Health Care: Reforming an Unjust Health Care System to Meet the Needs of African-Americans, 3 Health Matrix: Journal of Law-Medicine 127-193 (Spring, 1993)(312 footnotes omitted)
“Racist” and “racism” are provocative words in American society. To some, these words have reached the level of curse words in their offensiveness. Yet, “racist” and “racism” are descriptive words of a reality that cannot be denied. Ethnic-Americans live daily with the effects of both institutional and individual racism. Race issues are so fundamental in American society that they seem almost an integral component. Some Americans believe that race is the primary determinant of human abilities and capacities. Some Americans behave as if racial differences produce inherent superiority in European-Americans. In fact, such individuals respond to African-Americans and European-Americans differently merely because of race. As a consequence, many African- Americans are injured by judgments or actions that are directly or indirectly racist.
Much of the attention of the last 20 years has focused on individual racist behavior. However, just as individuals can act in racist ways, so can institutions. Institutions can behave in ways that are overtly racist (i.e., specifically excluding African-Americans from services) or inherently racist (i.e., adopting policies that while not specifically directed at excluding African-Americans, nevertheless result in their exclusion). Therefore, institutions can respond to African-Americans and European-Americans differently. Institutional behavior can injure African-Americans; and, when it does, it is nonetheless racist in outcome if not in intent.
I. INTRODUCTION
Health care reform is a major initiative in the United States today. The concern regarding health care is widely discussed and recorded in literature that includes books, articles, and editorials. Most of the discussion focuses on reforming health care to control cost or to provide better access. Very little of that discussion observes the needs of persons of color, in general, and African-Americans, in particular.
The need to focus specific attention on African-American health care and health care reform is overwhelming. Not only are African-Americans sicker than European-Americans, they are dying at a significantly higher rate. These are undisputed facts. This disparity in health care has the effect of precluding African-Americans from gaining full access to the economic system. Decent health is a precursor to getting the other attributes, such as money, education, contacts, know-how, necessary to exploit the American system to full advantage. When people are sick and poor, they are just as enslaved as if the law made them so.
Factors affecting health include socioeconomic status, biology, and environment. Yet, in a racist society such as ours, the effect of race is all-encompassing. Race not only affects socioeconomic status, biology, and physical environment; it also affects the way health care institutions function to provide services. Independent of economics, race affects access to care. Independent of economics, race affects the type and quality of health care treatment received. Consequently, to improve the health of African-Americans, it is not sufficient merely to remove economic barriers to access. To improve the health of African-Americans, health care institutions must be more than affordable. They must be just. If we want justice in health care for African-Americans, then every effort must be made to design a system that provides needed health care by assuring complete access and by eliminating institutional racism. Consequently, a just health care system will focus on eliminating the disparity in health care between African-Americans and European-Americans. Several policy approaches can be taken to deal with this issue: 1) expanding insurance coverage, 2) targeting special health services to African-Americans, and/or 3) using Title VI of the Civil Rights Act of 1964 to eliminate racist practices in health care delivery and health care education.
This paper evaluates these policy options and the feasibility of reforming an unjust health care system to meet the needs of African-Americans. Part I explores the disparity between the health status of African-Americans and European-Americans. Part II discusses the health care system and the manifestations of institutional racism. Part III analyzes selected policy options for making the health care system more just.
II. DISPARITY IN AFRICAN-AMERICAN AND EUROPEAN-AMERICAN HEALTH STATUS
Negroes (or African-Americans) have been subject to victimization in the sense that a system of social relations operates in such a way as to deprive them of a chance to share in the more desirable material and nonmaterial products of a society which is dependent, in part, upon their labor and loyalty. They are ‘victimized’ also, because they do not have the same degree of access which others have to the attributes needed for rising in the general class system--money, education, contacts, know-how [and Health].
Full participation in a society requires money, education, contacts, know-how and health. Health is not only significant in itself, but it also affects availability of and decisions regarding choices throughout one's life. For example, lack of prenatal care leads to greater likelihood of infant death, neurological damage, or developmental impairment; childhood illnesses and unhealthy conditions can reduce learning potential; adolescent childbearing, substance abuse and injuries cause enormous personal, social and health effects; impaired health or chronic disability in adults contributes to low earning capacity and unemployment; chronic poor health among older adults can lead to premature retirement and loss of ability for self-care and independent living.
Thus, health status is an important ingredient in a person's “social position, . . . present and future well-being,” and a critical one for African-Americans. When one is born poor, with limited opportunity for quality education and with the burden of racism, one's “good” health becomes the only fungible asset. Understanding the nature of African-Americans health, is critical to appreciating the racist nature of health care institutions. Health is a complex concept that is difficult to measure. The difficulty in assessing one's health may result, in part, from a general inability to conceptualize good health. In addition, widespread professional disagreement over the meaning of health contributes to the difficulty in measuring it.
The World Health Organization defines health as “. . . a state of complete physical, mental, and social well-being and not merely the absence of disease or infirmity.” However, for African-Americans that definition has little validity. Given the fact that the pervasive nature of racism in American society affects African-Americans at all economic levels, there cannot be “complete . . . mental and social well-being” for African -Americans until the problem of racism in society is addressed and resolved.
Health is also defined as a “lifestyle in which an individual attempts to maintain balance and to remain free from physical incapacity while maximizing social capacity.” That definition currently has more validity for African-Americans because it recognizes that an individual's lifestyle impacts health and that lifestyle is influenced by social class. It recognizes that African-Americans, surrounded by racism, cannot strive for complete mental well-being, but can strive to maintain a balance. The definition recognizes that what the African-American must do to maintain balance and remain free from physical incapacity will be different from what is required of the European-American. For instance, recent discussions regarding hypertension among African-Americans hypothesize that the ongoing continued stress of living in a racist society may be a significant factor in the development of hypertension. If this is true, then a lifestyle of dieting and exercise (recommended preventive activity for hypertension) would not be sufficient to prevent hypertension in African-Americans although it might suffice for European-Americans.
Whatever the definition of health, generally speaking, “health” may mean the presence or absence of disease. Using that definition of health, there are several ways to determine health: by direct observations, records, and self-report. Each of these ways of measuring health presents its own measurement problems. First, inaccuracies can occur in direct observations because medical practices and diagnostic labeling may vary. That variation may be not only by geographic area but by physician and hospital. Second, interpretation errors can result if researchers misinterpret symptoms and results, or when researchers inappropriately generalize based on a condition of another time or a more general population group. Finally, failure to consider intra-ethnic diversity may lead to erroneous conclusions about African-American health.
Whatever the difficulty in measuring health status, understanding the full extent of differences in health between African-Americans and European-Americans is essential to fully appreciate the need for reform in the health care system and to understand inadequacies in current reform approaches that ignore, dismiss, or do not recognize these difference. To describe the health status of African-American, this paper presents research on the amount of dissatisfaction, discomfort, disability, disease, low-birth weight, and death that occurs in the African-American population as compared to the European-American population.
A. Health Status: African-Americans' Dissatisfaction
Dissatisfaction is the degree of discontentment a person has with his or her health. As a measure of health, it is assumed that a person who has poor health will be more dissatisfied overall than a person with good health. Because it relies on this self-evaluation, dissatisfaction is the most subjective of the health measurements. In fact, the reasons for dissatisfaction with health vary not only based on an individual's situation, but also on ethnicity, race, and culture. Consequently, it is subject to many potential interpretive errors.
Nevertheless, 17% of African-Americans report their health as fair or poor compared to 9% of European-Americans. That is, 88.8% more African-Americans than European-Americans reported their health as fair or poor. Similarly, 50% more African- Americans than European-Americans report themselves as having some, little, or no satisfaction with their health and physical condition. Notwithstanding interpretive errors, these figures reflect a significant difference between African-Americans' and European-Americans' dissatisfaction with their health.
B. Health Status: African-Americans' Discomfort
Discomfort is the level of such feelings as aches and pains, tiredness, and sadness experienced by an individual. As for dissatisfaction, this information is obtained through self-reporting and is subject to considerable measurement error. Surveyors asked individuals to check fifteen symptoms that were (or were not) experienced in the last year. Some symptoms related to the various body systems representing both acute and chronic problems. Some symptoms were common experiences such as sore throat or runny nose. Other symptoms were infrequent and often associated with serious problems such as the loss of more than ten pounds in weight. The mean number of symptoms reported represents the score for a population group.
Measuring health status by the results of reported discomfort surveys presented some interesting results. One such result is the fact that African-Americans under 45 years of age actually reported fewer symptoms than European-Americans. There are several ways to interpret this result. The most obvious is that the African-American age group, in fact, has fewer and less severe symptoms. However, that interpretation would be at variance with results of studies based on more objective measurements, i.e., death rates. A second interpretation of this interesting result is that there is considerable under-reporting among African-Americans, particularly of the more serious symptoms. That interpretation is strengthened by a finding that once African-Americans with symptoms are in the health care system, they require more visits than their European-American counterparts. Thus, it is more likely that the under-reporting of symptoms contributes to an inaccurate reflection of health status.
C. Health Status: African-Americans' Disability
Health status based on disability can be defined as the inability to engage in gainful employment; or as the temporary or long-term reduction of a person's activities because of a health condition. Health researchers generally use three measurements of disabilities: restricted activity days, work loss days and bed disability days. This paper uses restricted activity days as a measure of health status since restricted activity days is a broader measurement than work loss days, and work loss days would not necessarily include unemployed individuals. It is also broader than bed disability days, since an individual could be sick enough to have many activities restricted without necessarily being confined to bed.
As in the other measurements, using restricted activity days to represent health status can lead to significant interpretive error. First, there are a number of reasons a person may lose workdays. Employees may take sick days to stay home with a sick child; children may miss school for physician appointments; and, people may falsely claim disability to collect insurance money. Second, instead of being a measure of disease, disability may be more a measure of morale and conformity. Despite the risk of interpretive error, restricted activity days are accepted as a general measure of health status.
Using the number of days of restricted activity per year, African-Americans under age five have no extraordinary disability. This outcome is entirely predictable since a child under five is involved in neither school nor work. What is not predictable is the 22.8% fewer restricted activity days for African-Americans in the age group 5-17. Given the higher death rate and disease rate of African-Americans to that of European-Americans in this age group, it is likely that this difference is either an interpretation or reporting error. This assessment of error would seem particularly true since African-Americans in the eighteen-and-over age group reported 37.5% more days of activity restriction per year than European-Americans.
D. Health Status: African-Americans' Disease Rate
Health status may also be based on the presence of which disease can be divided into acute conditions and chronic conditions. The most common method of determining the presence of disease in a population is by reviewing hospital medical records. When measuring African-American health based on reported acute conditions, it would appear that African-American health is better than that of European-Americans. For the age group under eighteen, 36.3% fewer African-Americans than European-Americans reported acute health conditions; for the 18-44 age group, 15.9% fewer African-Americans than European-Americans reported acute conditions; and, for ages 45 and above, 10.1% reported fewer conditions. Interestingly, despite the seemingly lower incidence of acute diseases among African-Americans, they have a higher mortality rate from acute conditions than European-Americans have.
The percentage calculated for limitations in activity due to chronic diseases is higher in African-Americans than in European-Americans for all age groups. For instance, for the under-18 age group, 20% more African-Americans than European-Americans reported limitations in activity because of chronic disease; for the 18-44 age, group 22.5% more African-Americans than European-Americans reported limitations; in the 45-64 age group, 34.8% more African-Americans than European-Americans reported limitations; and in the 65-69 age group, 31.6% more African-Americans reported limitations than European-Americans. Finally, in the seventy-and-over age group, 23.8% more African-Americans than European-Americans reported limitations. Therefore, while African-Americans report fewer acute conditions, they tend to report more limitations based on chronic conditions.
E. Health Status: African-Americans' Low Birth Weight Rate
Low birth weight is a common measurement of the health of infants. Low birth weight is defined as weight of less than 2500 grams. Prior to the 1960's, low birth weight infants had a very low chance of survival. As survival rates improved, low birth weight babies were often found to suffer extensive handicaps, including severe and moderate mental retardation, cerebral palsy, seizure disorder, blindness, hearing defects, and behavioral, learning, and language disorders. Therefore, low birth weight can be an objective measurement of future health status.
In 1980, European-Americans had a low birth weight rate of 5.7%, while African-Americans had a low-birth-weight rate of 12.5%. The evidence indicates that while low birth weight is holding steady at 5.7% for European-Americans, it has actually risen over the last 12 years to 12.7% for African-Americans. Therefore, African-American infants are 222.81% more likely to suffer from low birth weight and its accompanying handicaps.
F. Health Status: African-Americans' Death Rate
The most objective measure of health is the death rate. Despite some subjective self-reporting (dissatisfaction, discomfort and acute disease), which might suggest equal, if not better well-being among the African-American population, the objective statistics based on death show just the opposite.
Wounded, [racism] retreated to more subtle expressions from its most deeply entrenched bunker . . . [F]orms of sophisticated racism attached to economic opportunities unfortunately can still be found today.
. . . NOWHERE IS THAT BETTER EXEMPLIFIED THAN IN THE RATE OF EXCESS DEATH AMONG BLACK AMERICANS. (emphasis added). “Excess death” is the number of deaths actually observed prior to the age of 70 years, minus the number of deaths that would be predicted when age- and sex-specific death rates of the U.S. European-American population are applied to the African-American population. African-American women have 53.12% excess deaths and African-American men have 52.67% excess deaths. In fact, African-Americans experience 60,000 excess deaths a year compared to mortality rates of European-Americans. When death rate statistics are broken down by causes of death, the data are striking. For instance, African-American women had 324.1% more deaths due to homicides, 163% more deaths due to diabetes, 77.6% more deaths due to cerebrovascular disorders, 78.4% more deaths due to cirrhosis of the liver, and 78.4% more deaths due to heart disease than European-American women. Furthermore, African American women have a 178.43% excess maternal rate. African-American men had 598.7% more deaths due to homicides, 100% more deaths due to diabetes, 92.6% more deaths due to cerebral vascular disorders, 88.4% more deaths from cirrhosis of the liver, and 81.8% more deaths due to pulmonary infectious disease than European-American men.
Deaths in the first year of life have consistently been used as an objective determination of health of a population. Therefore, it is significant that in the first year of life, 108.14% more African-American infants die than do European-American infants. Finally, not only is infant mortality used as an objective determination of the health of a population, but it is also used as a measure of the health of a nation. Generally, the United States infant mortality rate is reported as one general rate: 8.6 which places the United States twenty-second among nations. However, as indicated, that rate is misleading. When compared to the infant mortality of other nations, African-Americans rank thirty-second among countries compared to European-Americans' twelfth-place ranking.
G. Summary
The picture that is clearly painted by these health measurements is one of significant disparity between two races. While there are some age group variations in the more subjective health measurements (e.g., dissatisfaction), the most objective health measurement (death) clearly indicates that African-Americans are sicker than European-Americans.
If African-Americans are sicker as a result of disparate treatment in the health care system, then they are victims of unequal access to health care. Without decent health, it becomes nearly impossible for African-Americans to gain the other attributes (money, education, contacts, know-how) necessary to gain access to the American economic system. Therefore, when African-Americans are sick and poor, they are just as enslaved as if the law made them so.
III. INSTITUTIONAL RACISM AND AFRICAN-AMERICAN HEALTH STATUS
Racism is both overt and covert, it takes two closely-related forms: individual whites acting against individual blacks, and acts by the total white community against the black community. We called these ‘individual racism and institutional racism’. The first consists of overt acts by individuals, which causes death, injury or the violent destruction of property. The second type is less overt, or more subtle, less identifiable in terms of specific individuals committing the acts. But, it is no less destructive of human life. The second type originates in the operation of established and respected forces in the society, and thus receives far less public condemnation than the first type.
When white terrorists bombed a black church and killed 5 black children, that is an act of individual racism, widely deplored by most segments of the society. But, . . . [when] black babies die each year because of the lack of proper food, shelter, and medical facilities, and thousands more are destroyed and maimed physically, emotionally, and intellectually because of conditions of poverty and discrimination in the black community, that is the function of institutional racism. African-Americans are sicker than European-Americans. Knowing that African-Americans are sicker than European-Americans does not explain why. It certainly does not indicate the presence of institutional racism. To understand the role of institutional racism in health status requires an understanding of how health status is determined. Many things affect health status. An individual's personal lifestyle choices affect health status because they affect an individual's personal behavior and psycho-social health, which affect his or her physical health. Physical environment and biology also affect health status. Health care institutions affect health status because both personal behavior and human biology are affected by an individual's access to health care, and by the quality of health care the individual receives from health care institutions.
Class theory maintains that the primary factor affecting differences in health care status between racial groups is socioeconomic. According to the class theory, socioeconomic class affects life-style, psycho-social behavior, personal behavior, human biology, physical environment, access to health care, and the behavior of the system and its institutions toward the individual. According to the class theory, it is lack of money, not racism, that explains the disparity in health.
Certainly, access to health care services is related to ability to pay, and ability to pay is related to access to health insurance. It is estimated that 37 million Americans are uninsured. The spiraling costs of health care and health insurance make it impossible for many individuals to afford to purchase either privately. And yet, only about half of the poor meet government assistance programs' eligibility requirements. Many African-Americans are unemployed or employed in jobs that do not provide health care insurance. Many African-Americans are above the poverty line, disqualifying them for government assistance programs. Other African-Americans, approximately 25%, fall between the cracks, uninsured, without government assistance and without equitable access to health care. Consequently, many policy makers are suggesting health care reform proposals designed to minimize the effect ability (or inability) to pay has as a barrier to health care.
Even if any of the health care reform proposals are successful, the effect of socioeconomic class on health status will not be eliminated. In fact, its major effect will still exist, since socioeconomic class will continue to affect personal behavior and psycho-social health, physical environment, and human biology. Nevertheless, theoretically, access to health care will no longer be based on economics and ability to pay. If one accepts the class theory, then one must believe that establishing a universal health insurance will minimize the impact of class on health care access and should result in improved health for African-Americans.
The class theory, however, oversimplifies the issue and completely ignores the independent role of race in American society. Race influences not only life-style, personal behavior, psycho-social behavior, physical environment, and biology, but also socioeconomic status. Thus, race has a double influence.
Racism in America establishes separate and independent barriers to health care institutions and to medical care. Those who advocate for the class theory ignore the fact that removing economic barriers does not remove racial barriers. Racial barriers to health care are exhibited in two areas. First, institutional policies based on race establish barriers to access to health care to African-Americans. Second, practitioners provide disparate medical treatment to African-Americans based on their race which is not related to their socioeconomic class.
A. Racial Barriers to Access
It is hard to separate the effects of discrimination from those of concentration of Negroes in those areas where medical facilities are not easily accessible and in those income brackets that do not permit the purchase of medical facilities in the competitive market. Discrimination increases Negro sickness and death both directly and indirectly and manifests itself both consciously and unconsciously. Discrimination is involved when hospitals will not take in Negro patients; or when--if they do permit Negro patients--they restrict their numbers, give them the poorest quarters, and refuse to hire Negro doctors and nurses to attend them. . . . Ill health reduces the chance of economic advancement, which in turn operates to reduce the chance of getting adequate medical facilities or knowledge necessary for personal care.
Discrimination in health care has its foundation in the historical relationship between African-Americans and southern medical institutions. As slaves, African-Americans were perceived as property. While slave owners attempted to protect their own economic interests by providing minimal health care, most left the slaves to live or die as fate might befall them. After the Civil War, the Bureau of Refugees, Freedmen and Abandoned Lands (Freedman Bureau) was instituted to “furnish supplies and medical services” to the former slaves. However, the Freedman Bureau had very limited effect in providing services to former slaves. In fact, the Compromise of 1877 effectively ended the period of Radical Reconstruction which had been an attempt by the nation to make affirmative efforts in helping African-Americans.
During the Post-Reconstruction era, African-Americans were excluded from health care either by prohibition or discrimination.
[Even] where segregation and discrimination [were] not required by law they became deeply ingrained in the mores. Such behavior became part of the American Way of Life' . . . .
This “way of life” remained visible until the Civil Rights Movement of the 1960s. After the 1960s, health care institutions either fled predominant African-American communities or instituted policies which resulted in limited access for African-Americans. Discrimination can take two forms. Discrimination can be based on racist conduct that is intentional or it can be based on conduct which, although not intentional, nevertheless results in a disproportionate disparate impact on African-Americans. Much of the institutional racism has historically moved from intentional conduct to unintentional. While this classification may offer a distinction when assigning fault or culpability, the classification makes little difference to the African-American feeling the adverse affects of discrimination.
This legacy of a racist health care system persists today in African-Americans who are sicker than European-Americans and who continue to experience racial barriers to access. Racial barriers to access can be divided into three major groups: barriers to hospitals, barriers to nursing homes, and barriers to physicians and other providers.
1. Barriers to Hospitals
The institutional racism that exists in many hospitals manifests itself in a number of ways including the adoption, administration and implementation of policies that restrict admission; the closure, relocation or privatization of hospitals that serve the African-American community; and the transfer of unwanted patients (known as “patient dumping”) by hospitals and institutions.
ADMISSION RESTRICTIONS. Many hospitals discriminate by using patient referral and acceptance practice standards that limit access. These practices restrict the admission of African-Americans to hospitals. Discriminatory admission practices include:
• Layoffs of recently hired African-American physicians - where those African-American physicians admit most of the African-American patients served by the hospital;
• Not having physicians on staff who can accept Medicaid patients; • Requiring pre-admission deposits as a condition of obtaining care; • Refusing to participate in programs to finance care for low-income patients not eligible for Medicaid; and, • Accepting only patients of physicians with staff privileges when the patients of such physicians do not reflect the racial composition of the local community. Such practices may have a devastating effect on African-Americans. The practices may banish African-Americans to distinctly substandard institutions treating mostly minority groups. They may completely prevent care where African-Americans have no access to other sources of care. COMMUNITY AVAILABILITY. Racial barriers to health care access are based, in large part, on the unavailability of services in a community. Increasingly, hospitals that serve the African-American community are either closing, relocating or becoming private. In a study done between 1937-1977, researchers showed that the likelihood of a hospital's closing was directly related to the percentage of African-Americans in the population. Throughout the 1980s many hospitals relocated from heavily African-American communities to predominantly European-American suburban communities.
This loss of services to the community resulted in reduced access to African-Americans. Geographic availability and proximity are important determinants to seeking health care services early. If African-Americans fail to seek early health care, they are more likely to be sicker when they do enter the system; and the cost for the patient to receive service and for the system to provide services at that point is likely to be greater than at an earlier state. Therefore, not only does the loss of services significantly increase health care costs to African-Americans, but also, it increases health care costs to the society in general.
Another devastating trend that affects the access of African-Americans to health care is the privatization of public hospitals. Quite a few hospitals (public and non-profit) have elected to restructure as private, for-profit corporations. As public hospitals, many were obligated to provide uncompensated care under the Hill-Burton Act. As private hospitals, these institutions are most likely to discontinue providing general health services to the indigent populations, and essential primary health care services to serve African-American communities.
The problem of limited resources is not new and has plagued the African-American community since slavery. Historically, African-American communities attempted to address the problem by establishing African-American hospitals. At one point there were more than 200 African-American hospitals in the United States. African-Americans relied on these institutions to “heal and save their lives.”
Now, these institutions are fighting for their own survival. By the 1960s, only 90 African-American hospitals remained. Between 1961 and 1988, 57 African-American hospitals closed and 14 others either merged, converted or consolidated. By 1991, only 12 hospitals continued to “struggle daily just to keep their doors open”. As a result of closures, relocations, and privatization, many African-Americans are left with limited, if any, access to hospitals.
PATIENT DUMPING. An African-American seeking care at a private hospital faces the possibility of being “dumped”, that is, the hospital may transfer an “undesirable” patient to a different facility. The transfer is medically appropriate only when the care required is not available at the transferring hospital. However, many transfers are for economic reasons, i.e., the patient was either uninsured or unable to make admission deposits. African-Americans are disproportionately affected by these practices.
In 1986, Congress passed the Emergency Medical Treatment and Active Labor Act which became effective as Section 9121 of the Consolidated Omnibus Reconciliation Act (COBRA). The Act provides a cause of action against hospitals that “dump” patients with emergency conditions from their emergency rooms, or who “dump” pregnant patients in active labor. Several states have make “patient dumping” illegal.
However, limited enforcement of these legislative enactments makes patient dumping an ongoing problem. For instance, as of October 30, 1990, only 530 facilities had been investigated; only 139 facilities were found in violation of the statute; and only five facilities actually lost their Medicare contracts. A high percentage of African-Americans are uninsured or under-insured. Consequently, patient dumping continues to be an issue that plagues African-Americans. Furthermore, hospitals have developed methods to dump the patient without invoking the statute. For instance. the statute provides that hospitals receiving federal funding must accept any patient who “comes to an emergency room.” If hospitals reroute the patient before the patient arrives then the statute will not apply.
In Johnson, a parent called the paramedics after her baby went into cardiac arrest. The paramedics contacted University of Chicago hospital. The hospital told the paramedics to take the child to another hospital even though it was only five blocks away. The child was taken to a hospital without a pediatric intensive care unit and had to be transferred to another hospital. The child died after admission to the second hospital. The plaintiff sued on common law claims and for violation of COBRA. The district court dismissed and the Seventh Circuit upheld the dismissal of the COBRA claim. The Seventh Circuit noted that “In accordance with the plain meaning of the statutory language, we do not believe that the infant ever ‘came to’ the hospital or its emergency department. For purposes of COBRA, a hospital-operated telemetry system is distinct from that same hospital's emergency room.” The court went on to acknowledge that a “. . . hospital could conceivably use a telemetry system to dump patients”; nevertheless, the court held that the “statute does not expressly address the question of liability in such a situation.” Thus, the Seventh Circuit leaves the door open for other hospitals to continue dumping patients, most of whom will be African-Americans.
2. Barriers to Nursing Homes
Nursing homes are the most segregated publicly licensed health care facilities in the United States. Smith, in his study, concludes that racial discrimination is the major factor explaining that type of segregation. It has been suggested that any difference in African-American use of nursing homes can be explained by cultural biases against using nursing homes as care source for disabled or aged family members. However, in some areas (such as Delaware and Detroit Metropolitan) African-Americans make up a higher portion of nursing home residents than European-Americans. This suggests that African-Americans do not consistently decide against nursing homes.
Furthermore, even where racially neutral policies exist, institutional racism is still a factor. For instance, evidence about the use of nursing homes under Medicaid demonstrates that institutional racism has an impact even without regard to economic class. For instance, although African-Americans constitute only 12% of the nation's total population, the African-American poverty rate (31%) is three times greater than the European-American poverty rate (10%). However, African-Americans constitute only 29% of the Medicaid population and 23% of the elderly poor. Medicaid expenditures for African-Americans are only 18% of total expenditures. If, indeed, African-Americans are sicker, then Medicaid expenditures for African-Americans should at least be equal to, if not greater than, the percentage of Medicaid's African-American population. It is this combination of under-representation and under-spending in Medicaid that suggests racism.
In part, this disparity in expenditure is based on the limited access that African-Americans on Medicaid have to nursing homes, both intermediate and skilled nursing facilities. Only 10% of Medicaid intermediate care patients are African-Americans. Similarly, only 9% of Medicaid skilled nursing care facilities' patients are African-Americans. This disparity may be due in part to a policy allowing limited bed certification. Under limited bed certification, nursing homes determine the number of beds that are certified to participate in Medicaid. Federal regulations permit a distinct part of intermediate care facilities to be certified. Some states will certify a limited number of beds. Thus, the certified portion of a facility need not contain all intermediate care facilities residents. Furthermore, some states will certify beds which are not in a separately administered unit of a facility, but are instead part of a wing or ward that also contains non-certified beds.
Limited bed certification programs allow nursing home operators to give preference to private pay patients by reserving for their exclusive use beds which are unavailable to Medicaid patients. It also allows the nursing home operators to change the bed certification, resulting in disruption of the care of Medicaid patients by displacing them after they have been admitted to a nursing home.
Displacement can occur in several ways. It occurs when a patient exhausts his or her financial resources. The patient needs to make a transition from private pay to Medicaid. At that point, a patient may be told that his or her bed is no longer available. Furthermore, displacement occurs when a patient with insurance (private, medicaid or medicare) is transferred from a skilled nursing facility to an intermediate care facility. If the insurance will not cover intermediate care, the patient may not have financial resources to continue obtaining nursing home care. Similarly, displacement can occur when a patient already on Medicaid and authorized to receive skilled nursing care is reclassified for intermediate care only.
A nursing home can manipulate the availability of nursing home beds by certifying (and decertifying) beds. This certification and decertification process limits access to minorities. Linton v. Carney effectively challenged the practice.
In Linton, Mrs. Linton was threatened with an involuntary transfer from the facility she occupied. The threatened transfer was due to a change in her classification status by the Tennessee Medicaid program. Although Mrs. Linton occupied a bed in the nursing home certified for her new classification, the nursing home threatened to decertify her bed. No other beds were available in the facility. Joining Mrs. Linton (as a plaintiff-intervenor) was Mrs. Carney. Mrs. Carney was an 89-year-old African-American who could not find an available nursing home in the state of Tennessee. The District Court found the limited bed certification policy to violate both Title VI of Civil Rights Act and the Medicaid statute.
The Linton court recognized that Title VI prohibits policies and practices with adverse disparate impact on ethnic and racial minorities. According to the court, the plaintiffs showed that the defendants' limited bed certification policy had a disparate impact on racial minorities. While the defendants argued the “self-selection preferences” of the minorities adequately explained the disparate impact , the court rejected that interpretation as “sufficient justification for minority under-representation in nursing homes.” Therefore, the defendants did not meet their burden of proof.
Linton demonstrates that health care programs can operate in a racist way despite the appearance of racial neutrality. Any reform to the health care system that does not specifically address race has the potential of being racist and discriminatory.
3. Barriers to Physicians and Other Providers
Another important aspect of access to care is the availability of health care providers who serve the African-American communities. It should go without saying that proximity increases utilization. At this point, data on the actual numbers of white physicians who have offices in the African-American community are not available. There are probably very few. Consequently, African-American physicians have been an important aspect of filling the availability gap. Without physicians and providers in their communities, African-Americans are likely to delay seeking health care. That delay can result in more severe illness, increased health care cost, increased mortality and increased costs to society.
Given the increased morbidity and mortality among African-Americans logically one would expect more health care providers in their communities not fewer, and more African-Americans in health care fields. Scrutiny of the physicians heading in the Yellow Pages of any major city, clearly indicates that many physicians do not physically serve the African-American community.
Furthermore, despite being 12% of the population, African-Americans are seriously under-represented in health care professions. Only 3% of the physicians in the United States are African-Americans; only 2.5% of the dentists in the United States are African-Americans; and only 3.6% of the United States pharmacists are African-Americans. While this lack of representation is particularly significant for African-American communities which rely on African-American physicians for care, it also impacts the entire community. Shortage of adequate care results in sicker individuals and an increase in overall health care costs. If African-Americans are sicker, they need more physicians, not fewer. Yet, we see the same limited availability of providers, as of hospitals, to service African-American communities.
The shortage of African-American professionals further affects health care availability by limiting African-American input into the health care system. While the control of health care distribution is ultimately in the hands of the individual physician, that control is influenced and limited by law, hospital practices and policies, and the medical organization of the physician's practice. With so few African-American health care professionals, the control of the health care system lies almost exclusively in European-American hands.
The result is an inadequate, if not ineffective, voice on African-American health care issues. This lack of African-American voice leads to increased ignorance on the part of European-Americans regarding issues pertaining to African-American health. When health care issues are defined, the policy makers' ignorance results in their overlooking African-Americans' health concerns.
B. Racial Disparities in Medical Treatment
Racial barriers to access is only one aspect of institutional racism. Another aspect of institutional racism is the occurrence of racial disparities in type of services ordered and in the provision of medical treatment itself, well-documented in studies done in cardiology, cardiac surgery, kidney disease, organ transplantation, internal medicine and obstetrics.
Cardiology and Cardiac Surgery. African-Americans and European-Americans have similar rates of hospitalization for circulatory system disease. Yet, studies have found that European-Americans are one-third more likely to undergo coronary angiography and two to three times more likely to undergo bypass surgery.
Kidney Disease and Kidney Transplantation. The aggressive treatment of long-term kidney disease is based in part on race. Studies indicate that European-Americans are 5% to 15% more likely to receive aggressive treatment. In fact, the most favored patient for long term hemodialysis is a European-American male between the ages of 25 to 44. A European-American on dialysis is two-thirds more likely to receive a kidney transplant than a non-European-American. While the likelihood of receiving a kidney transplant is related to income, the effects of income and race are independent from each other, meaning that middle-income African-Americans are less likely to receive a kidney transplant than middle-income European-Americans.
Internal Medical Treatment. The patient's race has been correlated with the intensity of medical treatment. For example, when hospitalized with pneumonia, African-Americans were less likely than European-Americans to receive intensive care. This disparity in medical treatment persisted even after controlling for clinical characteristics and income.
Obstetrical Treatment. African-Americans were more likely to be classified as “clinic” patients despite comparable ability to pay for care. Private patients were more likely than clinic patients to have caesarean sections. This is true even though clinic patients were in poorer health and were more likely to have low birth weight babies.
These studies all raise the issue that African-Americans receive health care treatment different from the “preferred” patient the European-American male. Whether this difference is based on individual prejudices or medical school training, it is evidence of institutional racism that cannot be tolerated. Any patient seeking care from a physician should be able to be assured of the most appropriate medical treatment available. Irrespective of race, each of us should be assured that the physician will act in our best interest. Every person should be assured that the physician will not let personal prejudice or medical prejudice influence our medical treatment. As the situation exists, an African-American does not have those assurances.
C. Summary
Race affects access to care independent of socioeconomic class. Race also affects medical treatment independent of socioeconomic class. While the disparities in treatment decisions reflect clinical characteristics, income, medical or biological differences, they also reflect racial bias. To improve the health of African-Americans, it is not sufficient merely to remove barriers to access based on socioeconomic class. Health care institutions must rid themselves of institutional racism.
Medicine has found cures and controls for many afflictions, improving the health of all Americans--African-Americans, Asian-Americans, Hispanic-Americans, Native-Americans and European-Americans. However, the health institutions have failed to extend the same magnitude of improvement in health among European-Americans to African-Americans and other minority populations. Health institutions have failed to eliminate the racial distribution of health care. They also continue to perpetuate distinctions. Such a situation is intolerable. Of all the influences on African-Americans health, the influence of health care institutions, though relatively small, should nevertheless be free of racial prejudice and discrimination.
IV. HEALTH POLICY AND ELIMINATING THE HEALTH DISPARITY
This the American black man knows: his fight here is a fight to the finish. Either he dies or wins. If he wins, it will be by no subterfuge or evasion of amalgamation. He will enter modern civilization here in America as black man on terms of perfect and unlimited equality with any white man, or he will enter not at all. Either exterminate root and branch, or absolute equality. There can be no compromise. This is the last great battle of the West.
Institutional racism is a term that describes practices in the United States nearly as old as the nation itself. Institutional racism comprises those policies, practices, and activities which injure or damage an individual or group based on race. Like individual racism, the effects of institutional racism can derive from intentional or unintentional conduct. For African-Americans who face disproportionate morbidity and mortality, whether the conduct was intentional or not is irrelevant. When medical institutions' behavior sets up racial barriers to access and provides racially disparate treatment of African-Americans, and thereby injures those the institutions purport to help, the institutions are institutionally racist. African-Americans have not profited as much as European-Americans by the early advances of health care. In fact, the gap between African-American health and European-American health has widened over the last ten years. Racism has adversely affected African-American health independently of other factors contributing to excess African-American morbidity and mortality. We have much to lose by its persistence.
In 1992, the presence of institutional racism in a system dedicated to improving the life of all Americans is a powerful indictment of a system that offers part of its population what some consider the best health care in the world. Despite having ultimate responsibility for providing health care for all Americans, despite a belief in this country that all persons have certain rights to life, liberty and health, the American health care institution has contributed to and perpetuated racism.
What white Americans have never fully understood -- but what the Negro can never forget -- is that white society is deeply [racist]. White institutions created it, white institutions maintained it and white societies condone it.
For health care institutions to remove the blemish of racism, they must develop specific solutions. To bring African-American health on par with European-American health, we must design and implement a delivery system to effectively address the health issues of African-Americans. There are four policy/legislative positions that can be adopted (singly or in some combination). First, the health care system, legislature or court can do nothing. The legislature (and courts) could continue to rely on the present system without specifically addressing issues relevant to African-American health. This position denies that the health care system perpetuates disparity among African-Americans and European-Americans. However, this position does provide a base measure against which other policy alternatives can be evaluated. Second, insurance coverage could be expanded. Expanding insurance coverage would theoretically remove economic barriers to health care. Third, based on those facts that suggest severe treatment disparity between African-Americans and European-Americans, special health services could be targeted to African-Americans. Finally, Title VI of the Civil Rights Act could be used to eliminate racist practices in health care delivery systems.
Policy options are neither right nor wrong and can only be evaluated in the context of how well the policy satisfies other criteria. These policy alternatives can be evaluated using seven criteria: horizontal equity, vertical equity, economic efficiency, preference satisfaction, privacy, avoidance of stigma, and political feasibility. Horizontal equity seeks to treat equals as equals. For example, a policy proposal that targets services to all diabetic patients residing in the United States satisfies the criterion of horizontal equity, whereas a policy targeting all African-American diabetic patients does not. Vertical equity is unequal treatment of unequals, trying to make them more equal. Vertical equity suggests that a good policy proposal is one that favors the have-nots over the haves in the distribution of benefits. Economic efficiency is the use of resources to produce the maximum benefit for the smallest expenditure. Preference satisfaction requires that a policy produce the most happiness for the greatest number of people, usually by creating options and allowing individuals to maximize their own preferences. Therefore, in selecting between alternate policy options, the policy which is consistent with people's preferences is favored. One problem with preference measurement is that human preferences do change as a result of education and advertising. Therefore, weight given to preference satisfaction should be considered against the likelihood of the preference being changed. The privacy criterion stipulates that a policy should not allow intrusion into the life of the individual. Avoidance of stigma means that individuals are not negatively labeled as different from other citizens not affected by the policy. Political feasibility is the possibility that the particular alternatives have a chance of being adopted and implemented by the courts and legislature.
A. “Do Nothing” Policy Option
Horizontal Equity. In evaluating the different policy options, the “do nothing” option serves as a baseline. The existent system does not provide African-Americans who are ill with the same access as sick European-Americans; nor do African-Americans receive the same treatment once in the health care system. Consequently, sick African-Americans are not treated the same as sick European-Americans. The current system lacks horizontal equity.
Vertical Equity. Doing nothing maintains the status quo and does not attempt to improve access or treatment services for African-Americans. African-American communities have fewer providers and medical institutions. African-Americans have disproportionate morbidity and mortality. Doing nothing does not address the unique needs of African-Americans. Doing nothing does not close the gap in health between African-Americans and European-Americans. Given the unequal access and unequal medical treatment, doing nothing makes no changes which, by treating African-Americans differently, would lead to equal health care. Therefore, vertical equity does not exist.
Economic Efficiency. To the extent that the United States is already spending enough to bring every citizen high quality, high-technology care, economic efficiency is not met. Of the $817 billion that is spent each year on health care, it is estimated that $200 billion is spent on unnecessary medical care, overpriced procedures and inefficient administration. Apparently, the current system is not economically efficient. Reforming the health care system to meet the needs of African-Americans will not be any more economically inefficient than the current system. On the other hand, failure to reform the system will mean continued costs in African-American lives. This cost is one which will not only affect individual lives and the African-American community, but also the general society in lost productivity and additional health care expenses.
Preference Satisfaction. Preference satisfaction requires that a policy produce the most happiness for the greatest number of people, usually by creating options and allowing individuals to maximize their own preferences. Whether preference satisfaction exists depends on whose perspective one considers. Certainly, for those who have access to the health care system and adequate treatment, doing nothing might allow them to maximize their own preferences. However, for African-Americans whose access to health care is limited and whose treatment is below standards, doing nothing would not create options or allow them to maximize their preferences.
Privacy. The privacy criterion stipulates that a policy does not allow intrusion into the life of the individual. The current system maximizes an individual's privacy. Theoretically, the free-choice, fee-for-service, retrospective payment system currently serving much of the population, neither limits from whom an individual can seek services nor limits the services that a provider can render. Those enjoying limitless services are not required to disclose information to receive care. In this way, doing nothing maximizes the privacy of those with access to health care services; while those without access to services have no privacy issues, because they are excluded from participation.
Stigma. Avoidance of stigma means that individuals are not negatively labeled as different from other citizens not affected by the policy. To the extent that doing nothing allows the gap in health between African-Americans and European-Americans to continue, it may cause some stigma. Individuals who believe that a major cause of illness and death is behavior may view reports of poorer health among African-Americans as evidence of poor health behavior. To some extent they are correct. However, if European-Americans fail to acknowledge the role of the health care system, doing nothing results in a failure of the health care system to accept responsibility for its role in the health of African-Americans. It also leads to indirect blaming and negative labelling of African-Americans.
Political Feasibility. Political feasibility is the possibility that the particular alternatives have a chance of being adopted and implemented by the courts and legislature. Maintaining the status quo is generally easier than making substantial changes. The likelihood that specific actions will be taken to improve the health of African-Americans seems slim, since little attention is being given the problem.
Summary. The do nothing option allows for the social, economic, and health care disparity to continue to exist between African-Americans and European-Americans. Racial and economic barriers to access experienced by African-Americans would persist. Racial and economic barriers to entering the health care professions would remain. Doing nothing would be to insist on ignoring the racial disparities in medical treatment. This situation is untenable. The health of African-Americans clearly indicates that something needs to be done.
B. Expanded Insurance Coverage
1. Background
The United States and South Africa are the only major industrialized nations without a universal health insurance system that guarantees access to health care for all of their citizens. What the United States has instead of universal health care is a scheme of employer-financed insurance and government programs that still leaves more than 37 million Americans without the financial resources to pay for health care.
The lack of health insurance is a particular issue for African-Americans who are less likely to have employer-financed insurance. While public programs, such as Medicaid and Medicare, are important sources of health care coverage for many low-income and African-Americans, they do not reach all of the uninsured poor. In fact, one-fourth (25%) of African-Americans have no source of health coverage.
Even more disturbing is that the number of uninsured African-Americans is increasing. In 1977, only 18% of African-Americans had no health coverage. Furthermore, the gap between African-American uninsured and European-American uninsured is widening. For instance, while the proportion of uninsured non-elderly European-Americans increased only 3 percent from 1977 to 1987 (from 12% to 15%), the proportion of uninsured non-elderly African-Americans increased 7% (from 18% to 25%) during the same period.
Since private health insurance coverage is linked to employment, racial barriers to employment are one explanation for the significant difference in insurance coverage. For example, in 1990 the African-American unemployment rate was 240% more than the European-American unemployment rate. Even where employed, the African-American is more likely to be in a lower paying job which does not provide employer-based health insurance. Another factor affecting insurance coverage is the higher percentage of African-American families with only one adult. Families with two working adults are more likely to have at least one adult with employer-based insurance.
However, while the absence of health insurance is much more likely with lower income, race is an independent factor affecting whether an individual will be insured. In fact, the racial difference in proportion of uninsured is most marked at higher incomes. For example, poor/low income African-Americans are uninsured at about the same rate as poor/low income European-Americans; however, middle/high income African-Americans are almost twice as likely to be uninsured than higher income European-Americans.
Expanding insurance coverage so that everyone will have either employer-based or government-based insurance is one proposal for addressing the inequities in the health care system. During the 102nd Congress, more than thirty proposals were introduced to expand insurance coverage and reform the health care system. The proposals under consideration fell into five major categories: market-reform, employer mandate plus Medicaid, employer choice of Medicare or private, Medicare for all, comprehensive public plan. See, Table 11 below.
• Market-reform. Small group health insurance reform is a targeted approach to extend insurance to the working uninsured. It proposes reforming the small group market to make coverage affordable and easier to purchase and to then sell private health insurance to small firms. The reforms include: requiring private insurers to make coverage available to all firms, employees and dependents in the group, limiting pre-existing condition waiting periods for coverage, limiting variation of premiums based on group risk, limiting the extent to which premiums could be increased.
• Employer-Mandated Basic Coverage plus Medicaid. Similar to market-reform, this proposal would require employers to offer coverage and to contribute at least 75 to 80 percent toward the premium cost. In addition, Medicaid would be expanded to cover all poor persons not encompassed under an employer policy. • Employer Choice of Medicare or Private. The “play or pay” option would provide employers the alternative of acquiring private health insurance coverage for employees and dependents or contributing toward their coverage under a public plan similar to Medicare. If a person is not covered under a private insurance plan, he or she would automatically be covered under the public plan and assessed a premium based on income. • Medicare for All. This alternative would broaden the present Medicare program to the whole population. Employers would be required to contribute financially toward the coverage of their employees. States would also be required to contribute current Medicaid funding for acute care benefits to the poor. • Comprehensive Public Plan. This option provides comprehensive health benefits to the entire United States population through a single public plan. This plan would replace all private health insurance. TABLE 11
EXPANDED HEALTH INSURANCE OPTIONS
| Market Reform | Employer Mandate Plus Medicaid | Employer Choice of Medicare or Private | Medicare for All | Comprehensive Public Plan |
| Coverage | 20-23 million | 6 million | Universal | Universal | Universal |
| Benefits | Limited | Basic | Medicare | Medicare | Comprehensive |
| Private Insurance | 170 million | 200 million | 180 million | Supplemental | None |
| Cost Containment | None | Managed Care | All Payer | Single payer | Global Budget |
| Financing | Individual Premiums | Employer Premiums Contributions | Employer Premium Contributions or Payroll | Payroll Tax Income Tax | Payroll Tax Income Tax Other |
2. Policy Analysis
Horizontal Equity. To the extent that expanded insurance coverage would provide economic access for all uninsured, it has horizontal equity. In essence, expanded insurance coverage treats equals (the uninsured) as equals. Therefore, options such as employer choice of Medicare or private insurance, Medicare for all, and comprehensive public plan, have horizontal equity.
However, market-reform and employer-mandated plus Medicaid do not provide for coverage for all uninsured. For instance, market-reform options do not require the employer to contribute toward the premiums. Without employer contributions, many employees in low-paying jobs will not be able to afford the premiums. Furthermore, premiums may increase because of availability of coverage to high-risk, sick individuals who had been previously excluded by underwriting practices. Therefore, under the market-reform option almost 40 millions persons will still be uninsured. Similarly, employer mandate only covers two-thirds of the uninsured who are in families with a working adult. It excludes from coverage almost 7 million uninsured, such as part-time workers and older adults who are disabled or retire early and are not eligible for Medicare. The groups (including those in low-paying jobs and/or part-time employment) that market-reform and employer mandate plus Medicaid will not cover would include high numbers of African-Americans.
Vertical Equity. A system of universal insurance regardless of coverage fails to resolve the racial difference in access between African-Americans and European-Americans that is not related to insurance coverage. For example, European-Americans have better access to health care even when the insurance coverage is similar. Expanding insurance would not increase community availability of either European-American institutions and providers or African-American institutions and providers. Nor does expanding insurance coverage address the issues of racially disparate treatment. In short, expanding insurance coverage does not address the issue of institutional racism. Consequently, expanding insurance coverage does not provide for vertical equity.
Economic Efficiency. Whether expanding insurance coverage is economically efficient is highly debatable. Without cost controls, expanding insurance coverage could increase health care costs drastically. Historically, the existence of health insurance has played a significant role in increased health care costs. This is so because the insurer's method of reimbursing providers introduced into the health care system a “complex of irrational economic incentives”.
In particular, the “fee-for-service basis” system euphemistically called “the free lunch system,” has delivered medical care without regard to cost containment, and sometimes without regard to medical necessity. Under fee-for-service, third-party payers pay health care providers for each discrete item of service. In 1980, 50% of active physicians were compensated by fee-for-service; approximately 20% were salaried and the other 30% received a mixed form of compensation. Similarly, government programs (Medicaid and Medicare) reimbursed providers for most of their costs or charges incurred in treating covered patients. Both reimbursement forms created powerful incentives to over-utilize the health care system. In fact, no one had a rational incentive to economize.
For example, a patient contracted for insurance through the employer for 80% of the usual, customary, and reasonable (UCR) cost of “medically necessary care.” Therefore, the patient lacked the incentive to economize because no matter the charges, the patient only paid 20% of the cost. Because the insurance premium was shared with the employer, the patient generally was not directly concerned with future premium increases. Even so, her individual health care choices did not directly influence her insurance premium, since insurers did not typically base health care insurance premiums on “experience rating.” In this way the patient did not realize the full financial impact of her health care treatment decisions.
Nor were hospitals and physicians motivated to economize. Because most third-party payors guaranteed providers 80% of their customary charges, fee-for-service or cost-based charges had an opposite and “perverse influence” on health service delivery. Under both reimbursement systems, providers made more when they treated more. This phenomenon had two effects. First, physicians and hospitals tended to de-emphasize preventive care, which was not as lucrative as treatment services. Second, providers tended to place excessive reliance on the use of medical technology because third-party payors paid for discrete procedures, not time spent with patients.
From the patient's point of view, insurance removed the need to ration health care dollars, creating a “moral hazard problem.” And, from the insurer's point of view, a payment system that had worked well for auto and life insurance seemed to make sense. In these ways, health care insurance was designed and implemented on the basis of faulty assumptions by all parties.
Extending health care insurance to greater numbers of persons could result in over-utilization unless serious cost containment measures, such as utilization review and financial risk-shifting, are introduced into the health care system.
Neither the market-reform option nor the employer-mandated option is likely to contain substantial cost containment provisions. Small firms and private plans do not typically offer managed care products which provide the mechanism for serious cost containment. While some larger employers may offer managed care products, they represent a relatively small proportion of the newly insured since most larger employers are already covering their employees. There is potential for cost containment with the expansion of Medicaid, since it would extend its tight provider payment limits to a larger number of persons. However, those same payment limits might also act as a deterrent to provider participation which would then limit the actual availability of service. Therefore, expanding insurance is only efficient if the health care system is reformed to eliminate unnecessary medical care, reduce overpriced procedures, and improve administration.
Stigma. While expanding insurance coverage will not necessarily stigmatize, actions taken to make it workable, that is, cost containment efforts, might lead to stigmatization. The stigmatization may be a result of individuals being treated differently based on the type and amount of coverage they have. Historically, the type and extent of coverage varies among individuals and groups, based on whether it is government or employer-based insurance.
Even among employers, insurance varied among large employers with unions (such as General Motors) and smaller employers without unions. Further, regardless of size of employer, individuals employed in minimum-wage positions often have no coverage or minimal coverage with large deductible amounts.
Government programs (such as Medicaid and Medicare) have had lower provider payment schedules and treatment guidelines, which discourage provider participation. In fact, many providers have refused to accept payment from policies that either do not make full restitution or that place restriction on their practices. Individuals who have these policies are likely to be labeled negatively by providers and institutions. Given that many African-Americans are employed in minimum-wage positions (or are covered by government insurance) they are likely to be stigmatized more by providers' refusal to accept certain policies.
Preference Satisfaction. There is no indication that a generalized insurance program will allow for preference satisfaction for all participants. Preference satisfaction implies the ability to exercise choice in providers and treatment. To make expanded insurance coverage workable, patient choice might be limited to control cost. For example, many employers may adopt managed care plans as a mechanism of controlling cost. Managed care plans control cost by having physicians act as “gatekeepers”, limiting a person's access to certain treatment and to specialist physicians. While expanding insurance coverage in itself will not limit preference satisfaction, the gatekeeping aspects of cost containment programs will. These attempts to have the physician become the gatekeeper to medical care will ultimately change the entire structure of the American health care system and not necessarily for the better. The least articulate, least educated, least financially well-off person will have the most limits imposed by cost containment efforts. If cost containment efforts result in injuries, the poor and minorities will have to bear the cost of restricted access to services. The cost containment efforts that will be associated with expanding insurance coverage could potentially result in greater health disparity between African-Americans and European-Americans. This is especially true given physicians' propensity to treat patients differently based on race.
Privacy. Expanded insurance coverage does not necessarily affect privacy. However, as in preference satisfaction, steps taken to implement the option may negatively affect a person's privacy. In order for governments and third-party payers to carry out utilization review and financial risk-shifting, they must scrutinize the treatment of individual patients. In particular, utilization review examines appropriateness of medical services to detect variations from the norm that point to unnecessary or inappropriate care. When the third-party payer detects variation, either it does not pay the claim (retrospective ) or refuses to authorize the provision of the service (concurrent and prospective ). Each form requires varying degrees of information about the individual. The plan which will most invade an individual's privacy is the one that employs prospective or concurrent utilization review because it requires information about a current illness for the purpose of denying care.
Political Feasibility. Almost certainly, within the next four years some bill will be passed expanding insurance coverage. The only real question is what shape the reform will take. As noted above, the 102nd Congress introduced more than thirty proposals which include market-reform, employer mandate plus Medicaid, employer choice of Medicare or private, Medicare for all, comprehensive public plan. Given the extensive insurance lobby, it is not likely that a comprehensive public plan or a Medicare-for-all plan will be adopted since both those options would nearly eliminate the role of private insurance. The market-reform option, while the least intrusive into the current system, would also leave many individuals uncovered. Given the pain and agony that many are undergoing to change the system, leaving large numbers uncovered would be political suicide. The most likely reform is some combination of employer mandate plus Medicaid and/or employer choice of Medicare and/or private. While this would leave some individuals uncovered, it would provide the most extensive coverage without radically changing the health care system.
Summary. The lack of health insurance explains a significant part of the difference in the use of health care services between African-Americans and European-Americans. Expanding insurance coverage is certain to help to increase the use of health care services. For example, in 1977 uninsured African-Americans in the South saw physicians an average of 1.5 times, while insured African-Americans saw physicians an average of 2.8 times. However, it is important to note that, while African-Americans' physician visits almost doubled for those with insurance, the racial differential between African-Americans and European-Americans remained steady. That is, uninsured European-Americans had 150% more visits per year than uninsured African-Americans; insured European-Americans had 132% more visits per year than insured African-Americans.
It seems that expanded insurance coverage is a policy option which will remove major economic barriers to health care. However, this option is not a satisfactory replacement for removing race-related problems with access to health care. Furthermore, it increases access at the risk of increasing health care cost, decreasing preference satisfaction and interfering with an individual's privacy--all of which are areas in which African-Americans will be affected in greater proportion than European-Americans.
Ultimately, the most significant problem with expanding insurance coverage, from the African-American perspective, is that expanding insurance coverage does little more than provide individuals with a piece of paper that says, in effect, that they may obtain health care, if they can find someone to accept the coverage. Expanding coverage does nothing to ensure that a provider in the community will furnish health care nor does it address the issues of disparate medical treatment.
C. Targeting Health Care Services to African-Americans
1. Background
Targeting health care services to African-Americans would focus resources on the specific health problems confronting them. In particular, funds could be allocated to establish community clinics in African-American communities. Such targeting services to specific population groups is not new and has been implemented in other areas: Maternal-Child health, Family Planning and Handicapped Children. Community clinics have been used to serve low income communities.
Congress passed the Disadvantaged Minority Health Improvement Act [[[hereinafter DMHIA], which was passed to improve the health status of individuals from disadvantaged backgrounds, including racial and ethnic minorities, and to increase the numbers of minorities in the health professions. This was to be accomplished by establishing within the Department of Health and Human Services an Office of Minority Health and by giving the office grant authority. The DMIHA also established a program of primary health care services to residents of public housing. It revived and extended the program of Centers for Excellence in Health Professions Education for Minorities. The Act established programs of loans, scholarships, and loan repayment for individuals from disadvantaged backgrounds who are pursuing a degree in a health profession. It revised and extended the authority for the National Center for Health Statistics, and it created a new program of grants for data studies on the health of ethnic and racial minorities. The DMHIA established a new program of grants for assisting communities in educating minorities to serve as health professionals in those communities. It revised and extended the programs of Community and Migrant Health Centers and created a program of grants for improving the health status of Pacific Islanders. Furthermore, the Congress appropriated funding specifically directed to issues relevant to improving African-American health.
States could take steps to target services toward African-Americans. In 1991-92, only nineteen states had minority health entities. Seven states established the minority health entities by statute , four states established the minority health entities by executive order, and eight states established the entities by the appointed health officer. However, the budgets for these entities indicate that they may be little more than “advisors” on minority health rather than service providers. In 1991-1992, only three states had budgets which exceeded $500,000 and eleven states had less than $100,000.
2. Policy Analysis
Horizontal equity. Targeting health care services to African-Americans requires treating African-Americans differently than European-Americans even when both have similar health problems. Thus, this proposal fails to promote horizontal equity.
Vertical Equity. To the extent that African-Americans and European-Americans are affected differently by health disorders, it does provide vertical equity. For instance, more African-Americans are affected by diabetes than European-Americans. Consequently, targeting services toward African-Americans would be treating unequal groups unequally to promote equality.
Stigma. The very act of targeting African-Americans can result in significant stigma. Singling out African-Americans would lead to labeling the beneficiaries of the programs as different. This process could increase racial polarization. Providing greater services to African-Americans could arouse opposition from other groups who perceive their needs as great as African-Americans.
Preference Satisfaction. Whether there would be preference satisfaction depends on how the services are delivered. If the services are delivered through private providers, then certainly there would be no more problems with preference satisfaction than any of the other insurance programs. On the other hand, if the services are delivered through programs that employ a specific staff, there would be limited preference satisfaction since the choice of providers for African-Americans using the services would be limited.
Economic Efficiency. As in expanding insurance coverage, the cost of targeting services to African-Americans is significant. The government would need to allocate additional funds for the provision of the services. However, to the extent that targeting services to specific population attacks the problem directly, targeting services could be more efficient (and less costly) than a broader approach (i.e. primary care for all).
Privacy. To the extent that African-Americans would need to be identified as having specific health issues in order to have their health care problems addressed, issues of privacy exist. Problems also exist if programs would need information from African-Americans to monitor the community health.
Political Feasibility. This choice has limited political feasibility. Given the current deficit, Congress may have difficulty in justifying spending limited health care resources on a narrow population group. Other groups who view themselves as having similar or significant health problems could be angered if their population was not given similar treatment. In this age of racial tension and discord, in-fighting over limited resources is undesirable.
Summary. Targeting services to African-Americans would address some access issues and treatment disparity problems since it would require availability of services in the African-American community. The treatment disparity between African-Americans and European-Americans is more likely to be addressed in this environment. However, a major drawback to targeting service is that it does not necessarily effect change in the overall system. Assuming that such an approach would be short term, the problems of racial barriers to access and racially disparate treatment would continue. Furthermore, African-Americans not served by the special programs could continue to face those same problems. Other major drawbacks are the significant stigma that might be associated with such programs and the political unpopularity of targeting health care services for a specific ethnic population group.
D. Using Title VI to Eliminate Institutional Racism
1. Background
The Civil Rights Act of 1964 provides the legal force for desegregation efforts in health care. Specifically, section 601 of Title VI provides:
No person in the United States, shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.
In short, Title VI prohibits discrimination on the basis of race, color, or national origin. The Office of Civil Rights (OCR) is delegated the responsibility of enforcing Title VI and the Department of Health Education and Welfare [now Department of Health and Human Services (DHHS) and Department of Education] issued the first interpretive regulations. Those regulations provide that: A recipient . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination of their race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
A recipient is any public or private entity or individual that receives federal financial assistance. Federal financial assistance includes federal money awarded through grant, loan, or contract. In light of these two definitions, Title VI, has the potential of having a broad range effect. Once a program has been determined to violate Title VI, the program “must take affirmative action to over come the effects of prior discrimination.” While the statute does not specifically define discrimination, it specifically requires HEW to define discrimination. In particular, Title VI regulations prohibit:
• criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin;
• criteria or methods of administration which have the effect of defeating or substantially impairing accomplishment of the objectives of the program with respect to individuals of a particular race, color, or national origin; • Difference in quality of services because of the individual's race, color, or national origin; • Differences in quantity or the manner in which the benefit is provided because of the individual's race, color, or national origin; and, • Locating services with the purpose or effect of excluding individuals because of the individual's race, color, or national origin from the benefits of the program. Title VI could be used to improve access of African-Americans to health care services. Title VI regulations clearly prohibit policies and practices which result in segregation within and between institutions. Hospitals and nursing homes which engage in restrictive admission practices face discontinuation of their federal funds. Communities can use Title VI to resist major changes in health care delivery that disadvantage African-Americans. For example, the closing of a predominantly African-American inner-city hospital and the expansion of another hospital serving primarily European-Americans could be attacked under Title VI. Similarly, Medicaid and Medicare cutbacks which primarily affect African-Americans also violate Title VI. Thus, Title VI has the potential of forcing health care institutions to evaluate their policies and practices which have a disparate impact on African-Americans. Title VI can also be used to correct problems of racially disparate health care. Under Title VI, institutions must assure that the quality and quantity of health care services offered to African-Americans are proportionate to their need.
2. Policy Analysis
Horizontal Equity. Title VI focuses on assuring that African-Americans who have been treated differently than European-Americans are assured the same access and health care treatment. Using Title VI as a way to eliminate institutional racism would achieve horizontal equity since it would treat equals (sick individuals) as equals.
Vertical Equity. Meeting vertical equity will depend largely on the types of policies and practices an institution adopts as part of Title VI compliance. Using Title VI to eliminate institutional racism in health care merely requires that African-Americans who are sick and in need of care be given the equal access to health care and be given appropriate medical treatment. However, to the extent that African-Americans now have less access and different treatment, it would require institutions to adopt policies and practices that would assure African-Americans increased access and better treatment. Those policies and practices might treat African-Americans and European-Americans differently. If so, vertical equity would be met.
Stigma. Using Title VI may not remove the problem of stigma. Whether stigma persists will depend on how the institutions respond to the Title VI challenges and how the community responds to health care policy changes and costs necessitated by Title VI compliance. Individuals using any targeted services would certainly risk labeling. Title VI could generally raise racial hostility among the European-Americans (and other groups) that are experiencing different types of access problems. Such hostility could result in additional stigma on African-Americans. However, to the extent that Title VI compliance assures that no group is discriminated against based on race, Title VI compliance would improve access and treatment for other ethnic groups similarly situated to African-Americans.
Preference Satisfaction. Unlike “targeting services,” Title VI could have the advantage of allowing for preference satisfaction. As institutions do away with discriminatory practices which limit access and treatment options, individuals will have increased choice. On the other hand, unless existing facilities are made sufficiently attractive to competent providers, preference satisfaction still may be lacking. To some extent, it is a program's responsibility to expend the resources necessary to assure quality of services to the African-American community. Realistically, the courts are likely to allow programs to balance this goal against other goals.
Economic Efficiency. If the current system is the most efficient for a significant segment of the population, efficiency may be lost if health care institutions reconsider their administrative policies and their evaluations of physicians to decide the disparate impact that their institution and policies will have on African-Americans. However, evidence indicates that this system is not the most economically efficient. More than $200 billion are wasted each year in unnecessary care and inefficient administration. That $200 billion is enough to assure adequate health care and changes in the health care system to eliminate institutional racism.
Privacy. While the other options raised issues of patient privacy, this option raises issues of provider privacy. Title VI compliance will require evaluation of physician behavior. For example, treatment decisions must be scrutinized by health care institutions and licensing boards to identify and explain any racial disparity in treatment. Provider attitudinal study may require identification of patients themselves. Even if this latter step is eliminated, individual physician treatment choices and institutional records will be scrutinized in ways not presently undertaken. Thus, privacy criteria are not met.
Political Feasibility. Title VI can be enforced through the administrative complaint process or through a private legal action. The political feasibility of using Title VI to eliminate racism depends in part on the forum chosen.
a. Administrative Complaint Process. The administrative compliance mechanism authorizes the federal agencies that award federal financial assistance to take action against programs which violate Title VI. The administrative process presents several problems. First, the victim of discrimination must file a complaint with the Office of Civil Rights within 180 days of the challenged discrimination. A short time period is a particular handicap among the sick and individuals who may not be aware of their rights. Unawareness of rights encompasses both ignorance of the statute and ignorance of medical procedures appropriate for treatment of a disease. This leaves the individual unaware both that a treatment did not meet the standard of care and that this difference was the result of racial discrimination. Thus, it becomes difficult to use Title VI if attorneys merely wait for the patient to complain, since the patient may be completely unaware of the injury and the remedy.
Second, the lack of formal participation of complainants in the administrative process leaves the victims with little control over the remedies to be tailored. Third, the process can be unusually long. It is not unusual for the entire process to take over a year. Finally, if the patient later decides to sue, there is the potential that the administrative complaint process will hold up the process of litigation.
Despite these problems, an administrative complaint presents several advantages. First, it can provide important leverage in negotiations with health facilities. Second, the Office of Civil Rights (hereinafter OCR) can command institutions to retain racecoded statistics which will be crucial to proving discrimination. Third, OCR can collect the facts saving legal services considerable time and expense. Finally, under the OCR guidelines, investigated institutions have the burden of persuasion in responding to a prima facie case of discrimination. This is a significant advantage since the OCR approach to discriminatory effect has been more procomplainant than the courts.
b. Private Law Suit. The other approach to enforcing Title VI is through a civil suit. No complaint with OCR is required before an individual files a private action under Title VI. An individual can sue to enforce both the statute and its implementing regulations. One obvious drawback to litigating Title VI is that gathering and analyzing relevant statistics can be extremely time-consuming as well as expensive. However, the biggest drawback to litigating Title VI is the lack of meaningful evidentiary burdens on the defendant.
The evidentiary burden that a defendant bears depends on the categorization of the allegations of discrimination: disparate treatment versus disproportionate adverse impact. Disparate treatment discrimination pertains to intentional discrimination. The plaintiff is charged with the burden of proving discriminatory motive. Disproportionate adverse impact involves practices which may appear racially neutral but which have a more significant negative impact on minorities. Most of the practices involved in institutional racism (admission requirements, Medicaid/Medicare cutbacks, hospital relocations, medical treatment disparity) involve disproportionate adverse impact discrimination.
Disproportionate adverse impact analysis requires (1) the plaintiff to establish a prima facie case, (2) the defendant to establish a business justification, and (3) the plaintiff rebutting the defendant's business justification by showing less discriminatory alternatives. The evidentiary burden placed on the defendant's establishment of a business justification is the most significant roadblock to establishing a Title VI violation.
The principal evidentiary problem with Title VI disproportionate adverse impact litigations is confusion with Title VII. Historically, in Title VII cases, the defendant bore the burden of not only coming forth with evidence of business justification but also the burden of proof. In Wards Cove, the Supreme Court eliminated the requirement that the defendant bear the burden of proof. Under Wards Cove, a defendant need only introduce some evidence of business justification. There is no longer a requirement that the defendant prove business necessity, that the policy foster safety and efficiency, or be essential to the goal of promoting safety and efficiency. However, the requirement of discriminatory intent has been rejected by the Congress in its employment discrimination legislation. While this is an important development in employment law, it is an open question as to whether the courts will change their focus on Title VI cases.
In the few Title VI health cases which exist, the burden of proof on the defendant to justify a disproportionate adverse impact policy seems to have been lessened even further. Defendants have successfully justified a policy with disproportionate adverse impact by demonstrating that the policy is rationally related to a legitimate need. This standard makes it difficult to challenge racist policies and practices in the health care area. Cost containment is a legitimate goal, and courts are likely to find that any relationship between the policy or practice and cost containment will suffice.
It is through litigation that Title VI will be unhitched from Title VII. The federal government has every right to impose a burden on the acceptance of taxpayer monies. Allowing defendants to overcome the burden with a mere rationally related justification nullifies the purpose of Title VI. Since defendants do not have to accept federal funds they should be held to a “precise compliance with [the] spending power” of Title VI.
Courts have mistakenly turned to Title VII principles as the starting point for fashioning evidentiary burdens in Title VI cases involving challenges to facially neutral policies that have the effect of excluding minority patients. Title VII regulates purely private employment decisions . . . Title VI is a spending power statute. It does not regulate but places condition on the expenditure of federal money.
Summary. Hospitals, nursing homes, health care institutions, and health care providers who receive federal funds should bear the burden to justify policies which have the effect of discriminating against African-Americans. If the courts (or the legislators) can be made to see that under Title VI the government has every right to demand that its money be spent in a non-discriminating way, then Title VI has the potential of being a powerful tool to end institutional racism. Unfortunately, the combination of an increased desire to control health costs and the political climate with recent Reagan and Bush appointees to the federal court may mean that getting the courts to hold health care providers to the fire may not be politically feasible now. It remains to be seen what impact the Clinton administration will have on courts. Nevertheless, the Title VI administrative process and threatened litigation could be a powerful tool in getting health care institutions to comply voluntarily.
V. CONCLUSION
Health care institutions have a social responsibility to identify and delineate all causes of disease and disability in a population and then to mobilize the medical resources necessary to attack those causes. Since it has been shown that the health of African-Americans is markedly lower than European-American, it necessarily follows that “this situation would have to be called, in part, a racist consequence of the actions and structure of those health institutions”.
Getting rid of the effects of institutional racism is a task for which European-American institutions must accept the responsibility, along with the burden of identifying effecting solutions. Doing nothing is an unacceptable option. It would allow the continuation of economic and social apartheid based on race. Reform efforts which call for expanded insurance coverage are inadequate not only because it is possible that only a small minority of African-Americans will continue to be uncovered; more importantly, it does nothing to relieve racial barriers to access based on the availability of culturally relevant services in the community or medical treatment disparities. While special health services could be targeted to African-Americans, fiscally and politically this alternative is very unlikely. Furthermore, it still fails to deal with the inadequacy of the system in dealing with racism. Finally, litigators could use Title VI to eliminate racist practices in health care delivery and health care education. This would do little to assure economic access. But more importantly, the courts have adopted a position which makes the use of Title VI politically difficult. However, as the courts' composition changes over the next several years this option may become more viable.
No single approach will adequately address the multi-faceted problem of improving the health care status of African-Americans. It is also clear that the health care system is undergoing enormous changes designed to make it more just. If that reform is to include better health care for African-Americans it will need to do more than assure economic access through expanding insurance. It will need increased availability of providers through Title VI and decreased treatment disparity through Title VI. Strengthening Title VI such that it becomes politically feasible to use through both the administrative and civil process should be the quid pro quo for accepting cost containment restrictions. No system can be just so long as vestiges of racism remain. Strengthening Title VI is the only mechanism available to assure that health care in America is no longer racist.
[Racism remains a] prime cause of the unequal and racially discriminatory provision of funds for health services; of the over-crowding of the ill-equipped black hospitals and the underutilization of white hospitals; of miserable housing, gross pollution, poor sanitation, and lack of health care . . . .
[Racism] in consequence, is the underlying structure causing the dreadful burden of excess morbidity and mortality, much of it preventable, that is borne by the black population. These health-specific effects are superimposed on the more general consequences of [racism] which bars the majority of [ [ [African-american] citizens from participating in decisions on the allocation of resources for health or other needs. We believe that the . . . [American] health care system is, in consequence, fundamentally flawed. Fragmentation and duplication of services . . . . is costly and inefficient. . . . For the majority of the black population, the whole spectrum of health services (but most urgently, primary care) is inadequate. Entire generations suffer through much of their life-times. . . . Even if. . . [racism] ended tomorrow, their effects on health would persist for years, in part because of the health consequences of the profound poverty . . . that [racism] itself has engendered and in part because widespread attitudes that encourage racism, elitism, sexism, a colonialist mentality, and prejudice against the poor take time and commitment to change. . . Clearly, . . . [America] has the ability to reduce markedly, if not eliminate, the serious health problems that exist among the black population. It can, if it chooses, eliminate the institutionalized system of racism and discrimination that have made the country, for decades, a symbol of human rights violations. The task facing. . . [us] is to continue to extend the process that [civil rights reforms] have begun, until profound and lasting improvements in health care . . . are a reality.
Assistant Professor of Law, University of Dayton, School of Law, B. S.N. 1971 University of Texas, M.S.N. 1978 University of Washington, J.D. 1987 Lewis and Clark College Northwestern School of Law.
Nothing is ever done in isolation. The success of this project is due in large measure to the unwavering support of many individuals. I am thankful to Maxwell J. Mehlman, Director, Law-Medicine Center, Case Western Reserve University School of Law, and Dean Francis Conte, University of Dayton for financial support needed to complete this project. I am grateful to my colleagues Professors Vincene Verdun, Patrica Rousseau, Sean Murray and Teri Geiger for their thoughtful comments on a draft manuscript. I especially want to acknowledge the prompt and untiring research, comments, and help of research assistants Joy Walker and Lisa Feelings. I must acknowledge my sons, Tshaka Civunje and Issa Lateef, whose support and confidence kept me going. Finally, I must recognize the editorial assistance of Elizabeth S. Gioiosa and the editorial staff of Health Matrix, Journal of Law-Medicine.
