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.
