Tuesday, July 16, 2019

Article Index

Brietta R. Clark

From: Brietta R. Clark, Disentangling Fact from Fiction: The Realities of Unequal Health Care Treatment, 9 DePaul Journal of Health Care Law 1023-1100 (2005) (270 Footnotes Omitted)


 Hope has two beautiful daughters. Their names are anger and courage; anger at the way things are, and courage to see that they do not remain the way they are.       -St. Augustine


      On November 24, 2004, the fate of “Killer King” seemed undeniable. “Killer King” is the nickname given to the Martin Luther King Jr. Hospital, affiliated with Charles Drew Medical Center (the King/Drew Medical Center) and located in the Watts area of Los Angeles, California. On this day, the busiest trauma center in Los Angeles County, the lifeline of the Watts community, was closed indefinitely. It was considered the community's lifeline because it served one of the “most violence-prone neighborhoods in the county, and is credited with saving the lives of countless victims of gunshots, stabbings, and serious traffic accidents.” Closing the trauma center ignited fears that the rest of the hospital would be taken away too.

      The County justified the closure on the grounds that the lapses in quality of care were too grave to continue without significant reform.   In fact, Killer King received its name in the community [p1024] because it was notorious for constantly making severe errors that cost patients' lives. Despite these clear lapses in quality, the community fought the closure. It rushed to protect King/Drew from what it perceived to be a “government attack.” It is clear from the community's response that any government involvement is viewed as a threat to their rights and access to care, not a means of protection. There is no faith that government action will result in better care; there is only fear that such actions are thinly veiled attacks on one of the few institutions in our health care system willing to serve minorities. So the community has rallied to King/Drew's side to protect the hospital they see as the killer of its own people. Why? Because some care is better than no care at all. The community sees King/Drew as their only hope. They do not trust the health care system, the legal system, or the political system to protect them.

      This fear is neither atypical nor irrational in light of one of the most visible, yet ignored, problems for minority communities - hospital closures and relocations.  Increasingly, hospitals, private and public, have closed or terminated services in areas populated by minorities, while relocating services to more affluent, predominantly white neighborhoods.  These closures have primarily occurred in urban areas with the greatest need and least resources.  Remaining hospitals willing to care for minorities or the poor are either located far enough away that timely care is effectively foreclosed or they are already overburdened and understaffed.  In fact, as early as 1979, the New York Times identified hospital closings and relocations as “possibly the most searing of the losses in the continuing pattern of inner-city disintegration. . ..” Nonetheless, treatment of hospital flight from minority communities as a “civil rights” issue has had a checkered past.

      The most visible cause of racial inequality in health care was the overt exclusion of minorities from hospitals and the segregation of blacks and whites in hospital wards.  Through the 1950s and 60s, some states [p1025] enacted anti-discrimination laws to prohibit intentional race discrimination, and in 1964, the Civil Rights Act was enacted at the federal level. The Civil Rights Act prohibited discrimination on the basis of race, ethnicity, and national origin by recipients of federal funding. While the federal prohibition was viewed by some as a powerful symbol of racial equality, many minority communities were skeptical. These communities were acutely aware of the limits of a law applied to facially discriminatory actions, but that did not guarantee true equality in the distribution of resources. Minority communities in Los Angeles were vocal about these concerns, as they suffered from a lack of adequate health, employment, and educational resources, despite state anti-discrimination laws. In health care, for example, minority communities knew that antidiscrimination protection was limited if public resources were not used to build and maintain hospitals in their communities. Ironically, King/Drew was borne out of this struggle for true equality in health care, and its construction in 1972 was supposed to be a symbol of the promise of racial equality.

      Despite this skepticism, health care and civil rights advocates initially believed that Title VI of the Civil Rights Act was a powerful tool to address these resource inequities and to ensure equal access to health care.   Title VI's prohibition on race discrimination applies to recipients of federal funding, which practically gave the federal government significant power over private and local public entities.   The federal government's direct construction and operations funding of hospitals, tax subsidies for nonprofit health care facilities, and its indirect subsidization of health care facilities via the Medicare and Medicaid insurance programs, gave the government expansive reach into both the private and public mechanisms for health care delivery.   The government also created an Office of Civil Rights (OCR) [p1026] dedicated to the enforcement of federal civil rights laws and established a process through which complaints of discriminatory actions would be investigated and remedied. OCR was a visible symbol of the government's purported commitment to the elimination of race discrimination. Finally, the federal government promulgated what appeared to be very patient protective regulations in that the regulations expressly prohibited the use of criteria or methods, or choice of site locations that have discriminatory effect. This appeared to give minority communities the ability to use the courts to prevent hospital closures where federal and local government failed to intervene.

      Despite this promise, Title VI has not prevented the massive hospital closures and removal of critical services from minority communities.  King/Drew's metamorphosis from a symbol of hope to “Killer King” is merely one example of many in a patchwork of private and public health care that has failed racial and ethnic minorities. Indeed, the community's vocal mistrust of government and fear that King/Drew is their best and only hope for health care is the most compelling indictment of our traditional civil rights framework and its failure to remedy the racial inequality in access to health care. When we look at the problem of hospital relocations and closures, like King/Drew, we see pieces of a complex and very frustrating puzzle. A story is revealed, not simply about the discrete problems of racial inequality in access to quality health care and the health and economic consequences for individuals and the community at large, but of the more fundamental problems of our notion of civil rights. This story illuminates the disconnect between the legal construct developed and the reality that minority communities face as victims of this system. Consequently, this legal construct has had the perverse effect of undermining the promise of Title VI in preventing the unequal distribution of hospital resources, by making it almost impossible to prevent even the most racially harmful hospital closures and relocations. Even beyond the harmful effects in any individual challenge, the principles of equality and civil rights that have become crystallized through the hospital relocation cases have infected our discourse and impeded our ability to honestly critique the cause of racial disparities that still exist in our health care system today.

      In Part I, I provide a background of the hospital closure problem, exploring the trends, effects, and reasons for the growing numbers of hospital closures in minority communities.  Studies of [p1027] hospital restructuring reveal that they do indeed disproportionately affect minority communities and are caused in large part by an underfunding of indigent health care and government action that encourages such closures. Moreover, despite common assumptions that closures help, or are necessary to, conserve health care resources and reduce excess bed capacity, the patterns of hospital closures suggest the opposite - that such closures further strain our health care resources by driving up the cost of hospital care and leaving Medicaid and uninsured patients without access to early preventive and routine care.

      In the next three parts of this Article, I critique our existing civil rights framework to show how certain structural and ideological foundations of this framework have undermined our fight for true equality in health care.  I consider each piece of the Title VI puzzle that is critical to enforcement: the funding upon which the federal government's power is based, the administrative mechanisms created to enforce Title VI, and the scope of the rights granted to private plaintiffs and their ability to use courts to enforce these rights where federal and local governments have failed to prevent discriminatory actions.  In Part II, I explore more deeply the effects of such funding decisions, showing how the government has consistently and consciously made funding decisions that foster racial inequality, creating a health care system that is incompatible with racial equality.  In Part III, I show how the government has visibly undermined its purported commitment to civil rights by deliberately structuring the administrative arm responsible for civil rights enforcement in ways that render it utterly ineffective and by abandoning its facilities planning responsibility to ensure racial equality in health care.  In Part IV, I explore the third piece of the puzzle--the role of the courts through civil rights litigation to show how courts have created doctrinal barriers that make it impossible to win Title VI challenges to hospital closures.

      In Part V, I address the implications for this failure, beyond the effects in any individual case of closure.  I argue that our existing Title VI framework circumscribes our civil rights discourse in ways that discourage an honest critique of the hospital closure problem and stymies our vision for meaningful reform.  One important consequence of this framework is the tendency to ignore or significantly underestimate the government's role in creating and maintaining an inherently discriminatory structure for health care delivery.  For example, while there is some acknowledgement of intersection of race and economics in the discourse, it is used to engender sympathy for [p1028] government and private actors who are draining resources from minority communities. As a result, there is a lack of public outrage about the government's role in fostering race discrimination, and no demand for a radical restructuring of the health care system that is essential to achieving racial equality. This framework enables the continuous draining of hospital resources from minority communities that not only threatens their access to health care, but engenders feelings of mistrust, helplessness, and anger.

      This is where the quote from St. Augustine becomes relevant.  I believe that as legal advocates, we have a responsibility to harness the anger within communities that suffer the greatest burdens under this system and the anger we should all feel at this conscious and sustained neglect by our government, and use it to advocate for a fundamental redefinition of our notion of equality in health care.  Moreover, legal advocates have a duty to use legal tools in creative ways to increase awareness and to empower communities to drive needed health care reform.  In Part VI, I offer some suggestions toward this end.  My suggestions include both short and long term ideas for minimizing disparities, incorporate traditional and nontraditional legal tools, and consider even unpopular approaches for reform.  If we can use our anger constructively and have the courage to engage in what is sure to be a long and difficult fight for equality, I have hope that our notion of civil rights, at least as applied to health care access, will finally evolve.

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