V. Inadequacy of Legal Efforts to Eliminate Racial Discrimination in Health Care
It might be that civil rights laws often go unenforced; it might be that current inequities spring from past prejudice and long standing economic differences that are not entirely reachable by law; or it might be that the law sometimes fails to reflect, and consequently fails to correct, the barriers faced by people of color.
— Derrick Bell
There are a number of federal laws which address access to health care: Title XVIII (medicare) and Title XIX (medicaid) of the Social Security Act, Title IX, and the Hill Burton Act. However, federal law related to eliminating racial discrimination in health care delivery is limited to Title VI of the Civil Rights Act. Racial inequality in health care persists in the United States despite laws against racial discrimination, in significant part because of the inadequacy of Title VI. First, despite a regulatory requirement to produce data, the Office of Civil Rights Title VI enforcement effort has produced little consistent data for evaluating Title VI compliance. Second, there has been “little uniformity in how different states handle Title VI requirements, little guidance, little analysis of the information collected by this process, [and] no research and development.” Third, Title VI lacks specific definitions of prohibited discrimination and acceptable remedial action. Fourth, OCR has relied on individual complaints as a means of enforcement.
Even if the provisions of Title VI were improved and data collected, the legal system within which Title VI operates would still be inadequate for the particular difficulties present in the health care system. That is, the legal system has had particular difficulty addressing issues of unthinking discrimination, discrimination resulting from actions based on biases and stereotypes. While legal standards for discrimination have not always centered on intent, they do so now. Thus, to prove a disparate treatment claim an individual must show that the defendant intentionally discriminated. Such a standard means that few of the discriminatory acts that occur in the health care system can be successfully litigated, since most occur from unthinking or unconscious biases. As long as the law requires a conscious discriminatory purpose for disparate treatment liability, individual discrimination claims cannot address the issue of unconscious prejudice.
Furthermore, the health care system presents several additional problems. First, similar to the situation that arises when racial minorities use housing and lending institutions, individuals can be totally unaware that the provider or institution has discriminated against them. Second, because of the very specialized knowledge required in medical care, individuals can be totally unaware that they have been injured by the provider. Third, the health care system, through managed care, has actually built-in incentives that encourage unconscious discrimination. Because of these issues, an appropriate legal structure is essential to eliminating institutional/cultural racism.
In an effective public health policy, appropriate state and federal laws must be available to eliminate discriminatory practices in health care. The crux of the problem, given managed care, the historical disparity in health care, and unthinking discrimination, is that the law does not address the current barriers faced by minorities, and the executive branch, the legislatures and the courts are all reluctant to hold health care institutions and providers responsible for institutional racism. The U.S. Commission on Civil Rights found:
There is substantial evidence that discrimination in health care delivery, financing and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by federal agencies ... [Such failure has] ... resulted in a failure to remove the historical barriers to access to quality health care for women and minorities, which, in turn has perpetuated these barriers.