Unequal Treatment Confronting Racial and Ethnic Disparities in Health Care (2003) / Chapter Skim
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Pages 626-663
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The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status Thomas E Perez, J.D., M.P.P.1 Clinic Director and Assistant Professor of Law University of Maryland School of Law It is hard to talk about race.
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627 CIVIL RIGHTS DIMENSION The second factor that has triggered a discussion about the role of discrimination in health care is the dramatic increase in immigrant populations in urban and rural settings across the United States. These major demographic shifts have forced health care providers, government officials, and communities to address the unique challenges confronting immigrants.
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628 UNEQUAL TREATMENT introduces Title VI of the Civil Rights Act of 1964, one of the principal tools used in addressing discrimination in the health care context. Parts two and three explore whether discrimination is actually alive and well in the health care setting.
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629 CIVIL RIGHTS DIMENSION removing barriers to participation for legal immigrants in critical programs, such as Medicaid and the State Children's Health Insurance Program (SCHIP)
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630 UNEQUAL TREATMENT financial assistance, so it is not difficult as a practical matter to fall within the ambit of Title VI. The language of Title VI itself addresses intentional discrimination.
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631 CIVIL RIGHTS DIMENSION under Title VI.6 It is not necessary to first file an administrative complaint in order to file a lawsuit. OCR is the federal agency responsible for enforcing Title VI in the health and human service context, and has been doing so for over 35 years.
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632 UNEQUAL TREATMENT terminated from managed care networks have sought redress under Title VII and/or section 1981. These statutes provide legal framework for addressing the role of discrimination in health care.
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633 CIVIL RIGHTS DIMENSION racial or sex bias."11 These commentators and others questioned the underlying methodology, and suggested that the results are not as stark as the study suggested. Most recently, a study by a team of researchers led by Dr.
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634 UNEQUAL TREATMENT "Racial bias is difficult to detect in surveys of physicians or medical records. Physicians may have various biases, but they often do not perceive them, and would not report them as such.
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635 CIVIL RIGHTS DIMENSION The Calman and Gamble articles are also consistent with a more recent study led by Dr. Michelle van Ryn examining whether physicians' perceptions of patients are affected by the patient's race or socioeconomic status.20 Researchers concluded that physicians tended to perceive African Americans and members of low and middle SES groups more negatively on a number of measures than they did whites and upper SES patients.
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636 UNEQUAL TREATMENT on the medical student's assessment. In other words, race matters for both medical students and physicians alike, according to the two Schulman studies.
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637 CIVIL RIGHTS DIMENSION and subconscious racial bias. It would be equally imprudent to ignore the apparently strongly held beliefs of communities of color that discrimination is indeed alive and well in health care.
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638 UNEQUAL TREATMENT PART THREE: IS DISCRIMINATION ONE OF THE ROOT CAUSES OF DISPARITIES: WHAT DOES THE TITLE VI ENFORCEMENT HISTORY SUGGEST? Introduction There are at least two ways to determine whether discrimination plays a role in explaining racial and ethnic disparities.
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639 CIVIL RIGHTS DIMENSION Types of Discrimination Intentional Discrimination A generation ago, discrimination in health care, like discrimination elsewhere, was quite overt. Hospitals, nursing homes, and other health facilities were segregated, and the challenge was to integrate them.
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640 UNEQUAL TREATMENT set forth as a reminder that while the civil rights landscape in health care is indeed evolving, pockets of straightforward discrimination persist. These cases also illustrate the wide-ranging contexts in which forces of discrimination can inhibit or prevent communities of color from accessing critical services.
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641 CIVIL RIGHTS DIMENSION The language access challenge arises in virtually every health care setting. OCR has investigated and resolved language access complaints in hospital settings, managed care settings, fee for service settings, and human service settings.
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642 UNEQUAL TREATMENT Given the difficulty that private plaintiffs may encounter as a result of Sandoval, OCR's role in promoting language access has become even more important. The need for health care providers to ensure meaningful access is growing, as the population becomes more diverse, and immigrant communities migrate to both urban and rural settings.
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643 CIVIL RIGHTS DIMENSION ent who lived in a predominantly minority public housing development, regularly served a resident of a predominantly non-minority elderly housing development located a short distance away. Redlining is a concern in the pharmacy setting.
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644 UNEQUAL TREATMENT tients, respectively, and are more likely to care for poor patients.33 As a result, the practice patterns of many physicians of color may be on a collision course with the market pressures that managed care organizations face to engage in economic credentialing, which relates to the use of economic criteria, unrelated to quality of care or professional competence, in making contracting decisions.34 A recent federal lawsuit illustrates the concerns of physicians of color. Eight primary care physicians of color were part of a network of physicians who had contracts with Humana and its local affiliate in Florida.
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645 CIVIL RIGHTS DIMENSION "Business reasons" in this context often does not mean that the physician delivered substandard care. Instead, it often means that the physician spent too much money caring for a patient, so that it becomes economically unfeasible for the managed care organization to maintain this relationship.
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646 UNEQUAL TREATMENT a lengthy report in Newsday in 1999 documented racial disparities in a wide range of health areas in Queens, Nassau County, and Suffolk County, New York.37 For instance, according to the report, • Even though they die of coronary heart disease at lower rates than African Americans, whites had 138 cardiac bypass procedures per 100,000 residents, as opposed to 31 per 100,000 among African Americans. • One cardiac surgeon from a nationally recognized facility, who drew patients from a broad geographic area, performed 267 bypass operations during the year in question; one of the patients was AfricanAmerican, two were on Medicaid, and three had no insurance; • Another well-respected cardiologist performed 284 inpatient angioplasties during a given year; there were no Medicaid patients; one African American, and two without insurance.
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647 CIVIL RIGHTS DIMENSION investigations have focused on both theories. That is, is intentional discrimination somehow at work?
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648 UNEQUAL TREATMENT In addition, fear plays an important role in explaining the reluctance of immigrant populations to seek health care. Many citizens and legal immigrants are very reluctant to seek medical treatment, or apply for public benefits, such as Medicaid or State Children's Health Insurance Program (SCHIP)
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649 CIVIL RIGHTS DIMENSION ment of Agriculture that resulted in the dissemination of policy guidance to states outlining how states could fine-tune their application forms to maximize participation in critical benefits programs, and avoid potential liability under Title VI.39 Maximizing participation of eligible immigrants in programs such as Medicaid and SCHIP is a critical measure that will assist in reducing disparities and enhancing health status among immigrant populations. The Social Security Administration's "Enumeration at Birth" program is another example of a laudable initiative that deterred immigrants from accessing critical benefits as a result of one irrelevant question in the application process.
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650 UNEQUAL TREATMENT Whether discrimination plays a role in explaining other barriers is less certain, and requires additional inquiry. This section outlines specific recommendations for eliminating racial and ethnic disparities in health that focus on the civil rights dimension of the disparities challenge.
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651 CIVIL RIGHTS DIMENSION has exercised this discretion in a piecemeal fashion. For instance, OCR has required data collection as part of a resolution of a particular discrimination case.
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652 UNEQUAL TREATMENT In 1968, Congress had passed the Fair Housing Act, which contained an explicit anti-redlining provision. However, problems of discrimination in housing persisted, and Congress in 1975 passed the Home Mortgage Disclosure Act (HMDA)
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653 CIVIL RIGHTS DIMENSION lic for the first time. Once the data were publicly disseminated, community-based organizations and other advocacy groups were empowered because they could use the HMDA data to compare data on area lenders and put pressure to bear on lenders that appeared to have problematic data.
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654 UNEQUAL TREATMENT health care settings, it is important to reexamine data collection protocols regularly and adjust to meet emerging concerns. Finally, and perhaps most importantly, it is not simply important to collect data.
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655 CIVIL RIGHTS DIMENSION require the development of a uniform system for collecting the data, so that the appropriate data are collected. Critics are concerned that the data will somehow be misused.
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656 UNEQUAL TREATMENT involved in a steady diet of health care related civil rights advocacy. The National Health Law Program is perhaps the most effective national advocacy organization that focuses on the intersection of health care and civil rights.
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657 CIVIL RIGHTS DIMENSION State governments must also expand their health care-related civil rights enforcement infrastructure. California, for instance, has more people with limited English skills than any other state.
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658 UNEQUAL TREATMENT A number of additional steps can be taken on the language access front. Potential steps include the following: A
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659 CIVIL RIGHTS DIMENSION with Title VI, but simply cannot afford the cost of an interpreter. For instance, following the issuance of the OCR policy guidance on language access, the American Medical Association expressed concerns to then Secretary Shalala and, subsequently, to Secretary Thompson that the costs of compliance for physicians would be prohibitive.
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660 UNEQUAL TREATMENT • Are certain types of language assistance more effective in ensuring meaningful communication? • Does fluency in English affect access to critical services, such as immunizations?
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661 CIVIL RIGHTS DIMENSION stantial financial support from governments and foundations for these overall efforts to promote cultural competence. There are proposals to make such efforts a requirement for the accreditation of health professional schools.
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662 UNEQUAL TREATMENT health system. Sandoval provides an additional disincentive for an already small cadre of lawyers who address civil rights issues in health care.
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663 CIVIL RIGHTS DIMENSION and researchers to pinpoint with precision the precise causes of a particular disparity. Many providers are not waiting for the completion of this analysis, and initiated a series of activities, such as cultural competence training and review of language access programs.
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