Unequal Treatment Confronting Racial and Ethnic Disparities in Health Care (2003) / Chapter Skim
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The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status
The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status
Pages 626-663
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The disparities initiative was launched in 1998 by former President Clinton and Secretary of Health and Human Services Donna Shalala. Under this bipartisan initiative, President Clinton and Secretary Shalala committed the nation to the ambitious yet attainable goal of eliminating racial and ethnic disparities in six areas of health status while continuing the progress that has been made in improving the overall health of people in America.
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2001. Racial and Ethnic Disparities in Diagnosis and Treatment: A Review of the Evidence and Consideration of Causes, Institute of Medicine, Committee on Understanding and Eliminating Racial and Ethnic Disparities in Health Care.
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other unique challenges confronting immigrant population in addition to language access. Parts two and three lay out the case that discrimination is a root cause of health disparities, and underscore that a comprehensive strategy to eliminate disparities must incorporate a strong civil rights component.
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Indeed, eliminating racial and ethnic disparities in health will require a comprehensive strategy that reflects a keen understanding of the multi-faceted nature of the challenge. The principal aim of this paper is to give policymakers, providers, advocates and other stakeholders a better understanding of the civil rights dimension of the challenge, as well as a set of suggestions on how to address these civil rights concerns.
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intentional discrimination; and (2) policies or practices that may be neutral on their face but have the effect of discriminating on the basis of race, color, or national origin (the "disparate impact" theory or "effects" test)
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~1~. Like Title VI, Title VII prohibits intentional discrimination as well as disparate impact discrimination.
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Yet, the Schulman study provoked a firestorm of criticism, as if it were the only study to document the potential role of discrimination in explaining racial and ethnic disparities. In a "Sounding Board" article in the New England Journal of Medicine a few months later, three physicians described the results of the Schulman study as "overstated," although they also noted that their purpose in writing was "not to deny the occurrence of is Schulman K
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The Chen study prompted one commentator to opine at a panel discussion sponsored by the Institute of Medicine that the Schulman study has been "largely discredited."~3 Such statements seeking to dismiss the Schulman study miss the mark, and ignore the wide body of research, both before and after the Schulman study, suggesting that race continues to matter in health care, and racial bias may contribute to racial and ethnic disparities in health status.~4 Such statements also ignore serious methodological flaws in the Chen study that a number of experts have noted.~5 Most notably, the African-American physicians in the Chen study tended to be internists, not cardiologists, when compared with the white physicians. There are so few African-American cardiologists that it would likely be difficult, if not impossible, to devise a study that addresses the question presented in the Chen study using a sufficient sample of both African-American and white cardiologists.
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Neil Calman, a professor of family medicine at Albert Einstein School of Medicine and President and co-founder of the Institute for Urban Family Health, has written and spoken extensively about his own efforts to come to grips with his own racial bias.~7 A white physician practicing in the Bronx with a predominantly minority patient mix, Dr. Calman has written about how this experience has forced him to confront his own racial stereotypes that have stood in the way of quality treatment of his patients.
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Calman's insights, reinforce the conclusion of the Schulman study, as well as other studies, that it is important to focus on the potential role of racial bias as a possible factor explaining racial and ethnic disparities. More recently, Dr.
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2001. Racial and Ethnic Disparities in Health Care Settings, Public Health Special Report.
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The Need for Broader Research on the Potential Role of Discrimination in Explaining Racial and Ethnic Disparities in Health The Schulman studies and others have triggered a much-needed dialogue about the potential role of discrimination as one factor explaining the persistence of racial and ethnic disparities in health status. However, it is vitally important not to limit the scope of the research regarding the potential role of discrimination as a factor in racial and ethnic disparities to physician and provider behavior.
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In Health Care Divided, Race and Healing a Nation, Smith documents the role of race in shaping our system of medical care, and concludes that discrimination indeed is a force that explains in part the persistence of racial and ethnic disparities.26 This section focuses on the current and recent landscape of Title VI cases, and demonstrates that discrimination regrettably is not a thing of the past. As noted earlier, Title VI and the Title VI regulations are quite broad in their reach.
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· OCR reached an agreement with a hospital in South Carolina that had a policy of prohibiting women with limited English skills from receiving an epidural during labor and delivery. These cases are not meant to illustrate that there is widespread pattern of intentional discrimination in health care.
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Language access cases under Title VI typically proceed under a disparate impact theory pursuant to the Title VI regulations. The failure to provide effective language assistance services amounts to national origin discrimination.
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As a result of Sandoval, private litigants can no longer attack defective language access policies using the disparate impact theory under the Title VI regulation. Instead, private litigants will have to prove that the failure to provide effective language assistance services amounts to intentional discrimination under Title VI itself.29 29 Private plaintiffs may still be able to meet the higher intent standard in language access cases.
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Addressing the language access challenge would go a long way in reducing racial and ethnic disparities among many immigrant populations across America. Redlining Redlining is most frequently associated with housing and mortgage lending, and historically related in those settings to the practice of literally drawing a red line around certain poor, predominantly minority sections of cities and refusing to provide a mortgage or sell homeowner's insurance.
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For instance, a 1994 survey of African American physicians found that 92% believed that managed care organizations terminated the contracts of African-American physicians more often than those of white physicians.32 At the 2001 annual conference of the National Medical Association, an entire afternoon was devoted to discussion of discrimination against physicians of color. The most frequent topic of discussion was discrimination in managed care.
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Humana contends that race had nothing to do with the decision not to renew the contracts, and that the terminations were for business reasons, which is acceptable under Florida law. In all likelihood, this case will boil down to one question: Were Humana's and its local affiliate's actions motivated by race, or by legitimate business considerations.35 This case reflects an emerging civil rights issue in managed care: Does a qualified physician with a sizeable minority patient population have an actionable civil rights claim under Title VI if a managed care organization terminates him or her from a provider network, or refuses to permit him or her to join the provider network?
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As recipients of federal financial assistance, both the state and the managed care organizations are responsible for Title VI compliance. Consequently, OCR has worked both with states and with managed care organizations themselves to ensure that individuals with limited English skills enrolled in Medicaid managed care can meaningfully access the programs.
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Again, it is important to reiterate that there are two types of discrimination, intentional discrimination and disparate impact, and these 37 Fessenden, Ford. November 29-December 6, 1998.
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Overall, investigation, prevention, outreach, and enforcement are all equal parts of the overall OCR strategy. Discrimination Concerns Unique to Immigrant Populations The immigration explosion of the 1990s has forced communities across America, urban, suburban, and rural, to identify solutions to meet the unique needs of immigrant populations.
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OCR and private advocacy organizations spend considerable time and energy identifying and eliminating unnecessary barriers to participation in critical health programs for immigrant populations. For instance, OCR initiated an investigation of the state of Georgia upon learning that Georgia's application for Medicaid benefits required all applicants to certify under penalty of perjury that all members of the household were legal residents of the United States.
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Upon close analysis, a number of the barriers for immigrants have a civil rights dimension, so that civil rights laws can be employed to eliminate them, and promote access to critical health benefits. PART FOUR: USING CIVIL RIGHTS STRATEGIES TO ASSIST IN ELIMINATING RACIAL AND ETHNIC DISPARITIES The research and the Title VI enforcement experience demonstrate that eliminating racial and ethnic disparities in health is both a civil rights and a public health challenge.
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1. Mandate the Collection of Data on Race, Ethnicity, and Language of Preference It is impossible to address racial and ethnic disparities in health status without adequate data.
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In addition, the OCR Title VI policy guidance on language access notes the importance of collecting data on language of preference. The recent SCHIP regulation, published tune 25, 2001, in the Federal Register, requires states to collect data on race and ethnicity.
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Collectively, these agencies comprise an interagency entity called the Federal Financial Institutions Examination Council (FFIEC)
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It was not until the Sunshine Amendment of 1989 that an industry of social scientists emerged who spent considerable effort breaking down HMDA and other data to pinpoint the potential role of various explanatory factors, including but not limited to discrimination. As a result of these analyses, investigators were able to answer for the first time the critical question: did discrimination infect the process, or were the disparities a function of other, non-discriminatory factors?
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However, it is possible to obtain basic necessary information without running afoul of the privacy regulation. Racial Profiling: The Importance of Data Collection Racial profiling by law enforcement is one of the most frequently discussed civil rights issues.
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Conclusions Regarding Data Collection Effective data collection is the lynchpin of any comprehensive strategy to eliminate racial and ethnic disparities in health. Collecting data on race, ethnicity, and language of preference is a quality of care as well as a civil rights issue.
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HHS as a whole is spending hundreds of millions of dollars addressing racial and ethnic disparities. OCR should have a much greater share of these dollars.
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Following the policy guidance, HHS developed an agency-wide Strategic Plan on language access, designed to ensure that HHS has the capacity in its own programs to ensure meaningful access to people with limited English skills. In short, HHS has attempted to set the tone on language access, and these efforts are continuing.
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OCR spends as much time on language access issues, including training and outreach, as any issue in its portfolio of responsibilities. Despite these efforts, and despite the recent publication of the OCR guidance, all too many providers are unaware of their responsibilities under Title VI to ensure meaningful access to people with limited English skills.
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For instance, Washington State has developed an impressive program of cost reimbursement for language assistance that makes substantial use of Medicaid matching funds. As a result, if a physician is seeing a Medicaid patient with limited English skills, he or she simply makes arrangements with the state agency that will provide a qualified interpreter at no charge to the physician or patient.
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· What do the most effective language assistance programs have in common? Overall, language access is the low hanging fruit of racial disparities in that many promising interventions have been identified, and are capable of implementation.
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Sandoval is not limited in its impact to language access cases. Private plaintiffs interested in pursuing disparities complaints in other contexts, such as access to treatment in hospitals, will find it more difficult, if not impossible, to make use of Title VI.
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OCR's activities in managed care have focused primarily on language access issues. Issues of redlining in managed care and potential discrimination in selection and de-selection of physicians for provider networks, have received less attention, not because they are less important.
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CONCLUSION Eliminating racial and ethnic disparities in health status is a moral imperative for which there is no single magic bullet. As policymakers, politicians, and the health care profession grapple with how to eliminate disparities, it is time to acknowledge certain realities about disparities.
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