Timothy Stoltzfus Jost
Excerpted from: Timothy Stoltzfus Jost, Racial and Ethnic Disparities in Medicare: What the Department of Health and Human Services and the Centers for Medicare and Medicaid Services Can, and Should, do, 9 DePaul Journal of Health Care Law 667 (2005) (196 Footnotes)
As I interviewed people currently or formerly working at CMS while researching this paper, it became clear that the issue of racial and ethnic disparities in Medicare is not currently a high priority at CMS, or, indeed, within HHS. There is considerable evidence of this fact. First, there is no single place within CMS where responsibility is lodged for addressing the 
problem of racial and ethnic disparities. CMS does have an Office of Equal Opportunity and Civil Rights (OEOCR), which reports to the Administrator's office and has a staff of about twenty. The primary task of this Office, however, is to address equal employment opportunity (EEO) discrimination complaints within CMS, handle EEO training within CMS, and oversee CMS's affirmative employment programs. Although the staff of OEOCR is conscientious, committed, and knowledgeable regarding racial and ethnic disparity issues, disparities are not its focus. Indeed, civil rights complaints from Medicare beneficiaries are not handled by OEOCR, but are rather referred, under a memorandum of understanding to the Office of Civil Rights of HHS. CMS also does not have its own Office of Minority Health, unlike other major units of HHS, including the Centers for Disease Control or Health Resources and Services Administration.
In the absence of any designated office responsible for disparity issues, everyone, and thus no one, at CMS is responsible. I spoke to a number of people, in the Center for Beneficiary Choices, in the Office of Clinical Standards and Quality, in the Office of Research, *673 Development and Information, and in the Regional Offices, each of which had some responsibility for racial and ethnic disparities issues. But no one person could be identified who was responsible exclusively for minority health issues, and each of these persons with some responsibility for these issues also has other responsibilities. Most of those to whom I spoke also gave the impression that racial and ethnic disparity issues were not the most pressing issue among the many that they were tasked to address, though all were committed-some deeply committed-to addressing these issues.
Second, because there is no office within CMS that explicitly and exclusively addresses racial and ethnic disparities, there is also no dedicated budget for funding initiatives to deal with these issues. A modest amount of research funding is spent on disparity issues, while other activities that address disparities, such as regional office outreach or QIO program initiatives, are funded through the units that carry on those activities, but no single source of money is available to assure that these issues are addressed. One ramification of this is that there is no particular dedicated source of funding to encourage the involvement of external organizations representing racial and ethnic groups in addressing these issues.
Third, CMS's own statements of its goals suggest that addressing racial and ethnic disparities is not a priority. CMS's FY 2005 Government Performance and Results Act (“GPRA”) Performance Plan lists thirty-two goals that CMS currently ranks as its top priorities. Though a number of these goals are directed at other specific populations, such as diabetic beneficiaries or those who reside in nursing homes, none address the specific issue of racial and ethnic disparities. Indeed, none of CMS's GPRA Annual Performance Plan goals have addressed racial and ethnic disparities for the past half decade.
Addressing Racial and Ethnic Disparities is listed as a priority in the HHS FY 2004-2009 Strategic Plan. Objective 3.4 of the HHS *674 Strategic Plan is “Eliminate racial and ethnic health disparities.” There is no information, however, as to how this objective will be achieved with respect to Medicare in the Medicare section of the more programmatic FY 2005 HHS Annual Performance Plan. Nor is the goal reflected in CMS's own Performance Plan.
CMS should also establish an Office of Minority Health directly under the Administrator, as have other divisions of HHS. This office would take responsibility for the educational, outreach, and research issues raised by racial and ethnic disparities. This Office needs to have a budget commensurate to its responsibilities, and be given responsibility-and authority-to oversee all of the other educational, outreach, and research efforts within CMS dealing with racial and ethnic disparities. In particular, this Office should also be charged with developing close relationships with leaders and leadership organizations within minority communities, to assure close communication and partnering with these communities. To this end, the Office should have an advisory group composed of both people within CMS and external to CMS who are experts in disparities issues. CMS should further establish as a key goal of its GPRA Performance Plan the diminution or elimination of racial and ethnic disparities in its health care programs.
HHS should also consider whether it should create a new Office of Civil Rights (OCR) within CMS or expand the current CMS OEOCR dramatically to take over the civil rights enforcement responsibilities of the HHS OCR. As will be discussed later in this paper, OCR has neither been very aggressive nor successful in addressing racial disparities in Medicare, and it might be necessary to locate authority elsewhere to secure enforcement of the civil rights laws.
While it is important that CMS create an Office of Minority Health specifically tasked to address racial and ethnic disparities, it is also essential that this Office not become the sole locus of responsibility within CMS for dealing with disparities. All senior executive service (SES) staff within CMS, and in particular the directors of the Center for Beneficiary Choices, the Center for Medicare Management, the Office of Clinical Standards and Quality, *675 and the Office of Research Development and Administration and the Regional Administrators should be directed to address racial and ethnic disparity issues relevant to their areas of authority. Their merit pay increases in compensation from year to year should be determined in part based on how well they address these issues. Development of budgets within centers, offices, and regional offices, should also take into account elimination of racial and ethnic disparities as a top priority.
Finally, CMS should include a Racial and Ethnic Disparities Impact Statement with each of the regulations it publishes for the Medicare program to assure that it considers how its regulatory actions might affect (and might be used to meliorate) racial and ethnic disparities. Once CMS and HHS have made elimination of racial and ethnic disparities a priority, they can proceed to take more specific actions. Until they do so, however, it is unlikely that they will take adequate or sufficient steps to address the disparities problem.
