III. INADEQUACY OF FEDERAL ANTI-DISCRIMINATION PROTECTION
Several federal laws address access to health care: Title XVIII (Medicare) Title XIX (Medicaid) of the Social Security Act, Title IX, and the Hill Burton Act. The only federal law related to eliminating racial discrimination in health care delivery is 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. On its face, Title VI (with its implementing regulations) should be an effective tool for eliminating racial discrimination. The Civil Rights Act of 1964 provides the legal force for desegregation efforts in health care. Specifically, Section 601 of Title VI provides: “No person in the United States, shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance.”
In short, Title VI appears to prohibit discrimination of all kinds. Still, nothing in anti-discrimination law is as simple as it might appear. While, several problems are that make Title VI and ineffective tool, among the most significant is the interpretation by the Supreme Court that Title VI only addresses intentional discrimination only. Further, regulatory agencies have interpreted Title VI to exclude physicians in private practice.
Unfortunately, the Supreme Court has held in Alexander v. Choate that Title VI itself directly reached only instances of intentional discrimination; included in the definition is subtle discrimination. Subtle discrimination is generally considered intentional based on large part on micro-aggressions with the primary difference being the reliance on circumstantial evidence to improve intent. However, the reliance on intent, subtle or direct, is particularly problematic for health care where most discrimination is either disparate impact discrimination or “unthinking or unconscious.”
[T]he course of treatment physicians . . . recommend to their patients may be influenced by stereotypical beliefs about the behavior of their patients. Physicians . . . may believe that poor and minority patients are more likely to break appointments and to misunderstand complex information, and less likely to adhere to their orders. These perceptions may affect--perhaps subconsciously--the decision-making process and lead physicians to refrain from orders that require patient compliance and to hesitate before recommending certain procedure if they assume the patient does not live in an environment that is conducive to the aftercare needed for the best outcomes of the procedure . . . .
While legal standards for discrimination have not always centered on intent, they do so now. 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.
Psychiatric, psychological, and legal literature generally support the idea that, in our society, most contemporary discrimination is based more on unconscious bias and stereotyping rather than on conscious bigotry. As suggested by Professor Lawrence:
Traditional notions of intent do not reflect the fact that decisions about racial matters are influenced in large part by factors that can be characterized as neither intentional--in the sense that certain outcomes are self-consciously sought--nor unintentional--in the sense that the outcomes are random, fortuitous, and uninfluenced by the decision-maker's beliefs, desires, and wishes.
The problem confronting the legal system is that an individual who holds a negative stereotype about a group is more likely to discriminate against an individual that fits the stereotype. This stereotype-linked bias is both an automatic process and an unconscious one. Furthermore, it occurs even among persons who are not prejudiced. to Professor David Williams, several factors contribute to the unbiased discrimination in health care:
First, healthcare providers are a part of the larger society that views racial and ethnic minorities negatively on multiple social dimensions . . . Second, research on stereotypes indicates that encounters in the healthcare setting contain ingredients that enhance the likelihood of the use of stereotypes. Stereotypes are more likely to be activated under conditions of time pressure, the need to make quick judgments, cognitive overload, task complexity and when the emotions of anger or anxiety are present . . . Third, . . . [physicians view their Black patients] . . . more negatively than their white counterparts. . . . Physicians viewed Black patients (compared to their white counterparts) as less likely to adhere to medical advice, less likely to be kind, intelligent and educated, more likely to lack social support, and more likely to abuse alcohol and drugs.
However, notwithstanding that the discrimination is based on some unconscious or unthinking processes, an individual can change
Social psychological research, reviewed here in four major sections, explains that stereotyping, prejudice, and discrimination have (1) some apparently automatic aspects and (2) some socially pragmatic aspects, both of which tend to sustain them. But, as research also indicates, change is possible, for (3) stereotyping, prejudice, and discrimination seem individually controllable, and consequently, (4) social structure influences their occurrence. . . . The bad news is that people's habitual use of subjectively diagnostic information, certain information configurations, and perceived co-variation sustains stereotypes. . . . The good news is that people can sometimes control even apparently automatic biases, if appropriately motivated, given the right kind of information, and in the right mood. People therefore can make the hard choice.
Recognizing, the need to get at more than intentional discrimination the Office of Civil Rights (OCR) which was delegated the responsibility of enforcing Title VI and Department of Health and Human Services (DHHS) issued interpretive regulations which provided for disparate impact discrimination:
A recipient . . . may not . . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination of their race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
The regulations defined a recipient as any public or private entity or individual that receives federal financial assistance. Federal financial assistance includes federal money awarded through grant, loan, or contract. Because of these two definitions, Title VI, had the potential of having a broad range effect. Once a program or individual has been determined to violate Title VI, the program or individual ‘must take affirmative action to overcome the effects of prior discrimination. ‘ Furthermore, the regulations went further and prohibited:
• Criteria or methods of administration which have the effect of subjecting individuals to discrimination; criteria or methods of administration which have the effect of defeating or substantially impairing accomplishment of the objectives of the program;
• Difference in quality of services;
• Differences in quantity or the manner in which the benefit is provided; and,
• Locating services with the purpose or effect of excluding individuals from the benefits of the program.
In theory then Title VI regulation should improve access to and quality of health care services. Title VI regulations clearly prohibit policies and practices that result in segregation within and between institutions. Title VI's regulations had the potential of forcing health care practitioners and institutions to evaluate their policies and practices that have a disparate impact on racial minorities. Unfortunately, because of Alexander v. Sandoval and unique problems of health care discrimination, Title VI and its regulations are virtually useless.
In Sandoval, the court held in a five-to-four decision that despite a line of Title VI precedents, that disparate impact regulation issued under § 602 could only be enforced through a private right of action. Since the law requires a conscious discriminatory purpose or intent, individual discrimination claims cannot address the issue of unconscious discrimination and health care providers will not be “appropriately motivated” to make the hard choice.
Even without the problem with Sandoval Title VI enforcement has been problematic First, although required by regulation to produce data, the Office of Civil Right's (“OCR”) 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, no research and development.” Third, Title VI lacks specific definitions of prohibited discrimination and acceptable remedial action. Fourth, OCR has relied on individual complaints to enforce Title VI. Finally, Title VI would have limited application to health care treatment discrimination since HEW has interpreted Title VI to not apply to private physicians who received money for treating patients covered under Medicare Part B. Thus, under Title VI physicians would not be recipients of federal financial assistance and consequently not covered by Title VI.
Taking the “even if” a step further, even if the problems with Title VI enforcement did not exist and Title VI functioned perfectly; the health care industry presents unique problems that would still make Title VI ineffective. Furthermore, the health care system presents several additional problems. First, as with the situation when racial minorities use housing and lending institutions, individuals are, for the most part, totally unaware that the provider or institution has discriminated against them. Similarly, because of the very specialized knowledge required in medical care, individuals can be totally unaware that the provider has injured them. Finally, 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 discrimination in health care.
