Does Clinton's Health Care Reform Proposal Ensure [E]qual[ity of Health Care for Ethnic Americans and the Poor?

Page 11 of 11

FOOTNOTES

The Health Security Act was introduced into the House as H.R. 3600, 103d Cong., 1st Sess. (1993), and into the Senate as S. 1757, 103d Cong., 1st Sess. (1993) (hereinafter the HSA).

See e.g., 139 Cong. Rec. S12.288-01 (daily ed. Sept. 23, 1993) (statement of Senator Moseley-Braun, D.-Ill., reciting the need for the HSA, based on the thirty- eight million uninsured, the millions inadequately insured, the escalating cost of health insurance, and the escalating expenditures on health care).

The barriers to (e)qual(ity) health care for ethnic Americans include: inability to afford quality health care (economic barriers); lack of providers and facilities from which to obtain health care (infrastructure barriers); provision of services in a middle-class form (class barriers); inability to obtain care because of racism (racial barriers); provision of culturally incompetent care (cultural barriers); and inability to obtain health care because of communication problems (language barriers). See infra notes 113-19, 175-84, and accompanying text.

America has had a ‘long tradition of inadequately-funded, inferior, and segregated services for low-income and minority patients . . . entrenched by widespread racial, gender, ethnic, and class bias in many parts of the system.‘ Rand E. Rosenblatt, On Access to Justice, Discrimination and Health Care Reform 3 (Feb. 14, 1994) (testimony before the Health and Environment Subcommittee of the House of Representatives) (on file with the Brooklyn Law Review).

‘European American‘ denotes individuals usually called ‘white.‘ Historically, ethnic Americans have been designated with a hyphenated name: ‘African-Americans,‘ ‘Asian-Americans,‘ ‘Native-Americans,‘ ‘Hispanic-Americans.‘ The hyphenation implies that a second person would not recognize these individuals as Americans unless designated as such. On the other hand, ‘white‘ persons need no designation because they are presumed to be Americans. Consequently, even linguistically, ‘whites‘ maintain a position of power. See Charles P. Freund, Rhetorical Questions: The Power of, and Behind, a Name, Wash. Post, Feb. 7, 1989, at A23. It would be ‘nice‘ if no designations were needed, but the reality of the situation requires us to discuss the needs of specific ethnic groups. The term ‘European,‘ rather than ‘Anglo-Saxon,‘ provides balance with the other designations; that is, it offers a designation which loosely identifies the geographic region from which the original ancestors migrated.

I reject the designation of ‘minorities‘ because it connotes subordination. Thephrase ‘ethnic Americans‘ is used to refer to African Americans, Asian/Pacific Islander Americans, Indian/Native/Eskimo Americans and Hispanic/Latino Americans. Ethnic Americans constitute a significant portion of the American population--24.36%. 1990 U.S. Census. Even within each ethnic group, however, there is significant diversity. For instance, Asian/Pacific Islanders speak over 100 different languages and dialects. Association of Asian Pacific Community Health Organizations, at 2 (unpublished manuscript, on file with author). They have a varied history of settlement in America, and represent 47 different ethnicities. Id. at 3. Such diversity exists to some extent among all ethnic Americans. Consequently, the categorizations in this paper are, at best, generalizations.

See infra part I.

This evaluation is based on the contents of the HSA, as submitted to Congress on November 20, 1993, and technically corrected on December 15, 1993. It does not attempt to evaluate the multiple changes (both major and minor) made to the HSA after that date.

See infra part II.

See infra part III.

See infra part IV.

See infra part V.

See infra part VI.

See Allyn Lise Taylor, Making the World Health Organization Work: A Legal Framework for Universal Access to the Conditions for Health, 18 Am. J. L. & Med. 301, 306 (1992).

HSA § 1151 (definition of benefits).

Id. §§ 1200-1205.

Id. §§ 1221-1224.

Id. §§ 1301-1303, 1321-1330.

Id. §§ 1301-1302.

Id. §§ 1311-1313, 1381-1397.

Id. §§ 1400-1414.

Id. § 1002(a).

Id. § 1002(b).

Id. § 1131.

Id. § 1132. The lower cost-sharing plan may limit the number and type of health care providers who participate in the plan; require enrollees to obtain health services (other than emergency services) from participating providers or from providers authorized by the plan; require enrollees to obtain a referral for treatment by a specialized physician or health institution; establish different payment rates for participating providers and providers outside the plan; create incentives to encourage the use of participating providers; or require the use of single- source suppliers for pharmacy, medical equipment and other health products and services. Cf. Id. § 1407 (providing that ‘no State law shall apply to any services provided under a health plan that is not a fee-for-service plan (or a fee-for-service component of a plan) if such law has the effect of prohibiting or otherwise restricting plans‘ from engaging in the above behavior).

The lower cost sharing does not include a deductible, and it has an annual individual out-of-pocket limit on cost-sharing of $1500 and an annual family out-of- pocket limit on cost sharing of $3000. Id. § 1132(a)(1), (2). Except for out-of-network care, payment of any coinsurance is prohibited. Id. § 1132(a)(3)(A), (a)(4). However, a co-payment is required for most services. Id. §§ 1132(a)(3)(A), 1135.

Id. §§ 1131, 1133. The higher cost-sharing plan has an annual individual general deductible of $200 and an annual general family deductible of $400. Id. § 1133(1). The higher cost-sharing plan shall have an annual individual out-of-pocket limit on cost sharing of $1500 and an annual family out-of-pocket limit on cost sharing of $3000. Id. § 1133(9). Furthermore, the higher cost-sharing plan may not have co-payments but shall require payment of the coinsurance for most items or services. Id. § 1133(10), (11). In addition, the lower cost-sharing schedule requires an individual to incur expenses: during each episode of inpatient and residential mental illness and substance abuse treatment; during each episode of intensive non-residential mental illness and substance abuse; for one year for outpatient prescription drugs, biologicals and for dental care. Id. § 1133(2)-(5). However, the plan may not require any deductible for clinical preventive services, for prenatal care, for prevention and diagnosis of dental disease. Id. § 1133(6)-(8).

Id. § 1131. The combination plan will have both the lower cost (managed care) option and the higher cost (fee-for-service) option. Id. §§ 1131(a)(3), 1134. Like the other plans, the combination plan has an annual individual out-of-pocket limit on cost sharing of $1500 and an annual family out-of-pocket limit on cost sharing of $3000. Id. § 1134(a)(1). The combination plan requires different cost sharing for in-network items and services than for out-of-network items and services. Id. § 1134(a)(2), (b). The combination cost-sharing plan may not apply to the deductible. Furthermore, coinsurance is prohibited, and the combination cost-sharing plan requires an individual and a family to incur expenses before the plan provides benefits for the item or service. Id. § 1134(c).

Id. §§ 1003, 1421-1423 (describing requirements relating to supplemental insurance).

Cf. Id. § 1423(d)(1)(B) (‘the price of any cost-sharing policy shall . . . take into account any expected increase in utilization resulting from the purchase of the policy by individuals‘).

All members of the same family are enrolled in the same health plan. ‘Family‘ means an individual who is not a child, the individual's spouse, the individual's children and, if applicable, the children of the individual's spouse. Id. § 1011(b). There are separate classes of family enrollment: individual, marriedcouple without children (couple-only), and unmarried individual and one or more children (single parent), and married couple and one or more children (dual parent). Id. § 1011(c). The terms ‘spouse‘ and ‘married‘ are limited to persons married under state law. ‘Child‘ means an eligible individual who is under 18 years of age (or under 24 years of age in the case of a full-time student), who is a dependent of an eligible individual. A child includes a stepchild or foster child, and an unmarried disabled individual, regardless of age, who is incapable of self- support. Emancipated minors and married individuals are not children. Id. § 1011(e).

Examples of health insurance premiums under the health care reform plan are as follows:

Low-cost Sharing

Combination Plan B

Combination Plan C

Higher Cost Sharing

Dual Parent Family

$3700

$4000

$4200

$4900

Single Parent Family

$2100

$2200

$2400

$2900

Childless Married Couple

$3000

$3400

$3600

$4400

Single Individual

$1500

$1700

$1800

$2200

See Appendix A: President Clinton's Health Care Reform Proposal-Preliminary Working Group Draft of Sept. 7, 1993, at *114-*117 (available in WESTLAW BNA-DER) (hereinafter Description).

HSA § 1342(a)(1). In 1994, a preliminary estimate of monthly premiums based on the Act are:

Monthly Premium under Health Care Reform in 1994

Family Type

Range

Average

Dual Parent Family with children

$0-$91

$73

Single Parent Family with children

$0-$80

$64

Childless Married Couple

$0-$80

$64

Single Person

$0-$40

$32

The White House Domestic Policy Council, Health Security: The President's Report to the American People 29 (1993) (hereinafter The President's Report).

HSA § 1343(b).

Id. § 1003(b)(4).

Id. §§ 1371-1375.

Id. § 1344(d).

Id. § 1345(a).

HSA § 1001(c).

Id. § 1001(d).

Id. § 1004(b).

Id. § 1001(e).

Id. § 1005(a).

HSA §§ 1101-1128.

Id. § 1101(b).

Id. § 1114(e).

Id. § 1141(b)

Id. § 1141(a).

W. Michael Byrd & Linda A. Clayton, The American Health Dilemma Continues: An Analysis of the Clinton Health Plan from an African American and Disadvantaged Patient Perspective 4-5 (Oct. 27, 1993) (unpublished manuscript on file with author).

See infra part II.A.

See infra part II.B.

See infra part II.C.

See infra part II.D.

See infra part II.E.

Description, supra note 30, at *5.

Description, supra note 30, at *5-*6. The principles were universal access, comprehensive benefits, choice, equality of care, fair distribution of costs, personal responsibility, inter-generational justice, wise allocation of resources, effectiveness, quality, effective management, professional integrity and responsibility, fair procedures, and local responsibility. Id.

Essentially, ‘(e)very American citizen and legal resident should have access to health care without financial or other barriers.‘ Description, supra note 30, at *5.

For instance, the Description acknowledges that ‘(m)any Americans cannot obtain quality care,‘ however, it limits its discussion of barriers to the shortages of doctors, clinics and hospitals. Description, supra note 30, at *2.

The articulated purposes of the HSA are: to guarantee comprehensive health care coverage, to simplify the health care system, to control the cost of health care, to protect individual choice of health plans and health care providers, to ensure the quality of health care, and to encourage responsibility. See HSA § 3(1)-(6) (emphases added).

It stresses individual autonomy by emphasizing the need to assure that consumers have ‘the opportunity to exercise effective choice about providers, plans and treatments.‘ Description, supra note 30, at *5.

Regional independence is specifically stressed by maintaining that ‘states and local communities (should be allowed) to design effective, high-quality systems of care that serve each of their citizens.‘ Description, supra note 30, at *6.

The HSA believes that competition will ensure that ‘health plans and health care providers are efficient and charge reasonable prices.‘ The HSA § 2(2)(G). See generally id. §§ 1300-1303, 1321-1330 (establishing regional health alliances to contract competitively with health care plans to service their identified area); see also id. § 1551(c)(2) (allowing the Board to require additional capital of health care plan for factors likely to affect their financial stability including market share and strength of competition); Id. § 4118 (allowing ‘competitive acquisition areas for the purpose of awarding a contract or contracts for furnishing . . . items and services‘ under Part B of Title XVIII of the Social Security Act. 42 U.S.C. § 1395w-4 (1988 & Supp. IV 1992)).

Managed competition was coined by the Jackson Hole Group and is synonymous with market-oriented health care reform. Paul Ellwood et al., The Jackson Hole Initiatives for a Twenty-First Century American Health Care System, 1 J. Health Econ. 149 (1992). Managed competition requires three major changes in the U.S. health insurance system. First, regional health insurance purchasing cooperatives (‘HIPCs‘) need to be formed to manage the marketplace for health care coverage. Second, employers must contribute the same amount of money for coverage regardless of which plan a consumer chooses. Third, new rules are needed to make it more difficult for plans to avoid enrolling high-risk individuals. Thomas Rice et al., Holes in the Jackson Hole Approach to Health Care Reform, 270 JAMA 1357, 1357 (1993). See generally Sandra J. Greenblatt & Michael J. Cherniga, New Florida Health Reform Plan is First Large Scale Test of Clinton's Managed Competition Theory, 10 HealthSpan 7 (1993).

Groups supporting managed competition include major insurance companies, the American Medical Association, the Pharmaceutical Manufacturers Association, and large health maintenance organizations (HMOs). Rice et al., supra note 61, at 1357. Consumer organizations are the only significant interest group not supporting managed competition. Id.

Rice et al., supra note 61, at 1357.

See generally U.S. Congress, Congressional Budget Office, The Effects of Managed Care on Use and Cost of Health Services (1992) (little evidence of savings); J. Zwanziger & Rebecca R. Auerbach, Evaluating PPO PerformanceUsing Prior Expenditure Data, 29 Med. Care 142 (1991); James A. Hester et al., Evaluation of a Preferred Provider Organization, 65 Milbank Q. 575 (1987); P. Diehr et al., Use of a Preferred Provider Plan by Employees of the City of Seattle, 28 Med. Care 1073 (1990). But see Sheldon Greenfield et al., Variations in Resource Utilization Among Medical Specialties and Systems of Care: Results from the Medical Outcomes Study, 267 JAMA 1624 (1992) (reporting some cost savings).

Rice et al., supra note 61, at 1357.

See generally Harold S. Luft, Trends in Medical Care Costs: Do HMOs Lower the Rate of Growth?, 18 Med. Care 1 (1980); Joseph P. Newhouse et al., Are Fee- for-Service Costs Increasing Faster Than HMO Costs?, 23 Med. Care 960 (1985).

Rice et al., supra note 61, at 1357. See Richard Kronick et al., The Marketplace in Health Care Reform: The Demographic Limitations of Managed Competition, 328 New Eng. J. Med. 148 (1993) (suggesting that managed competition is not as effective if providers are allowed to contract with multiple plans); Rice et al., supra note 61, at 1359 (suggesting that providers will ‘consolidat(e) into larger practices to obtain countervailing market power‘).

W. Michael Byrd & Linda A. Clayton, Managed Competition: An Analysis of Consumer Concerns, in A Guide for Health Care Reform (1993) (unpublished manuscript on file with author).

See infra notes 204-14 and accompanying text.

See infra notes 218-20 and accompanying text.

See generally W. Michael Byrd & Linda A. Clayton, An American Health Dilemma: A History of Blacks in the Health System, 84 J. Nat'l Med. Ass'n 189 (1992).

The sections of the Act which would have been appropriate in demonstrating that equality of health care was an essential ethical foundation of the reform would have been section 2 (Findings) or section 3 (Purposes). See generally Charles J. Dougherty, Ethical Values at Stake in Health Care Reform, 268 JAMA 2409 (1992).

HSA § 1203(e). In fact, in carrying out their responsibility, states have the flexibility to establish either an alliance system offering multiple plans or a single- payer health care system. Id. §§ 1221-1224.

States are required to submit a nationally approved standard health plan to the National Health Board. Id. § 1200(b)(1). Each state must create an administrative mechanism to administer the plan. Id. § 1201(4). States must administer subsidies for low-income individuals, families and employers. Id. §§ 1202(e)(1), 9011(a). They certify health plans, Id. §§ 1201(2), 1203(b), and financially regulate the health plans. Id. §§ 1204(a)-(d)(1), 1201(3). The states are responsible for administering data collection and quality management programs. Id. § 5013(1), § 5004(b). Finally, the states are responsible for the creation and governance of health alliances, including mechanisms for selecting members of their boards of directors and advisory boards. Id. §§ 1201(1), 1202(a)(1).

For example, Medicaid is a state-operated, federally authorized program and Medicaid eligibility varies widely from state to state. John C. Boger, Race and the American City: The Kerner Commission in Retrospect-An Introduction, 71 N.C. L. Rev. 1289, 1329 (1993); see also Diane Rowland, Medicaid: Financing Care for Low-Income Americans 3 (Nov. 1991) (conference paper presented at ‘An African American Health Care Agenda: Strategies For Reforming an Unjust System,‘ Johns Hopkins University) (discussing Medicaid's role in meeting the health needs of African Americans).

Cf. Stephen F. Jencks, Quality Assurance, 263 JAMA 2679, 2679-81 (1990) (discussing the role of risk adjustment in quality assurance measures); Douglas Sharrot, Note, Provider-Specific Quality-of-Care Data: A Proposal for Limited Mandatory Disclosure, 58 Brook. L. Rev. 85, 148 (1992) (discussing providers' tendency to shy away from high-risk patients even if risk adjustment methodologies were extremely accurate).

HSA §§ 1203(e)(3)(A), 1541(b), 1542.

See Allergy Briefs, 10 Pediatric Rep.'s Child Health Newsl. 66 (1993) (discussing high risk of Alaskan natives for contracting hepatitis B); Michael Higgins, Native People Take on Diabetes: Indigenous Peoples from America to Australia are Fighting Some of the Highest Rates of Diabetes in the World by Returning to Traditional Foods and Practices, 21 East West 94 (1991) (discussing the high risk of diabetes among Native Americans); Laurie Jones, Prevention Seen as Best AIDS Hope, 37 Am. Med. News 3 (discussing outreach work with high-risk African American men and women); David Marder et al., Effect of Racial and Socioeconomic Factors on Asthma Mortality in Chicago, 101 Chest 426S (1992) (indicating that African Americans with low incomes are at higher risk for asthma deaths);National Institute on Drug Abuse, The Spread of Tuberculosis Among Drug Users, AIDS Weekly 14 (Feb. 1, 1993) (indicating that African Americans and Hispanics are historically at high risk for developing tuberculosis); Vernellia R. Randall, Racist Health Care: Reforming the Health Care System to Meet the Needs of African Americans, 3 Health Matrix: J. of L. & Med. 127 (1993); Treating Prostate Cancer, 5 Consumer Rep. on Health 89 (1993) (indicating that African American men are at high risk for contracting prostrate cancer).

Maya Wiley, Statement of the Legal Defense & Educational Fund, Inc. on the Health Security Act of 1993, Before the Subcommittee on Commerce, Consumer Protection and Competitiveness, U.S. House of Representatives 5 (Nov. 16, 1993) (on file with the author).

Cf. HSA §§ 1400-1414 (outlining health plan requirements); Id. §§ 1201-1205 (outlining state responsibilities).

Id. §§ 3061-3062(f). These programs will, among other things, train health professionals and administrators to provide culturally sensitive care. Id. § 3062(d). In addition, the Act permits states, if they wish, to administer financial incentives to health plans to encourage the plans to enroll ‘disadvantaged groups‘ or to remove barriers to access. Id. § 1203(e)(3)(B).

See infra part VII.

See supra note 76 and accompanying text.

HSA § 2(2)(J).

Byrd & Clayton, supra note 69, at 5.

For instance, in California, African American men with less than a high school education are twice as likely to be unemployed as European American menwith the same education. Almost 25% of all African American men in California over 16 years of age have been unemployed for more than two years, compared to about 12% of European American men and 10% of Asian American and Latino American men. Even for those with jobs, African American men are concentrated in lower prestige occupations, are about twice as likely as all other men to work in the public sector, and are half as likely as European American and Asian men to be self-employed. See Kim Clark, Blacks, Males in MD Hit Hard by Unemployment But Women's Rate Didn't Change in '92, Balt. Morn. Sun, Aug. 24, 1993 (Financial), at 10C (unemployment rate for blacks jumped nearly 1 1/2 points to 11.2%); Sonia Nazario, Grim Picture Painted for State's Black Men Study, L.A. Times, Dec. 11, 1993, at A1; Spencer Rich, While Most Gain, Millions Suffer: Conditions Worsen for Chronically Poor ‘Underclass,‘ Wash. Post, Jan. 20, 1986, at A1 (America's 28.6 million African Americans still lag far behind European Americans in every measure of economic and social well-being).

See infra notes 204-29 and accompanying text.

Health plans may offer standardized supplemental insurance policies to cover cost sharing or health benefits above and beyond the comprehensive benefits package. HSA § 1421(a).

See generally John B. Crosby & David L. Heidorn, Achieving Full Access: It's Already Being Done, 3 Kan. J.L. & Pub. Pol'y 31 (1993) (arguing that managed competition would not be an acceptable way to provide health care to all Americans or to control costs, especially in rural areas); Robert Pear, Budget Official Sees No Savings in Clinton's Health Care Plans, N.Y. Times, Feb. 3, 1993, at A16.

Nancy S. Jecker, Can an Employer-based Health Insurance System be Just?, 18 J. Health Pol. Pol'y & L. 657 (1993).

David V. Himmelstein & Steffie Woolhandler, The National Health Program Book (1994) (quoting Bill Link, Executive VP, Prudential).

Description, supra note 30, at *3; See infra notes 199-203 and accompanying text.

Byrd & Clayton, supra note 47, at 4-5.

HSA § 2(2)(G). As articulated by Henry Aaron, director of Economic Studies Program at the Brookings Institution, ‘A free market rests on the idea that insurance should be cheaper for those who need it least and more expensive for those who need it (more). It may be good economic policy, but its bad social policy.‘ Byrd & Clayton, supra note 69.

The budget includes premiums paid to cover the guaranteed comprehensive benefit package, whether paid by employers, employees or individuals. Medicare and Medicaid expenditures are included under separate budgets. ‘Supplemental benefits beyond the comprehensive benefit package, workers' compensation and auto insurance benefits are not included in the budget.‘ Premiums for insurance policies providing coverage for cost sharing are not included. This includes budgets for fee-for-service plans. Description, supra note 30, at *45, *64; HSA §§ 1322(d), 2109.

Byrd and Clayton, supra note 47, at 4.

William A. Glaser, The Competition Vogue and Its Outcomes, 341 Lancet 805 (1993).

Byrd & Clayton, supra note 47, at 4; Himmelstein & Woolhandler, supra note 92, at 1; Vernellia R. Randall, Managed Care, Utilization Review and Financial Risk-shifting: Compensating Patients for Cost Containment Injuries, 17 U. Puget Sound L. Rev. 1 (1993).

100

Insurance companies deny needed care by limiting providers, providing financial disincentives for treatment, or delaying appointments. Another problem with turning the system over to private enterprise is that insurance companies will still engage in marketing practices. Those practices not only will add to health care cost, but they could actually help them to avoid certain consumers. While the HSA forbids certain practices (i.e., marketing to a smaller area than the entire area served, insurance tie-ins and inaccurate information), HSA § 1404(a)(2), health plans may still devise ways to avoid high risk consumers (i.e., ethnic Americans). But cf. HSA § 1325(b) (requiring approval by regional alliance of any materials used to market health plans offered through the alliance).

101

Himmelstein & Woolhandler, supra note 92, at 3.

102

HSA §§ 1410, 5013.

103

Byrd & Clayton, supra note 69, at 8-10.

104

See generally Gordon Bonnyman, Jr., Unmasking Jim Crow, 18 J. Health Pol. Pol'y & Law 872 (1993); David B. Smith, The Racial Integration of Health Facilities, 18 J. Health Pol. Pol'y & Law 851 (1993) (discussing the limited published sources of data on health care discriminations).

105

Memorandum in Support of Motion to Appear as Amici Curiae, Hughes v. Shalala, No. 93-0048 (M.D. Tenn. 1993) (arguing that Department of Health and Human Services should be required to amend claims forms for hospitals and facilities by including spaces for information about race of client).

106

HSA § 1203(e).

107

Id. § 1203(e)(3). Certainly, these incentives could be used to assure that ethnic Americans have supplementary services such as translation and transportation. Such services would help assure that low-income groups, women, ethnic Americans and the disabled have real choices in the health care system.

108

Byrd & Clayton, supra note 69, at 8.

109

HSA § 1402(a)(1).

110

Id. § 1402(a)(2).

111

CNN News, White House Health Care Reform, #177-10 (CNN television broadcast, Mar. 29, 1993) (transcript on file with author).

112

Id.

113

Byrd & Clayton, supra note 69, at 7.

114

HSA § 1501(a). The Board is appointed by the President and confirmed bythe Senate. Id. § 1501(b).

115

The Regional Alliance consists of employers, including self-employed individuals who purchase such coverage. HSA § 1302. Nothing in the Act assures representation of the Medicaid population, low income population or ethnic Americans.

116

HSA § 1502(b).

117

Id. §§ 1502(b), 1513(b)(3).

118

Cf. 45 C.F.R. § 46.111(a)(3) (1992) (defining vulnerable populations as ‘child- ren, prisoners, pregnant women, mentally disabled persons or economically or educationally disadvantaged persons‘).

119

HSA § 3331(b), (c) (authorizing national prevention initiatives to develop and implement innovative community-based strategies to provide for health promotion and disease prevention activities targeted to the most needy and vulnerable population groups); Id. § 3481 (authorizing payment to hospitals serving vulnerable populations); Id. § 5004(c) (requiring that survey samples adequately measure populations considered to be at risk of receiving inadequate health care and difficult to reach through consumer-sampling methods, including individuals who are members of a vulnerable population).

120

Id. § 1302(c) (prohibiting an individual from serving as a member of the Board of Directors if the individual is: a health care provider; derives substantial income from a health care provider, health plan, pharmaceutical company or a supplier of medical equipment, devices or services; derives substantial income from the provision of health care; a member or employee of an association, law firm or other institution or organization that represents the interests of health care providers, health plans or others involved in the health care field; or an individualwho practices as a professional in an area involving health care). The health professionals will be part of a separate Provider Advisory Board to function under the direction of the Board of Directors. Id. § 1303.

121

Byrd & Clayton, supra note 47, at 5.

122

Byrd & Clayton, supra note 69, at 21-22.

123

See infra part III.A.

124

See infra part III.B.

125

See generally Arnold S. Relman, Controlling Costs by ‘Managed Competition‘-Would It Work?, 328 New Eng. J. Med. 133 (1993).

126

See generally Randall, supra note 79, at 146-60; Sidney D. Watson, Health Care in the Inner City: Asking the Right Question, 71 N.C. L. Rev. 1647 (1993).

127

One-quarter of the U.S. population, about 65 million persons, resides in rural areas. Rural Americans face unique health needs which require access to local health care. Charles Marwick, Educating Farmers, Physicians Who Treat Them, About Rural Life's Potential Health Hazards, 261 JAMA 343 (1989); Ross M. Mullner et al., New Report Cites Rural Health Problems, Needs, 107 Pub. Health Rep. 486 (1992); Ross M. Mullner et al., Rural Community Hospitals and Factors Correlated with Their Risk of Closing, 104 Pub. Health Rep. 315, 316 (1989) (hereinafter Mullner et al., Rural Community Hospitals). However, rural Americans do not have access to as many or as wide a range of health care services as suburban Americans. The health care of rural Americans is restricted both because of the lack of medical providers and the lack of health care facilities. In 1986, rural areas had 44% fewer physicians than cities. C. Neil Bull & Share DeCroix Bane, Growing Old in Rural America: New Approach Needed in Rural Health Care, 365 Aging 18, 20 (1993); cf. David A. Kindig & H. Movassaghi, The Adequacy of Physician Supply in Small Rural Communities, 8 Health Aff. 63-76 (1989); Joseph P. Newhouse et al., Where Have All the Doctors Gone?, 247 JAMA 2392, 2393 (1982); William B. Schwartz et al., The Changing Geographic Distribution of Board-Certified Physicians, 303 New Eng. J. Med. 1032 (1980). Very small rural counties had 112 fewer physicians per county than the national average. Shawn Tully, America's Painful Doctor Shortage, 126 Fortune 103 (1992). In fact, in 1992, the Department of Health and Human Services estimated that more than 100 U.S. counties had no physicians. Id. The shortage of providers is so severe that in some communities essentially all medical practices are closed to new patients. Id. Many communities have no training programs and find it extremely difficult to recruit providers. Stephen J. Pearson, Health Care for Uninsured and Underinsured Children: Letter to the Editor, 145 Am. J. Dis. Child 1085 (1991). In 1988, there were 2,549 rural community hospitals. David G. Whiteis, Hospital and Community Characteristics in Closures of Urban Hospitals, 1980-1987, 107 Pub. Health Rep. 409 (1992) (citing American Hospital Association, Hospital Statistics, 1989-90 (1990)).During a seven year period, estimates of hospital closures ranged from 161 to 200. See Bull & Bane, supra, at 20 (reporting 190 rural hospital closing between 1981 and 1988); Tully, supra, at 103 (reporting over 200 hospitals closed between 1987 and 1992); Mullner et al., Rural Community Hospitals, supra, at 318 (reporting 161 hospital closings between 1980 and 1987).

The reasons for rural closings are complex, and include the disproportionate impact of Medicare's prospective payment system on rural hospitals. However, the lack of available physicians is another story. Many rural communities are unable to replace physicians who retire or leave. ‘You can have a physician without a hospital, but you cannot have a hospital without a physician.‘ Emily Friedman, Analysts Differ Over Implications of More Hospital Closings Than Opening Since 1987, 264 JAMA 310, 313 (1990). Other health services are also in short supply, including nursing homes, allied health care professionals, nurses, health technology personnel, dentists, physical therapists, pharmacists and opticians. In fact, inpatient psychiatric services are ‘virtually nonexistent‘ in rural communities. Bull & Bane, supra, at 21. Thus, a rural person's ability to obtain (e)qual(ity) health care is severely impaired by the serious lack of infrastructure for the delivery of care.

128

Ethnic Americans and poor Americans who live in inner cities are similarly affected by the lack of infrastructure. As in rural communities, many hospitals and primary care clinics have been forced to close. Boger, supra note 75, at 1330. Many hospitals have abandoned the inner city and moved to more lucrative suburban areas. Between 1980 and 1989, of the 508 general acute care hospitals that closed, 256 were urban. Friedman, supra note 127, at 310. Hospital closures left many communities stripped of any available resource. For instance, the ‘entire north side of St. Louis, parts of Philadelphia, and even sections of New York City are virtually devoid of hospital care.‘ Id. at 313. Although surviving hospitals often maintain that patients may find ‘a safe harbor there,‘ the reality is that disabled individuals and individuals ‘with linguistic, cultural, geographic, or finanical access problems are less able to find substitute care.‘ Id. (quoting Alan Sager, Associate Professor at the Boston University School of Public Health).

The inadequate infrastructure also has to do with the lack of physicians practicing in the inner city. This lack of infrastructure is due both to physicians who have moved their practices from inner city communities and to the shortage of physicians trained in primary medicine. See generally Watson, supra note 126, at 1649-50. In 1961, 50% of U.S. doctors were primary care providers; by 1990 that figure had dropped to 33%. Marc L. Rivo & David Satcher, Improving Access to Health Care Through Physician Workforce Reform, 270 JAMA 1074-78 (1993). In a study performed by the Council on Graduate Medical Education, projections indicate that the number of primary care providers will continue to decline. John M. Eisenberg, Economics, 270 JAMA 198-200 (1993). The lack of providers and facilities from which to obtain health care is equally as devastating as economic barriers, and providing universal coverage will not, by itself, remove all infrastructure barriers.

129

See infra notes 137-51 and accompanying text.

130

Basically, each health plan must enter into a provider participation agreement with essential community providers. HSA § 1431(a). The agreement provides that the plan shall make payment to the provider. Id. § 1431(c). The participation agreement between the health plan and an essential community provider shall provide that the health plan agrees to treat the provider at least as favorably as other providers. Id. § 1431(b). In particular, the agreement must be similar with respect to the scope of services for which payment is made by the plan to the provider, the rate of payment for covered care and services, the availability of financial incentives, limitations on financial risk provided, assignment of enrollees, and access by the provider's patients to providers in medical specialties or sub-specialties participating in the plan. Id. Essential community providers are not merely any providers serving in underserved areas but those that have been certified by HHS. The Act provides that any of the following health care providers or organizations can be certified as an essential community provider: a migrant health center; a community health center; a homeless program provider; a public housing provider; a family planning clinic; an Indian health program; an AIDS provider under the Ryan White Act, 42 U.S.C. § 300ee-3 to -12 (1991); a maternal and child health provider; a federally qualified health center; a rural health clinic; a provider of school health service; or, a community practice network. Id. § 1582(a)(1)-(11). Other categories of health care providers and organizations may also be certified as essential community providers. Id. § 1583(a). An essential community provider who is aggrieved by the failure of a health plan to fulfill a duty imposed by the HSA may commence a civil action against the plan. Id. § 5240(a). If the court finds that the health plan has failed to fulfill its duty, the essential community provider may recover compensatory damages, other appropriate relief, and reasonable attorney's fees, including expert fees. Id. § 5240(b), (c).

131

Specifically, it applies during the five-year period beginning with the first year in which any health plan is offered by an alliance. Id. § 1432(a).

132

The Act authorizes the preparation of recommendations regarding essential community providers, including studies that assess the definition of essential community providers, the sufficiency of the funding levels for providers, the effects of contracting requirements relating to such providers, the effects of contracting requirements on such providers, health plans, and enrollees, the impact of the payment rules for such providers, and the impact of national health reform on such providers. Id. § 1432(b). Congress will decide whether and to what extent to continue requiring the health care plan to contract with essential community providers. Id. § 1432(c).

133

The HSA provides for regional alliances to encourage the development of plans to serve areas that have inadequate health services. In particular, a regional alliance may encourage the establishment of new health plans in an area that has inadequate health services. Id. § 1329(b). Health alliances may encourage the development of community plans by organizing health providers to create a plan, by providing assistance with setting up and administering such a plan, and by arranging favorable financing for such a plan. Id. Furthermore, the Act authorizes the use of federal funds to improve the infrastructure for urban and rural medically underserved populations. Id. § 3411. In particular, the funding is to be used to facilitate transition to a system in which medically underserved populations have an adequate choice of community-oriented providers and health plans; to promote the development of community practice networks and community health plans that integrate health professionals and health care organizations supported through public funding with other providers in medically underserved areas; to support linkages between providers of health care for medically underserved populations and regional and corporate alliance health plans; to expand the capacity of community practice networks and community health plans in underserved areas by increasing the number of practice sites and by renovating and converting substandard inpatient and outpatient facilities; to link providers in underserved areas with each other and with regional health care institutions and academic health centers through information systems and telecommunications; and to support activities that enable medically underserved populations to gain access to the health care system and use it effectively. Id. Finally, the Act allows HHS to make grants and to enter into contracts with consortia of providers for the development of qualified community health plans and qualified community practice networks. Id. § 3421.

134

See infra notes 144-50 and accompanying text.

135

HSA § 1351(a).

136

Minority ‘set-aside‘ is a term that refers to both public and private sector efforts to reserve a predetermined percentage of benefits and opportunities for racial minorities. Set-asides are most often associated with public construction dollars, where a general contractor working on a public building project must devote a certain percentage of the bid price to minority sub-contractors. See Richmond v. J.A. Croson Co., 488 U.S. 469 (1989) (minority set-asides for municipal contractors); Fullilove v. Klutznick, 448 U.S. 448 (1980) (federal minority set-aside program in construction industry); see also Wygant v. Jackson Bd. of Educ., 476 U.S. 267 (1986) (formula for preserving employment for minority teachers during district-wide layoffs); Cliff Hocker, Richmond Enacts New Set-Aside Law, Black Enter., Aug. 1993, at 24.

137

The health-related data collection, surveillance and outcome monitoring function of public health provides for regular collection and analysis of information on key dimensions to ensure timely awareness, decisions and interventions related to epidemics, emerging patterns of disease and injury, prevalence of risks to health, and outcomes of personal health services. HSA § 3312(b)(1).

138

The public health functions related to enforcement focuses on air pollution, including indoor air, exposure to high lead levels, water contamination, handling and preparation of food, sewage and solid waste disposal, radiation exposure, radon exposure, noise levels and abatement, and consumer protection and safety. Id. § 3312(b)(2).

139

The public health functions that focus on investigation and control of diseases and injuries include improvements in emergency treatment preparedness, cooperative activities to reduce violence levels in communities, activities to control the outbreak of disease, exposure related conditions and other threats to the health status of individuals. Id. § 3312(b)(3).

140

The public information and education function of public health focuses on mobilizing communities and motivating individuals to reduce risks to health such as tobacco use, abuse of alcohol and other drugs, sexual activity that increases vulnerability to HIV infection and sexually transmitted diseases, inadequate nutrition, physical inactivity and childhood immunization. Id. § 3312(b)(4).

141

The accountability and quality assurance focus of public health functions includes monitoring the quality of personal health services furnished by health plans and providers of medical and health services in a manner consistent with the overall quality of care monitoring activities undertaken under Title V of the Health Security Act and monitoring communities' overall access to health services. Id. § 3312(b)(5).

142

Laboratory services include the provision of individual testing and pathology services (including the system of state laboratories that screen for metabolic diseases in newborns), providing toxicology assessments of blood lead levels and other environmental toxins, diagnosing sexually transmitted disease and tuberculosis requiring partner notification, testing for cholera and other infections or food-borne diseases, and monitoring the safety of water and food supplies. HSA § 3312(b)(6).

143

The training and education function of public health focuses on ensuring adequate training with special emphasis on public health professionals such as epidemiologist, biostatisticians, health educators, public health administrators, sanitarians and laboratorians. Id. § 3312(b)(7).

144

Leadership, policy development and administration activities focus on defining health goals, standards and policies, and the development of health coalitions. Id. § 3312(b)(8).

145

Id. §§ 3401, 3402.

146

Id. § 3411. The funding is intended to provide a program of grants, contracts and loans and will ‘facilitate transition to a system in which medically- underserved populations have an adequate choice of community-oriented providers and health plans.‘ Id. It will do so by promoting ‘the development of community practice networks and community health plans that integrate health professionals and health care organizations supported through public funding with other providers in medically underserved areas.‘ Id. It is also intended ‘to support linkages between providers of health care for medically underserved populations and regional and corporate alliance health plans. The funding will be used to expand the capacity of community practice networks and community health plans in underserved areas by increasing the number of practice sites and by renovating and converting substandard inpatient and outpatient facilities.‘ Id. It will also ‘link providers in underserved areas with each other and with regional health care institutions and academic health centers through information systems and telecommunications.‘ Id. Finally, it will be used ‘to support activities that enable medically underserved populations to gain access to the health care system and use it effectively.‘ Id.

147

Id. § 3421. The funding is intended to remove barriers to health care and to assist communities that include a substantial number of individuals who have a limited ability to speak English to assure culturally competent care. Id. § 3421(d), (e).

148

The Act attempts to ensure health care for rural Americans by requiring alliance areas to serve rural areas, by providing investment in rural infrastructure, by creating incentives to expand rural community-based networks and plans, by providing investments for the development of the health workforce, and by providing for the expansion of the rural public health system. The Act recognizes rural health clinics as essential community providers. See supra note 130. In addition, the HSA allows HHS to make grants to establish rural information and referral systems, and it allows HHS to make grants to carry out activities to provide rural health care. Id. § 3132. The Act authorizes funding for projects to train more primary care physicians and physician assistants, including expanding the supply of physicians with special training to serve in rural areas. Id. § 3062. Finally, The Act amends the Social Security Act's Anti-Fraud and Abuse provisions to allow more favorable provisions for rural providers. The HSA amends § 1877(d)(2) of the Social Security Act, which limits physician self-referrals, 42 U.S.C. § 1395nn(d)(2) (1988 & Supp. V 1993), by allowing exceptions for rural physicians where at least 85% of their services are furnished in rural areas, rather than ‘substantially all.‘ HSA § 4042(e). Section 1877(e)(4) (relating to physician recruitment) is amended to limit the exception to entities located in rural areas, areas with a shortage of health professionals, or an entity in which 85% of patients are members of medically underserved populations. Id. § 4042(f)(4).

149

The Act provides appropriation for the development of qualified community health plans and practice groups, and community and migrant health centers through fiscal year 2000. Id. §§ 3412(a), 3401(b).

150

Byrd & Clayton, supra note 69, at 22.

151

Byrd & Clayton, supra note 69, at 24-26. As noted by one author:

Arranging care for those who are least well off is a matter of how best to integrate them into a system of universal access. . . . (S)pecial attention should be paid to the impact on the least well off. Will the proposed system work for them? Will it address, for example, the higher rates of disease and disability among those of lower socioeconomic status? Does it recognize and take into account flawed educational and transportational infrastructures, cultural and linguistic barriers, the stigmatization of certain diseases and lifestyles and so forth? Reform in light of the intrinsic value of helping the least well off means starting reconstruction, so to speak, from the bottom up rather than from the top down.

Dougherty, supra note 73.

152

Friedman, supra note 127, at 5 (quoting Robert Van Hook, Executive Director of the National Rural Health Association).

153

Regional and corporate health alliances must ensure that health plans enter into sufficient contracts with academic health centers to ensure that enrollees receive the specialized treatment expertise of such centers. HSA § 3131(a). More importantly, HHS has the authority to ‘make grants to (academic health) centers for the establishment and operation of information and referral systems to provide the services (to rural health plans).‘ Id. § 3132(a). Furthermore, HHS may make grants to academic centers to carry out activities which provide the services to residents of urban communities who otherwise would not have adequate access to such services. Id. § 3132(b).

154

HSA § 3011. The HSA designates the specific composition of the National Council. Unfortunately, nothing in the Act requires the appointment of ethnic Americans. Id. § 3001.

In the case of each medical specialty, the National Council shall designate for each academic year the number of individuals nationwide who are authorized to be enrolled in eligible medical programs. Id. § 3012(a). Specifically, the Act requires that the percentage of individuals enrolled in primary health care is not less than 55%. Id. § 3012(b)(1). Furthermore, for each medical specialty, the National Council is authorized to make annual designations for periods of three academic years. Id. §§ 3012(b)(1), 3013. In making the designation, the National Council shall consider the incidence and prevalence of the diseases, disorders or other health conditions with which the specialty is concerned, the number of physicians who will be practicing in the specialty in the academic year, and the number of physicians who will be practicing in the specialty at the end of the five-year period beginning on the first day of the academic year. Id. § 3012(d)(1).

155

Significantly, the HSA requires the National Council to consider the extent to which each program trains members of racial or ethnic minority groups when making allocations for eligible programs. Id. § 3013(c)(2)(A). ‘With respect to a racial or ethnic group represented among the training participants, the extent to which the group is underrepresented in the field of medicine generally and in the various medical specialties,‘ is considered. Id. § 3013(c)(2)(B). Furthermore, the Act provides funding for primary care physician and physician assistant training. Id. § 3031(b). This includes supporting projects to train additional primary care providers and to increase the number of physicians capable of serving medically underserved rural and inner city areas. Id. The Act includes a provision for the training of ethnic Americans. Id. The programs include: supporting projects to increase the number of underrepresented minority and disadvantaged persons in medicine, osteopathy, dentistry, nursing, public health and other health professions; financial assistance for underrepresented minority and disadvantaged persons in health professions training programs; and funding for recruitment and retention of underrepresented minority and disadvantaged persons in the health professions. The funding can be used to maintain efforts to foster interest in health careers among such persons at the pre-professional level and to increase the number ofminority health professionals in faculty positions. Finally, it includes funds for training providers to supply culturally sensitive care. Id.

156

For instance, by 1980, three-fourths of all of Meharry's graduates had gone on to practice in underserved rural and inner city communities. Marsha F. Goldsmith & Charles Olson, Minority Physician Training: Critical for Improving Overall Health of Nation, 261 JAMA 187 (1989).

157

The HSA authorizes the limitation on the number of individuals who can be enrolled in medical programs. HSA § 3012(a). The Act also provides for the allocation of training spots among medical specialties. Id. § 3013(a).

158

Eli Ginzberg & Miriam Ostow, Beyond Universal Health Insurance to Effective Health Care, 265 JAMA 2559 (1991).

159

New York City has operated a major health and hospital system . . . committed to providing care to everyone, regardless of ability to pay. Accordingly, New Yorkers may be said to have had universal coverage for almost a century. . . . (The Health and Hospitals Corporation of New York) is faced with severely overcrowded conditions stemming from significant increases in AIDS, psychiatric, and drug-abuse patients; a lack of available discharge options for patients occupying acute care beds unnecessarily; and bed closings due to shortages of key staff such as nurses and social workers.

Ginzberg & Ostow, supra note 158, at 2559.

160

Ginzberg & Ostow, supra note 158, at 2559. As reported in one newspaper:

With President Clinton trying to give all Americans health insurance,places like the Washington Free Clinic might be expected to be getting ready to go out of business. But the Clinic volunteers who work out of a transformed church choir loft are not planning to pack up anytime soon. Their patients are the ones who often fall through the cracks of the existing health care system. . . . And many of these people, even strong supporters of the Clinton health plan admit, will still be out in the cold after the plan.

Clinics for Poor Expect to Continue Being Needed, N.Y. Times, Sept. 20, 1993, at B6.

161

HSA § 1005(a).

162

Id. § 1001(d).

163

Id. § 1001(e).

164

Eligible sponsors of corporate alliances include large employer, multi-employer plan sponsors, rural electric cooperatives and rural telephone cooperative associations. A large employer is one that has more than 5,000 full-time employees in the United States. Id. § 1311(b).

165

The Act allows military personnel and families to elect the Uniformed Services Health Plan rather than a plan through a regional alliance HSA § 1004(b)(1).

166

Veterans and families may elect a veterans health plan rather than a plan through a regional alliance. Id. § 1004(b)(2).

167

The HSA permits eligible individuals to elect the Indian Health Service rather than a plan through a regional alliance. Id. § 1004(b)(3)

168

Byrd & Clayton, supra note 47, at 5.

169

A health security card is issued to each eligible individual by the alliance in which he or she is enrolled. HSA §§ 1001(b), 1324, 1383.

170

‘Culture‘ is employed in various manners. It has been defined as an ‘integrated system of learned patterns of behavior, ideas, and products characteristic of a society.‘ Vernellia R. Randall, Ethnic Americans, Long Term Health Care Providers and the Patient Self-Determination Act, in Long Term Health Care Providers and the Patient Self-Determination Act (Marshall Kapp ed., forthcoming 1994). See generally Henry S. Perkins, Cultural Differences and Ethical Issues in the Problem of Autopsy Requests, 87 Texas Medicine/The Journal 1991. It is a body of learned values, beliefs and behaviors that depict a group of people. ‘Culture provides the basic framework by which individuals interpret their surroundings, the behavior of the people around them, and the events that befall.‘ Randall, supra. Many factors determine a person's culture. They include race, nationality, native language, education, occupation, religion, socioeconomic factors and area of origin. See generally Randall, supra; Alan Harwood, Guidelines for Culturally Appropriate Health Care, in Ethnicity and Medical Care (1981). These factors affect values, beliefs and behaviors. A subculture is defined by values, beliefs and behaviors that are peculiar to a particular subgroup within a culture. See generally Randall, supra.

171

White House Commission on Immigration and Refugee Policy (1982) (hereinafter, Immigration & Refugee Policy).

172

Id.

173

See generally I. Murillo-Rhode, Unique Needs of Ethnic Minority Clients in a Multiracial Society: A Socio-Cultural Perspective, in Affirmative Action: Toward Quality Nursing Care for a Multiracial Society (1980); Miriam Ross, Societal/Cultural Views Regarding Death and Dying, Topics in Clinical Nursing 5 (1981).

174

The existing health care system has not sufficiently promoted family involvement. It focuses on the individual and illness care rather than family and wellness care. This is unfortunate since the concept of family has a particular influence on wellness care and health promotion. See Gabriel Smilkstein, The Cycle of Family Function: A Conceptual Model for Family Medicine, 11 J. Fam. Pr. 223, 224 (1980). Furthermore, ‘family‘ has different meanings across cultures and ethnic groups. See Randall, supra note 170. Different cultural priorities may modify the degree to which families are involved in treatment decisions including the involvement of the extended family. Particularly offensive in some cultures may be the European American method of personal decision-making that focuses on the individual, instead of the family. For many ethnic Americans illness is a family affair, and family members are involved in the patient's medical decisions and care. See Alan Harwood, Mainland Puerto Rican, in Ethnicity and Medical Care supra note 170, at 401; Stephen J. Kunitz & Jerrold E. Levy, Navajos, in Ethnicity and Medical Care, supra note 170, at 337; Michael S. Laguerre, Haitian Americans, in Ethnicity and Medical Care, supra note 170, at 198; Janet M. Schreiber & John P. Homiak, Mexican Americans, in Ethnicity and Medical Care, supra note 170, at 301. To provide access to quality health care, providers must appreciate cultural differences in kinship terms, in role expectations and in the role of the family in major decision-making.

175

The existing health care system supposes that a patient will interpret a provider's behavior to be in his or her best interest. However, many individuals in our society distrust the health care system, in particular ethnic Americans. African Americans' distrust is rooted in slavery, sharecropping, peonage, lynching, Jim Crow laws, disenfranchisement, residential segregation, job discrimination, insufficient health care and inappropriate scientific experimentation. See James Jones, The Tuskegee Legacy: AIDS and the Black Community (Twenty Years After: The Legacy of the Tuskegee Syphilis Study), 22 Hastings Ctr. Rep. 38 (1992); Thomas A. Laveist, Segregation, Poverty and Empowerment: Health Consequences for African Americans, 71 Milbank Q. 41 (1993); Lorene Cary, Why It's Not Just Paranoia: An American History of 'Plans' for Blacks, Newsweek, Apr. 6, 1992, at 23. For instance, African Americans may feel that managed care providers will denythem necessary services. Many Southeast Asian Americans identify the health care system with death. Laura Uba, Cultural Barriers to Health Care for Southeast Asian Refugees, 107 Pub. Health Rep. 544, 546 (1992). Many Hispanics perceive providers as obstacles to receiving any meaningful help. Wendy Mettger & Vicki S. Freimuth, Is there a Hard-to-Reach Audience?, 105 Pub. Health Rep. 232 (1990). Consequently, after years of neglect and culturally insensitive care, there is often a deep distrust of the health care system. This is true even when those providing the health care are of the same ethnic community. Forgotten Americans-Special Report on Medical Care for Blacks, 9 American Health: Fitness of Body and Mind 52 (1990). Historically, Hispanic Americans, particularly Mexican Americans, have not had access to good housing, schooling or health services. Neglect combined with bigotry and discrimination has encouraged Hispanic Americans to be suspicious of the health care system. Schreiber & Homiak, supra note 174, at 301. Obviously, a significant question is how this general distrust will be impacted by a system of health care designed to deny health care rather than to provide services. In particular, utilization review processes may allow providers to make decisions which will adversely impact persons of color more than European Americans. When that happens, some ethnic Americans' distrust in the health care system may be reaffirmed.

176

Communication is basic to obtaining quality health care. A person may have doctors in the community, a person may have money in his or her pocket, a person may have insurance, but if health care providers cannot communicate with their patients, they cannot provide effective quality health care. See The Association of Asian Pacific Community Health Organizations, supra note 6, at 6 (maintaining that the lack of linguistically accessible services presents a barrier for many Asian and Pacific Islander Americans in need of health care); Lifting Barriers to Asian and Pacific Islander Health Care: Issues and Recommendations (unpublished manuscript, on file with the author).

How different cultures communicate is very important. Different linguistic groups see and conceive reality differently. See Gustavo M. Quesada, Language and Communication Barriers for Health Delivery to Minority Group, 10 Soc. Sci. & Med. 323, 324 (1976). Ethnic Americans' views of health care are shaped by the language used. To the extent that a person's primary language is not English, communication and language barriers will exist.

177

See Donald Gelfand & Barbara W.K. Yee, Trends & Forces: Influence of Immigration, Migration, and Acculturation on the Fabric of Aging in America, 15 Generations 7 (1991) (health care professionals who treat elderly immigrants need to understand cultural beliefs concerning etiology and appropriate treatments for illness; for example, explanations for illness and disease using culturally defined norms about ‘hot‘ and cold‘ forces are common among Southeast Asians and differ markedly from Western concepts); Susan Pollak, Melancholia and Depression: From Hippocratic Times to Modern Times, 22 Psych. Today 73 (1988) (pointing out that many non-Western cultures do not have an equivalent concept of depression; depression assumes different meanings and consequences depending on the culture in which it occurs); Charles E. Rosenberg, Disease in History: Frames and Framers, 67 Milbank Q. 1 (1989) (discussing the social construction of disease and illness); N.J. Temple & D.P. Burkitt, Towards a New System of Health: The Challenge of Western Disease, 18 J. Comm. Health 37 (1993) (pointing out that the concept of Western disease has become well-established).

178

Bonnyman, Jr. supra note 104, at 875-76.

179

Barbara M. Aved et al., Barriers to Prenatal Care for Low-Income Women, 158 West. J. Med. 493, 497 (1993).

180

Id.

181

Michelle A. Bardack & Susan H. Thompson, Model Prenatal Program of Rush Medical College at St. Basils Free Peoples Clinic, 108 Pub. Health Rep. 161, (1993) (inadequacy of medical care for the disadvantaged is due, at least in part, to the result of the lack of committed physicians capable of providing culturally relevant care).

182

Jaime A. Davidson, Diabetes Care in Minority Groups: Overcoming Barrier to Meet These Patients' Special Needs, 90 Postgraduate Med. 153, 158 (1991).

183

‘A health plan may offer education and training classes at its discretion.‘ HSA § 1127(b).

184

Id. § 1203(e)(3).

185

Twenty-five percent of Hispanic Americans do not understand English well enough to be able to talk with their physicians. Davidson, supra note 182, at 162.

186

Davidson, supra note 182, at 162. Language and communication barriers exist beyond the role language plays in shaping reality. An emphasis on written communication ignores that many individuals prefer to understand information through oral or visual communications. Simply providing information (written, oral or visual) does not ensure knowledge or understanding. Providing written information will not be an adequate means of communicating to persons from cultural backgrounds other than middle-class European American. Furthermore, expressed language, whether written or oral, is a major source of conflict and misunderstanding in intercultural situations. Ross, supra note 173, at 4-5. For instance, an inability to understand the expressions of others or of others to understand the individual can be a major source of frustration for ethnic Americans. With sufficient frustration, non-English speaking clients may delay seeking care. Even for English speaking clients, illness, depression, frustration and embarrassment may cause persons proficient in English to revert to their native language. Culture also influences the forms of responses in conversation. Ross, supra note 173, at 6-7. Similarly, a patient's emotional response to treatment will differ across cultures. Ross, supra note 173, at 5-7; Laguerre, supra 174, at 191. Finally, culture influences which topics a person considers appropriate for conversation among strangers. Ross, supra note 173, at 6-7.

187

Ginzberg & Ostow, supra note 158, at 2559. Communication barriers exist because of how different linguistic groups see and conceive reality. They exist because of cultural differences in interpreting expressed language. Culturally different forms of response, affect, approach and the appropriateness of the topic for conversation, all maintain communication barriers. Universal coverage does not remove those barriers.

188

The Act, however, does require the National Health Board to specify particular clinical preventive items and services for high risk populations. HSA § 1153.

189

Eyeglasses and contact lenses are covered only for individuals who are less than 18 years of age. HSA § 1141(b)(4).

190

Id. § 1141(b)(3).

191

Id. § 1126(b)(1), (2).

192

Id. § 1115(a).

193

Coverage for inpatient and residential mental illness and substance abuse treatment is limited by criteria determined by the plan. HSA § 1115(c)(2). Furthermore, prior to January 1, 2001, treatment for inpatient and residential mental illness is limited to 30 days. Id. § 1115(c)(2)(C). A maximum of 30 additional days of treatment may be covered if a health professional designated by the health plan in which the individual is enrolled determines in advance that (i) the individual poses a threat to his or her own life or the life of another individual; or (ii) the medical condition of the individual requires inpatient treatment in a hospital or a psychiatric hospital to initiate, change or adjust pharmacological or somatic therapy. Id. Coverage for intensive nonresidential mental illness and substance abuse treatment is at the discretion of the health plan. Id. § 1115(d)(2)(A). However, the plans may not exercise the discretion adequately in areas that have significant substance abuse problems.

Prior to January 1, 2001, the number of covered days of intensive nonresidential mental illness and substance abuse treatment is limited to 60 days. Id. § 1115(d)(2)(D). An additional 60 days may be approved at the discretion of the plan. Coverage for outpatient treatment is at the discretion of the health plan. Id. § 1115(d)(2)(A). Prior to January 1, 2001, the HSA limits psychotherapy and collateral services to 30 visits for each type of service per individual. Id. § 1115(e)(2)(C)(i). The Act limits coverage for substance abuse counseling and relapse prevention to 120 visits and group therapy substance abuse counseling and relapse prevention to 30 visits. Id. § 1115(e)(2)(C)(ii).

194

The large homeless population, at least 33% of whom suffer from some form of mental illness, is one indication of the need for a more significant mental health approach.

195

The health plans must meet Uniform Conditions of Participation established by the National Health Board. These include requirements for enrollment and coverage, HSA § 1402; community rating, id. § 1403; truth-in-marketing, id. § 1404; grievance procedure, id. § 1405; Utilization Management, id. §§ 1406, 1412; financial solvency, id. § 1408; quality assurance id. § 1410; verifying credentials of practitioners and facilities, id. § 1411; confidentiality, id. § 1413; and data management and reporting. Id. § 1413.

196

Id. § 1203(e)(3) (permitting states to use financial incentives for health plans to remove barriers to access based on cultural differences); Id. § 3424(d) (federal funding to qualified community health group to remove barriers to access to the including those based on cultural groupings); Id. § 3424(e) (federal funding to qualified community health group to provide services to individuals with limited English within the individuals' cultural context most appropriate to such individuals).

197

Id. § 3031(a) (federal funding to train health professionals and administrators in the provision of culturally sensitive care).

198

Id. § 3602(a)(6); Id. §§ 3631(b), 3631(b)(10), 3635(a)(4), 3671(c)(9) (requiring programs which receive funding for comprehensive school health services to assure that instructional materials and approaches are sensitive to cultural and ethnic issues). The Act requires state plans, applications from local educational agencies, and applications from educational grantees for school health implementation grants to discuss how such school health education programs will be tailored to the extent practicable to be culturally and linguistically sensitive and responsive to the various needs of the students served, including individuals with disabilities, and individuals from disadvantaged backgrounds (including racial and ethnic minorities). Id.

199

Randall, supra note 99, at 38-40.

200

In a society such as ours, which bases the availability of services and goods on the ability to pay, a poor person will have limited access to even an essential service such as health care. Thus, despite having the world's most technologically advanced health care, the United States (like South Africa) does not assure its citizenry universal health care or universal health insurance coverage. See George Lundberg, National Health Care Reform: An Aura of Inevitability is Upon Us, 265 JAMA 2566 (1991). The inability to afford quality health care restricts access both directly-some people cannot afford the services-and indirectly-some people cannot afford the supplemental activities which facilitate accessing the services.

Without sufficient insurance or money for services, access is limited. The magnitude of the problem is shocking. For the ethnic American or poor person who has neither health insurance nor sufficient wages to purchase health insurance or afford adequate health care, economic barriers are significant. A person may not be able to afford even a ‘small‘ co-payment.

201

Economic proposals for improving access are based on the premise that the primary barrier to health care is socioeconomic. These proposals discount race and racism as a barrier to health care. The focus on racial barriers is not intended to imply that all ethnic Americans are affected the same. Ethnic Americans are not a homogeneous group. See Jose E. Becerra et al., Infant Mortality Among Hispanics: A Portrait of Heterogeneity, 265 JAMA 217 (1991); B. Josea Kramer, Health and Aging of Urban American Indians, 157 West. J. Med. 281 (1992). Consequently, when considering racial barriers, along with class and economic barriers, it is important to remember that the barriers will affect individuals within racial groups differently. However, race is a separate and independent barrier that affects not only a person's socioeconomic status, but institutional behavior and provider behavior as well. Randall, supra note 79, at 144-46. The racial barriers to health care are exhibited in barriers to health care facilities, to health care providers and to discriminatory medical treatment. Id. at 146-60. When institutional policies and practices have a discriminatory effect on the access of ethnic Americans to health care and a discriminatory effect on the quality of medical treatment, then racism is the problem. Id. at 160-62. Any attempt to reform the health care system must provide mechanisms to remove racial barriers to health care. Proposals which focus on socioeconomic barriers will certainly improve access, but as universal coverage does does not remove racial barriers, it is inadequate by itself.

202

See Lundberg, supra note 200, at 2566-67. We live in a class-based society. The structure, organization and kinds of health care services delivered traditionally have focused on the needs of the upper-middle class. Class barriers manifest themselves when the health care system organizes and conducts itself based on certain assumptions about the middle class. For instance, the system assumes that individuals can take off work to obtain care; individuals can obtain transportation necessary to seek care; individuals have access to a telephone to call for appointments for health care or for authorization to seek health care; individuals haveaccess to child care; individuals have ‘money‘ to eat ‘right,‘ sleep eight hours, and clothe themselves adequately; individuals have knowledge about where to seek health care services. Furthermore, clinics that serve the poor tend to have long lines and waiting periods indicating that lower-class individuals' time is less valuable than that of middle-income individuals. Lower-class individuals are likely to find all those assumptions to be barriers to health care services.

In one study, 30% reported inadequate child care as a barrier, 25% reported the lack of a telephone as a barrier, and 31% reported not knowing where to go as a barrier. Aved et al., supra note 179, at 495. Transportation problems include the lack of a car, lack of transportation fare, and the long distance required to travel to obtain care. Id. Thus, the quality of health care depends on where the health care provider is located relative to the patient's residence. Ginzberg & Ostow, supra note 158, at 2559. When health care providers are not located in the community, patients normally do not use follow-up care. Davidson, supra note 182, at 154. As one author has noted:

Health care is only one of many concerns of (families and individuals) . . . . Providing their families (and themselves) with food, shelter, transportation, day care, and other essential matters requires the investment of substantial financial resources and occupies a good deal of time. If inefficient and understaffed clinics require inordinate amounts of time to provide simple services, individuals understandably may choose to forego certain (health care) services . . . to meet other daily needs . . . .

Gary L. Freed et al., 71 Milbank Q. 32, 79 (1993).

However, the single most significant class barrier to lower-class individuals in seeking care is locating a provider willing to serve them. Aved et al., supra note 179, at 497; Bardack & Thompson, supra note 181, at 161. In one study, 64% of all women seeking prenatal care reported this as a problem, and 96% of women who tried to obtain care but were unable to reported this as a problem. Aved et al., supra note 179, at 497-99. The reasons for refusing to accept patients included administrative difficulties in obtaining payment from Medicaid and low Medicaid reimbursement rates. Ginzberg & Ostow, supra note 158. It also included prevailing negative attitudes of medical providers toward serving lower class communities. Freed et al., supra, at 79.
These attitudes reflected feelings that lower-class patients are difficult to work with, that lower-class patients are unclean, and that lower-class individuals don't care about their health. Id. These attitudes were held by ‘respected physicians in some communities and are promulgated through medical societies and informal networks.‘ Freed et al., supra, at 79. Furthermore, the attitude of physicians is contributed to by the failure of medical schools to train physicians to provide community-based ambulatory care and to educate physicians to the particular health needs of ethnic Americans. Bardack & Thompson, supra note 181. In particular, physicians are not taught to deal ‘sensitively and understandingly‘ with the special problems of ethnic Americans. Id. In the end, class barriers such as these will not be removed by providing universal coverage.

203

By relying on price competition among providers, the Act segments the market into at least two tiers. One tier would be composed of lower-income individuals and families who, because of economics, must join the least costly plan. The other tier would include everyone else. Rice et al., supra note 61, at 1359.

204

Cf. HSA § 1423(d)(B) (The price of any cost-sharing policy shall take into account any expected increase in utilization resulting from the purchase of the policy by the individual).

205

Rice et al., supra note 61, at 1357. There is much uncertainty pertaining to the magnitude of the price elasticity of demand for health insurance, measured as the percentage of change in the amount of insurance purchased divided by the percentage of change in premiums. Id.; see, e.g., M.A. Morrisey, Price Sensitivity in Health Care: Implications for Health Care Policy (1992) (Estimates price elasticity as high as -2.8.); M. Holmer, Tax Policy and the Demand for Health Insurance, 3 J. Health Econ. 203 (1984) (estimates price elasticity of -0.16).

206

In a private discussion with Lawrence Gostin, he indicated that the economist on the health care taskforce held this view and that it was a view that appeared to be winning the day in the design of the health care system.

207

Randall, supra note 99, at 27-28.

208

Id.

209

Health insurance policies insure against the risks of loss occasioned by sickness or disease. A common provision limits the risk of loss to medical services, equipment or supplies which are ‘medically necessary.‘ Annotation, What Services, Equipment or Supplies are ‘Medically Necessary‘ For Purposes of Coverage under Medical Insurance, 75 A.L.R.4th 763 (1990). If the language employed is unambiguous and clear about who will make that medically necessary decision, then there is no occasion for construction. Sarchett v. Blue Shield of Cal., 729 P.2d 267, (Cal. 1987) (policy unambiguously provided for impartial review of disputes between insurer and physician as to medical necessity of hospitalization for which benefits were claimed, and thus insurer was not precluded from challenging medical necessity of hospitalization recommended by treating physician); Strassberg v. Connecticut Gen. Life Ins. Co., 182 A.D.2d 1055, 1056, 583 N.Y.S.2d 48, 48 (3d Dep't 1992) (health insurer, whose policy provided for coverage of professional nursing services when ‘recommended by a Physician and are essential for the necessary care and treatment of * * * a Sickness,‘ did not reserve to itself the right to make independent determination on questions of medical necessity). When the terms are ambiguous, however, then terms are ‘strictly construed against the insurer and in favor of the insured.‘ Annotation, supra, at 770.

210

See supra notes 24-32 and accompanying text.

211

While the plan requires reduction for cost sharing, such reductions are limited to families who are enrolled in Aid for Families with Dependent Children (‘AFDC‘), Supplemental Security Income (‘SSI‘), or have an adjusted income below 150 percent of the poverty level. HSA § 1371(a). However, no reduction in cost- sharing shall be available for families if there are sufficient low-cost or combination plans available. Id. Consequently, reduction of cost-sharing is limited to low- income individuals who are enrolled in higher cost plans because of the non-availability of low-cost or combination plans.

212

Id. § 1344 (in no case shall the failure to pay amounts owed result in an individual's or family's loss of coverage under the Act).

213

The Act allows for any family collection shortfall to be included in the family's plan premium. Id. § 1342(a)(1)(A).

214

Id. § 1345(d)(2).

215

Id. § 6101(a).

216

Id. § 6001 (outlines the factors to be considered limiting the growth of premiums for the comprehensive benefit package in regional alliance health plans).

217

Rice et al., supra note 61, at 1359 (citing M. Kolodinsky & T. Arnold, Developing a Sliding Fee Scale for Health Care Insurance in Vermont: The Calculation of Disposable Income (1989) (families below 200% of the poverty line have little or no disposable income available for sliding-scale contributions tohealth insurance premiums)); Holmer, supra note 205 (low-income individuals' price elasticity estimates for health insurance were twice as high for families with incomes between $15,000 and $25,000 and six times higher (-0.39) than for those with incomes of more than $40,000).

218

HSA § 6104(a)(1), (c)(3). The amount of the premium discount will be equal to 20% of the weighted average premium for the health plans offered by the regional alliance for that family type, reduced (but not below zero) by the sum of the family obligation amount, and the amount of any non-required employer payment towards the family share of premiums. Id. § 6104(b). The discount will be increased if a family is unable to enroll in an at-or-below-average-cost plan, but only to such an amount that will allow the family to enroll in a regional alliance health plan without the need to pay a family share of premium in excess of an at-or-below-average-cost plan. Id.

As of 1994 this eligibility for discounts applies to dual parent families with incomes below $22,200; single parent families with incomes below $18,400; childless married couples with incomes below $14,600; and single individuals with incomes below $10,800. The President's Report, supra note 31, at 29.

219

HSA § 6104(a)(2).

220

The illusion of services is significant: patient educational provisions are elective under the health plan and accompanied by significant co-payments; mental health services, long-term health care and hospice care are inadequate; home health care services are severely time-limited; prosthetic dental devices, adult dental services, eyeglasses and hearing aids are excluded. Furthermore, virtually all the services have significant cost-sharing provisions.

221

HSA § 1322(b)(2)(B)(i).

222

Id. § 1322(b)(2)(B)(ii).

223

Id. § 1322(b)(2)(B)(iii).

224

Id.

225

See Rice et al., supra note 61, at 1359 (suggesting that ‘persons with family incomes below 200% of the federal poverty level are unlikely to be able to afford premium surcharges‘ and that ‘80 million people-32% of the entire population-will be able to 'choose’ only among basic plans‘).

226

Rice et al., supra note 61, at 1359-60. ‘Low-income persons are likely to have a difficult time finding plans in which they can enroll because few plans may choose to market themselves at the most affordable basic plan rates.‘ Id. See M. Merlis, Medicaid Source Book, Congressional Research Service (1993); M.D. Anderson & P.D. Fox, Lessons Learned from Medicaid Managed Care Approaches. 6 Health Aff. 71-86 (1987).

227

See Rice et al., supra note 61, at 1359-60.

228

See id. (citing a survey where only 22% of HMOs were participating in the Medicaid program because of low premiums paid by Medicaid, discontinuous Medicaid eligibility of enrollees and marketing problems).

229

See Peggy McNamara, Patchwork Access: Primary Care in Eds on the Rise, 67 Hosp. 44 (1993) (explaining that Medicaid patients are often left with nowhere to seek medical care but the emergency room because of physicians' refusal to see them); Thomas S. Nesbitt, Access to Obstetric Care in Rural Areas: Effect on Birth Outcomes, 80 Am. J. Pub. Health 814, 817 (1990); Rice et al., supra note 61, at 1360.

Under the Act physicians are not required to belong to any particular plan. Consequently, physicians can avoid poor and ethnic American patients by merely refusing to join plans which have a large percentage of those patients. Even where physicians belong to a plan they may still refuse to accept ethnic American and poor patients. Lundberg, supra note 200, at 2.

230

HSA § 6001. For example, the HSA outlines the computation of factors that limit the growth of premiums for the comprehensive benefit package in regional alliance health plans. Id.

231

Plans would also vary in their access to specialty care and expensive technologies. This difference in access between basic-premium plans and those that impose a premium surcharge would perpetuate differences in access to health services based on socioeconomic status rather than on medical condition and appropriateness only, continuing fundamental inequities in access to care.

Rice et al., supra note 61, at 1360.

232

As noted in one report:

at their worst some HMOs make the elderly fight for benefits, especially those for costly skilled nursing or home care that plans must provide aspart of the customary Medicare package of coverage. Some HMOs have dragged out the process so long that Medicare beneficiaries have died before ever receiving the nursing care they are legally entitled to.

Byrd & Clayton, supra note 69.

233

HSA § 6001(c)(1)(A).

234

Id.

235

Id.

236

In fact, the choice feature of the health care plan may be a sham for all but the wealthy. Over time, the reform would decimate all but the large corporate health care entities. Currently, ten insurers control 70% of the HMO market. Only the larger insurers will have the resources to develop nationwide networks necessary to serve national corporations. Such health care networks will force out all other competition. ‘When the Big Three ran the auto industry, they controlled prices effectively, and no one imagines that compact health care plans from Japan will ever penetrate (or even be allowed to enter) this market.‘ Himmelstein & Woolhandler, supra note 92, at 4.

237

Id.

238

See generally Mark A. Hall & Gerald F. Anderson, Health Insurers' Assessment of Medical Necessity, 140 U. Pa. L. Rev. 1637 (1992).

239

HSA § 1141(a).

240

Id. §§ 1141(a)(2), 1154 (allowing the National Health Board to develop regulations).

241

Id. §§ 1141(a)(1), 5201(e)(3) (providing notice and disclosure requirements for health care plan that denies coverage based on a determination that the treatment is not medically necessary).

242

Rosenblatt, supra note 4, at 6; see generally Randall, supra note 99, at 28- 29.

243

Institute of Medicine, Committee on Utilization Management by Third Parties, Controlling Costs and Changing Patient Care: The Role of Utilization Management 1 (Bradford H. Gray & Marilyn J. Field eds., 1989) (hereinafter, IOM Study); see also, Rosenblatt, supra note 4, at 7.

244

For example, it has only been in the last several years that the medical profession has begun to recognize the significance of testing drugs and treatment modalities on women and on people of different races. Therefore, we actually have very little data as it relates to treatment modalities and the impact of those treatment modalities on anyone other than white males.

245

See supra note 79 and accompanying text.

246

Rosenblatt, supra note 4, at 7.

247

HSA § 5201(b)(4)(C).

248

Randall, supra note 99, at 18; Rosenblatt, supra note 4, at 13 (citing Sally Hart and Alfred J. Chiplin, Proposed Revisions to Health Care Reform Act (submitted to Office of Health Legislation, HHS)); see also Bradford H. Gray, The Profit Motive and Patient Care 309 (1991) (reporting that when utilization review companies determine that further hospital care is not medically necessary, in almost all cases, the attending physician will discharge the patient).

249

In authorizing the development of practice parameters, the Act outlines certain requirements, none of which require that guidelines be culturally relevant or appropriate. HSA § 5006(a)(2).

250

Managed care plans skimp on doctors. For instance, they employ one physician for every 800 patients, even though currently, the United States has one physician for every 400 patients. As more Americans enroll in managed care plans, non-managed care physicians will find it impossible to maintain a practice. Himmelstein & Woolhandler, supra note 92, at 4.

251

Rice et al., supra note 61, at 1361 (suggesting that the lower cost plans would be more likely to contract with physicians who are less experienced and less skilled).

252

Assuming that physicians are rational economic actors, this is common sense. If a physician is a prominent heart surgeon and the higher cost-sharing plans pays more per patient for rendering the service than the lower cost-sharing plans, economically it would be irrational for a physician not to limit the number of patients from the basic plan.

253

U.S. Health Reforms: Cliches, Cost and Mrs. C., 341 Lancet 791, 791 n.5 (1993).

254

Rice et al., supra note 61, at 1360. As one author has noted, ‘(Ethnic Americans and the poor) will have limited provider networks that may be geographically inconvenient, provide only the most basic services required, provide the least choice of physicians and hospitals, make it difficult to obtain specialist care and new technologies, and have the least thorough quality assurance programs. We thus anticipate segmentation of the market for health plans and health services, with more costly plans providing more accessible and often better-quality services for their enrollees-in short, a continuation of two-tier medicine . . . .‘ Rice et al., supra note 61, at 1361.

255

HSA § 1202(b)(4). This is broader coverage than Title VI of the Civil Rights Act of 1964 which only prohibits discrimination based on race, color or national origin, or Title VII of the Civil Rights Act of 1964 which only prohibits discrimination based on race, color or national origin. This act includes ethnicity, language, socioeconomic status, disability or perceived health status as well.

256

Id. §§ 1223(c)(4), 1328(a).

257

Redlining is the pattern of discrimination in which institutions refused to provide services to certain geographic areas. It most commonly occurs in connection with financial institutions. See Black's Law Dictionary 1150 (1979).

258

HSA § 1201(1).

259

Id. § 1202(b)(2)(A).

260

Wiley, supra note 80, at 10.

261

HSA § 1202(b)(5).

262

Wiley, supra note 80, at 13.

263

HSA § 1328(a).

264

Id. § 1323(a).

265

29 U.S.C. § 794 (1988 & Supp. IV 1992).

266

42 U.S.C. § 6102 (1988).

267

42 U.S.C. § 2000d (1988).

268

HSA § 5239.

269

See generally Kenneth Wing, Title VI and Health Facilities: Forms Without Substance, 30 Hastings L.J. 137 (1978). ‘With respect to the modern American health facility. Title VI is an illusory promise and an unused tool of public policy. The signing of a Title VI assurance form by a hospital or a nursing home is little more than the execution of another boilerplate form, one of many incident to the receipt of federal funds.‘ Id. at 190.

270

HSA § 1384(b)(2).

271

There has been discussion regarding allowing employers with less than 500 employees to opt out of regional alliances. If these discussions prove to be true, regional health alliances will becoming nothing more then ghetto plans for the low income, poor and underserved.

272

HSA § 1203.

273

Cf. id. §§ 1404(a)(2), 1406.

274

Id. § 1402(c)(1).

275

Id. § 1402(c)(2). The prohibition includes race, national origin, or gender of the provider, or income, health status or anticipated need for health services of a patient of the provider. Id.

276

Id. § 1402(c)(3).

277

Consumers consider specialty board certification to be one of the fundamental criteria of medical competency. In theory, certification assures the public that a physician meets certain standards of knowledge, experience and skills set by other medical professionals to ensure high quality care in the specialty. In reality, certification is not a foolproof indicator of competence. While board certification may indicate that the doctor has advanced knowledge, experience and skills, a doctor does not have to be board-certified to be a good practitioner. Furthermore, board- certification does not guarantee that the doctor has advanced medical knowledge, experience and skills. See generally, Special Certification: Meaningful or Meaningless?, 8 People's Med. Soc'y Newsl. 1, 1-3 (1989).

278

Many minority providers have lacked the money and time to become board- certified, a requirement for working for many HMOs. Janice Sommerville, Managed Care May Help, Hurt Inner-City Medicine, 36 Amer. Med. News 12 (Oct. 25, 1993).

279

HSA § 1402(c)(3).

280

The HSA provides that an aggrieved person has a private right to enforce state responsibilities under § 1983 of the Civil Rights Act. Aggrieved persons will also have private enforcement rights if the federal government fails to carry out its responsibilities related to the operation of the Alliance or if health alliances fail to fulfill their responsibilities. Id. §§ 5236, 5236. Furthermore, ‘essential community providers‘ may bring civil suits against health plans which fail to enter participation or payment agreements with them. Id. § 5240.

As to discrimination claims, the Act provides that any person who is discriminated against may commence a civil action against the plan in either a state court or federal district court. Id. § 5239(a)(1). The HSA provides that the standards used to determine whether a violation has occurred in a complaint alleging age discrimination shall be the standards applied under the Age Discrimination Act of 1975, 42 U.S.C. § 6101, and that the standards used to determine whether a violation has occurred in a complaint alleging disability discrimination shall be the standards applied under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. An aggrieved person may recover compensatory and punitive damages and any other appropriate relief. HSA § 5239(a)(3). The court may allow the prevailing party, other than the United States, to recover a reasonable attorney's fee (including expert fees) as part of the costs, and the United States shall be liable for costs the same as a private person. Id. § 5239(a)(4).

In addition to the private cause of action, the Act allows HHS to refer discrimination by a health plan to the Attorney General with a recommendation that an appropriate civil action be instituted or to terminate the participation of the health plan in an alliance. Id. § 5239(b). The Attorney General may bring a civil action in a federal district court for such relief as may be appropriate, including injunctive relief. Id. § 5239(c). The court may award equitable relief, compensatory and punitive damages, and may assess a civil money penalty against the health plan. Id. The civil money penalty may not exceeding $50,000 for a first violation and may not exceed $100,000 for any subsequent violation. Id. § 5239(c)(3).

281

For example, the Act should prohibit the following: denying an individual any service, financial aid or other benefit; providing different service, financial aid or other benefit to an individual; providing a service in a different manner from that provided to others; segregating an individual or providing separate treatment in any matter related to the receipt of any service, financial aid or other benefit; restricting an individual's enjoyment of any advantage or privilege enjoyed by others receiving any service, financial aid or other benefit; treating an individual differently from others when determining whether she satisfies any admission, enrollment, quota, eligibility, membership or other requirement or condition which individuals must meet to be provided any service, financial aid or other benefit; denying an individual an opportunity to participate in a plan, program, activity or insurance through the provision of services or otherwise without affording him an opportunity which is different from that afforded to others (including the opportunity to participate in the plan, program, activity or insurance as an employee or contractor); denying an individual the opportunity to participate as a member of a planning or advisory body that is an integral part of the plan, program, activity or insurance. Furthermore, it should be a specific unlawful health care practice for a plan, program, activity or insurance to discriminate against a person based onlanguage ability or linguistic characteristics.

282

Title VI requires HHS to collect data and information from applicants and recipients of federal financial assistance. 28 C.F.R. §§ 42.406(a), 80.6 (1993). Unfortunately, the information about race is not collected uniformly. Jane Perkins, Race Discrimination in America's Health Care System, Clearinghouse Rev. 371, 377 (Special Issue 1993).

283

HSA § 5101(a).

284

Id. § 5101(e).

285

Id. § 1402(a) (prohibiting health plan underwriting).

286

Cf. id. § 1201(b)(4) (prohibiting discrimination by states in setting boundaries); § 1203(d) (prohibiting discrimination by states against health plans based on domicile of the entity); § 1223(d)(4) (prohibiting discrimination against health plans in a state's single-payer system); § 1328(a) (prohibiting discrimination by regional alliances against health care plans); § 1605 (prohibiting discrimination by employers based on the health status of employees); and § 1607(a)(3) (prohibiting discrimination by employers based on the plan selected by employees).

287

Ginzberg & Ostow, supra note 158, at 2561. For instance, during shortfalls of Medicaid, states arbitrarily limited the number of physician visits, days of hospitalization, and number of prescriptions for which they provided reimbursement.‘ Id.

60 BKNLR 167

Does Clinton's Health Care Reform Proposal Ensure [E]qual[ity of Health Care for Ethnic Americans and the Poor? - FOOTNOTES

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