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Renée M. Landers
Renée M. Landers, Is Massachusetts Health Insurance Reform Legislation: An Effective Tool for Addressing Racial and Ethnic Disparities in Health Care?, 20 Hamline Journal of Public Law and Policy (Fall 2007) (311 Footnotes Omitted).
Researchers sometimes do not know, forget, or are unimpressed that Dante reserved the seventh level of hell for those who recognize a problem and do not attempt to do anything to solve it.
A vast and growing body of research documents the disparities in health care access, treatment, and outcomes experienced by non-white racial and ethnic groups in the United States. The release of the Institute of Medicine 2002 report on Unequal Treatment placed the issue on the mainstream policy agenda. Before and since the release of this report, numerous studies have verified, almost without exception, disparities in any number of disease and treatment settings. A study directed by Dr. David Satcher, a former United States Surgeon General found that more than 80,000 black Americans die every year because of continuing disparities in health care. The United States Centers for Disease Control and Prevention has reported that blacks are far more likely than whites to die from strokes, diabetes, and other diseases. Limited English proficiency (LEP) patients also suffer disadvantages in obtaining quality care.
Similarly, prescriptions of how health care payers and providers and government agencies should begin to address these disparity issues are not in short supply. In October 2006, a study panel convened by the National Academy of Social Insurance (NASI) issued a report on what Medicare can do to reduce disparities. Identifying the causes of health care disparities and strategies for reducing or eliminating such disparities is essential at this time as the public and policymakers focus attention on improving the quality of health care generally in the United States and on restructuring the delivery and financing of health care services. To paraphrase David Barton Smith's statement in Health Care Divided: Race and Healing a Nation, having recognized the problem, the time to try to solve it is now. Policymakers, activists, and commentators are watching the implementation of major health care reform legislation recently enacted in Massachusetts for any impact on the presumed causes of lack of access to health care services and racial and ethnic disparities in the quality of services received.
In April 2006, Massachusetts enacted, An Act Providing Access to Affordable, Quality, Accountable Health Care (the Act). This statute aims to address inequities in access to health care through several mechanisms. First, the Act requires every Massachusetts resident to obtain health insurance coverage or its equivalent, such as coverage through Medicare or Medicaid, by July 1, 2007. Second, the Act establishes reporting and goal-setting mechanisms aimed at improving the quality of health care services, including reducing racial and ethnic disparities and reporting on progress. Finally, the Act contemplates financial incentives for hospitals meeting these identified performance measures.
This article examines select provisions of the Massachusetts Act that establish programs or policies aimed at improving access to quality health care services delivered, and reducing racial and ethnic health care disparities. The first part of the article consists of a brief summary of the history of efforts to eliminate legally sanctioned discrimination in health care. In the second part, the article provides an overview of the types of health care disparities that persist despite the elimination of legal segregation and describes the groups adversely affected by such disparities. Next, the article examines efforts that have been undertaken to improve overall quality in the delivery of health care services in the United States and why such efforts, while salutary, do not address racial and ethnic disparities adequately. Following that description, the article reviews incentives used to improve performance from institutional and individual health care providers, and the impact of such incentives on performance. In light of that experience, the article then examines the likelihood that the measures and incentives that the Massachusetts statute provides will be successful in improving overall access and quality of health care, as well as eliminating racial and ethnic disparities. The article concludes that unless Massachusetts devotes sufficient resources to providing access to insurance and carefully structures incentives to reward overall improvement with a specific focus on addressing disparities, the statute will not meet its ambitious goals.
I. Brief History of Segregation and Discrimination in Health Care
A. Legal Responses to Disparities in Health Care
Literature in a variety of disciplines effectively documents existing racial and ethnic disparities in health care treatment and health status. David Barton Smith's classic work, Health Care Divided: Race and a Healing Nation, describes the history of a racially divided health care system in the United States and efforts during the middle of the 20th century to remove barriers impeding equal access to health care facilities and providers. Smith identified three challenges confronting civil rights-era efforts to end disparities in health care: ending overt Jim Crow practices that segregated patients by race; eliminating more subtle forms of segregation based on physician referral practices, insurance status, and residential location; and assuring nondiscriminatory treatment in integrated settings. His work documents that the federal government played an important, but diminishing role in addressing these challenges. These efforts began in 1948 with the executive orders by President Harry Truman that ended racial discrimination in federal employment and segregation in the armed services. These orders were applied to Veterans Administration (VA) hospitals and other federal facilities. As a result, by the time the Supreme Court decided Brown v. Board of Education in 1954, the VA hospitals no longer provided any accommodations segregated by race. Beginning in 1961, the Kennedy administration increasingly conditioned federal grants to medical schools, and the hospitals they operated, on a requirement of desegregation.
The vast majority of private hospitals were not subject to this federal financial pressure until the enactment of Medicare. For example, the Hill-Burton Act, providing federal matching funds for hospital construction, expressly permitted the construction of racially segregated facilities. This provision was successfully challenged after the Brown decision. Title VI of the Civil Rights Act prohibited organizations receiving federal funds from discriminating on the basis of race, color, or national origin. The creation of the Medicare program gave the federal government the opportunity to enforce Title VI against hospitals and in other contexts where discrimination continued. As David Barton Smith notes, hospitals were now pressured to desegregate in order to receive federal funds--hospitals had the choice of pursuing “affluence through compliance and bankruptcy.” Enforcement of Title VI through the Medicare program had the impact on hospitals and other institutional providers that the Brown decision had on public schools. Within four months, more than 1,000 hospitals integrated their medical staffs, waiting rooms, and hospital floors. Integration of blood supplies and hospital room assignments followed.
Since the period at mid-century when the federal government led the effort to desegregate hospitals at the inception of the Medicare program, civil rights enforcement actions in health care settings have been sporadic and anemic. After ending the most obvious forms of discrimination by outlawing segregated facilities and services, the forms of discrimination became more subtle; certain legal interpretations of the civil rights laws also made pursuing violations more difficult.
David Smith points out that “[j]ust as with public schools, patterns of geographic residential segregation continued to contribute to segregation and the resulting disparities in health care.” Primary care is more separate and more unequal than hospital care. Disparities in this area may contribute to disparities in referrals for diagnostic and other specialized services. Relocations of hospitals from urban areas to suburban locations provide evidence of the same element of “white flight” experienced in public education. While federal resources helped eliminate discrimination during the civil rights era, cost controls instituted in those same federal programs may have exacerbated discrimination and disparities.
As in public schools, legal interpretations have erected barriers to addressing discrimination in health care and the resulting disparities. For example, in 1963 the Department of Health, Education, and Welfare exempted physicians participating in Medicare from complying with Title VI. Part B of the Medicare program, which covers physician services for beneficiaries, was defined as a “contract of insurance” between the beneficiary and the government instead of a direct grant of federal funds to the physician. In Alexander v. Sandoval, the Supreme Court ruled that no private right of action is available for claims alleging disparate impact of facially neutral policies and practices. Only federal agencies are able to bring disparate impact claims. Numerous commentators and scholars have noted that given the limited enforcement capabilities and inclinations of the Office of Civil Rights, this interpretation of Title VI imposes a significant limitation on its utility in reaching discriminatory practices.
B. Legal Responses to Segregation in Public Education: A Parallel Process
It is helpful to view the problem of health care disparities in the context of a society in which segregation in public education persists despite significant use of litigation and other strategies to create a unitary, racially integrated, educational system. In 2004, the nation celebrated the 50th anniversary of the Supreme Court's decision in Brown v. Board of Education, the landmark case outlawing segregation in public education. The Brown decision had an immediate impact on the lives of many African Americans who were well-situated to take advantage of the expansion of opportunity it represented. Why has Brown, on the one hand, had this transformative impact, yet most children of color still attend schools in 2004 that are not racially diverse? The broad holding of Brown has certainly been adopted by society and culture, though racism still infuses all sorts of practices. The narrow holding--that public schools should be integrated--has failed to take hold. What accounts for this failure?
Professor Erwin Chemerinsky explains how court decisions have been responsible for the resegregation of public schools. After Brown, Chemerinsky argues the federal courts became timid in actually imposing remedies that would have been effective in desegregating schools. He argues that federal courts failed: 1) to establish rigorous timetables for achieving desegregation; 2) did not permit interdistrict remedies to promote desegregation; 3) declined to identify education as a fundamental right or to mandate reform for school financing systems; and 4) ended desegregation orders prematurely before desegregation could be firmly institutionalized in communities.
Dissenting in Milliken v. Bradley, Justice Thurgood Marshall identified the real reason desegregation matters:
We deal here with the right of all children, whatever their race, to an equal start in life and to an equal opportunity to reach their full potential as citizens. Those children who have been denied that right in the past deserve better than to see fences thrown up to deny them that right in the future. Our nation, I fear, will be ill served by the Court's refusal to remedy separate and unequal education, for unless our children begin to learn together, there is little hope that our people will ever learn to live together. The Court's 1995 decision in Adarand Constructors, Inc. v. Peña made clear that federal racial classifications had to satisfy strict scrutiny, meaning that the classifications must serve a compelling governmental interest and be narrowly tailored to further the government's interest. This decision cast doubt on whether enhancing diversity could qualify as a compelling governmental interest. The Adarand decision also cast doubt on the continued vitality of Justice Powell's approval of the use of race as one of many factors in an admissions process.
The Court seemed to settle these questions in a pair of 2003 cases, Grutter v. Bollinger and Gratz v. Bollinger. In Grutter, the Court determined that the race-conscious admissions policy used by the University of Michigan Law School advanced a number of compelling interests, including promoting cross-racial understanding, helping to break down racial stereotypes, enabling students to understand persons of different races, and developing skills necessary to function in an increasingly global marketplace. The Grutter Court also determined that Michigan Law School's use of race as a factor in a multi-faceted admission determination was narrowly tailored to serve the compelling interests identified. Justice Ginsburg's concurring opinion in Grutter accurately assessed the contemporary landscape for public education:
It is well documented that conscious and unconscious race bias, even rank discrimination based on race, remain alive in our land, impeding realization of our highest values and ideals. As to public education, data for the years 2000--2001 show that 71.6% of African-American children and 76.3% of Hispanic children attended a school in which minorities made up a majority of the student body. And schools in predominantly minority communities lag far behind others measured by the educational resources available to them.
However strong the public's desire for improved education systems may be. . . it remains the current reality that many minority students encounter markedly inadequate and unequal educational opportunities. Despite these inequalities, some minority students are able to meet the high threshold requirements set for admission to the country's finest undergraduate and graduate educational institutions. As lower school education in minority communities improves, an increase in the number of such students may be anticipated. From today's vantage point, one may hope, but not firmly forecast, that over the next generation's span, progress toward nondiscrimination and genuinely equal opportunity will make it safe to sunset affirmative action.
The apparent doctrinal certainty of Grutter was not long-lived. The Supreme Court's 2007 decision in Parents Involved in Community Schools v. Seattle School District No. 1 has made the path to achieving Brown's promise more obscure. In Parents Involved, a five-to-four majority held that public school districts that had not operated legally segregated schools or had operated schools found to be unitary may not choose to classify students by race and rely upon that classification in making school assignments to create diverse schools. The opinion rejected the notion that desegregation plans can be used to address the consequences of societal discrimination such as racially identifiable housing patterns. Stating that racial balancing, racial diversity, and integration cannot be independent goals, the Parents Involved Court relied on Milliken and Swann v. Charlotte-Mecklenburg Bd. of Education to conclude that “[e]ven in the context of mandatory desegregation,” to remedy a constitutional violation, “racial proportionality is not required.” In the part of the opinion in which a plurality joined, the Court concluded that the two school districts had not advanced any compelling state interest in using race as one factor in school assignments. Despite reaching this conclusion, the Court went on to discuss how the districts had failed to show that race-based classifications were necessary to achieve their goals of achieving diversity in the schools. The Court inferred from the minimal impact of the race-based factors on school assignments that other means not based on race would be effective to achieve the districts' goals. In addition, the Court expressed doubts about whether the two school districts had sufficiently considered alternatives to satisfy the narrow tailoring aspect of the strict scrutiny analysis.
In a lengthy dissent, Justice Breyer, who was joined by Justices Stevens, Souter, and Ginsburg, argued that the school desegregation plans resembled “local efforts to bring about the kind of racially integrated education that Brown. . .long ago promised--efforts that [the] Court has repeatedly required, permitted, and encouraged local authorities to undertake.” In addition, he noted that the Court had approved plans “no less race-conscious than the plans” adopted in Seattle and the Louisville metropolitan area. He concluded by asserting that “[t]o invalidate the plans under review is to threaten the promise of Brown.” Justice Stevens joined Justice Breyer's dissent, but wrote separately to express his view that the three-tiered approach to equal protection analysis is flawed and to state his “firm conviction that no Member of the Court that I joined in 1976 would have agreed with today's decision.”
Justice Kennedy wrote an opinion concurring in part and concurring in the judgment. Unlike the plurality, he would have held that diversity, appropriately defined and described, “is a compelling educational goal a school district may pursue.” He took issue with “an all-too-unyielding insistence that race cannot be a factor” in addressing “the problem of de facto resegregation in schooling” expressed in the Chief Justice's plurality opinion. Justice Kennedy termed as aspirational Justice Harlan's statement in dissent in Plessy v. Ferguson that the Constitution is “color-blind,” stating that “[i]n the real world, it is regrettable to say, it cannot be a universal constitutional principle.” Nevertheless, Justice Kennedy agreed with the conclusions of the opinion by the Chief Justice that the local school districts in this instance had not satisfied their burden of showing a compelling interest and that the uses of race be narrowly tailored.
Even though Justice Kennedy provided the fifth vote to invalidate the Seattle and Louisville school assignment programs, his reasoning kept the notion that race-based programs have constitutional validity alive, albeit on life support. The opinion by the Chief Justice undermines the doctrinal support for race-based affirmative action programs endorsed in Grutter and Gratz only a few short years ago.
C. The Way Forward
The attempts to address racial disparities in health care and in education relying on antidiscrimination law have followed parallel courses. In both fields, bold pronouncements and early progress were displaced by less energetic enforcement and legal doctrines that have impeded forward movement. As the specific promise of equality in public education offered in the landmark ruling of Brown remains unrealized, the promise of equality also remains unmet in the health care setting.
These developments that have frustrated the efficacy of legal remedies call for reinvigorated or new responses to the problem of racial and ethnic disparities in health care. One approach would be for the Office for Civil Rights in the Department of Health and Human Services to actively pursue enforcement actions to address discrimination in the delivery of health care services financed by federal program funds. Vigorous state enforcement of state antidiscrimination law also offers promise to address discriminatory practices in the delivery of health care services. The NASI Report recommends that the Department of Health and Human Services reexamines its interpretation excluding physicians and other providers under Part B of the Medicare program from the reach of Title VI of the Civil Rights Act. Congress could enact legislation overruling the Supreme Court's decision in Alexander v. Sandoval, making clear that private litigants may bring disparate impact claims under Title VI. Finally, one commentator has suggested that the federal government use its ability to enforce the Civil False Claims Act to address the failure of providers to comply with Title VI in federal health care programs.
In the long term, the above-described strategies to reinvigorate enforcement of the civil rights laws to address discrimination and disparities in the provision of health care services may hold promise. Federal and state agencies changing enforcement strategies, or Congress or state legislatures taking action to strengthen civil rights statutes in the short term, however, seems unlikely. In addition, discrimination addressable by civil rights enforcement may account for only part of the health care disparities problem. In the face of these legal and practical obstacles to civil rights enforcement, action by states and local governments through program change may offer the greatest short-term promise to address health care disparities. The Massachusetts Health Care Reform proposal is one such state initiative that has the potential to make an impact on racial and ethnic disparities in health care.
II. Present Racial and Ethnic Disparities in Health Care Documented
A. Populations Adversely Affected by Disparities
Socioeconomic factors other than race and ethnicity also contribute to health care disparities. Lower levels of income and education, substandard housing, poor nutrition, physical inactivity, and inadequate access to health insurance and health care all have an impact on health status and healthcare. Even when controlling for these other factors, however, racial and ethnic disparities remain. Thus, an independent focus on addressing racial and ethnic disparities is warranted. Understanding the racial and ethnic composition of the population is important to understanding which populations are vulnerable or at risk of being disadvantaged in the health care context.
The 2000 United States census shows that nonwhites comprise nearly 30 percent of the United States population. The nonwhite population includes Blacks or African Americans, Native Americans or Alaska Natives, Asian Americans, Hispanic Americans, Native Hawaiians, and other Pacific Islanders. By 2050, these groups are expected to comprise nearly 50 percent of the nation's population. In Massachusetts, racial and ethnic minority residents constitute 20 percent of the population, while in Boston, nearly half of the city's residents are from racial and ethnic minority groups.
Research has indicated that difficulty speaking English, like race, is a barrier to receiving care. Discrimination on the basis of primary language is considered discrimination on basis of national origin prohibited by Title VI of Civil Rights Act of 1964. In 2004, nearly 50 million Americans, or 20 percent, spoke a language other than English at home. A recent study found that even U.S. born African Americans--native speakers of English--were more likely to report discrimination than whites because of how they spoke the language.
Studies have recognized that collecting data is essential to the process of identifying and addressing racial and ethnic disparities in health care. The dynamic nature of the United States population and the evolving ways in which people identify themselves pose challenges, however, to data collection efforts. The data collection challenge, “lies in having a set of race and ethnicity categories that are sufficiently flexible to account for the changing population while ensuring the ability to compare data for different racial and ethnic groups over time” in reliable and usable categories that can be analyzed. In Massachusetts, thirty-one categories are being captured to give patients ways in which to describe themselves.
Research has demonstrated that aggregation of ethnic and national groups into large classifications, such as Hispanic or Asian Americans, masks the diversity and important differences experienced by sub-groups within these populations. For example, a recent study notes that Cuban Americans share socioeconomic characteristics more closely with non-Hispanic whites than with other Hispanic Americans of Puerto Rican or Mexican ancestry. Similarly, U.S. born African Americans suffer greater health problems than African Americans born outside the United States. In addition, Japanese Americans report fewer health problems than non-Hispanic whites, and Vietnamese Americans report more health problems than other Asian Americans. Moreover, age upon arrival in the United States, proficiency in English, and acculturation levels can cause variations even within sub-groups.
B. Illustrations of the Existence of Disparities
Disparities in health care treatment and outcomes occur in a broader legal and societal context. The status of health care services in New Orleans, Louisiana, before and after Hurricane Katrina provides an illustrative example. After Hurricane Katrina devastated New Orleans in 2005, the Kaiser Family Foundation published research examining the pre-Katrina healthcare delivery system for low-income people in New Orleans and how the hurricane affected that system. The assessment concluded that the healthcare delivery system for the poor in Louisiana was in crisis before Hurricane Katrina wrought its devastating impact. The demographics of the New Orleans area immediately prior to Katrina are instructive. At the time, 23 percent of New Orleans citizens were living in poverty as compared with 17 percent of the U.S. population. In addition to high rates of poverty, New Orleans also had one of the highest rates of uninsurance with 21 percent of the nonelderly population having no insurance as compared with 16 percent nationally, and approximately10 percent in Massachusetts.
Louisiana also reported some of the poorest health statistics in the country with high rates of infant mortality, heart disease, diabetes, AIDS cases, and lower than average childhood immunization rates. Most importantly, there were large disparities in the health status of minorities as compared to the white population. One-third of Louisiana residents and two-thirds of New Orleans residents were African American as compared with 12 percent nationally, and were more likely to experience heart disease, diabetes, and asthma than their white counterparts. In addition, Louisiana had high rates of infant mortality, chronic diseases such as diabetes, and AIDS cases. The Medical Center of Louisiana at New Orleans (MCLNO) and related facilities operated by Louisiana State University delivered a large portion of the health care services to low-income, uninsured, and minority populations. Charity Hospital was the hub of the system of 10 hospitals and 350 clinics serving a largely poor, predominantly minority population through inpatient care, networks of outpatient clinics, and one of the busiest emergency departments in the country. This institution accounted for 83% of uncompensated inpatient care and 88% of uncompensated outpatient care in New Orleans. The positive aspect of this arrangement was that it provided a focused approach to providing services to the population served. Such an arrangement also creates, however, a separate system of care for the low-income uninsured.
Before Katrina hit, the number of uninsured was increasing and the volume of services provided by MCLNO was decreasing due to shrinking resources. . ..With 50 percent of its total costs uncompensated, the hospital struggled to secure sufficient revenues simply to sustain operations. The hospital lacked the capital to make much-needed infrastructure improvements. Prior to Katrina, the deterioration of the facility was so severe that the hospital had been threatened with losing its accreditation. Officials had already been exploring options to replace the hospital with a smaller inpatient facility and primary care clinics located throughout the city. . ..
After the hurricane, MCLNO was closed along with most other hospitals in the city.
Most hospitals that have reopened are operating at very limited capacity and with significant financing and staffing challenges. MCLO operated a temporary trauma center and a medical clinic in the Convention Center and then moved to a former department store. A great deal of care has been shifted from New Orleans hospitals to hospitals in other cities such as Baton Rouge. These shifts in patient care may have the effect of reducing the volumes of care provided to low-income populations at these New Orleans institutions. These reductions could jeopardize the ability of these institutions to qualify for special federal payments for serving low-income, uninsured populations, making the financial position of these institutions even more precarious or unsustainable. Roughly forty percent of the total workforce has been furloughed.
What Katrina exposed to the nation was a highly segregated system of health care--a “two-tier” health system segregated by race and income. Katrina caused new levels of dislocation and deprival, rendering New Orleans uninhabitable for weeks, perhaps longer, and causing human suffering incredible by modern standards. But this natural catastrophe also revealed how fragile the social infrastructure was for certain populations in the first place. As David Barton Smith has written, on the fortieth anniversary of the Medicare program which eliminated formal segregation--the system is now still segregated or resegregated. The job of ensuring equality in health care is not finished.
C. Factors Affecting Disparities
Research continues to document racial and ethnic disparities in health care. The studies, while usually focusing on an isolated factor or treatment of a particular condition, recognize that a complex interplay of causes and circumstances may result in such disparities. For example, in Strengthening Medicare's Role in Reducing Racial and Ethnic Health Disparities, a study panel of the National Academy of Social Insurance identified four broad sets of factors contributing to disparities in quality of care: barriers to access to care, cultural and linguistic barriers, beneficiary attitudes and behaviors, and provider attitudes and behaviors. The NASI study panel report noted that access to care, a critical determinant of quality of care, depends on a number of factors, including insurance and the ability of a person to pay cost-sharing amounts such as co-payments and deductibles. To the extent that reforms such as the new Massachusetts health care statute address access to insurance and reduce the deterrent effect of cost sharing, such reforms are thought to have the potential to reduce disparities.
1. Barriers to Access to Care
Access depends on the availability of providers in a community, resources, such as equipment, information and referral networks, available to such providers, office hours, transportation resources, and the absence of other barriers such as lack of paid sick leave. As the NASI Report notes, members of racial and ethnic minority groups tend to obtain care from different individual and institutional providers than do whites. Though most minorities receive services from providers who are white, non-white providers tend to serve more non-white patients. Studies have found that providers who care for minorities are more likely to practice in public, or teaching, hospitals and in low-income areas. Many of these physicians experience difficulties in referring patients to specialists or to higher quality facilities and providers. Having a primary care provider also improves a person's access to care, and racial and ethnic minorities are less likely than whites to have a primary care provider.
2. Linguistic and Cultural Barriers
Linguistic and cultural differences also contribute to differences in quality of care. Beyond the lack of interpretive services and availability of printed materials in other languages for patients with limited English proficiency (LEP), providers from a different ethnic or cultural background than a patient are less able to take into account the patient's point of view or understand barriers to compliance. Some minority groups are skeptical about the heath care system and this mistrust can lead to avoiding the system or refusing procedures and treatments.
3. Patient Attitudes and Behaviors
Members of racial and ethnic minority groups are more likely to be uninsured before becoming eligible for Medicare. This lack of insurance correlates with a deficit in established connections to the health care system. Without these connections, the uninsured do not have experience in finding and using health care services. A lack of health services may contribute to poorer health status which, in turn, may require more extensive medical interventions to achieve parity in health outcomes anticipated from the interventions. Racial and ethnic minorities are more likely to perceive disrespect or unfair treatment due to race or ethnicity.
4. Provider Attitudes and Behaviors
Numerous studies have documented that the race and sex of a patient may influence physicians' recommendations for treatment. Causes range from conscious discrimination to unconscious beliefs or stereotypes about the ability to benefit from, comply with, or afford treatment.
III. General Quality Concerns and Why A Color-Blind Approach Won't Work
The problem of disparity in health care treatments and outcomes experienced by racial and ethnic minorities exists within a health care regime in the United States where overall quality of care is a basic concern because quality is not what it should be given the amount spent and the level of technological sophistication attainable. In a 1999 report, To Err is Human: Building a Safer Health System, the Institute of Medicine (IOM) documented how nearly 100,000 people died each year in the United States from medical errors. The IOM's 2001 report on Crossing the Quality Chasm addressed broader systemic issues of quality. This more recent report defined six goals for quality of care and prescribed ten rules of health care delivery redesign to meet the quality goals. One of the six measures of quality is that health care should be equitable--that care should not vary in quality because of personal characteristics such as gender, ethnicity, geographic location, and socioeconomic status. The IOM has recommended several approaches for changing the environment in which health care is delivered so that health care professionals and organizations function more effectively. Among the broad environmental changes the IOM recommends is aligning payment policies with quality improvement so that clinicians are compensated for taking good care of all patients regardless of health status or demographic factors.
The IOM studies have confirmed other assessments of the quality of the United States health system. In 2000, the World Health Organization issued a report analyzing data on the health systems of 191 member countries. The study revealed that the United States has the most expensive health care system in the world based both on expenditures per capita and total expenditures as a percentage of gross domestic product. This study ranked the United States 15th for overall attainment and 37th for performance. On several health indicators, the United States ranks relatively low. For example, in 1996, the United States ranked 26th among industrialized countries for infant mortality rates, a figure that masks significant disparities among racial groups.
Efforts to address overall quality will not necessarily reduce disparities, and could exacerbate disparities. In a recent article, Kenneth Keppel, Linda Bilheimer, and Leda Gurley observed that societal goals of improving quality of care and increasing years of healthy life, and eliminating disparities among populations groups, may not be consistent. This study concluded that “improvement in the health of the total population without any reduction in relative disparities among racial and ethnic groups” was the result of a nationwide health promotion and disease prevention agenda developed by the U.S. Department of Health and Human Services.
One frequently proposed solution to the problem of health care disparities is to mandate universal access to insurance. The assumption of such proposals is that equalized benefits will help equalize the use and benefit of health services. For example, the Medicare program has eliminated this disparity in insurance for the Medicare population--largely the over age 65 adult population. Despite equal eligibility for Medicare regardless of race, ethnicity, or class, racial and ethnic disparities persist in health care usage and outcomes among Medicare beneficiaries. A study of the use of mental health services and pharmaceuticals found that nonwhites and low-income people obtained fewer benefits than whites and high-income people. The impact of copayments, the role of primary care physicians acting as gatekeepers for access to mental health services and pharmaceuticals, and patient attitudes toward the use of prescription drugs and mental health services as compared to alternative remedies and community and social support networks were variables not examined in the study. Another recently published study found that racial and ethnic subgroups are not homogenous in their views of, and experiences with, health care services. Differences among African-American and Asian-American subgroups led the study's authors to conclude that it was important to examine ethnic subgroups separately rather than as one single racial or ethnicity category. One premise of the IOM report, Unequal Treatment, is that targeted measures are necessary to overcome disparities in treatment and outcomes. The NASI study acknowledges that “Targeted efforts will likely be necessary to overcome the special barriers to improving the quality of care for minority [Medicare] beneficiaries.” The NASI study also notes that incentives for providers may widen the quality and income gap by penalizing providers who treat large numbers of disadvantaged minorities. Similarly, the use of public reporting and disclosure on quality and disparities measures could widen disparities because minorities may have less access to public reports and less ability to switch providers.
Against this range of experiences and this panoply of recommendations, in April 2006, the Commonwealth of Massachusetts enacted a statute mandating individual health insurance coverage and setting the goal of reducing racial and ethnic barriers in health care through use of several reporting mechanisms and financial incentives. The next part of this article will describe the relevant provisions of the statute.
IV. The Massachusetts Initiative
A. Preliminary Overview
On April 12, 2006, Massachusetts Governor Mitt Romney signed into law An Act Providing Access to Affordable, Quality, and Accountable Health Care. Widely heralded as a first in the nation in its attempt to provide universal health care, the legislation uses a combination of Medicaid expansion, subsidized private insurance programs, and insurance market changes to accomplish this goal. This part of the article will provide a broad overview of the provisions in the Massachusetts Health Care Reform statute focusing particularly on those provisions aimed at eliminating disparities.
Passage of this landmark legislation took place in a context where other public and private actors had been identifying health disparities and taking steps to address them. In June 2005, the Boston Public Health Commission documented the health disparities experienced by the Black, Latino, and Asian residents of Boston in a report entitled Data Report: A Presentation and Analysis of Disparities in Boston. Key findings of the report were that Black Bostonians have worse health than all other residents over a range of health indicators and that Latino Bostonians have worse health indicators than White residents on several health indicators. The Boston Data Report also found that socioeconomic factors play a role in health disparities, but that the generally lower income and education levels of Black and Latino Bostonians did not explain fully the health disparities. Personal behavior, such as smoking, also did not explain the disparities. The report concluded that real or perceived racism at a systemic and individual level erected barriers to health care for these populations.
In addition to the work of the Boston Public Health Commission, the state legislature created a Special Commission to End Racial and Ethnic Health Disparities that issued a report and recommendations in August 2007. Co-Chaired by a member of the House of Representatives and of the Senate, the Commission made a series of recommendations including establishing a state center for the elimination of disparities and focusing on workforce development issues to create better racial and ethnic diversity in the health professions. Various private academic medical centers in Massachusetts, also, are actively engaged in research and interventions to address health care disparities. Finally, a number of advocacy organizations interested in bringing attention to the disparities issue has formed a Disparities Action Network (DAN). The DAN developed proposed legislation to expand on the provisions in Chapter 58 relating to disparities.
While trumpeting the enactment of this legislation, commentators note that unusual circumstances in Massachusetts made it realistic for the state to aspire to universal coverage. First, at the time the statute was enacted, a strong foundation of employer-sponsored insurance existed, along with a generous Medicaid program, resulting in 68% of the non-elderly population having some form of employment-based insurance coverage, compared to 61% nationally. Only about 10% of the population was uninsured, compared to the national average of 16%. By comparison, Texas has an uninsured population of nearly 28% and before Hurricane Katrina, 22% of Louisiana's, 19% of Mississippi's, and 15% of Alabama's non-elderly populations were uninsured.
In addition, Massachusetts already spends a great deal of money each year to compensate hospitals and community health centers treating the uninsured, using payments from insurers and self-insured employers as well as state and federal funds. Despite these advantages, commentators noted that achieving the goal of universal coverage would be challenging. For example, the funding mechanisms established in the legislation will not pay the full cost of subsidizing health insurance for all of the uninsured. Second, implementation depends on promulgating new regulations and administering the programs effectively. The state will need to obtain Medicaid waivers from the United States Department of Health and Human Services for the Medicaid expansions contained in the legislation. This waiver will need to be renegotiated in 2008. Another challenge is determining what are “affordable” insurance products for individuals who are uninsured but who are not eligible for any subsidies under the legislation. It is not clear whether employers will continue to provide insurance under the new regime. Finally, the state will need to be committed to sustaining the program through less favorable economic times, when state tax revenues decline, Medicaid rolls increase, and the number of uninsured increases through unemployment.
B. Key Provisions of the Legislation
As of July 1, 2007, all state residents over age 18 are required to have a minimum level of health insurance. Residents must demonstrate that they had health insurance meeting the requirements of the statute during the previous year on their annual state income tax returns. Failure to do so will result in tax penalties of up to 50 percent of the cost of a health insurance plan as long as an affordable insurance product was available to them.
The statute makes assistance available to low-income and self-employed individuals toward the cost of purchasing health insurance. The Commonwealth Care Health Insurance Program will make subsidies available if gross family income does not exceed 300 percent of the federal poverty level. No contribution toward the cost of the health insurance is required for persons whose income is less than 100 percent of the federal poverty level. The law also extended eligibility for MassHealth, the Massachusetts Medicaid program, to children of families earning up to 300 percent of poverty. MassHealth coverage was restored for some dental care. In 2006, the federal poverty guidelines were $9,800 for individuals and $20,000 for a family of four.
Employers, as well as individuals and the state, have obligations under the new health reform statute. Entities employing more than 10 full-time employees that do not provide health insurance for workers or contribute to it will be assessed an annual surcharge of $295 per employee and will be assessed a “free-rider surcharge” when their employees use more than a specified amount of care from a state “health safety-net fund” .
Finally, the statute mandates certain market reforms with the aim of making insurance more available and affordable to Massachusetts residents. The statute creates the Commonwealth Care Health Insurance Program to be managed by the Commonwealth Health Insurance Connector.
In addition to these very specific provisions designed to enhance access, the statute creates mechanisms designed to focus the attention of Massachusetts health care regulators and health care providers on measuring and improving the quality of care delivered. These provisions are described here.
The Health Reform legislation creates a Health Care Quality and Cost Council within, but not subject to the control of, the Executive Office of Human Services. This Council is charged with setting health care quality improvement and cost containment goals. The goals are to be designed to promote high-quality, safe, effective, timely, efficient, equitable and patient-centered health care. The statute designates the Secretary of Health and Human Services as the chair and specifies certain officials, or their designees to serve as members, including the Executive Director of the Group Insurance Commission and the Insurance Commissioner. Seven of the members are appointed by the governor and are to include representatives of the health care quality improvement organization recognized by the Centers for Medicare and Medicaid Services, a representative of the Institute for Healthcare Improvement, Inc., representatives designated by the Massachusetts Chapter of the National Association of Insurance and Financial Health Underwriters, the Massachusetts Medicaid Policy Institute, and an expert in health care policy from a foundation or academic institution, and a nongovernmental purchaser of health insurance.
The statute directs the Health Care Quality and Cost Council to “develop and coordinate the implementation of health care quality improvement goals intended to lower or contain the growth in health care costs while improving the quality of care including reductions in racial and ethnic health disparities.” The Health Care Quality and Cost Council is to prepare, or contract with a consultant to prepare, a consumer health information website and reports on the cost and quality measures developed. Health insurers and health care providers are required to submit data specified by the Health Care Quality and Cost Council through regulation. Annually, the Health Care Quality and Cost Council is to establish and publish performance measurement benchmarks for its goals. The statute specifies that the performance measurement benchmarks be clinically important and include both process and outcome data and “allow and encourage physicians, hospitals, and other health care professionals to improve their quality of care.”
The Health Care Quality and Cost Council is required to maintain a consumer health information website to assist consumers in making informed decisions about health care and informed choices among health care providers. Information is to be presented in a format understandable to the average consumer. The website is to include service specific and general patient satisfaction and patient safety information. Finally, the Health Care Quality and Cost Council is to establish an advisory committee of at least twenty-four members, at least one of which is to be “a representative of a racial or ethnic minority group concerned with health care.” Members of the Health Care Quality and Cost Council do not receive a salary and only receive reimbursement for expenses. In addition to having the authority to issue regulations advancing its goals, the Council is authorized to make grants and loans to members of the health care industry.
Another provision of the legislation creates the MassHealth Payment Policy Advisory Board which performs certain functions including recommending Medicaid rates and payment methodologies. The goal is for these rates and payment methodologies to provide fair compensation for services and to promote high-quality, safe, effective, timely, efficient, culturally competent and patient-centered care. Members of this board include the secretary of health and human services or his or her designee, the commissioner of health care financing and policy, and twelve other members to be appointed by the leadership of the legislature, the Governor, and certain industry and consumer groups. The board is to be staffed by the division of health care finance and policy designated by the executive office of human services. The board is required to make semi-annual reports to the legislative ways and means committees and to the joint committee on health care financing. In addition, it must make a detailed report of proposed payment policies to the same bodies ninety days before implementation.
In addition to the provisions directly aimed at expanding the availability of health insurance, the legislation contains a number of other provisions specifically aimed at reducing racial and ethnic disparities in health care and health outcomes. Already mentioned is the requirement that at least one member on the advisory committee to the Health Care Quality and Cost Council be a “representative of racial and ethnic groups concerned with health care” . Significantly, the legislation requires the creation of a Health Care Disparities Council in, but not subject to the control of, the executive office of human services to make recommendations on eliminating disparities in health care and health outcomes and on addressing diversity in the health care workforce. In addition, the Health Care Disparities Council is charged with making recommendations on other matters affecting health disparities including the environment and housing. The Health Care Disparities Council is charged with addressing diversity and shortages in the health care workforce. Membership of the Health Care Disparities Council is set at thirty-four, including three members each of the House and Senate to be designated by the Speaker of the House of Representatives and the Senate President. The Speaker of the House of Representatives and the Senate President are each to designate one representative to serve as co-chair of the commission. Other Health Care Disparities Council members include representatives of various associations focusing on particular diseases or conditions, and representatives of the Boston Public Health Commission, the Office of Multicultural Health in the Department of Public Health, the Program to Eliminate Health Disparities at the Harvard School of Public Health, as well as four members appointed by the Speaker of the House and four members appointed by the President of the Senate who represent communities disproportionately affected by health disparities. The Health Care Disparities Council is required to file an annual report on these topics with the legislature. The annual reports are to contain recommendations for “designing, implementing and improving programs and services, proposals for appropriate statutory and regulatory changes to reduce and eliminate disparities in access to health care services and quality care and the disparities in medical outcomes in the Commonwealth.” In addition, the annual reports are to “address diversity and cultural competency in the health care workforce” including, at a minimum, recommendations relating to doctors, nurses and physician assistants.
As of this writing, it appears that formation of the Health Care Disparities Council is not yet complete. Both houses of the legislature have identified the legislative members of the Health Care Disparities Council and the Speaker of the House of Representatives and Senate President have identified the community representatives. Publicly available materials indicate that this group has not met as of this writing.
Section Six of the health reform statute requires the creation in the Division of Insurance of a health care access bureau and creates a position of deputy commissioner for health care access to oversee the health care access bureau. The bureau oversees the individual and small group health insurance markets, has oversight of affordable health plans, including coverage for young adults, and disseminates information to consumers on these topics.
The statute also authorizes certain pay-for-performance initiatives. After one year, it makes hospital Medicaid rate increases contingent upon adherence to quality standards and achievement of performance benchmarks, including reductions in racial and ethnic disparities in the provision of health care. The office administering the Medicaid program is required under this provision of the statute to consult with the Health Care Quality and Cost Council (HCQCC) in developing the quality standards and performance benchmarks on which increases are to be based.
The HCQCC met for the first time on August 23, 2006, and has met approximately on a monthly basis since that time. On June 21, 2007, the HCQCC announced its first set of annual statewide goals for improving quality and controlling the cost of health care in Massachusetts. Goals identified include reducing the annual rise in health care costs to no more than the unadjusted growth in Gross Domestic Product by the year 2012 and eliminating hospital infections by 2012. In addition, the goals call for eliminating “never events,” defined as events that should never happen in hospitals such as performing the wrong surgery on a patient, performing surgery on the wrong part of the body, or performing surgery on the wrong patient. Improving the management of chronic conditions, developing useful measurements for improving adherence to patients' wishes for end of life care, and promoting quality through development of a website and other materials providing comparative quality information are also identified as goals. Reducing racial and ethnic disparities in a variety of contexts was identified as a goal. Specific targets for this goal include reducing health care-associated infections, eliminating disparities in “never events,” reducing--and ultimately eliminating--disparities in disease complication rates, re-admission rates, and avoidable hospitalizations, and reducing disparities in screening and management of chronic illnesses.
This legislation signals an intent to establish some measure of insurance coverage for all Massachusetts residents and to address disparities while improving the overall quality of care. It is not clear, however, that administrative structures and the long-term commitment are present to achieve these goals.
V. Evaluating the Potential of the Massachusetts Tools to Affect Disparities
As described in Part IV, the Massachusetts Health Care Reform legislation provides several incentives aimed at addressing disparities in health care. In Part V, the article first will discuss the insurance mandate and MassHealth expansions, which aim to influence individual behavior in obtaining health insurance coverage and in using health care services. Next, the financial incentives for providers will be discussed. This section will conclude with an examination of other incentives contained in the legislation, such as public reporting and informational efforts.
A. Insurance Mandate
As described previously, the Massachusetts Health Reform statute requires all Massachusetts residents over age eighteen to demonstrate a minimum level of insurance coverage by December 31, 2007. The literature is clear that lack of insurance is one of the causes of health disparities. Also, the literature demonstrates that insurance expansions are not sufficient to eliminate health care disparities. While mandating or equalizing benefits for diverse populations will ameliorate disparities in health insurance coverage, less clear, however, is whether equalizing coverage will result in equal use of the health care system by these diverse populations. In fact, research has shown that such provisions, without more interventions can exacerbate disparities because whites and higher-income populations will make greater use of expanded benefits than non-whites and lower-income populations. For example, the experience of the Medicare program demonstrates the problem. Despite theoretical equality in insurance coverage provided to the population over the age of sixty-five by the Medicare program, racial and ethnic health disparities persist, including the utilization of health care services covered by Medicare. Another study has found that even when insurance benefits and access are constant, whites and higher-income individuals consume more mental health care services and pharmaceuticals than racial and ethnic minorities and lower-income populations.
Cost of coverage may be another barrier to achieving even the threshold benefits from expanded coverage. Individuals will be penalized under the insurance mandate if they fail to take advantage of affordable options for health insurance.
One of the early challenges facing the Commonwealth Health Insurance Connector Authority, the agency created “to facilitate the availability, choice and adoption of private health insurance plans,” was to balance the need for individuals to have meaningful coverage with the potential cost of comprehensive insurance coverage. In regulations effective July 1, 2007, the Connector specified that insurance meeting the definition of “creditable coverage” for purposes of fulfilling the insurance mandate must provide a range of medical benefits “including, but not limited to, preventive and primary care, emergency services, hospitalization, ambulatory patient services, prescription drugs, and mental health services.” Deductibles are capped at $2,000 for individuals and $4,000 for a family, and prescription drug deductibles are capped at $250 for individuals and $500 for a family. Deductibles or co-insurance for services may not exceed $5,000 for an individual and $10,000 for a family.
Pursuant to its regulations, the Connector had established affordability standards and guidelines by June 2007. Individuals with incomes up to 150 percent of the federal poverty level do not pay premiums and individuals with incomes between 150 percent and 200 percent of the poverty level are to pay premiums starting at $35 per month. The Connector has estimated that up to two percent of the Massachusetts population will not be able to find insurance that is deemed affordable and that meets the coverage standards.
It is not clear that the premiums and public subsidies will be sufficient to allow uninsured or underinsured individuals to obtain coverage. Media reports indicate that the numbers of people seeking subsidized insurance, and the demand for information about the subsidized health insurance plan, have overwhelmed the MassHealth and Commonwealth Care administrative functions and state call centers. Finally, it remains to be seen whether state resources will be able to meet the demand for assistance with health insurance coverage in the face of competition for scarce governmental resources.
Expansion of the state's Medicaid program, MassHealth, is key to accomplishing the goal of universal coverage. It is not clear whether future waiver extensions will be forthcoming from the federal government. This uncertainty means that the long-term viability of certain aspects of the coverage goals are not fully within the state's control.
The Massachusetts legislation also contains some premium reduction incentives for enrollees in MassHealth. In addition to restoring dental services, the statute authorizes the Executive Office of Health and Human Services to implement a wellness program to encourage MassHealth enrollees to engage in “activities that lead to desired health outcomes, including smoking cessation, diabetes screening for early detection, teen pregnancy prevention, cancer screening for early detection and stroke education.” Enrollees complying with the relevant wellness program would be eligible to receive reductions in MassHealth premiums or co-payments, or both. Whether such incentives will be successful in improving health outcomes or reducing disparities will be interesting to monitor.
B. Financial Incentives for Providers
The research literature demonstrates that financial payments to providers create incentives to reduce the costs of health care services by reducing the use of health care resources, improving compliance with practice guidelines, and achieving health targets. One year after the effective date of the new health reform statute, the Medicaid program is authorized to increase payment rates to hospitals based on the achievement of performance benchmarks, including reducing racial and ethnic disparities. These financial incentives are to be structured with reference to the benchmarks established by the Health Care Quality and Cost Council created by chapter 6A, section 16L of the Massachusetts General Laws.
Public and private entities that pay providers for health care have begun paying hospitals and physicians for improving quality of care. Such financial incentives do promote improvement in the types of care that are measured and rewarded by the incentives. A study of a voluntary public reporting initiative, a pay-for-performance demonstration project, coupled with reporting sponsored by the Centers for Medicare and Medicaid services, concluded that hospitals involved in reporting and pay-for-performance obtained somewhat greater improvements in quality than hospitals only engaged in reporting. The incentives involved in the study were relatively modest, in the range of 1 percent to 2 percent. Based on this research, it appears that the goal of the Massachusetts legislation, to couple reporting with pay-for-performance in the Medicaid program, may be able to achieve improvements in the quality of care.
The literature also raises some concerns about pay-for-performance programs and the impact of such programs on health care disparities. In the study of Medicare incentives, most of the bonus payments went to hospitals with the highest baseline performance, even though all participating hospitals improved performance by similar levels. This result means that care must be taken in the design of incentives to avoid exacerbating disparities. Research has indicated that financial incentives can cause providers to engage in “cherry picking”--avoiding patients with poorer health status who might jeopardize achieving performance benchmarks. Also, rewarding absolute performance may result, over time, in shifting incentive payments and overall resources to hospitals already performing at a high level and away from lower-performing hospitals. As racial and ethnic minorities generally receive care from different providers than the majority population--e.g., from safety-net hospitals--such a shifting of resources could further exacerbate disparities in health care. Even if the baseline performance of hospitals is high, interest in pay-for-performance initiatives may erode over time among hospitals that repeatedly fail to obtain bonus payments. Although every system seeks to avoid paying for substandard care, even competent providers could be left vulnerable over time under a system in which they never receive bonus payments. To avoid these effects that have the potential to conflict with the goal of reducing disparities, Massachusetts should consider structuring incentives to reward all improvement from established baselines, or for achieving certain thresholds. Given these parameters, incentives should be structured to promote elements of good practice such as adhering to practice guidelines, following chronic disease management protocols, tracking immunization rates, measuring improvements in outcomes for specific diagnoses and conditions, rewarding time spent with vulnerable patient populations, improving access for LEP populations, improving cultural competency, and enhancing workforce diversity.
After experience with positive incentives, negative incentives for institutions that fail to improve are often considered--such as imposing higher copayments for receiving services at low-performing providers. To the extent that access barriers, such as access to information about quality and transportation, persist, it may not be possible for disadvantaged populations to respond to these negative financial incentives. Under that scenario, higher copayments could further exacerbate health care quality disparities.
Finally, one goal of the legislation is to reduce the spiraling costs of health care. It remains to be seen whether the goals of improving quality, including reducing racial and ethnic disparities, and reducing costs are compatible. These goals may impose divergent pressures on the implementation of the legislation.
C. Other Incentives to Address Disparities
The Massachusetts health reform legislation also relies on improving information available to consumers about health care services and providers as a way to address quality. Relying on the website to be maintained Health Care Quality and Cost Council may not be effective in communicating with disadvantaged populations who are adversely affected by disparities. In fact, the availability of this information to more sophisticated health care consumers could exacerbate disparities by enhancing and improving their choices and leaving populations already disadvantaged by access barriers in a worse position. While the legislation requires a focus on the website, in order to close the informational divide between disadvantaged and advantaged consumers or prevent it from growing, the agency will need to employ other tools to communicate successfully with consumers of Limited English Proficiency and of all races, ethnicities, and socioeconomic backgrounds. Also, to the extent that the data on which policies will be based and progress toward goals is measured depends on collecting information from patients and consumers, communication tools must be developed that will elicit responses from all populations.
Finally, it is not clear that the administrative infrastructures are yet in place to work toward the goal of reducing racial and ethnic disparities. The legislation does not allocate discrete staff to the Health Care Disparities Council, but instead relies on the generosity of existing public agencies to assign staff to support the work of this body. There is evidence that the existence of an entity focused on addressing health care disparities is an essential element of successful state strategies, so the creation of the Health Care Disparities Council is a positive step. Failure to fund operations or provide administrative staff to advance the work of such a group could impair its effectiveness. The initial struggles of the agencies charged with implementing the insurance coverage mandate cause one to be cautious about expectations for immediate success.
VI. Back to the Future
The passage of the Massachusetts Health Care Reform statute mandating universal insurance coverage and a focus on reducing racial and ethnic health care disparities presents a unique opportunity to improve the quality of health care experienced by Massachusetts residents. As this article demonstrates, some of the elements for success are present in the statute and in the environment for providing health care services in the state. It remains to be seen whether the state can overcome initial missteps. Finally, the true test of any such effort is whether the state is able to make the long term investment of resources and political will required to maintain universal coverage and to continue to reduce disparities. In 1988, Massachusetts enacted, but never implemented, a universal health care law. Eventually, the law was repealed. The state created a subsidized drug program for seniors and certain others in 1990 through a Medicaid expansion. Perhaps the new legislation will enable Massachusetts to build success on these earlier experiences.
. Associate Professor of Law, Suffolk University Law School.
