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Excerpted from: Rene Bowser, Medical Civil Rights: The Exclusion of Physicians of Color from Managed Care: Business or Bias?, 4 Hastings Race and Poverty Law Journal L. J. 1 (Fall 2006) (Footnotes) (Full Document)


ReneBowserThe United States is rapidly becoming more diverse, as demonstrated by the fact that nonwhite racial and ethnic minorities will likely constitute a majority of Americans later in this century. The representation of African Americans, Latino/as, Asian Americans, and Native Americans in medicine, however, has grown only modestly over the past 25 years, producing a trend in which the proportion of minorities in the population outstrips their representation among physicians by several fold. Latino/as, for example, comprise 14.4 percent of the U.S. population, but only 3.2 percent of physicians. Similarly, African Americans comprise almost 13 percent of the population, but only about 2.5 percent of physicians.

Managed care organizations (MCOs) are signing up growing numbers of minority patients, but few minority physicians appear on the provider lists. Demographics are a major factor, of course, and much legal and policy analysis has focused on ways of increasing the pool of minority physicians. Another concern is that MCOs' contracting decisions may be discriminatory based on the characteristics of minority physicians or their patients. This article focuses on non-supply related institutional norms and practices that present significant barriers to entry for minority physicians.

Many physicians of color believe that MCOs disproportionately reject their membership applications, terminate their contracts at a much higher rate compared to white physicians, and unjustly “tax” those patients of color wanting to receive medical care from a physician of their own racial or ethnic background. In a 2003 Gallup survey of African-American physicians, almost 50 percent indicated dissatisfaction with the treatment of African-American physicians by managed care health plans. In another survey of African-American doctors, 92 percent felt that MCOs terminate their contracts more often than white physicians.

Managed care's selection and de-selection criteria appear objective and race-neutral. However, while not purposely designed to exclude, many of these criteria have had a significant adverse impact on both minority physicians and the patients they serve. For instance, practice in a large medical group is practically a prerequisite to enter a managed care provider network. Yet, nearly 75 percent of African-American physicians are in solo practice.

In the end, the direct impact of exclusionary practices is felt by patients of color. Patient choice in selecting physicians of like background is severely restricted, ultimately compromising quality health care. Studies show that minority patients use more services, are more satisfied with health care and, in some instances, have better outcomes when they receive care from physicians of their own racial or ethnic background. In 2001, Dr. Rodney G. Hood described the situation this way:

Thirty years ago, African-American physicians treated more than 90 percent of African Americans. Today, white physicians treat two thirds of the African-American population. Some of that is by choice, but a lot of it has to do with the African-American population being disenfranchised from African-American physicians. I've been in practice for over 20 years, and I can't tell you the number of patients who wanted to choose me but couldn't because I wasn't part of the health plan that covered them. They tell me they have to go elsewhere, usually to a larger group that may or may not have a physician that looks like them.

This article analyzes whether managed care is biased against minority physicians in five sections. Part I looks at the allegations of bias made by physicians of color and examines the statistical evidence supporting the claims. Part II analyzes some of the norms and practices of MCOs and suggests that many of these unwittingly devalue the efficiency of minority physicians and the quality of care they provide, which leads to inequitable actions and decisions. Moreover, this part shows how exclusion from provider networks potentially widens the racial health gap. Part III focuses on the history of exclusion within the medical profession. This history is important because it helped shape the organizational structure of minority physician practices, dictated the types of patients they served, influenced the location of their practices, and illustrates how white physician self-interest continuously defeated the equity demands of both minority patients and physicians.

The concluding two parts discuss remedies and legislative reforms. Part IV focuses on remedies at the federal level and analyzes the adequacy of existing civil rights laws and finds that they are not well suited to redress discrimination in the medical market. As an alternative to civil rights enforcement under existing law, this article suggests that the problem of exclusion is better addressed by revising health care quality mandates contained within the Social Security Act to require the collection and analysis of provider race and ethnicity data. Finally, Part V examines the state and local remedies and legislative reforms, and suggests that well-crafted provider panel diversity ordinances and physician due process statutes provide the most realistic avenues for relief.

. . .

Managed care joins together three actors--insurers, physicians and health care institutions--each having a history of discrimination against physicians of color and the patients they serve. Factor in the profit motive, and the situation is ripe for unfair treatment. While MCOs do not appear to purposefully discriminate, the use of historical and race-blind selection and de-selection criteria inaccurately measure the efficiency and the quality of care provided by minority physicians.

While a strong argument can be made for race-conscious remedies, there are a host of practical and legal issues associated with mandates requiring either race-pairing or specific numbers of minority physician providers. For this reason, remedies that do not specifically exclude white physicians are advisable. Well-drafted physician due process statutes and diversity ordinances implicitly consider physician and patient race and ethnicity without penalizing majority group providers. Further, Equity initiatives that require the collection of both provider and patient racial and ethnic data further the goal of ensuring that MCOs take into account the special bond between minority providers and minority patients.

Associate Professor, University of St. Thomas School of Law.