A. Which Civil Rights Statutes Apply?

1. Race-biased Decisions: Title VI of the Civil Rights Act of 1964

A patient who believes that her race, color or national origin influenced her physician's choice of her medical treatment may assert that the physician's actions violated Title VI of the 1964 Civil Rights Act. Title VI prohibits any program or activity that receives federal funding from discriminating based on an individual's race, color or national origin. In addition, Title VI authorizes federal agencies that extend federal funding to promulgate regulations to effectuate Title VI's nondiscrimination mandate. *264 Many federal agencies have issued regulations that prohibit federal funding recipients from employing facially neutral policies or practices that have an adverse disproportionate impact on racially or ethnically defined groups. The federal Department of Health and Human Services (DHHS), which extends federal funding for health care programs, is among the agencies that have promulgated disparate impact regulations.

Because the federal portion of all health expenditures made nationally is substantial, the number of entities in the health care sector that potentially qualify as a “program or activity receiving Federal financial assistance” is huge. The federal government has poured money into the health care sector in the form of payments through the Medicare and Medicaid programs, through hospital construction grants under the Hill-Burton Act, through the funding of graduate medical education and through its support of community health clinics, to name only some of the largest funding programs. Indeed, the newly minted Title VI was used effectively to combat racial segregation in hospitals in the mid 1960s, when the creation of the Medicare program made virtually all hospitals recipients of “federal financial assistance” in the form of Medicare reimbursement for hospital services. Subsequent attempts to use Title VI to address alleged racial or ethnic inequality in the context of health care, however, have produced more mixed results. Although black patients *265 have had some success challenging hospitals' and nursing homes' use of admissions policies that have a disparate impact on black patients, cases challenging the relocation or closure of hospitals as having a discriminatory impact have not succeeded.

From the perspective of a patient who believes himself to be the victim of racially biased medical judgment, the threshold question is whether his doctor would be deemed to be “a program or activity receiving Federal financial assistance” such that the doctor would be bound by Title VI in practicing medicine. Although a physician's medical practice might not typically be thought of as a “program or activity,” the statutory definition of that phrase makes clear that a sole proprietorship engaged in the business of health care can be a program or activity subject to Title VI. Of course, the statute reaches only as far as federal funding flows, but the majority of physicians in the U.S. receive some federal monies in the form of reimbursement for services provided to persons covered under the Medicare and Medicaid programs. Indeed, physicians receiving Medicare and Medicaid reimbursement have been deemed to be recipients of “federal funding assistance” as that phrase is used in the Rehabilitation Act of 1974.

Shortly following the enactment of Title VI, however, the federal Department of Health, Education and Welfare interpreted the law such that private physicians who received money for treating patients covered under *266 Medicare Part B would not be deemed recipients of federal financial assistance. The Department's legal grounding for this policy was the language in Title VI excluding any “contract of insurance or guaranty” from the definition of program or activity. Because Medicare Part B originally mimicked the operation of traditional indemnity insurance (whereby the insured suffered a loss and was therefore indemnified), the Department apparently concluded that the insured's (i.e., patient's) payment of insurance proceeds received from Medicare Part B to a treating physician did not constitute federal financial assistance to the physician. This “contract of insurance” rationale, however, would not shield from Title VI coverage physicians who, by contrast, receive direct payment of federal funds for providing services under Medicaid, the State Children's Health Insurance Program or another federally funded program. The percentage of physicians nationally who provide services to Medicaid recipients, however, is notably smaller than the percentage who treat Medicare beneficiaries.

As David Barton Smith points out, the rationale for placing physicians participating in the Medicare program beyond the reach of Title VI has become “increasingly attenuated with time.” Over the past two decades, the Medicare program has taken a number of steps to encourage or require private physicians to accept payment directly from Medicare as payment in full for services rendered to Medicare beneficiaries. Moreover, *267 a substantial number of Medicare beneficiaries are now enrolled in managed care plans offering coverage under Medicare Part C; these managed care plans, which receive funds directly from Medicare to provide all Medicare-covered benefits (both Part A and Part B), contract with physicians to render medical services to the Medicare enrollees. Thus, these plans should certainly be seen as recipients of federal funding assistance, and the actions of physicians whom the managed care plans engage to provide medical services arguably should be seen as subject to Title VI's constraints. As others have argued: “[T]he evolution to managed care would presumably be profoundly important where the application of Title VI principles to physician practices is concerned. The reach of a monthly enrollment fee consisting of federal funds would appear to bind the network [physicians] to Title VI obligations . . . .”

Applying Title VI's nondiscrimination mandate to managed care plans that contract to provide health services to Medicare beneficiaries could be particularly significant because Title VI not only constrains the actions of a funding recipient with respect to individuals who are receiving federally funded services from the recipient, but also prohibits the recipient from discriminating in any of its activities. In other words, if HMOs *268 providing coverage to Medicare beneficiaries under Part C are deemed to be recipients of federal financial assistance under Title VI, then the obligation of the HMO (and its contractually engaged network physicians) to refrain from discrimination extends not only to its Medicare enrollees, but to all its enrollees.

Thus, even if the original administrative policy that a physician's receipt of Medicare Part B payments does not trigger Title VI coverage could withstand a contemporary legal challenge, a physician who receives federal financial assistance in the form of Medicaid reimbursement, or who is contractually linked to a managed care plan that provides services for Medicare or Medicaid enrollees, should be seen as subject to the constraints of Title VI. Consequently, a patient who can show that such a physician discriminated based on the patient's race in making a medical treatment decision should have a remedy under Title VI. That remedy could take the form of injunctive relief, if the patient can establish standing by demonstrating a “real or immediate threat that the plaintiff will be wronged again.” Alternatively, a patient proving intentional discrimination could seek monetary damages under Title VI. Of course, as will be explored below, the trick in virtually all such cases will be proving that the doctor discriminated based on race. It is worth highlighting here, though, that--if the plaintiff can prove discrimination--Title VI applies and provides an avenue of legal recourse to the victim of a racially biased treatment decision by a physician who receives federal financial assistance. By contrast, racially biased decision making by a physician who receives no federal funding--whether directly or through contractual arrangements--would appear not to trigger civil rights liability.

*269 2. Gender-biased Decisions: Is there an Applicable Statute in the House?

While Title VI would appear to prohibit racially or ethnically biased clinical decisions by a physician who receives federal financial assistance, it does not prohibit gender-biased decision making. Thus, a patient who believes that her physician's treatment recommendation was influenced by the patient's gender (beyond any legitimate clinical relevance) must look to other civil rights statutes for any available relief. Two statutes prohibiting sex discrimination are Title VII of the Civil Rights Act, which prohibits sex discrimination in employment settings, and Title IX of the Civil Rights Act, which prohibits sex discrimination in educational programs receiving federal funds. Neither of these statutes, however, is likely to provide any remedy to a victim of gender-biased clinical decisions.

a. Title VII's Prohibition on Employment Discrimination

At first blush, Title VII's prohibition on sex discrimination by employers might appear to have no bearing on gender discrimination in the health care context. Title VII, however, prohibits employers from discriminating against women not only in hiring, firing and promotion decisions, but also with respect to the benefits the employer provides, including health benefits. Moreover, Title VII applies to forbid both intentional discrimination against women as well as employer policies and practices that are facially neutral, but that have a disparate impact on women. Thus, an employer may be subject to Title VII liability for providing a benefit that, on its face, is available equally to men and women employees, but that is less valuable to women employees. A recent example is the decision in Erickson v. Bartell Drug Co., where an employer-provided health plan that excluded coverage of prescription contraceptives violated Title VII because “the exclusion of prescription contraceptives creates a gaping hole in the coverage offered to female employees, leaving a fundamental and immediate health care need uncovered.”

But even if discrimination in the terms of employer-provided health insurance coverage may violate Title VII, it remains difficult to imagine *270 how Title VII would ever reach biased medical decision making. Physician bias, when it exists, operates in individual physician-patient encounters and colors a physician's decision making with respect to individual patients. The biases and stereotypes that infect an individual physician's clinical judgments are not easily conceptualized as falling within the “compensation, terms, conditions, or privileges” offered by an employer. Even if an employer self-insures the health care expenses of its employees rather than purchasing a commercial group insurance policy to cover those expenses, the employer's mere reimbursement of employee medical expenses would not seem to transform the medical services that produced those expenses into “compensation, terms, conditions, or privileges of employment.” The only situation in which Title VII might arguably provide a remedy for gender-biased medical decision making would be in those rare instances where the employer actually hires physicians to provide health care services to employees. In that case the employer could arguably be held liable under agency theory for the physician's discriminatory treatment of employee patients. Thus, Title VII could provide an avenue for legal redress of gender-biased medical treatments decisions only in an extremely limited number of cases.

b. Title IX's Prohibition on Educational Discrimination

Would, by contrast, Title IX of the Civil Rights Act provide a possible remedy in a broader range of cases? Title IX, best known for bringing schoolgirls onto athletic playing fields, broadly prohibits sex discrimination in “any education program or activity receiving Federal financial assistance.” Graduate medical education programs--the teaching hospitals in which physician interns and residents complete their postgraduate training under the supervision of teaching physicians--certainly receive their share of federal funding, and thus arguably fall within the scope *271 of Title IX's prohibition. Thus, a woman who believes that she has received biased medical treatment from an intern, resident or teaching physician participating in a graduate medical education program may argue that the treatment violated Title IX.

Despite the weighty link between the federal purse and teaching hospitals, several problems with this theory of liability leap to mind. First, Title IX's protection from sex discrimination may be limited to students and employees of federally funded education programs. Accordingly, a patient receiving treatment from a student or employee would not have a cognizable Title IX claim. In addition, courts would likely be unwilling to hold the graduate medical education program vicariously liable for a Title IX violation based on a medical decision by an employee physician. The program itself could be held liable for violating Title IX only if some program official, who had the authority to address the allegedly biased clinical decisions, actually had knowledge of the biased decisions and failed to take any corrective action. Thus, because Title IX constrains only the educational program's behavior, individual employees of the program are not proper defendants in a Title IX action. Given these limitations, the chances of success for a patient who received gender-biased medical treatment at a teaching hospital would be miniscule.

3. Disability-biased Decisions

Contrasting with the dearth of federal civil rights statutes potentially applicable to gender-biased medical decisions, two federal statutes-- Section *272 504 of the Rehabilitation Act of 1973 (Section 504) and the Americans with Disabilities Act (ADA) --may apply if a person with a disability alleges that his disability biased his physician's medical judgment. Both of these statutes prohibit discrimination based on disability, and the later of the two (the ADA) is patterned on the earlier. The two statutes, however, differ in the range of actors subject to their prohibitions and in the remedies available to victims of a statutory violation. This section will briefly outline these differences and then examine an issue common to the application of both Section 504 and the ADA to discriminatory medical decision making: Does disability discrimination law properly reach such decisions?

a. Section 504

Congress patterned the anti-discrimination provision included in the Federal Rehabilitation Act of 1973 after Title VI of the Civil Rights Act of 1964. Accordingly, Section 504's prohibition on disability discrimination is limited (as is Title VI's prohibition on racial discrimination) to programs and activities receiving federal financial assistance. As noted above in the discussion of Title VI, however, the extent of federal expenditures on health care keep the limiting phrase from being terribly limiting in the health care context. Courts have found a variety of different health care providers, including individual physicians, to be recipients of federal funding subject to Section 504's constraints. Because Section 504 (unlike Title VI) does not exclude “contracts of insurance” from the federally funded programs and activities covered, no barrier would appear to prevent holding physicians receiving Medicare Part B payments accountable *273 for any discriminatory actions. Notwithstanding this distinction in statutory language, however, DHHS has adopted a “contracts of insurance” exclusion in its regulations under Section 504. Thus, a patient who has a disability and who believes that disability bias influenced her physician's treatment choices can argue that the physician's decision subjected her to discrimination in violation of Section 504, as long as the physician receives Medicare or Medicaid payments. A physician who is accused of violating Section 504 and whose only source of federal funding is Medicare Part B payments may defend on this basis, but the strength of this defense remains unclear. The patient who brings a Section 504 action against her physician can seek either appropriate injunctive relief or compensatory damages for any injury suffered as a result of the discrimination.

b. Americans with Disabilities Act

When Congress enacted the Americans with Disabilities Act in 1990, it extended Section 504's existing prohibition against disability discrimination to a far broader range of actors. Congress accomplished this extension by uncoupling the anti-discrimination mandate from the receipt of federal funding and applying it directly to employers, public entities and public accommodations. Of particular interest for this Article's purpose is the ADA's prohibition of disability discrimination by public accommodations, for the statute's illustrative list of public accommodations subject to *274 the ADA includes the “professional office of a health care provider.” As a result, Title III of the ADA prohibits any physician in private practice, who owns or operates his own professional office, from discriminating against a person with a disability regardless of whether the physician receives federal funding in any form. Of course, physicians employed by publicly owned and operated hospitals and clinics may also make disability-biased medical decisions. Any behavior of these physicians that is arguably discriminatory would be covered not by Title III of the ADA, but by Title II, which prohibits disability discrimination by public entities.

While the ADA prohibits disability discrimination by a broader range of actors than does Section 504, its remedies for a plaintiff suing a physician alleging disability discrimination are more limited. Title III--the portion of the ADA most likely to be implicated in such a suit--provides only for injunctive relief, as opposed to money damages, in a private action. Because only injunctive relief is available, a plaintiff suing a physician for violating Title III must satisfy standing requirements. The inability of a plaintiff to show his likelihood of facing future harm from the alleged unlawful conduct has barred the claims of several Title III plaintiffs in the health care context. Although a patient with serious or chronic health problems such as heart disease or cancer may assert that he will need continued care and advice from his physician and thus faces a threat of continued discrimination, demonstrating the likelihood of continued *275 discrimination may be difficult. Thus, if the allegedly biased decision making occurs only in a single, isolated incident, the patient may find no relief available under Title III.

If, by contrast, the plaintiff alleges that a physician employed by a public health care facility made a disability-biased medical decision, the ADA's public entity provisions in Title II would supply the appropriate avenue of relief. An individual with a disability who believes she has been the victim of discrimination by a public entity can bring a private suit in federal court, and Title II provides that the plaintiff is entitled to the full range of remedies available under Section 504. Thus, a plaintiff suing a public entity could seek and recover monetary damages.

The ability to bring an ADA action in federal court to recover money damages from a public entity that is a state agency, however, has been thrown sharply into question by the Supreme Court's decision in Board of Trustees of the University of Alabama v. Garrett. In Garrett, the Court held that the Eleventh Amendment's grant of sovereign immunity barred a suit for money damages by state employees under the employment provisions of Title I of the ADA. Although Garrett did not address whether the Eleventh Amendment bars suits against state agencies under Title II of the ADA, at least three circuit courts of appeals have so held. Because Eleventh Amendment sovereign immunity does not extend to units of local government, by contrast, a Title II action against a county-operated public hospital would not face this barrier.

*276 c. Does Disability Discrimination Law Reach Medical Treatment Decisions?

The foregoing discussion suggests that federal law prohibiting disability discrimination extends to most physicians in the United States, either because the physician receives federal financial assistance, owns or operates a public accommodation or is the agent of a public entity. While remedial issues may prove problematic, as discussed above, it is clear that physicians cannot legally discriminate against persons with disabilities. Thus, a physician cannot refuse to provide treatment to an individual with a disability without running afoul of these laws.

The more precise question--whose answer is far murkier--is whether legal prohibitions on disability discrimination apply at all to a physician's decisions regarding what medical treatment to provide. In other words, while Section 504 and the ADA clearly apply to prevent physicians from denying persons with disabilities access to their offices, it is questionable whether those laws apply to the physician's diagnostic and therapeutic decisions for a disabled patient whom the physician has agreed to treat. Indeed, a line of cases decided under Section 504 concludes that the law cannot properly be applied to allegedly discriminatory clinical decisions. The broader question of whether any civil rights laws can appropriately be applied to medical decisions will be addressed below. The question, however, has particular salience with respect to disability discrimination law because in many cases the patient's disability will itself be the impetus for the patient's seeking medical attention. In that case, how can the treatment provided to the patient be meaningfully compared to the treatment provided to another patient without the disability in order to determine whether discrimination occurred? More generally, is a court equipped to assess how and to what extent a physician legitimately can consider a patient's disability in making complex medical treatment choices?

Some cases indicate that disability discrimination law simply does not apply to medical treatment decisions and that courts should defer to physicians' *277 medical judgments. A number of cases decided after the passage of the ADA, however, recognize that disability discrimination law may place some limits on physicians' medical decisions. Although these cases suggest that some courts may be willing to entertain a disabled plaintiff's claim that discriminatory medical treatment decisions violate Section 504 or the ADA, other courts may remain reluctant even to consider such a claim.

4. Age-biased Decisions

Only a few years after using Title VI as a model for Section 504 of the Federal Rehabilitation Act in 1973, Congress turned again to Title VI as a model with its enactment of the Age Discrimination Act of 1975 (the Act). The purpose of the Act is to prohibit age-based discrimination in federally funded programs, and its basic prohibition largely tracks the statutory language of Title VI and Section 504. Thus, many of the points made regarding when physicians may be deemed recipients of federal financial assistance under those statutes apply as well to the Age Discrimination Act.

*278 With respect to the Act's enforcement, the courts are divided on the availability of a private right of action for violating the Act. Courts rejecting a private right of action cite Congress's expectation that the Act “be enforced almost exclusively by” administrative action. Moreover, even when courts recognize a private right of action, a plaintiff alleging a violation of the Act must first exhaust the administrative remedies required by the statute or face dismissal of her claim. Regardless of whether a plaintiff can bring a private damages action, the Act authorizes an “interested” person to seek injunctive relief against the discriminatory practice in federal court. As with injunctive relief under other statutes, the plaintiff must establish her standing.

Although the Age Discrimination Act does not expressly exclude medical decisions from its coverage, the prospect of applying the age discrimination law to medical treatment choices raises concerns similar to the concerns, discussed above, regarding the appropriateness of applying disability discrimination law to medical decisions. Age, like disability, may sometimes be a clinically relevant characteristic. Nonetheless, one commentator has argued forcefully against excluding medical decisions per se from the scope of the Act, noting that the Act effectively creates a presumption against the use of age as a factor in decision making when that use is based on “untested generalizations.” Upon examining the use of age as a criterion for heart transplant candidacy, however, even this commentator recognizes the challenge of applying a civil rights law to a physician's treatment decisions for an individual patient, as compared to a program's adoption of age as part of a blanket policy. Thus, the substantive *279 applicability of the Act to individual diagnostic or therapeutic decisions remains unsettled.

5. Plugging Gaps with State Anti-discrimination Laws

The preceding description of the various federal statutes that potentially may apply to prohibit biased medical decisions reveals that existing civil rights laws may address some, but far from all, of the biased decision making that may occur. The inadequacy of federal law in addressing this form of discrimination is particularly evident when it comes to gender-biased medical decisions. Unless the doctor who made the biased decision either acted as an agent of the patient's employer, such that the treatment itself can be characterized as a term of employment, or made the decision as a program official at an academic medical center, gender-biased medical decisions appear to run afoul of no federal law. In some states, however, state laws prohibiting discrimination in places of public accommodation may fill this gap in coverage if “public accommodation” is defined to include medical offices.

Similarly, state laws conceivably could provide protection against discriminatory medical treatment decisions in areas, such as sexual orientation discrimination, where no federal protection exists. Several states prohibit discrimination by public accommodations on the basis of sexual orientation, and these state laws might provide some redress to a patient whose physician's medical judgment was clouded by a bias against gays or lesbians.