IV. Solutions

Ruqaiijah Yearby , Sick and Tired of Being Sick and Tired: Putting an End to Separate and Unequal Health Care in the United States 50 Years after the Civil Rights Act of 1964,  25 Health Matrix: Journal of Law-Medicine 1 (2015) (155 Footnotes)


In her article, “Toward a Structural Theory of Implicit Racial and Ethnic Bias in Health Care,” Professor Dayna Bowen Matthew notes that the existence of racial disparities in health care is a structural problem and therefore racial biases that contribute to disparities must *25 be structurally dismantled.  For example, it is not enough to simply reeducate health care providers who have an explicit or implicit racial bias if African Americans still cannot afford health care and there are no health care facilities in their neighborhoods.

Hence, in order to put an end to racial bias within the health care system, Professor Matthew suggests the use of a new theory that she has created called “structurally derived discrimination.”  The structurally derived discrimination theory takes into consideration all forms of racial bias that affect African Americans' health status and access to health care, and it acknowledges the interconnectedness of health, wealth, and power.  This means that solutions that focus on putting an end to health care providers' explicit and implicit racial bias against African Americans must be linked with solutions that change the structural racial bias in health care in order to provide care based on need rather than on the ability to pay or physician status and power. Without connecting the solutions to the elimination of interpersonal, institutional, and structural racial bias, Professor Matthew argues that little will change. Recognizing this need to address all forms of racial bias, the solutions discussed below address the structural problems of racial bias and the interconnectedness of interpersonal, institutional, and structural racial bias within the health care system that cause racial disparities in health status and access to health care.

First and foremost, the government must equalize Africans Americans' opportunities to quality education, employment, and housing. Second, instead of focusing on individual responsibility solutions, such as patient health education, which is the prevailing approach under the ACA, the government must acknowledge that “many of the decisions that shape an individual's opportunity to pursue health are outside the control of the individual.”  According to Drs. Lang and Bird, a better approach is “to identify the relevant stakeholders whose decisions shape or constrain individual opportunity to pursue health and assign responsibility accordingly.”  Therefore, policy makers, legislators, and regulators must hold all parties accountable, not just the patients who are powerless to change *26 the racial bias within the health care system that allows physicians to provide African American patients with less than the necessary care; hospitals and nursing homes to provide them substandard care; and health care services to be delivered to them based on ability to pay rather than need.

Specifically, the government must expand individual responsibility solutions to include corporations, specifically health care corporations, who are viewed as individuals under the law.  Using the power of the purse, the government needs to prohibit health care corporations such as hospitals that receive state and federal tax-exempt status from bringing wage garnishment lawsuits against patients who are poor and qualify for hospital debt relief.  Not only does this waste taxpayer dollars that could be used for better schools or Medicaid expansion, but it also has a chilling effect on those seeking medically necessary care that they cannot afford. If these health care corporations will not voluntarily stop, then the government needs to revoke their tax-exempt status. Furthermore, the government should not only stop paying hospitals and nursing homes for substandard health care provided to Medicare and Medicaid patients, but it should also follow the lead of New Mexico's Attorney General and sue hospitals and nursing homes to recoup Medicare and Medicaid payments made to hospitals and nursing homes providing substandard care.

Third, in order to put an end to separate and unequal health care, the federal government must stop funding and supporting racial bias within the health care system. The government must hold everyone responsible for racial bias in the health care system. This means that everyone receiving federal funding under the Medicare and Medicare Acts must comply with Title VI, and if they do not, then the government must impose penalties on them such as fines. *27 Furthermore, compliance with Title VI cannot be based on statements from those that are violating Title VI; the government must conduct its own Title VI investigations and not simply rely on private complaints.

Fourth, because racial bias is linked to hospital closures, the government needs to put an end to racially-based hospital closures by using Title VI. Specifically, both state and federal regulators must review institutional plans to close or relocate quality health care facilities for the disproportionate harm such plans have on African American communities. This review will force hospitals to balance the benefits of closing, relocating, and over-concentrating quality facilities in predominately Caucasian neighborhoods against the detrimental effects on African American communities that will result because of the disruptions to care. By instituting this review, the racial link will become clearer, and owners will have to mitigate the harmful effects of closing, relocating, and over-concentrating quality facilities in predominately Caucasian neighborhoods.

Moreover, Dr. Sager suggested in his presentation at the symposium that states need to identify hospitals that are needed to protect the public's health that are likely to close in time to intervene.  Then, the state must make the public aware of the risk of the hospitals closure. To prevent the closure of the hospital, states should allow “officials or citizens to petition a court to take control of a hospital and stabilize its finances under state receivership law or urge the governor to declare that closing the hospital constitutes a ‘public health emergency,’ allowing the State to seize control of [a] needed hospital and stabilize it.”  For permanent protection, “states can use short-term financial relief through a state trust fund financed by 0.25 percent of each hospital's revenue, which is about $500 million yearly.”

Fifth, after ensuring that hospitals remain open, the government needs to mandate that hospitals adopt policies and practices that make the elimination of racial bias a priority. According to Dr. van Ryn, current studies suggest widespread medical care organizational climates that are racist or subtly tolerant of racism.  These informal organizational norms are supportive of racial bias and encourage the expression of implicit and explicit racial bias by health care providers within these health care organizations. In fact, a recent national *28 survey showed that “over 70% of Black physicians report experiencing racial discrimination in their workplace. In another study, 62% of physicians reported that they had witnessed a patient receive poor quality health care because of the patient's race or ethnicity.”  Thus, in order to put an end to institutional racial bias, both state and federal regulators should require health care facilities to conduct strategic diversity planning.  The planning should include mandatory diversity courses for all hospital staff--including senior management staff--in which the policies and practices of the health care institution are reviewed for structural, institutional, and interpersonal racial bias. It should also require the adoption of policies that have a zero tolerance for racial bias including an automatic punishment for any infraction of the policy regardless of accidental mistakes, ignorance, or extenuating circumstances.

Sixth, interpersonal racial bias (explicit and implicit) is malleable and can be changed through re-education.  During her presentation, Dr. van Ryn proposed several re-education practices that can reduce the use of explicit and implicit racial bias by physicians, such as self-awareness, intergroup contact, seeking counter-stereotypic images and imagery, emotional regulation skills by increasing positive emotions, empathy, and partnership building skills.

*29 Furthermore, according to Dr. Sana Loue, a presenter at the symposium, this re-education must include changing cultural competency training to cultural humility training.  Currently, HHS' Office of Minority Health has created voluntary national culturally and linguistically appropriate services (CLAS) standards that are intended to provide health equity and eliminate health care disparities.  The CLAS standards are achieved through cultural competency training, which includes equitable governance, diverse leadership and health care workforce, communication and language assistance programs, engagement by health care facilities, and accountability. However, according to Dr. Loue this cultural competency approach has several problems, including but not limited to the fact that:

1. It often assumes that the ‘problem’ of cultural incompetence results from individual ignorance or prejudice, and fails to consider systemic issues;

2. Its promise of mastery is a false promise;

3. It reifies culture without taking into consideration changes in culture and subcultures over time;

4. It fails to consider interaction and mutual evolution of majority and minority groups and culture;

5. It results in stereotypes and responses to stereotypes, such as viewing individuals as members of groups rather than just individuals;

6. It assumes that diversity is a challenge only when a person who is Caucasian encounters a minority;

7. It often fails to consider all salient factors of an individual, such as age, class, economic circumstances, and politics; and

*30 8. It assumes that a person of an identified group is ‘culturally competent’ about that group, i.e. an African American person knows everything about all African Americans.

Thus, instead of teaching cultural competency, health care providers should be taught cultural humility. The basic assumption of cultural humility training is that in each and every interaction with a patient, there is something that health care providers neither know nor understand which cannot be answered through stereotyping. It can only be answered by expressing humility in each and every encounter with a patient to learn about that specific patient's needs and desires. Additionally, the explicit and implicit negative attitudes and behaviors that health care providers hold against African Americans can only be addressed through a development of critical consciousness which requires “lifelong self-reflection, self-critique, and learning.”  Rather than being a promise of mastery like cultural competency, cultural humility training tries to transform health care providers into enlightened change agents who are actively engaged in trying to put aside their biases to do the best for their patient. No longer would training emphasize difference between individuals and ignore the similarities; instead, it would train health care providers to view all patients as unique individuals, both similar and different from themselves.

Health care providers should also be trained about Title VI, which prohibits the use of racial bias in the health care system. According to Celeste Davis, a presenter at the symposium, the HHS Office of Civil Rights has partnered with the National Consortium for Multicultural Education for Health Professionals since 2009 to create a medical school course to help develop a health professional curriculum that addresses racial disparities in health and Title VI training.  The curriculum “is scenario-based and uses role-playing and discussion to teach students about illegal racial discriminatory actions and their *31 impact on health disparities, and to appreciate the leadership role health professionals can play in the broader public policy arena” regarding health care disparities and discrimination.  The curriculum has been used at member schools including Stanford, Emory, and University of Colorado.

Thus, to put an end to interpersonal racial bias within health care, all health care provider training, including but not limited to state continuing medical education, medical school education, residency training, nursing school education, social worker education, hospital administrator education, master of business administration in health care, and pre-medical education, must include implicit and explicit racial bias re-education practices, cultural humility training, and Title VI training. The training must be mandatory.

Finally, if institutions and health care providers are unwilling to make changes, Professor Vernellia Randall, in her presentation at the symposium, proposed adopting a new anti-discrimination law that would hold institutions and health care providers responsible for intentional, reckless, and negligent racial bias that affects African Americans' access to health care.  The law would authorize and fund the use of medical testers and provide a private right of action both for individuals who are victims of racial bias and for organizations that represent these individuals.  The law would also require the establishment of an Equity Health Care Council by HHS that would be responsible for data collection and reporting concerning racial bias in health care.  Furthermore, each health care institution and health care provider would be responsible for submitting a racial equity report card that would be available online and in print to patients seeking care.  If a health care institution or a health care provider was sued and found guilty for violating the law, then that person or entity would be fined, subject to punitive damages, and have to pay attorneys fees.

Adopting all of the solutions discussed above would not only put an end to racial bias within the health care system, but it would also *32 ensure that African Americans would have equal access to quality health care, decrease racial disparities in morbidity and mortality, and save at least 835,700 African American lives  and $337 billion over the next ten years.