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Excerpted from: Rene Bowser, The Affordable Care Act and Beyond: Opportunities for Advancing Health Equity and Social Justice , 10 Hastings Race and Poverty Law Journal 69 (Winter 2013) (266 Footnotes)

       Of all the forms of inequality, injustice in healthcare is the most shocking and inhumane.
             - Dr. Martin Luther King, Jr.

ReneBowserIt's been more than a decade since Congress first officially acknowledged that this country has a problem with race and health equity. In 1999 Congress asked the Institute of Medicine to investigate disparities in health and health status among racial and ethnic minorities. The results were damning: The ensuing study found that racial and ethnic populations had poorer health and were consistently receiving lower quality care, even when factors such as insurance status and income did not enter the picture. They were also less likely to receive lifesaving heart medications, bypass surgery, dialysis, or kidney transplants; but, they were more likely to have their feet and legs amputated as a treatment for late-stage diabetes. Moreover, the study acknowledged that racial and ethnic differences in health status reflect general patterns of social and economic inequality.

      Before and since the release of this report, numerous studies have verified, almost without exception, disparities in any number of disease and treatment settings. Similarly, prescriptions for how health care payers, providers, and government agencies should begin to eliminate these health equity issues are hardly in short supply. Disparities in health persist largely because policy makers have failed to act.

 From a political perspective, eliminating racial and ethnic health disparities is sensitive and challenging, in part, because they are intertwined with a messy and contentious history of race relations in America.  Socioeconomic differences, differences in health related risk factors, environment degradation and direct and indirect consequences of discrimination are among the complex causes of these disparities.  Racial and economic discrimination itself may be an important contributor to health disparities, not merely through the persistent and historical disadvantages it creates for communities color, but also specifically through health provider bias-- conscious or unconscious, individual and institutional. The systemic inequities in social institutions, therefore, set the stage for inequitable health care in the United States

      Moreover, there is a prevalent and pernicious belief that poor health among some racial and ethnic minorities is due to “bad behavior,” such as sedentary lifestyles, poor diet and substance abuse. Of course, healthy lifestyles are important to help prevent poor health and to effectively manage illness. However, the “bad behavior” explanation ignores the fact that persons of color are more likely than whites to live in communities where healthy eating and active lifestyles are difficult to achieve. These are communities where grocery stores or markets selling fresh fruits and vegetables are few and far between; where fast-food outlets and take-out stands dominate neighborhood food options; where safe parks and recreational facilities are uncommon, if non-existent; and where doctors and good primary care are hard to find. These problems are too often coupled with other neighborhood pathogens, including disproportionate liquor and tobacco advertising, and environmental health risks such as engine exhaust and commercial and industrial wastes. The health challenges posed by these conditions are profound and can overwhelm even the most ardent attempts to stay healthy.

      After a year of intensive negotiations, Congressional hearings, White House conferences, nationwide rallies, and raucous town hall meetings, the most monumental health care legislation in forty-five years was enacted.  The Patient Protection and Affordable Care Act (“ACA”) makes changes great and small in virtually every important component of the American health care system. The new law's implications will not be known fully for many years because state governments and federal agencies are in the process of interpreting key provisions, drafting rules and devising general implementation strategies. And, uncertainty exists about the scope of the ACA because of the recent Supreme Court ruling in National Federal of Independent Business v. While the court upheld nearly all of the provisions in the ACA, it also ruled that the federal government cannot withhold Medicaid funds from states that refuse to expand their Medicaid programs to cover individuals with incomes of as much as 133% of the federal poverty level as called for by the law. This Article makes no effort to explicate the effect of the new law's multifaceted components on the cost, quality and delivery of health care in physicians' offices, hospitals, nursing homes, and other health care settings. Instead, it seeks to analyze the most significant changes that affect communities of color and to examine the health equity and social justice implications of those changes. The goal here is to consider both the enhancements that have been created and the drawbacks or caveats that are attached to those enhancements.

      The Article is organized in five Parts.  Part I provides the moral and economic case for eliminating racial and ethnic health care disparities, and then catalogues the types of disparities that exist.  Part II analyzes provisions in the new law designed to expand access to health insurance.  The ACA extends health insurance coverage to an estimated 32 million people-- roughly half of them through an expanded Medicaid program and the other half through a subsidized health exchange.  Significantly, the Medicaid expansion will serve as a key building block to expanding health insurance coverage to communities of color: it extends eligibility to an additional 4 million African Americans, and an additional 8 million Hispanic Americans, respectively. Whether the incentives to Medicaid providers will be sufficient, the subsidies will be adequate, the insurance rules effective, and the enrollment efforts aggressive enough are decidedly open questions.

      Part III focuses on the special access challenges communities of color face.  As a general matter, access to health insurance often facilitates access to care, but coverage alone does not guarantee access to quality health care.  Indeed, communities of color face additional access barriers, including a maldistribution of health care resources, a shortage of primary care providers, lack of a usual source of care, and an absence of culturally and linguistically competent providers.  For example, a study of the availability of pain medication revealed that only one in four pharmacies located in predominantly nonwhite neighborhoods carried adequate supplies, compared to 72% of pharmacies in predominantly white neighborhoods. This section analyzes the ACA provisions that attempt to address these challenges to health care access; many are the side effects of racial and ethnic segregation.

      Part IV examines key ACA provisions that are explicitly intended to reduce health disparities and improve the health of racially and ethnically diverse populations.  The narrative that follows discusses these provisions and considers challenges that may lie ahead in implementing them.  Finally, Part V argues that achieving health equity for racial and ethnic minority groups will require policy strategies focused outside of the health care arena.  These include efforts to improve housing, community living conditions, food resources, nutrition options, conditions for exercise, recreation, and ultimately, to reduce economic and educational gaps.  This section also gives concrete examples from the ACA and beyond, and provides recommendations on how to leverage federal spending to advance racial and ethnic equality.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law