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Excerpted from: Ruqaiijah Yearby, Breaking the Cycle of “Unequal Treatment” with Health Care Reform: Acknowledging and Addressing the Continuation of Racial Bias, 44 Connecticut Law Review 1281 (April, 2012) (265 Footnotes) (Full Document)


RuqaiijahYearbyThe election of President Obama prompted many Americans to declare that the United States had entered into a “post-racial” era in which racial bias no longer existed and African-Americans are treated equally. However, racial bias did not cease before or after the election of an African-American president. In fact, empirical evidence shows that African-Americans continue to be treated unequally because of racial bias in decisions regarding bankruptcy, residential zoning, mortgage lending, apartment rental, and housing rental. One of the most poignant examples of the continuation of racial bias in a “post-racial” era was a Cincinnati landlord's posting of a “White Only” sign by a pool in the summer of 2011. The persistence of racial bias in a “post-racial” era is also evident in the health care system, where the unequal treatment of African-Americans because of their race is the main cause of the continuation of racial disparities in health care. However, unequal treatment of African-Americans in health care is nothing new.

In 2002, the groundbreaking Institute of Medicine Study, Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare (“IOM study”), noted that some health care providers, such as physicians, were influenced by a patient's race, which, in turn, created a barrier to African-Americans' access to health care. Not only did this racial bias prevent African-Americans from accessing health care services, it caused African-Americans to have poor health outcomes. The IOM study also found evidence of poorer quality of care for minority patients in studies of cancer treatment, treatment of cardiovascular disease, and rates of referral for clinical tests, diabetes management, pain management, and other areas of care. Ten years after the publication of this sweeping study, racial bias continues to drive racial disparities in health care, and as a result, access to health care remains unequal. Racial bias in health care operates on three different levels: interpersonal, institutional, and structural.

Interpersonal bias is the conscious (explicit) and/or unconscious (implicit) use of prejudice in interactions between individuals. Interpersonal bias is best illustrated by physicians' treatment decisions based on racial prejudice, which results in the unequal treatment of African-Americans. According to Rene Bowser's seminal article, Racial Profiling in Health Care: An Institutional Analysis of Medical Treatment Disparities, these racial disparities in treatment often lead to racial disparities in mortality rates between African-Americans and Caucasians. Institutional bias operates through organizational structures within institutions, which “establish separate and independent barriers” to health care services. According to Brietta Clark, institutional bias is best demonstrated by hospital closures in African-American communities. Finally, operating at a societal level, structural bias exists in the organizational structure of society, which “privile[ges] some groups . . . [while] denying others access to the resources of society,” including health care. An example of structural bias is the provision of health care based primarily on ability to pay, rather than on the needs of the patient.

Unfortunately, the government often ignores the significance of racial bias in causing racial disparities in health care, and by extension, overall health, even though such biases are among the causes identified in numerous government reports, initiatives, and empirical research studies conducted over the past decade. The Patient Protection and Affordable Care Act (“ACA”) exemplifies the government's failure to acknowledge the interconnectedness of racial bias and racial disparities. Although the Patient Protection Act explicitly mentions disparities in health care and provides several mandates to address these disparities, it fails to acknowledge or target the root causes of racial disparities-racial bias. Therefore, this Article argues that the ACA will not fully equalize access to health care for minorities. In fact, the Act may exacerbate the existing problem of racial disparities because it proposes individual and community based solutions that will not put an end to interpersonal, institutional, and structural racial bias, which cause racial disparities in health care.

The debate surrounding the ACA has rarely focused on issues related to racial disparities. This Article begins to fill this void.

Part II provides a brief historical context for the ACA by discussing previous legislation that addressed racial disparities in health care and governmental action to measure and eradicate racial disparities.

Part III then reviews the root cause of racial disparities-racial bias-as evidenced by empirical data.

Next, Part IV examines specific sections of the ACA, which address racial disparities, and discusses the strengths and weakness of the Act.

Finally, Part V suggests some solutions.

. . .

Racial disparities persist in part because the United States continues to ignore one of the root causes of the disparities: racial bias. In order to address racial bias in health care, everyone participating in the system must speak openly and honestly about the problem. The ACA is one step in the right direction; it begins to address structural bias by increasing minorities' access to health insurance. However, it fails to address the effect of institutional and interpersonal bias. Instead, the Act focuses on individual choices and community grants. By failing to speak openly and honestly and acknowledge decades of research that show that racial disparities are caused by these biases, not individual choices, the Act may exacerbate the problem by wasting time and money on individual solutions that comprise only a small part of the problem. If this problem is not corrected, racial disparities will persist, lives will be lost, and costs will continue to skyrocket.

Professor of Law, Case Western Reserve University, School of Law;