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From: Vernellia Randall, A Call for Effective Anti-discrimination Law in Health Care (A  Policy Brief) (December 2009)

HEALTH CARE REFORM BILLS INADEQUATE FOR ANTI-DISCRIMINATION PROTECTION

-        Both House Bill 3952 and Senate Bill 3590 have provisions that purport to provide anti-discrimination.

-        Senate Bill is inadequate, in part, because it merely imports the framework of Title VI of the Civil Rights Act.

• Title VI (with its implementing regulations) should be effective in eliminating racial discrimination.
• According to Section 601 of Title VI: “No person in the United States, shall, on the grounds of race, color, or national origin, be excluded from parti­cipation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving federal financial assistance.”
• Several problems make Title VI ineffective; the interpretation by the Supreme Court that Title VI only addresses intentional discrimination.  Most discrimination in health care is not purposeful but “effect.” While regulations provided for “effect” ­discrimination, the Supreme C (that is does not have a private right of action).
• Title VI lacks specific definitions of prohibited discrimination and acceptable remedial action
• Title VI reliesfor enforcement
• Limited ap­plication to health care treatment discrimination since private physicians are not covered by Title VI.Thus, under Title VI physicians would not be recipients of federal financial as­sistance and consequently are not covered by Title VI.

-        The House Bill is inadequate, in part because it prohibits discrimination based on “personal characteristics” and limits the scope of the provision to the bill and not to entire health care industry.

• The term “personal characteristics” is new in discrimination law, and will be open to interpretation. Courts could interpret it to exclude race.
• Even if the term is defined by statute to include race, the courts could interpret the statute as unenforceable by the individual.
•  It should be as a matter of statute (and not regulation) that personal characteristics include those characteristics identified in Title VI  and Title VII of the Civil Rights Act.
• The section only applies to health care covered by the Act. This could limit the discrimination clause to the Exchange (which is limited), to grant program specifically under the Act and to public health activities provided under the Act.

UNIQUE PROBLEMS OF THE HEALTH CARE SYSTEM IN COMBATING RACIAL DISCRIMINATION

-        Individuals, even when injured, are for the most part unaware that their provider or institution has discriminated against them.

-        Because of the very specialized knowledge required in medical care, individuals can be totally unaware that their provider has injured them.

-        The health care system has actually built-in incentives that encourage “unconscious” discrimination.

-        For these reasons, an appropriate legal structure is essential to eliminating discrimination in health care. 

-        United States Commission on Civil Rights found: 

substantial evidence that discrimination in health care delivery, financing and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by federal agencies. . . [Such failure has] . . . resulted in a failure to remove the historical barriers to access to quality health care for women and minorities, which, in turn has perpetuated these barri­ers.²⁴

EFFECTIVE HEALTH CARE ANTI-DISCRIMINATION PROVISIONS

Health Care Anti-Discrimination Act should be enacted which would:

            Cover the entire health care industry.  Historically, Title VI has been limited in its application. For instance, regulations by declaring payments on behalf of a beneficiary result in physicians not being covered.  A nondiscrimination clause should apply to any health or health care program, activity or related service (including insurance coverage and public health activities) or by any health care provider.

            Recognize Multiple Forms of Discrimination including Purposeful and Effect. Racial inequity in medical treatment rarely occurs because of overt, intentional behavior. Most racial discrimination that occurs in health care is the result of subconscious bias, disproportionate impact of policies and practices, and effect.  Furthermore, our obligation under the International Convention on the Elimination of All Forms of Discrimination requires recognition of discrimination based on effect.  Finally, any affirmative defenses, such as business necessity, should be limited and nar­rowly defined.

            Exempt Special Measures from Discrimination. Special Measures are not discrimination if they are undertaken to (i) to reduce or eliminate health disparities or health care disparities, (ii) to overcome the effects of prior discrimination, (iii) to overcome the effects of conditions which resulted in limiting participation  by persons of a particular group,  prevent or modify decisions about (i) the type of services or facilities to be provided or (iv) the location, siting or relocation of facilities if such decisions will have a discriminatory effect on a particular group.

            Define “an Aggrieved Person” broadly.  To discourage health care discrimination, an “aggrieved person” should include: (i) the individual who has been injured; (ii) an individual who reasonably believes that he or she will be injured because she or he is a member of a group that is being discriminated against;  (iii) individuals engaged as testers or organizations engaged in testing; and (iv) non-profit organizations whose purpose is to protect the rights of others including, but not limited to, civil rights organizations, human rights organization, organizations whose purpose is to ensure equality in health care or eliminate health disparities and other appropriate organizations.

            Provide a Private and Organizational Right of Action. The private right of action would ensure that an aggrieved person would have the ability to sue not only under the statute but also under any implementing regulations.  In addition to the private right of action, an organizational right of action is essential to al­lowing litigation on the invisible discrimination.

            Assure Adequate Fines and Regulatory Enforcement. The rigorous enforcement of regulation as a primary vehicle for policing health services cannot be overemphasized. The collection of data and the development of a report care need the teeth of regulatory enforcement. Thus, a statute which allows a significant civil penalty to be assessed for violation of regulations designed to eliminate racial inequities is important to compliance.

            Prevailing Plaintiff Attorney Fees. The health care anti-discrimination statute would provide for attorneys' fees for a prevail­ing plaintiff.  Under the catalyst theory, the focus is on whether the party obtained its desired result, regardless of whether or not the party obtained a favorable ruling. Prevailing Party At­torney Fees would provide the financial incentives needed to eliminate discrimination in health care.²⁷

            Establish Equality Health Care Council.  The act should establish a “Health Care Council,” patterned after Fair Housing councils. This council could educate the public, train health care providers and institutions, provide counseling and health care-finding services to individuals, investigate discrimination complaints--mostly through testing--and pursue legal remedies.²⁸ Such a council would provide a focal point for anti-discrimination work in health care.

CONCLUSION

            The discussion of discrimination in health care has been limited. That discussion has centered upon Title VI of the Civil Rights Act  and on ensuring ac­cess to facilities and providers. In an effective health care system, state and federal laws must be available to eliminate discriminatory practices. To achieve the desired effectiveness of the Health Reform Bill, the anti-discrimination section must be revised to provide the legal scope and fortitude of other civil rights law, such as the Americans with Disabilities Act.