Law Professor, Vernellia Randall, author of Dying While Black, has sent out a commentary (see link here) on the major weaknesses in the Senate bill 3590 and House Bill 3960 (health care reform bills) that have not gotten any significant media attention. She points out how they do not deal with structural and individual discrimination in medical care:
Racial discrimination in medical treatment is a significant problem. For instance, Blacks of similar income, education and severity of illness as Whites get different health care treatment. . . . For example, studies have shown that as compared to Blacks:
• Whites are 22% more likely to be hospitalized for ischemic heart disease;
• Whites are 57% more likely to undergo coronary-artery bypass surgery;
• Whites are 49% more likely to undergo coronary angioplasty;
• Whites are 25% more likely to have a mammography;
• Whites are 57% more likely to undergo hip-fracture repair.
. . . . The ultimate health care reform bill must provide for an adequate legal structure that has the potential to eliminate racial discrimination in medical treatment. . . . To be effective the Senate bill must:
– Must specifically prohibit both intentional and disparate impact discrimination. In Alexander v. Sandoval, the Supreme Court reaffirmed its longstanding position that Title VI addresses only intentional discrimination. This is disastrous since most discrimination in health care is not intentional. Most physicians, hospitals and other providers, don’t set out to purposefully discriminate. Rather, they adopt policies and practices or they rely on stereotypes and bias to make decision and the net effect (the disparate impact) is to discriminate based on race.
– Must authorize individuals to sue on both the law and the implementing regulations. This effect discrimination (also called disparate impact) is prohibited by law through implementing regulation. Unfortunately, in Alexander v. Sandoval, the Supreme court held that an individual cannot sue (that is does not have a private right of action) on effect discrimination that only an agency can enforce the regulation. Thus, a person who knows that he or she has been discriminated against based on effect, can only file a complaint with the Department of Health and Human Services and hope they follow through. The result has been that litigation based on racial discrimination in medical treatment is non-existent even though it is clear that it exists. The private right of action on implementing regulations must be clearly articulated in the law.
– Must assure that all health care providers are responsible for non-discrimination. Title VI does not cover physician and other health care providers who do not take any federal financial assistance. They have been exempted by regulations which have provided that a payments to beneficiary for “contract of insurance”, such as Medicare B, are not federal financial assistance. Since some physicians do not take any other federal financial assistance, such as Medicaid, essentially these physicians and other providers are exempt from anti-discrimination law. This must be corrected – no provider should be allowed to discriminate without impunity. It is unfortunate that the Senate in its efforts to reform health care and make it more accessible and improve quality has failed to effectively address racial discrimination in medical treatment. This is unacceptable – you can’t improve the quality of health for all Americans and ignore racial discrimination in medical treatment.
You can see her full comments and sign a petition here. Also contact your senators and representatives about these serious omissions.
The New Haven firefighter case aside, I thought Congress already clarified that Title 7 outlawed disparate impact. (?)
Numerous court cases coming before the current Supreme Court and other federal courts have had rulings that proving institutional patterns of disparate impact is not enough, that the 1964 Civil Rights Act intends to get rid of intentional discrimination. That is, they have reversed previous Supreme Court cases like Griggs v. Duke Power. It is now often the case that you have to prove the disparate impact was intentional discrimination, preferably from the testimony of the discriminators. When I have been an expert witness for black plaintiffs, I have found that task to be very difficult to do with the institutional and other data at hand.
We all know that even the most intentional bigot often masks his/her racial hostility (case in point, Klan-leader David Duke’s “jobs-based” and “colorblind” gubernatorial run). The intentionality language provides a thin veil for discriminators to continue their actions (willful or unconscious) with impunity.
What scares me about race and health care are the less-discussed provisions in the new, incredibly weak, plan. From what Governor Dean said on Countdown, insurance companies are required to accept people with pre-existing conditions, but they are allowed to charge them TRIPLE what they would charge a healthy person. That kind of provision will make insurance prohibitively expensive for much of the working class/working poor, regardless of proposed subsidies. Given that poverty and preexisting conditions– such as high blood pressure, diabetes, etc–are linked to one another and to race, I suspect people of color, especially African Americans will be disproportionately negatively affected.
One wonders, if the tripled costs of insuring people with preexisting conditions are split between employers and employees, will employers be allowed to functionally racially discriminate in hiring on the basis of increased health care costs (i.e. increased costs of employing) for people of color, with incredibly common and possibly racism-induced health issues.
I hadn’t even considered the possibility you mention in the last paragraph. Thanks for bringing me down on the whole issue even more.
What bother’s me about the SC’s rulings on title 7 is that they have to know, even the “conservatives,” that much racism today is unintentional. Just because the perpetrators don’t intend it doesn’t make the impact any less.