Race, Health Care and the Law 
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Culturally Incompetent System

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Vernellia R. Randall
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IV. THE HEALTH SECURITY ACT MAINTAINS A CULTURALLY INCOMPETENT SYSTEM BASED ON ILLNESS CARE

DOES CLINTON'S HEALTH CARE REFORM PROPOSAL ENSURE [E]QUAL[ITY]  OF HEALTH CARE FOR ETHNIC AMERICANS AND THE POOR?  Vernellia R. Randall, 60 Brooklyn Law Review 167-235 ( 1994).

A person does not have meaningful access to health care if that person is not provided health care within the context of his or her cultural background(170) Merely providing a person with a piece of paper (insurance) or a provider does not mean that that person will receive health care that assists in improving the person's health status. For centuries, Americans indulged in the fantasy that all persons (native Americans, immigrants and slaves) blended into one great 'melting pot' to become Americans. While it is true that there are unique American cultural similarities that cut across all groups, this country has always had a diverse population of races, ethnic groups, subcultures and religions.

That diverse mix will continue. By the end of this century, 39% of the population will be from foreign-born parents(171) At the same time, 50% of all Americans will be either African American, Hispanic American, Asian American or Native American(172) America is a 'micro-world reflecting (the) cultural diversity of the entire world.(173) A. The Perpetuation of European American Culture

The medical care system is a representation of one subculture-the middle- class, middle-aged, European American. The system focuses on individual autonomy rather than family involvement(174) It assumes a basic trust in the health care system instead of distrust(175) It relies on a western European American concept of communications(176) It is built on a western European concept of wellness, illness and health care(177) Consequently, the more a patient differs from the cultural prototype (middle-class, middle-aged, European American) the more likely the person will not have 'meaningful access' to health care.

Merely providing financial coverage for health care does nothing to assure that ethnic Americans will have access to care that is culturally competent(178) One barrier to culturally competent care is physicians' own negative perceptions about ethnic Americans(179) This barrier exists in part because the health care system is designed around the cultural needs of middle-class European Americans. Ethnic Americans and poor individuals seem less compliant and more difficult to care for because they have differing needs and problems in accessing care(180) The problem, however, is not poor patients or ethnic Americans, but the health care system's inability to provide effective care to diverse populations(181) If increased compliance and improved health status are the goals, then the health care system must be flexible enough to match a community's cultural, ethnic, lifestyle and socioeconomic needs(182) The HSA does little to address the issue of assuring culturally competent care. For instance, despite the fact that ethnic Americans respond well to community-based health education programs, the Act fails to require health plans to provide such activities(183) Furthermore, it fails to require removal of the barriers to the effective utilization of such services. Rather, the Act permits, but does not require, states to provide financial incentives to ensure that health plans provide for extra services such as interpreting services(184) Finally, since the HSA never explicitly defines 'disadvantaged groups,' the scope of the incentives is indeterminate.

Health care requires interaction between the patient seeking care and the provider. When individuals do not understand, speak or read English, they may avoid contact with the health care system. Although some Americans do not understand English well enough to be able to talk with their physicians, the Act does not require that health care plans address these language barriers(185) Language barriers can defeat the provision of health care if essential information cannot be conveyed(186)

Consequently, although universal coverage makes it easier for many ethnic Americans to seek and obtain effective health services, language barriers will continue to inhibit their use of the health care system, unless the system is required to restructure itself to address those concerns(187) B. Ineffective 'Comprehensive' Coverage

The HSA's univeral coverage does not cover many of the services needed by poor Americans(188) For instance, it does not cover eyeglasse(189) or hearing aids(190) and provides that no person 18 years or older can receive prevention, diagnosis or treatment of dental disease before January 1, 2001(191) These items may be of marginal expense to middle-income persons, but to the poor they are not only expensive but they are also essential corrective treatment.

The Act also provides insufficient 'comprehensive coverage' for mental health and substance abuse. Although the Act covers inpatient and residential mental illness and substance abuse treatment, intensive nonresidential mental illness and substance abuse treatment, and outpatient mental illness and substance abuse treatment(192) these services are available subject to significant limitations(193) Given the serious significant mental health and substance abuse problems in ethnic American and poor communities, basic mental health services are inadequate(194) In addition, the proposal to phase-in mental health benefits over five years is particularly troubling since political changes may result in the non-delivery of benefits.

While the evidently cut-throat competition of a health care market will make ethnic American patients fair game, the HSA fails to assure that ethnic American communities have providers who can provide culturally competent care. Nor does the Act anticipate the need to direct the regional alliance and health plans to develop culturally competent policies for the treatment of ethnic Americans. While there is a generalized list of Uniform Conditions of Participation for health plans to be established by the National Health Board, these conditions are oriented to management, contract conflict resolution, financial and marketing(195) They are not patient- or service-oriented. More specifically, they do not require plans to show that they have the infrastructure to assure services to all population groups. To assure that health plans do serve the needs of ethnic Americans and poor communities, an additional conditions of participation should be added: to require health care plans to decrease the health status deficits of ethnic and disadvantaged Americans; to provide culturally competent care; and to prohibit adherence to rules, regulations and laws that discriminate on the based of race, class, ethnicity, language, gender or sexual preference.

While the Act certainly has a number of provisions that are beneficial to ethnic Americans, one wonders why the only sections which mention culturally appropriate care are those which provide for financial incentives(196) training of providers(197) and the funding of school-based health clinics(198) Why doesn't the HSA require health care plans to provide culturally appropriate care? Its failure to do so assures that the private sector will not provide culturally appropriate care to ethnic Americans.

170. FN170. 'Culture' is employed in various manners. It has been defined as an 'integrated system of learned patterns of behavior, ideas, and products characteristic of a society.' Vernellia R. Randall, Ethnic Americans, Long Term Health Care Providers and the Patient Self-Determination Act, in Long Term Health Care Providers and the Patient Self-Determination Act (Marshall Kapp ed., forthcoming 1994). See generally Henry S. Perkins, Cultural Differences and Ethical Issues in the Problem of Autopsy Requests, 87 Texas Medicine/The Journal 1991. It is a body of learned values, beliefs and behaviors that depict a group of people. 'Culture provides the basic framework by which individuals interpret their surroundings, the behavior of the people around them, and the events that befall.' Randall, supra. Many factors determine a person's culture. They include race, nationality, native language, education, occupation, religion, socioeconomic factors and area of origin. See generally Randall, supra; Alan Harwood, Guidelines for Culturally Appropriate Health Care, in Ethnicity and Medical Care (1981). These factors affect values, beliefs and behaviors. A subculture is defined by values, beliefs and behaviors that are peculiar to a particular subgroup within a culture. See generally Randall, supra.

171. FN171. White House Commission on Immigration and Refugee Policy (1982) (hereinafter, Immigration & Refugee Policy).

172. FN172. Id.

173. FN173. See generally I. Murillo-Rhode, Unique Needs of Ethnic Minority Clients in a Multiracial Society: A Socio-Cultural Perspective, in Affirmative Action: Toward Quality Nursing Care for a Multiracial Society (1980); Miriam Ross, Societal/Cultural Views Regarding Death and Dying, Topics in Clinical Nursing 5 (1981).

174. FN174. The existing health care system has not sufficiently promoted family involvement. It focuses on the individual and illness care rather than family and wellness care. This is unfortunate since the concept of family has a particular influence on wellness care and health promotion. See Gabriel Smilkstein, The Cycle of Family Function: A Conceptual Model for Family Medicine, 11 J. Fam. Pr. 223, 224 (1980). Furthermore, 'family' has different meanings across cultures and ethnic groups. See Randall, supra note 170. Different cultural priorities may modify the degree to which families are involved in treatment decisions including the involvement of the extended family. Particularly offensive in some cultures may be the European American method of personal decision-making that focuses on the individual, instead of the family. For many ethnic Americans illness is a family affair, and family members are involved in the patient's medical decisions and care. See Alan Harwood, Mainland Puerto Rican, in Ethnicity and Medical Care supra note 170, at 401; Stephen J. Kunitz & Jerrold E. Levy, Navajos, in Ethnicity and Medical Care, supra note 170, at 337; Michael S. Laguerre, Haitian Americans, in Ethnicity and Medical Care, supra note 170, at 198; Janet M. Schreiber & John P. Homiak, Mexican Americans, in Ethnicity and Medical Care, supra note 170, at 301. To provide access to quality health care, providers must appreciate cultural differences in kinship terms, in role expectations and in the role of the family in major decision-making.

175. FN175. The existing health care system supposes that a patient will interpret a provider's behavior to be in his or her best interest. However, many individuals in our society distrust the health care system, in particular ethnic Americans. African Americans' distrust is rooted in slavery, sharecropping, peonage, lynching, Jim Crow laws, disenfranchisement, residential segregation, job discrimination, insufficient health care and inappropriate scientific experimentation. See James Jones, The Tuskegee Legacy: AIDS and the Black Community (Twenty Years After: The Legacy of the Tuskegee Syphilis Study), 22 Hastings Ctr. Rep. 38 (1992); Thomas A. Laveist, Segregation, Poverty and Empowerment: Health Consequences for African Americans, 71 Milbank Q. 41 (1993); Lorene Cary, Why It's Not Just Paranoia: An American History of 'Plans' for Blacks, Newsweek, Apr. 6, 1992, at 23. For instance, African Americans may feel that managed care providers will denythem necessary services. Many Southeast Asian Americans identify the health care system with death. Laura Uba, Cultural Barriers to Health Care for Southeast Asian Refugees, 107 Pub. Health Rep. 544, 546 (1992). Many Hispanics perceive providers as obstacles to receiving any meaningful help. Wendy Mettger & Vicki S. Freimuth, Is there a Hard-to-Reach Audience?, 105 Pub. Health Rep. 232 (1990). Consequently, after years of neglect and culturally insensitive care, there is often a deep distrust of the health care system. This is true even when those providing the health care are of the same ethnic community. Forgotten Americans-Special Report on Medical Care for Blacks, 9 American Health: Fitness of Body and Mind 52 (1990). Historically, Hispanic Americans, particularly Mexican Americans, have not had access to good housing, schooling or health services. Neglect combined with bigotry and discrimination has encouraged Hispanic Americans to be suspicious of the health care system. Schreiber & Homiak, supra note 174, at 301. Obviously, a significant question is how this general distrust will be impacted by a system of health care designed to deny health care rather than to provide services. In particular, utilization review processes may allow providers to make decisions which will adversely impact persons of color more than European Americans. When that happens, some ethnic Americans' distrust in the health care system may be reaffirmed.

176. FN176. Communication is basic to obtaining quality health care. A person may have doctors in the community, a person may have money in his or her pocket, a person may have insurance, but if health care providers cannot communicate with their patients, they cannot provide effective quality health care. See The Association of Asian Pacific Community Health Organizations, supra note 6, at 6 (maintaining that the lack of linguistically accessible services presents a barrier for many Asian and Pacific Islander Americans in need of health care); Lifting Barriers to Asian and Pacific Islander Health Care: Issues and Recommendations (unpublished manuscript, on file with the author).

How different cultures communicate is very important. Different linguistic groups see and conceive reality differently. See Gustavo M. Quesada, Language and Communication Barriers for Health Delivery to Minority Group, 10 Soc. Sci. & Med. 323, 324 (1976). Ethnic Americans' views of health care are shaped by the language used. To the extent that a person's primary language is not English, communication and language barriers will exist.

177. FN177. See Donald Gelfand & Barbara W.K. Yee, Trends & Forces: Influence of Immigration, Migration, and Acculturation on the Fabric of Aging in America, 15 Generations 7 (1991) (health care professionals who treat elderly immigrants need to understand cultural beliefs concerning etiology and appropriate treatments for illness; for example, explanations for illness and disease using culturally defined norms about 'hot' and cold' forces are common among Southeast Asians and differ markedly from Western concepts); Susan Pollak, Melancholia and Depression: From Hippocratic Times to Modern Times, 22 Psych. Today 73 (1988) (pointing out that many non-Western cultures do not have an equivalent concept of depression; depression assumes different meanings and consequences depending on the culture in which it occurs); Charles E. Rosenberg, Disease in History: Frames and Framers, 67 Milbank Q. 1 (1989) (discussing the social construction of disease and illness); N.J. Temple & D.P. Burkitt, Towards a New System of Health: The Challenge of Western Disease, 18 J. Comm. Health 37 (1993) (pointing out that the concept of Western disease has become well-established).

178. FN178. Bonnyman, Jr. supra note 104, at 875-76.

179. FN179. Barbara M. Aved et al., Barriers to Prenatal Care for Low-Income Women, 158 West. J. Med. 493, 497 (1993).

180. FN180. Id.

181. FN181. Michelle A. Bardack & Susan H. Thompson, Model Prenatal Program of Rush Medical College at St. Basils Free Peoples Clinic, 108 Pub. Health Rep. 161, (1993) (inadequacy of medical care for the disadvantaged is due, at least in part, to the result of the lack of committed physicians capable of providing culturally relevant care).

182. FN182. Jaime A. Davidson, Diabetes Care in Minority Groups: Overcoming Barrier to Meet These Patients' Special Needs, 90 Postgraduate Med. 153, 158 (1991).

183. FN183. 'A health plan may offer education and training classes at its discretion.' HSA s 1127(b).

184. FN184. Id. s 1203(e)(3).

185. FN185. Twenty-five percent of Hispanic Americans do not understand English well enough to be able to talk with their physicians. Davidson, supra note 182, at 162.

186. FN186. Davidson, supra note 182, at 162. Language and communication barriers exist beyond the role language plays in shaping reality. An emphasis on written communication ignores that many individuals prefer to understand information through oral or visual communications. Simply providing information (written, oral or visual) does not ensure knowledge or understanding. Providing written information will not be an adequate means of communicating to persons from cultural backgrounds other than middle-class European American. Furthermore, expressed language, whether written or oral, is a major source of conflict and misunderstanding in intercultural situations. Ross, supra note 173, at 4-5. For instance, an inability to understand the expressions of others or of others to understand the individual can be a major source of frustration for ethnic Americans. With sufficient frustration, non-English speaking clients may delay seeking care. Even for English speaking clients, illness, depression, frustration and embarrassment may cause persons proficient in English to revert to their native language. Culture also influences the forms of responses in conversation. Ross, supra note 173, at 6-7. Similarly, a patient's emotional response to treatment will differ across cultures. Ross, supra note 173, at 5- 7; Laguerre, supra 174, at 191. Finally, culture influences which topics a person considers appropriate for conversation among strangers. Ross, supra note 173, at 6-7

187. FN187. Ginzberg & Ostow, supra note 158, at 2559. Communication barriers exist because of how different linguistic groups see and conceive reality. They exist because of cultural differences in interpreting expressed language. Culturally different forms of response, affect, approach and the appropriateness of the topic for conversation, all maintain communication barriers. Universal coverage does not remove those barriers.

188. FN188. The Act, however, does require the National Health Board to specify particular clinical preventive items and services for high risk populations. HSA s 1153.

189. FN189. Eyeglasses and contact lenses are covered only for individuals who are less than 18 years of age. HSA s 1141(b)(4).

190. FN190. Id. s 1141(b)(3).

191. FN191. Id. s 1126(b)(1), (2).

192. FN192. Id. s 1115(a).

193. FN193. Coverage for inpatient and residential mental illness and substance abuse treatment is limited by criteria determined by the plan. HSA s 1115(c)(2). Furthermore, prior to January 1, 2001, treatment for inpatient and residential mental illness is limited to 30 days. Id. s 1115(c)(2)(C). A maximum of 30 additional days of treatment may be covered if a health professional designated by the health plan in which the individual is enrolled determines in advance that (i) the individual poses a threat to his or her own life or the life of another individual; or (ii) the medical condition of the individual requires inpatient treatment in a hospital or a psychiatric hospital to initiate, change or adjust pharmacological or somatic therapy. Id. Coverage for intensive nonresidential mental illness and substance abuse treatment is at the discretion of the health plan. Id. s 1115(d)(2)(A). However, the plans may not exercise the discretion adequately in areas that have significant substance abuse problems.

Prior to January 1, 2001, the number of covered days of intensive nonresidential mental illness and substance abuse treatment is limited to 60 days. Id. s 1115(d)(2)(D). An additional 60 days may be approved at the discretion of the plan. Coverage for outpatient treatment is at the discretion of the health plan. Id. s 1115(d)(2)(A). Prior to January 1, 2001, the HSA limits psychotherapy and collateral services to 30 visits for each type of service per individual. Id. s 1115(e)(2)(C)(i). The Act limits coverage for substance abuse counseling and relapse prevention to 120 visits and group therapy substance abuse counseling and relapse prevention to 30 visits. Id. s 1115(e)(2)(C)(ii).

194. FN194. The large homeless population, at least 33% of whom suffer from some form of mental illness, is one indication of the need for a more significant mental health approach.

195. FN195. The health plans must meet Uniform Conditions of Participation established by the National Health Board. These include requirements for enrollment and coverage, HSA s 1402; community rating, id. s 1403; truth-in- marketing, id. s 1404; grievance procedure, id. s 1405; Utilization Management, id. ss 1406, 1412; financial solvency, id. s 1408; quality assurance id. s 1410; verifying credentials of practitioners and facilities, id. s 1411; confidentiality, id. s 1413; and data management and reporting. Id. s 1413.

196. FN196. Id. s 1203(e)(3) (permitting states to use financial incentives for health plans to remove barriers to access based on cultural differences); Id. s 3424(d) (federal funding to qualified community health group to remove barriers to access to the including those based on cultural groupings); Id. s 3424(e) (federal funding to qualified community health group to provide services to individuals with limited English within the individuals' cultural context most appropriate to such individuals).

197. FN197. Id. s 3031(a) (federal funding to train health professionals and administrators in the provision of culturally sensitive care).

198. FN198. Id. s 3602(a)(6); Id. ss 3631(b), 3631(b)(10), 3635(a)(4), 3671(c)(9) (requiring programs which receive funding for comprehensive school health services to assure that instructional materials and approaches are sensitive to cultural and ethnic issues). The Act requires state plans, applications from local educational agencies, and applications from educational grantees for school health implementation grants to discuss how such school health education programs will be tailored to the extent practicable to be culturally and linguistically sensitive and responsive to the various needs of the students served, including individuals with disabilities, and individuals from disadvantaged backgrounds (including racial and ethnic minorities). Id.

 

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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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