Disparity in Health Status

17. FN16. See infra text accompanying notes 20-30. 

18. FN17. NATIONAL RESEARCH COUNCIL, A COMMON DESTINY: BLACKS AND AMERICAN SOCIETY 393 (Gerald D. Jaynes & Robin M. Williams, eds. 1989). 

19. FN18. Id. 

20. FN19. Id. 

21. FN20. See, U.S. DEPT. OF HEALTH & HUMAN SERVICES, HEALTH STATUS OF MINORITIES AND LOW INCOME GROUPS: THIRD EDITION 5-8 (1991) (exploring different facets of health care that affect the overall health of minorities and low income groups). 

22. FN21. One reason the definition presents a problem is that the professionals tend to use such subjective measures to define health. 

23. FN22. Woodrow Jones, Jr. & Mitchell F. Rice, Black Health Care: An Overview, in HEALTH CARE ISSUES IN BLACK AMERICA: POLICIES, PROBLEMS AND PROSPECTS 3, 4 (Woodrow Jones, Jr. & Mitchell F. Rice eds., 1987) (quoting John Romano, Basic Orientation and Education of the Medical Student, 143 JAMA 411 (1950)). 

24. FN23. Id. 

25. FN24. Id. 

26. FN25. Ronald M. Andersen et al. Black-White Differences in Health Status: Methods or Substance?, in. HEALTH POLICIES AND BLACK AMERICANS 72, 75 (D. Willis, ed. 1989). 

27. FN26. Id. at 75-76. See generally, RONALD M. ANDERSON ET AL. TOTAL SURVEY ERROR: APPLICATIONS TO IMPROVE HEALTH SURVEYS (1979). 

28. FN27. Andersen et al., supra note 25, at 76. 

29. FN28. Differences among African-Americans. 

30. FN29. Id.; See also, J.J. Jackson, Urban Black Americans, in ETHNICITY AND MEDICAL CARE 37-129 (A. Harewood eds., 1981) (noting that studies need to account for potentially large differences between northern and southern blacks, urban and rural blacks, native and foreign-born blacks). 

31. FN30. D.L. Patrick and J. Elinson, Methods of Sociomedical Research, in HANDBOOK OF MED. SOC. 437-59 (H. Freeman et al. eds., 1979). Articles discussing health status of African-Americans often only utilize death rates. I attempt to utilize a broad range of health status measurements to give the reader a more thorough view of African-American health status and a broader basis for assessments. Although more complete, such an approach raises some conflicts. Some of the more subjective measurements don't always support a position that African Americans have "poorer" health status than European- Americans. While it is the position of this paper that African-Americans suffer from a "poorer" health status, the contradictory results of subjective measurements does not disprove the thesis of this paper. In fact these apparent discrepancies are important in that they show subjective reporting differences and the problem institutions will face if they rely only on subjective data for health status analysis. 

32. FN31. Dissatisfaction information is collected by means population surveys, individual and household surveys, and surveys of hospitalized patients. Andersen et al., supra note 25, at 81. 

33. FN32. Id. 

34. FN33. Id. at 82-83. 

35. FN34. The excess percent is calculated by dividing the European-American rate into the African-American rate multiplying by 100 and subtracting 100. For example, to obtain the 1987 excess death rate for both sexes you divide the European-American death rate (511.1 per 100,000) into the African-American Death Rate (778.6 per 100,000) to obtain 1.5234. You multiple 1.5234 by 100 to obtain 152.34%; and you subtract 100 to obtain the excess death rate of 52.34%. 

The disparity in perception of health status is present in all age groups. To illustrate this point consider that the percent of African-Americans between the age of five and seventeen who assessed their health status as fair or poor was 4.2%, while the percent of European-Americans in that same age range and making the same assessment was only 2.1%. IRENE JILLSON-BOOSTROM, SHATTERED HOPES, ENDANGERED LIVES: THE HEALTH AND WELL-BEING OF ADOLESCENT MINORITY MALES IN THE UNITED STATES, A REPORT PREPARED FOR THE OFFICE OF MINORITY HEALTH (Sept. 30, 1990). 

36. FN35. Andersen et al., supra note 25, at 83 (quoting National Opinion Research Center, 1985). Twelve percent of African Americans compared to 8% of European- Americans report "some, little, or no satisfaction" with their health and physical condition. Id. 

37. FN36. Id. at 80. 

38. FN37. Id. 

39. FN38. Id. at 81. 

40. FN39. Id. at 83 (quoting Center for Health Administration Studies, University of Chicago, unpublished data study described in ANDERSEN ET AL., AMBULATORY CARE AND INSURANCE COVERAGE IN AN ERA OF CONSTRAINT, Ch. 6 and app. A (1987)). During 1985, African-Americans in the age group under 18 reported 0.4 symptoms per person per year while European-Americans reported 0.6 symptoms resulting in a -33.3% excess discomfort. Id. In the age group 18-44, African-Americans reported 1.1 symptoms per person per year while European-Americans reported 1.3 symptoms resulting in a -15.4% excess discomfort for African-Americans. Id. African-Americans 45-64 years old reported 1.9 symptoms per person per year while European-Americans reported 1.7 symptoms resulting in a 11.8% excess discomfort for African-Americans. Id. Finally, African-Americans over 65 reported 2.1 symptoms per person per year while European-Americans reported 2.0 symptoms resulting in a 5% excess discomfort for African-Americans. Id. 

41. FN40. Death rates include homicide rates since death by means of violence is considered a public health issue. See infra note 71. 

42. FN41. There are a number of reasons why African-Americans might under-report symptoms. First, in a culture that has limited access to health care, it might be viewed as futile to complain about "aches and pains" Second, African- Americans may actually expect some "aches and pains" as normal and not a sign of illness. Third, African-Americans may be reluctant to complain to a stranger about their health. While all these reasons can be articulated by other populations subgroups, it may be that given the impact of racism, African- American are more reluctant than other to complain about their health and/or to seek help. 

43. FN42. Andersen et al., supra note 25, at 95; Joanna Kravitis & John Schneider, Health Care Need and Actual Use by Age, Race and Income, in EQUITY IN HEALTH SERVICES, 186 (R. Andersen et al., 975). 

44. FN43. Andersen et al., supra note 25, at 80. 

45. FN44. Id. 

46. FN45. Id.; See generally, Patrick & Elinson, supra note 30, at 437-59 (H. Freeman et al. eds., 1979). 

47. FN46. Andersen et al., supra note 25, at 80 citing D.L. Patrick & J. Elinson, Methods of Sociomedical Research, in HANDBOOK OF MEDICAL SOCIOLOGY 437-59 (H. Freeman et al. eds., 1979). 

48. FN47. Id. at 83, quoting National Health Statistics 1985, Table 69. 

49. FN48. African-Americans have higher death rates for every age group except 85 years and older. The African-American to European-American Death ratio for 1 to 4 years old is 1.80, for 5-9 years it is 1.62, for 10-14 years it is 1.25 and for 15-19 years it is 1.04. See U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 20, table 16 at 30. 

50. FN49. It is interesting to note that when looking at the number of school-loss days associated with acute conditions per 100 youths aged 5-17, African- Americans had 427.2 days whereas European-Americans had 322 days. National Center for Health Statistics, CURRENT ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY, 1988D. 

51. FN50. For example, the 5-17 year old age group could in fact have more illness but fewer restricted days because of cultural differences. African-American culture tends to encourage individuals to continue activity despite illness. This is especially true for children since families may not afford to take the child to the doctor or to take off work to stay at home with a sick child. Thus, it could be that African-American children are actually encouraged to continue activities despite illness. 

52. FN51. Andersen, et al, supra note 25, at 83 quoting National Center for Health Statistic, 1985, Table 69. African-Americans under 5 had the same number of days of restricted activity (9 days) as European-Americans. Id. African- Americans between the age of 5 and 17 reported fewer (7 days) of restricted activity than European-Americans (9 days) resulting in an excess disability for African-Americans of -22.2%. Id. Finally, African-Americans over 18 reported more (22 days) of restricted activity than European-Americans (16 days) resulting in an excess disability for African-Americans of 37.5%. Id. 

53. FN52. Acute conditions are those diseases or injuries that last less than two weeks. Commonly, those diseases reported as acute conditions are respiratory problems such as colds and minor injuries. Andersen et al., supra note 25, at 85. 

54. FN53. Chronic conditions are those conditions that have lasted two weeks or longer. Chronic conditions include diseases or impairments that are likely to be irreversible. These diseases range from the major killers such as heart disease to others less likely to kill but which can result in considerable debilitation such as arthritis. Andersen et al., supra note 25, at 84. 

55. FN54. Like other records, hospital medical record also have their deficiencies. For example, because not all illnesses are covered in medical records, the records may present a biased picture of the illnesses of a population due to non-coverage of all illnesses. Id. at 79. See generally, Kravitis & Schneider, supra note 42, at 169-87. 

56. FN55. Andersen et al., supra note 25, at 83 quoting National Center for Health Statistics, 1985, table 3. CURRENT ESTIMATES FROM THE NATIONAL HEALTH INTERVIEW SURVEY, 1985, series 10, no. 160. African-Americans under 18 had fewer acute conditions (183 per 100 persons per year) than European-Americans (283 per 100 persons per year) resulting in an excess disease-acute conditions of -36.3%. Id. African-Americans 18-44 had fewer acute conditions (130 per 100 persons per year) than European-Americans (174 per 100 persons per year) resulting in an excess disease-acute conditions of -15.9%. Id. African-Americans 18-44 had fewer acute conditions (98 per 100 persons per year) than European-Americans (109 per 100 persons per year) resulting in an excess disease-acute conditions of -10.1%. Id. 

57. FN56. Id. 

58. FN57. See, U.S. DEPT OF HEALTH & HUMAN SERVICES, supra note 20, at 154-57. For instance, African-American males have 58% more deaths from pneumonia than European-American Males. African-American females have 26% more deaths from pneumonia than European-American females. Id. at 155-56 (Table 23-24). 

59. FN58. Chronic diseases can be divided into those which limit activities and those that do not. As a measurement of severity, those chronic diseases that limit activity are more severe. 

60. FN59. Andersen et al., supra note 25, at 83 (quoting National Center for Health Statistics, 1985, Table 67). In the age group under 18, 20% more African- Americans (6%) reported limitation in activity than European-Americans (5%). Id. In the age group 18-44, 12.5% more African-Americans (9%) reported limitation in activity than European-Americans (8%). Id. In the age group 45- 64, 34.8% more African-Americans (31%) reported limitation in activity than European-Americans (23%). Id. In the age group 65-69, 31.6% more African- Americans (50%) reported limitation in activity than European-Americans (38%). Id. Finally, in the age group 70 and over, 23.1% more African-Americans (48%) reported limitation in activity than European-Americans (39%). Id. 

61. FN60. U.S. DEPT OF HEALTH & HUMAN SERVICES, supra note 20, at 90. 

62. FN61. Id. at 107-08. In fact, when compared to other countries, the percent of African-American low birth weight babies (12.5%) fall behind Hungary (11.79%) and Israel (7.16%). While European-Americans' percent of low birth weight babies (5.7%) is comparable to Japan (5.18%), New Zealand (5.27%) and Austria (5.68%). Id. 

63. FN62. U.S. Department of Health and Human Services, HEALTH STATUS OF MINORITIES AND LOW-INCOME GROUPS: THIRD EDITION 108. 

64. FN63. While health, illness and morbidity is poorly defined and the transition can be gradual, death is a clearly defined event. Consequently, it is the single most reliable indicator of the health status of a population. However, because mortality rates increase so sharply with increasing age, comparisons among populations over time must be adjusted for differing age distribution. Thus mortality rates are adjusted in accordance with the weights in the age distribution of a standard population. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES HEALTH STATUS OF MINORITIES AND LOW-INCOME GROUPS: THIRD EDITION. 

However, even this information presents measurement problems. The number and causes of deaths for African-Americans and European-Americans is usually obtained from death certificates and autopsy reports. However, the amount and quality of data on deaths varies and depends on a number of factors including: the extent to which the deceased were medically studied before death, the degree of familiarity that certifying physicians had with them, changes in diagnostic and demographic terminology, frequency of misclassifications and the accuracy and completeness of the information. Andersen et al., supra note 25, at 78-79. Furthermore, comparisons of deaths for African-Americans to European- Americans may reflect "survivor effects as well as selection by competing causes which can lead to interpretive errors". Id. at 79. See also, Richard Cooper & Brian E. Simmons, Cigarette Smoking and Ill Health among Black Americans, 83(7) N.Y. ST. J. MED. 344, 349 (1985). 

65. FN64. Joe Feagin, Slavery Unwilling to Die: the Background of Black Oppression in the 1980s, 17 J. Black Studies 173, 200 (1986) (arguing that the theory of internal colonialism views blacks as slaves of society. The history of blacks in the US is traced, beginning with the introduction of slavery during the 1600s. The features of slavery--legal until the passage of the 13th Amendment in 1865 -- persisted as a form of semi-slavery 1960 and as a different form of institutionalized racism later). See also, Lonnie R. Bristow, Mine Eyes Have Seen, 261 JAMA 284, 284-85 (1989). Since the civil rights and voting rights laws of the early 1960s the United States has seen significant changes in the status of African-Americans. However, it is arguable whether "apartheid- U.S.. . . or whether economic segregation and the perpetuation of our essentially feudal status amount to its continuation, in fact, if not in law." Romona Hoage Edelin, Toward An African-American Agenda: An Inward Look, in THE STATE OF BLACK AMERICA 173, 177-79 (Janet Dewart ed., 1990). Death rate statistics seem to suggest that the feudal status of African-Americans has continued in fact. 

66. FN65. Bristow, supra note 64, at 284. 

67. FN66. European-American males had aged adjusted death rates of 668.2. Africian- American males had aged adjusted death rates of 1023.2. The excess death rate for African-American males was 53.13%. European-American females had aged adjusted death rates of 384.1. Africian-American females had aged adjusted death rates of 586.2. The excess death rate for African American females was 52.62%. European-American (both sexes) had aged adjusted death rates of 511.1. Africian-American females had aged adjusted death rates of 778.6. The excess death rate for African American females was 52.34%. Department of Health and Human Services, supra note 20, at Table 13, p. 26-27, and Table 3, p. 143. 

68. FN67. H.R. REP. NO. 804, 101st Cong., 2nd Sess. 19 (1990) reprinted in U.S.C.C.A.N. 3296, 3297. 

69. FN68. Health status includes not only physical health but mental health as well. Thus, in a racist, oppressive society, homicides is as much an indication of mental health and public health as suicide. See generally, Beth Alexander, Violence: a public health problem. (Editorial), 8 PEDIATRICS FOR PARENTS, 1 (1992); Laurie Jones, Gun violence as Public Health Issue 35 AM. MED. NEWS 3 (1992); C. EVERETT KOOP & GEORGE LUNDBERG, Violence in America: a Public Health Emergency, 267 JAMA 3075 (1992); Antonia C. Novello et al., A Medical Response to Violence, 267 JAMA 3007 (1992). Violence takes a high toll in mortality, morbidity, quality of life, and use of health care resources. Belloni et al., Application of Principles of Community Intervention, 106 PUBLIC HEALTH REP. 244, 244-47 (1991). It has been a community problem from early American history. "Before there was professional law enforcement, everyone in a community was involved in crime prevention." Id. at 245-46. Thus, recognizing homicide as a health issue is a return to deep rooted ideas of community. Id. at 245. See generally, D.E. Beauchamp, Community: The Neglected Tradition of Public Health, HASTINGS CTR. REP. 28, 28-36 (1985). 

70. FN69. Andersen et al., supra note 25, at 84 (quoting National Center for Health Statistics 1986a, Table 21). 

71. FN70. This is the rate of death per 100,000 live births from deliveries and complications of pregnancy, childbirth and the immediate period after childbirth (the puerperium). Department of Health and Human Services, supra note 20, at 100 Table 1. 

72. FN71. The homicide rate for African-American males living within Standard Metropolitan Statistical Areas (SMSAs) is more than twice that for young African-American males residing outside SMSAs. Belloni et al., Community Intervention, supra note 68, at 245-46. Homicide Among Young Black Males -- United States, 1970-1982 34 MORBIDITY & MORTALITY WKLY. REV. 629-33 (Oct. 18, 1985). 

73. FN72. Andersen et al., supra note 25, at 84 quoting National Center for Health Statistics 1986a, Table 21. 

74. FN73. See also, U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 20, at 113 (Table 14); Antonio A. Rene, Racial Differences in Mortality: Blacks and Whites, in Jones, supra note 22, at 21. African-Americans had more infant deaths (17.9 per 1,000 live birth) than European-Americans (8.6 per 1,000 live birth). Id. Thus, the excess infant mortality for African-Americans was 108.2%. 

75. FN74. U.S. Department of Health and Human Services, supra note 25, at 104, Table 5. 

76. FN75. NATIONAL RESEARCH COUNCIL, supra note 17, at 398. On an international level African American ranked 32nd after Portugal (17.8) and Cuba (16.5). European-Americans ranked 12th after Spain (8.5) and France (8.3). Japan Ranked 1st with only 5.5 infant deaths per 1,000 live births. U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, HEALTH STATUS OF MINORITIES AND LOW-INCOME GROUPS: THIRD EDITION, 104, Table 5: Infant Mortality Rates: 36 Selected Countries, 1980 -1985. 

77. FN76. See generally, H.R. REP. NO. 804, 101st Cong., 2nd Sess. 1990, 1990 U.S.C.C.A.N. 3296 (finding that African-Americans are disproportionately represented among individuals from disadvantaged backgrounds and that the health status of individuals from disadvantaged backgrounds, including racial and ethnic minorities, in the United States is significantly lower than the health status of the general population of the United States). 

78. FN77. Andersen et al., supra note 25, at 82. 

79. FN78. See KNOWLES & PREWITT, supra note 15, at 1 (inferring from others quotes that African-Americans have been denied opportunities that they have helped develop). 

80. FN79. CARMICHAEL & HAMILTON, supra note 1, at 4. 

81. FN80. See supra text and accompanying notes 15-78. 

82. FN81. Trevor Hancock, Beyond Health Care: From Public Health Policy to Healthy Public Policy, 76 CAN. J. PUB. HEALTH 9, 11 (Supp. 1985). 

83. FN82. When individuals are separated into different racial population groups, there is general recognition of a health disparity between them. The explanation usually given for this disparity is that differences exist in socioeconomic status or class. 

84. FN83. Certainly, poverty is a major factor in health. The poor are unable to afford the food, housing, clothing and education which would allow them to be equal participants in America society. Notwithstanding the role of poverty in health, in America, race has a separate and independent role which has never fully been addressed. 

85. FN84. See generally, Lawrence D. Brown, The Medically Uninsured: Problems, Policies and Politics, 15 J. HEALTH POL., POL'Y & L. 315, 318 (1990); Karen Davis, Closing the Gap in Health Insurance Coverage for African-Americans (Unpublished paper on file at Case Western Reserve, Health Matrix); Jack Hadely et al., Comparison of Uninsured and Privately Insured Hospital Patients, 265 JAMA 374, 376 (1991) (suggesting that the amount of care an individual receives is related to whether the individual has health insurance). 

86. FN85. See infra note 206 and accompanying text. 

87. FN86. See infra notes 204-27 and accompanying text. 

88. FN87. R.M. Cooper et al., Improved Mortality Among U.S. Blacks, 1968-1978, The Role of Anti-Racist Struggle, 11 INT'L J. HEALTH SERVICES 511, 511-22 (1981); NATIONAL RESEARCH COUNCIL, supra note 17, at 428-29; S. Woodlander et al., Medical Care and Mortality: Racial differences in preventable deaths, 15 INT'L J. HEALTH SERVICES 1, 1-22 (1985); cf. J.L. Haywood, Coronary Heart Disease Mortality/Morbidity and Risk in Blacks. II Access to medical Care 3 AM. HEART J. 794, 794-96 (1984) (explaining that African-Americans with hypertension at all social levels report less frequent use of medical care, more difficulties in getting into the health care system and greater dissatisfaction with medical care). 

89. FN88. GUNNAR MYRDAL, AN AMERICAN DILEMMA 174 (1944). 

90. FN89. Slavery in North America was one of the "harshest form of social relations ever to exist." ALPHONSO PINKNEY, BLACK AMERICANS 2 (1969). The slave had no rights and received no protection from society. The slave owner had absolute power over the slave. Id. 

91. FN90. PINKNEY, supra note 89, at 6. Jones & Rice, supra note 22, at 6; see also, Mitchell Rice, On Assessing Black Health, 9 URB. LEAGUE REV. 6, 6-12 (Winter 1985-1986). The dual status of slaves as valuable property and as persons with human rights may have encouraged some slave owners to provided, at least minimal health care. See generally, J. Thomas Wren, A. "Two-Fold Character: The Slave as Person and Property in Virginia Court Cases, 1800-1860, 24 S. STUD. 417-31 (1985) (maintaining that although slaves were perceived as property in the antebellum South, Virginia courts often recognized their humanity as well. By 1860, the Southern legal system had begun to accept an implicit duality in the states of the slaves as both property and person); Arthur Howington, "A Property of Special and Peculiar Value: The Tennessee Supreme Court and the Law of Manumission, 44 TENNESSEE HIST. Q. 302-17 (1985); Winstanley Briggs, Slavery in French Colonial Illinois, 18 CHI. HIST. 66-81 (1989-90) (arguing that the high cost of slaves and the risk of offending tribal neighbors," led the settlers to treat their slaves as subordinate, but valuable property). 

92. FN91. PINKNEY, supra note 89, at 24 (citing JOHN H. FRANKLIN, RECONSTRUCTION AFTER THE CIVIL WAR 36-37) (1961)). 

93. FN92. Throughout the period of Reconstruction, attempts were made to obstruct the progress toward "racial democracy." PINKNEY, supra note 89, at 26. The 1876 election was in dispute between Rutherford B. Hayes (Republican) and Samuel Tilden (Democrat). Hayes was declared winner with the understanding the remaining troops in the South would be withdrawn, the south would be accorded home rule, and with the assurance that the "dominant whites [would have] political autonomy and nonintervention in matters of race policy." PINKNEY, supra note 89, at 26 (citing WOODWARD, REUNION AND REACTION 246 (1966)). Thus, the Republican Party "abandon[ed] the Negro to former slave holders [and] the compromise signaled a return toward slavery." PINKNEY, supra note 89, at 26 

94. FN93. Jones & Rice, supra note 22, at 6. 

95. FN94. For instance, in 1875 Congress passed the Civil Rights Act which made it a crime for a person to deny any citizen equal access to accommodations in inns, public conveyances, theaters, and other places of amusement. Civil Rights Act of 1875, 18 St. 335. In 1883, the Supreme Court declared the Civil Rights Act of 1875 unconstitutional. The Civil Rights Cases, 109 U.S. 3 (1883). In 1896 the Court ruled that separate (segregated) facilities for African- Americans and European-Americans did not violate the Thirteenth or Fourteenth Amendment. Setting the pattern for race relations for more than three decades, the ruling declared that "If one race be inferior to the other socially, the Constitution of the United States cannot put them on the same plane." Plessy v. Ferguson, 163 U.S. 538 (1896). 

96. FN95. In 1954, the court questioned the "separate but equal" doctrine of Plessy v. Ferguson. In particular, in a unanimous decision, the court found that legally sanctioned racial segregation is usually interpreted as connoting the inferiority of blacks, which adversely affects the educational development of black children. "Any language in Plessy v. Ferguson contrary to this finding is rejected." Brown v. Board of Education, 347 U.S. 483, 494-95 (1954). 

Brown v. Board of Education was a significant milestone in civil rights. However, it was the civil rights-movement of the 1960s which culminated in the Civil Rights Act of 1964 and the Voting Rights Act of 1965, which resulted in many of the overt signs of discrimination being eliminated. 

In particular, the Civil Rights Act of 1964 (Public Law 88-352) prohibited the denial of the right to vote in national elections because of race and made a sixth grade education a presumption of literacy (Title I). Title II prohibited discrimination in places of public accommodation. Title III authorized the Justice department to file suits to desegregate public facilities. Title IV authorized the Justice Department to file suit to desegregate public schools or colleges. Title V established the Commission on Civil Rights. Title VI prohibited discrimination in federally-financed programs. Title VII prohibited discrimination in employment. Title VIII authorized the gathering of registration and voting statistics based on race. Title IX allowed for federal appeals court intervention in civil rights cases to be remanded to state courts. Title X established the Community Relations Service in the Department of Commerce. 

97. FN96. See infra notes 97-182 and accompanying text. 

98. FN97. Jones & Rice, supra note 22, at 6. 

99. FN98. Alan Sager, The Closure of Hospitals that Serve the Poor: Implications for Health Planning, A Statement to the Subcommittee on Health and the Environment, Committee on Energy and Commerce, U.S. House of Representatives, 2 (April 30, 1982); Mark Schlesinger, Paying the Price: Medical Care, Minorities, and the Newly Competitive Health Care System, in HEALTH POLICIES AND BLACK AMERICANS 275-76 (David Willis ed., 1989). 

100. FN99. Equal Access to Health Care: Patient Dumping, Hearing before a Subcommittee of the Committee on Government Operations 100 Cong, 1st Sess. 270- 87 (July 22, 1987); Robert L. Schiff et al., Transfers to a Public Hospital: A Prospective Study of 467 Patients, 314 NEW ENGL. J. MED. 552-57 (1986). 

101. FN100. Stan Dorn et al., Anti-Discrimination Provisions and Health Care Access: New Slants on Old Approaches, CLEARINGHOUSE REV. 439, 441 (Special Issue, Summer 1986). 

102. FN101. Id. 

103. FN102. Id. 

104. FN103. Id. 

105. FN104. Id. 

106. FN105. Id. 

107. FN106. Sager, supra note 98, at 2. A total of 210 hospitals either closed or relocated during the period studied. A disproportionate number of the hospitals that closed or relocated were originally located in communities where the population was predominately African-American. 

108. FN107. See generally, NAACP v. Wilmington Medical Ctr., Inc., 657 F.2d 1322 (1981) (proposal to reduce urban facility which served predominantly minorities and to construct a new suburban facility); Byran v. Koch, 627 F.2d 612 (1980) (closure of a New York City hospital whose patients were 98% minorities). 

109. FN108. Sager, supra note 98, at 2-3; See also, Roger Wilkins, Loss of Hospitals in Central City Said to Cause Array of Problems, N.Y. TIMES, Sept. 17, 1979, at D4. 

110. FN109. In 1946 Congress passed the Hospital Survey and Construction Act, presently codified as Title VI of the Public Health Service Act, 42 U.S.C. s 291. One goal of the Hill-Burton Act was to assure that hospitals would provide medical services to the residents in their communities, including those who were indigent. GEORGE ANNAS ET AL., AMERICAN HEALTH CARE LAW 80-81 (1990). 

Specifically, hospitals which receive funds under the Hill-Burton Act are obligated to perform a community service requirement. Id. at 75. In order to comply with the community service requirement, subpart G of the regulations requires that recipient health facilities be made available to all residents and prohibits exclusion of anyone in the area served by the hospital on the basis of any factor unrelated to need. Id. at 77. 

The Hill-Burton community services requirement was completely ignored for 30 years. Privately initiated lawsuits during the 1970's gave rise to the 1972 regulation changes. Id. These regulations outlined a program for monitoring compliance by Hill-Burton facilities relying on state agencies for implementation. Id. Unfortunately, the 1972 regulations did not amend or specify the meaning of community service. Kenneth R. Wing, The Community Service Obligation of Hill-Burton Health Facilities, 23 B.C.L. REV. 577, 613-14 (1982). It was not until 1974 that HEW, under court order, finally issued regulations interpreting the community service requirement. Id. at 614- 15. 

Community service now included the requirement that recipient facilities must participate in Medicare and Medicaid and take "such steps as necessary" to insure that Medicare and Medicaid patients were admitted without discrimination. Id. at 615. These regulations stopped short of imposing explicit standards for assessing compliance with the substantive requirement. In addition, evaluation and enforcement of the community service obligation was primarily on state Hill-Burton agencies, and a twenty year limitation was placed on the community service obligation. Id. at 615-16. This limitation has subsequently been invalidated. 

In 1978, HEW proposed new charity care regulations. Id. at 616. These new regulations were intended to give more specific meaning to the community service obligation and to federalize the enforcement and monitoring of responsibilities. Id. at 616-17. The result was the 1979 regulations. The 1979 regulations explicitly preclude exclusion of anyone who is in need of services offered by the facility and who is able to make some manner of payment. Id. at 620. These regulations explicitly clarify the obligation of Hill-Burton recipients with regard to people who rely on Medicare or Medicaid. Id. at 621. The 1979 regulations also prohibited the pre-admission deposits and the required referrals to staff physicians, both of which effectively excluded otherwise eligible patients. Id. at 622. 

111. FN110. Under Hill-Burton, a hospital is released from the uncompensated care requirement under the statute buy-out provision. 42 U.S.C. s 291a(1). 

112. FN111. Cf., N.A.A.C.P v. Medical Ctr., 657 F.2d 1322 (medical center proposing to close high-risk obstetrical care, inpatient pediatric care and gerontology services). 

113. FN112. The Crisis of the Disappearing Black Hospitals, EBONY, March 1992, at 23-28. 

114. FN113. Id. 

115. FN114. See generally, Judith Waxman & Molly McNulty, Access to Emergency Medical Care: Patients' Rights and Remedies, 22 CLEARINGHOUSE REV. 21-27 (Nov. 1991); Gearlding Dallek and Judith Waxman, Patient Dumping: A Crisis in Emergency Medical Care for the Indigent, 19 CLEARINGHOUSE REV. 1413 (1986). 

116. FN115. Equal Access to Health Care: Patient Dumping, supra note 99, at 270- 87. 

117. FN116. A study of transfers among 467 medical transfers to Cook County Hospital showed that 89% were African-Americans or Hispanic-Americans. The study concluded that most of the patients were transferred for economic reasons and without their consent. Schiff, supra note 99, at 552-57. 

118. FN117. 42 U.S.C.A. ss 1395 dd(a) (West Supp. 1992). 

119. FN118. Under COBRA, hospitals are required to provide appropriate medical screening examinations within the capabilities of the hospital. If a person has an emergency or is in active labor, the hospital must stabilize the medical condition or provide treatment for labor or transfer under certain conditions. In particular, there can be no transfer until stabilized except at the request of patient or if it is medically necessary and another facility is more appropriate. A transfer is appropriate if: the receiving facility has available space and qualified personnel and has agreed to accept the transfer. The transferring facility must provide appropriate medical records. The transfer must be made using qualified personnel and equipment. Enforcement is through termination of Medicare provider agreement, civil monetary penalties, and civil action for personal injury or financial loss. 42 U.S.C.A. ss 1395 dd(a)- (d) (West Supp. 1992). 

120. FN119. See generally, ARIZ. REV. STAT. ANN. s 11-297.01 1-3d (1956) (providing for transfers in three situations: where no hospital exists, where the existing hospital is overcrowded, or where the necessary services are not provided at the transferring hospital.); CAL. HEALTH & SAFETY CODE s 1317.2 (West 1990) (providing for various conditions to be met prior to the transfer of a patient such as exams, evaluations, emergency treatment. The transfer may not create a medical hazard, the hospital receiving the patient must have an appropriate bed, personnel and equipment necessary for treatment; relevant transfer information must be given to the receiving hospital.); FLA. STAT. ANN. s 401.45 1 (West 1943) (providing that no person shall be denied emergency medical treatment); IDAHO CODE s 39-1391 (1947) (providing for emergency treatment to persons appearing seriously sick or injured without admission of that person. This can have the effect of requiring stabilization prior to transfer. However, since the patient is never actually admitted, the hospital can realistically transfer the patient at any time); ILL. ANN. STAT. ch. 111 1/612, para 6151 (Smith-Hurd 1934) (providing that no health care provider can refuse needed emergency treatment to a person whose life would be threatened in the absence of such treatment due to an inability to pay.); MASS. GEN. LAWS ANN. ch 111 s 70E (West 1958) (providing for prompt life saving treatment in an emergency without discrimination or delay. There is an exception stating that a delay may not impose a material risk.); N.C. GEN. STAT. s 131E-117 15 (1943) (providing for no transfers or discharges but allows many exceptions including consideration of the patient's own or other patients' welfare, and nonpayment for the stay. The effect of the exceptions is that patients are not protected from nonmedical transfers.); PA. STAT. ANN. tit. 35, s 449.8 (1930) (providing that transfers may only occur in instances where the facility lacks the staff or facilities to properly render definitive treatment.); TENN. CODE ANN. s 68- 11-701 (1955) (requiring stabilization prior to transfer and such efforts necessary to sustain the patient during the transfer.); TEX. CODE ANN. s 241.027 b (West 1986 & Supp. 1992) (providing for medically appropriate transfers from physician to physician and from hospital to hospital by providing the following: notification to the receiving hospital prior to the transfer, stabilizing prior to and during the transfer, provisions for the appropriate personnel and equipment for the transfer, necessary records. Transfers may not be based on discrimination or economic status.) But see, COLO. REV. STAT. ANN. s 26-15-106 8b (West 1989) (providing for transfers of indigent patients without any restrictions except for a prior agreement to the transfer by the receiving contract provider.) DEL. CODE ANN. tit 16 s 1121 18 (allowing transfers for the patient's own welfare or the welfare of other patients, and for nonpayment); WASH. REV. CODE ANN. s 70.168.100 e (West 1961 & Supp 1992) (requiring only that prior to transfer, agreements with providers outside the region are established to facilitate the transfer; See also, Dorn & Waxman, States Take the Lead in Preventing Patient Dumping 22 CLEARING-HOUSE REV. 136 (1988). 

121. FN120. Waxman & McNulty, Access to Emergency Medical Care, supra note 114, at 21-27. 

122. FN121. Id. 

123. FN122. Id. 

124. FN123. See infra notes 207-09 and accompanying text. 

125. FN124. Johnson v. University of Chicago Hosps., 982 F.2d 230 (1992). 

126. FN125. Id. at 231. 

127. FN126. Id. 

128. FN127. Id. 

129. FN128. Id. 

130. FN129. Id. 

131. FN130. Id. 

132. FN131. Id. at 232. 

133. FN132. Id. 

134. FN133. "Nursing homes" is a generic term used to describe two types of facilities: Intermediate care facilities (ICF) and skilled nursing care facilities (SNF). Intermediate Care facilities provide institutional, health- related services above the level of room and board, but at a level of care below that of hospital or SNF care. See 42 U.S.C. ss 1396c(d) (1988); see also 42 C.F.R. s 440.150 (1991). Skilled Nursing Facilities provide institutional care above the level of ICF services but below the level of a hospital. See, 42 U.S.C. s 1396d(i) (1988); 42 C.F.R. s 440.40 (1991). 

135. FN134. Cassandra Butts, The Color of Money: Barriers of Access to Private Health care Facilities for African-Americans, (Unpublished manuscript on file at Case Western Reserve, Health Matrix Office) (citing David A. Smith, Discrimination in Access to Nursing Homes in Pennsylvania (1991)). 

136. FN135. But see, Linton v. Carney, 779 F.Supp 925, 933 (M.D. Tenn 1990) (rejecting defendants' assertion that "self-selection preferences" of the minorities, based upon the minorities' reliance upon the extended family, lack of transportation, and fear of institutional care, adequately explain the disparate impact). 

137. FN136. Butts, supra note 134, at 5-7. For instances, although African-Americans rely on family and friends for long term care, the rate of use of nursing homes is rising faster for African-Americans than for European-Americans. SENIOR HEALTH DIGEST, No. 91-17 (Sept. 16, 1991). 

138. FN137. An individual's eligibility for Medicaid is based on certain personal characteristics relating to need, such as old age, disability or blindness, and on the basis of the person's indigence. Indigence is measured by certain state and federal financial standards. To obtain Medicaid coverage for nursing home care, the patient must first establish financial eligibility and then meet additional medical need requirements demonstrating eligibility for ICF or SNF services. The medical requirements are established by the state to guard against unnecessary treatment. 

In order to determine a patient's medical eligibility, states generally require that each Medicaid recipient's need for admission to a nursing home be evaluated prior to the recipient's admission to the institution or, if the patient has already been admitted, prior to an authorization of Medicaid reimbursement for his or her care. See 42 C.F.R. ss 456.271 and 456.372. This process is referred to as the pre-admission evaluation (PAE) process. 

Once a patient has been admitted to a nursing home, his or her continued need for ICF or SNF care is annually reviewed by state Medicaid officials pursuant to a process referred to as utilization review. 42 U.S.C. s 1396a(a) (30). 

139. FN138. BUREAU OF THE CENSUS, U.S. DEPT. OF COMMERCE, SERIES P60, No. 168 CURRENT POPULATION REPORTS, CONSUMER INCOME: MONEY AND POVERTY STATUS IN THE UNITED STATES 1989 (Nov. 1990). 

140. FN139. NAACP Legal Defense & Educ. Fund, Inc. An African American Health Care Agenda: Strategies for Reforming an Unjust System, Racial Disparities in Medicaid Coverage for Nursing Home Care (1991) (Unpublished proceedings, on file at Case Western Reserve University School of Law, Health Matrix: Journal of Law-Medicine office). 

141. FN140. Id. 

142. FN141. In part, this limited access is caused by the rules that the government generates. For instance, federal law authorizes state agencies who perform review and certification functions to certify facilities for either SNF or ICF reimbursement. Such certification may be of a "distinct part of an institution." See 42 U.S.C. s 1395x and 42 U.S.C. s 1396a(a)(28). A "distinct part" SNF or ICF must be an entire separately identifiable unit consisting of all the beds within that unit (such as a separate building, floor, wing, or corridor). A distinct part SNF or ICF unit is paid as an entity separate from the rest of the institution. Medicare Program; Swing-Bed Program, 54 Fed. Reg. 37, 270 (Sept. 7, 1989). Consequently, facilities allowed to limited the number of beds that they have available by certifying only part of their facility. 

143. FN142. Racial Disparities in Medicaid Coverage for Nursing Home Care (1991) (Unpublished Data located at the University of Dayton School of Law). 

144. FN143. Id. 

145. FN144. 42 U.S.C. s 1395 (federal Medicare statute recognizing "distinct part" certification); 42 U.S.C. s 1396a(a)(28) (applying "distinct part" certification to Medicaid SNF certification). 

146. FN145. See, Linton v. Carney, 779 F. Supp. 926, 931. ("Tennessee, at the provider's instructions, certified a limited component of beds in a facility which provides the same ICF level of care in all beds.") 

147. FN146. Id. 

148. FN147. Id. 

149. FN148. Id. at 932. 

150. FN149. Id. 

151. FN150. Id. 

152. FN151. Id. 

153. FN152. Id. 

154. FN153. Id. 

155. FN154. Linton v. Tenn. Community Health & Environmental, 779 F. Supp. 925, aff'd 923 F.2d 855 (6th Cir. 1981). 

156. FN155. Id. at 928-30. 

157. FN156. Id. at 928. 

158. FN157. Id. 

159. FN158. The policy of decertification particularly affected African-Americans. Despite representing 39.4% of the Tennessee's Medicaid recipients, African- Americans comprised only 15.4% of the Medicaid recipients in nursing homes. Id. at 932. Furthermore, the court noted that the health of African-Americans was generally poorer than that of European-American resulting a in correspondingly greater need for nursing home services. Despite this "greater need", the system of licensed nursing homes served European-Americans "[relegating African- Americans] to substandard boarding homes which receive no Medicaid subsidies. Id. 

160. FN159. Id. at 933-34. 

161. FN160. In particular the court cited to Guardians Ass'n v. Civil Service Comm'n, 463 U.S. 582 (1983), which recognized that Title VI extends to unintentional disparate impact discrimination as well as deliberate discrimination. Further, Linton acknowledged that in Alexander v. Choate, 469 U.S. 287, 292-94 (1985), the Supreme Court delegated to agencies responsibility to determine "what sorts of disparate impacts upon minorities constituted sufficiently significant social problems, and were readily enough remediable, to warrant altering the practices of the federal grantees that had produced those impacts." Id. at 934. 

162. FN161. Id. at 935. 

163. FN162. According to the defendants, such self-selection preferences were based on minorities reliance on the extended family, on the lack of transportation, and on the fear of institutional care. Id. at 935. 

164. FN163. Id. 

165. FN164. Id. 

166. FN165. Providers include physicians, nurses, pharmacists, dentists as well as the many other health care professionals who serve a community. 

167. FN166. Jones & Rice, supra note 22, at 10-13. Lack of African-American representation in medicine is traceable to segregation in medical schools. Id. at 11. For instance, an African-American did not receive a degree in an American school until 1847. While some white schools (nine) admitted African- Americans prior to the Civil War, most schools did not. In fact, even in 1971, 21 medical schools out of 85 still had no African-American students. Id. Even with the admission of African-Americans to predominantly white schools, the African-American medical schools, Howard University and Meharry Medical School, still train 75 percent of African-American physicians. Donald Wilson, Minorities and the Medical Profession: A Historical Perspective and Analysis of Current and Future Trends, 78 J. NAT'L MED. ASSN. 177, 178 (1986); Jones & Rice, supra note 22, at 10-13; See generally Max Seham, M.D., BLACKS AND AMERICAN MEDICAL CARE 20-21 (1973); U.S. DEPT. OF HEALTH & HUMAN SERVICES, MINORITIES & WOMEN IN THE HEALTH FIELDS Table 3 (1990). 

168. FN167. Jones & Rice, supra note 22, at 10-13; U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 130, Table 3 (1990). See also, Amanda Husted, Shortage of Black Dentists has Ill Effect in Community, ATLANTA J. & CONST., Aug. 19, 1991, at B3 (discussing effect of shortage of African-American dentists on community). 

169. FN168. Jones & Rice, supra note 22, at 10-13; U.S. DEPT. OF HEALTH & HUMAN SERVICES, supra note 166, Table 3 (1990). 

170. FN169. See, Kenneth Reich, Panel Hears Horrors of Health Care Crisis, L.A. TIMES, Jan. 12, 1992, at B1 (reporting that witnesses at public hearing tell of long waits at county-run facilities in minority communities). In fact, 75% of African-American physicians practice in or near African-American communities, 90% had patient loads that were at least 50% African-American or minority, 2/613 had 70% African-American or minority patient loads, and 1/613 had 90% African-American or minority patient loads. H.R. REP. NO. 804, supra note 76, at 20, reprinted in 1990 U.S.C.C.A.N. 3299. 

171. FN170. In addition, even programs (i.e., Medicaid) do not necessarily expand access since many primary care providers either do not accept Medicaid patients or limit the number of such patients they will accept. Karen Davis et al., Health Care for Black Americans: The Public Sector, in HEALTH POLICIES AND BLACK AMERICANS, supra note 98, at 225-26. It is only natural to look to the African-American physician to "fill" this gap. See generally, H.R. Rep. No. 804, supra note 76, at 20, reprinted in 1990 U.S.C.C.A.N. 3299 (finding that minority health professionals historically tended to practice in low-income areas and to serve minorities; that minority health professionals tended to engage in the general practice of medicine and specialties providing primary care; and that access to health care among minorities can be substantially improved by increasing the number of minority health professionals). 

172. FN171. See, H.R. REP. NO. 804, supra note 76, at 20, reprinted in 1990 U.S.C.C.A.N. 3299 (finding that the number of individuals who are from disadvantaged backgrounds [including racial minorities] in health professions should be increased for the purpose of improving the access of other such individuals to health services). 

173. FN172. One wonders how much of the disparity treatment is a legacy in medical practice from slavery when ". . . doctors frequently complained that they were unable to administer treatment because the slaves were not amenable to the same medical treatment as white patients." PINKNEY, supra note 89, at 6. 

174. FN173. Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, 263 JAMA 2344 (1990); see also, Mark B. Wenneker & Arnold M. Epstein, Racial Inequalities in the use of Procedures for Patients with Ischemic Heart Disease in Massachusetts, 261 JAMA 253, 253-57 (1989). 

175. FN174. Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, supra note 173, at 2344-45; See also, Albert Oberman & Gary Cutter, Issues in the Natural History and Treatment of Coronary Heart Disease in Black Populations: Surgical Treatment, 108 AM. HEART J. 688, 688-94 (1984) (discussing results of study showing a preferential selection of whites for coronary artery bypass grafting). Cf., Charles Maynard et al., Blacks in the Coronary Artery Surgery Study: Race and Clinical Decision Making 76 AM. J. PUB. HEALTH 1446, 1446-48 (1986) (finding that rate of by-pass surgery could not be explained by differences in clinical or angiographic characteristics). 

176. FN175. Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, supra note 173, at 2345; See generally, C.M. Kjellstrand & George M. Logan, Racial, Sexual and Age Inequalities in Chronic Dialysis, 45 NEPHRON 257, 257-63 (1987) ("[I]n three of four categories, blacks received less dialysis than whites"). 

177. FN176. See also, Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, supra note 173, at 2345; Kjellstrand & Logan, supra note 175. 

178. FN177. Id.; See also, C.M. Kjellstrand, Age, Sex and Race inequality in Renal Transplantation, 148 ARCHIVES INTERNAL MED. 1305, 1305-09 (1988); P.W. Eggers, Effect of Transplantation on the Medicare End-Stage Renal Disease Program, 318 NEW ENG. J. MED. 223-29 (1988) (reporting that while African- Americans accounted for 33% of patients with endstage renal problems, they were only 21% of the patients who received kidney transplants). 

179. FN178. Black-White Disparities, supra note 173, at 2345; See also, P.J. Held et al., Access to kidney transplantation: Has the United States Eliminated Income and Racial Differences? 148 ARCHIVES INTERNAL MED. 2594, 2594-00 (1988). 

180. FN179. Black-White Disparities, supra note 173, at 2345; See also, John Yergan et al., Relationship between Patient Race and the Intensity of Hospital Services, 25 MED. CARE 592, 600, 603 (1987) (suggesting that nonwhite pneumonic patients receive fewer services, especially with regards to intesive care). 

181. FN180. Black-White Disparities, supra note 173, at 2345; John Yergan et al., supra note 179. 

182. FN181. Id.; See also, R.H. de Regt et al., Relation of Private or Clinic Care to the Cesarean Birth Rate, 315 NEW ENG. J. MED. 619, 619-24 (1986). 

183. FN182. Black-White Disparities, supra note 173, at 2344; de Regt et al., supra note 181. 

184. FN183. Black-White Disparities, supra note 173. 

185. FN184. KNOWLES & PREWITT, supra note 15, at 99. 

186. FN185. See Id. at 98 (implicating health institutions for the failure to carry on medical advances and treatment to the black community). 

187. FN186. Id. at 99. 

188. FN187. W.E.B. DUBOIS, BLACK RECONSTRUCTION 703 (1962). 

189. FN188. U.S. DEP'T. OF HEALTH & HUMAN SERVICES, Secretary's Taskforce Report on Minority Health. 

190. FN189. Scott, Lawmakers Differ on Measures to Reform Health care, MEMPHIS BUS. J., June 1, 1992, 41 (stating that lawmakers agree America has the best health care service in the world); Storer H. Rowley, Prescription from Canada: Would Universal Health Care Work in the Country?, CHI. TRIB., May 31, 1992 (reporting that "[m]any Americans still boast that they have the best health care money can buy and that it's there on demand, without Canada's occasionally lengthy waiting lines"); Joel Havemann, A Safety Net Snags on Its Cost; Western Europe's Prized Welfare Programs Follow Citizens From Cradle to Grave. But Tax Rates are Astronomical by U.S. Standards, and Critics Are Gingerly Making Changes, Los Angeles Times, April 21, 1992, at A1 (reporting that "[t]he U.S. medical profession insists that it delivers the best health care in the world, that most medical breakthroughs bear a Made-in-the-USA label"); John Lucadamo, Porter, Sullivan Clash at Debate Over Everything But Pensions, CHI. TRIB., March 10, 1992 (reporting that "Porter said the United States has the best health care in the world 'for those in the system'); George Will, Revision of Our Health-Care System Should be High on Nation's Agenda, ATLANTA J. & CONST., Mar. 9, 1992 (stating that "America can provide the world's best health care - if you can afford it"); President George Bush, Remarks of President Bush to the San Diego Rotary Club (Feb. 7, 1992) FED. NEWS SERV., (reporting that "[t]his country has the best health care system in the world -- the best. And the quality of health care in America is unrivaled"). 

191. FN190. Tom Wicker, Introduction to REPORT OF THE NATIONAL ADVISORY COMMISSION ON CIVIL DISORDERS, at vii (1968). 

192. FN191. Dorothy Howze, Closing the Gap Between Black and White Infant Mortality Rates: An Analysis of Policy Options, in HEALTH CARE ISSUES IN BLACK AMERICA: POLICIES, PROBLEMS AND PROSPECTS (Woodrow Jones, Jr. & Mitchell F. Rice eds., 1987). 

193. FN192. Duncan MacRae, Jr. & Ron Haskins, Combining the Roles of Scholar and Citizen, in MODELS FOR ANALYSIS OF SOCIAL POLICY 119-22 (Ron Haskins & James J. Gallagher eds., 1981). 

194. FN193. Id. 

195. FN194. Ron Haskins, Social Policy Analysis: A Partial Agenda, in MODELS FOR ANALYSIS OF SOCIAL POLICY 204 (Ron Haskins & James J. Gallagher eds., 1981). 

196. FN195. Duncan MacRae, Jr. & Ron Haskins, Models for Policy Analysis, in MODELS FOR ANALYSIS OF SOCIAL POLICY 19-20 (Ron Haskins & James J. Gallagher eds., 1981). 

197. FN196. Robert M. Moroney, Policy Analysis within a Value Theoretical Framework, in MODELS FOR ANALYSIS OF SOCIAL POLICY 87-88 (Ron Haskins & James J. Gallagher eds., 1981). 

198. FN197. MacRae, supra note 192, at 121-23. The debate that has raged around the stigma that can attached to selective program is centered in the idea that poor are responsible for their situation. 

199. FN198. MacRae & Haskins, supra note 195, at 2. 

200. FN199. The chart below is a visual representation of how well the "Doing Nothing" meets the various criteria. A minus sign (-) means that the criteria is not met. A plus sign (+) means that the criteria is met. A question mark (?) means that it is uncertain as to how well the criteria will be met. 

[Note: The following TABLE/FORM is too wide to be displayed on one screen. 

You must print it for a meaningful review of its contents. The table has been 

divided into multiple pieces with each piece containing information to help you 

assemble a printout of the table. The information for each piece includes: (1) 

a three line message preceding the tabular data showing by line # and 

character # the position of the upper left-hand corner of the piece and the 

position of the piece within the entire table; and (2) a numeric scale 

following the tabular data displaying the character positions.] 
 

******** This is piece 1. -- It begins at character 1 of table line 1. ********
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Horizontal Vertical Economic Preference Privacy Stigma 

Equity Equity Efficiency Satisfaction 

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Political 

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201. FN200. Wasted Health Care Dollars, 57(7) CONSUMERS REPS 435 (1992); See generally, George Lundberg, National Health Care Reform: The Aura of Inevitability Intensifies, 267 JAMA 2521-24 (1992) (The costs of malpractice coverage and defensive medicine are unknown but very large -- perhaps in excess of $20 billion per year. Defensive medicine probably benefits no one except these with the health care jobs that are generated. . . The current system is rife with administrative waste, inefficiency, and a ubiquitous "hassle factor."); D.U. Himmelstein & S. Woolhandler, Cost Without Benefit: Administrative Waste in U.S. Health Care, 314 NEW ENG. J. MED. 441-45 (1986) ("With the institution of a national health plan, $30 billion in administrative costs could be saved."); Jasjit Ahluwalis, Health Care in the United States: Our Dynamic Jigsaw Puzzle, 150 ARCHIVES INTERNAL MED. 256, 256-258 (1990) ("Up to 20% of every dollar spent on the administrative aspects of health care is wasted. If the system were streamlined, then $15 billion of the $78 billion spent in administration could be saved."); Eli Ginzberg, Commentary: US Health Policy -- Expectations and Realities, 260 JAMA 3647, 3647-3650 (1988) ("The 'waste' in the system of medical care exemplified in physicians' doing too much and, worse still, often performing diagnostic and therapeutic procedures that are contraindicated"); cf., State of North Carolina ex rel Rufus L. Edmisten v. P.I.A. Asheville, Inc, 740 F.2d 274 (1984) (indicating that the legislative histories of both the National Health Planning and Resource Development Act of 1974 and of the 1979 amendments and North Carolina's certificate of need legislation show that Congress and the North Carolina legislature were concerned about "the unrelenting rise in the cost of health care, and about wasteful, duplicative major acquisitions by health care providers"); Alabama Renal Stone Institute, Inc. v. State Health Planning Agency, 594 So. 2d 106 (Ala. Civ. App. 1991) (explaining that to allow the hospitals to use the Medstone device to perform kidney lithotripsy without first obtaining a certificate of need would be contrary to the intent of the legislature to avoid oversupply and the substantial waste that will occur); But see, Maxwell J. Mehlman, Health Care Cost Containment and Medical Technology: A Critique of Waste Theory, 36 CASE W. RES. L. REV. 778 (1985/611986) (stating that the high cost of health care has led to proposals to reduce wasteful medical technology under Medicare and other payment systems. Achieving this objective is problematic because of the difficulties of defining, detecting and eliminating technology waste). 

202. FN201. There is no system imaginable "that's more dysfunction[al] than the one we have now, more expensive, not doing the job with more waste." Wasted Health Care Dollars, supra note 200 (quoting Dr. Philip Caper, an internist and medical policy analyst at Dartmouth Medical School). 

203. FN202. See, supra text accompanying notes 82-86; See generally, E. Richard Brown, Health USA; A National Health Program for the United States, 267 JAMA 552, 552-58 (1992) (explaining that state programs must designate funds for a prevention account, to be used for community-based disease prevention and health promotion programs targeted to population groups with the greatest unmet needs); Harold Freeman, Race, Poverty, and Cancer, 83 J. NAT'L CANCER INST. 526, 526-27 (1991) (showing that shared elements lead to common lifestyle, attitudes, and behavior. Such cultural factors deeply influence health, and any successful intervention must necessarily take these powerful cultural realities into account.); Antonia C. Novello et al., Hispanic Health: Time for Data, Time for Action, 265 JAMA 235, 253-55 (1991) (explaining that differences in health behaviors and health exist between U.S.-born and foreign-born members of the same ancestral group; in general, recent arrivals tend to be of better health.); J. Michael McGinnis, Communication for Better Health, 105 PUB. HEALTH REP. 217-18 (1990) (stating that better control of behavioral risk factors alone could prevent between 40% and 70% of premature deaths); Council on Scientific Affairs, Education for Health; A Role for Physicians and the Efficacy of Health Education Efforts, 263 JAMA 1816, 1816-19 (1990) (suggesting that many health problems are caused or exacerbated by individuals' life-styles, and that a result has been efforts to avert health problems of all kinds leading to the development of programs designed to promote healthful behavior and improve health). 

204. FN203. In 1965, Congress responded to the medical insurance problems by creating Medicare and Medicaid. Congress established Medicare to provide medical care to the elderly. Their ability to pay was irrelevant. See generally, Social Security Amendments of 1965, PUB. L. NO. 89-97, 79 Stat. 286 (codified as amended in scattered sections of 42 U.S.C.). Medicaid, a cooperative state-federal program, provides health insurance to eligible individuals and families. 42 U.S.C. s 1396 (1992). 

Since 1965, Medicare and Medicaid have grown significantly. Medicare currently accounts for approximately 35% of national health care expenditures and 40% of hospital revenues. See generally, OFFICE OF TECHNOLOGY ASSESSMENT, MEDICAL TECHNOLOGY AND COSTS OF THE MEDICARE PROGRAM 45-61 (1984) (hereinafter OTA MEDICARE). Medical Technology Assessment: Hearings on H.R. 5496 before the Subcommittee on Health and the Environment of the Committee on Energy and Commerce, 98th Cong., 2d Sess. 544 (1984) [hereinafter cited as Hearings on H.R. 5496] (statement of Raymond Dross, M.D., on behalf of Health Insurance Association of America). 

Yet, Medicare's impact extends well beyond the program. For example, other institutional purchasers of health care, such as private insurers, typically follow Medicare's lead with regard to medical technology and payment schedules. OTA MEDICARE, supra note 203, at 23. 

205. FN204. Pamela Short et al., Health Insurance of Minorities in the United States 1(2) J. HEALTH CARE FOR POOR & UNDERSERVED 9-24 (1990). 

206. FN205. In 1985 only 47% of African-Americans had employment related insurance compared to 62% of non-African-Americans. Stephen Long, Public Versus Employment-related Health Insurance: Experience and Implications for Black and NonBlack Americans, in HEALTH POLICIES AND BLACK AMERICANS 200-12, at 203 (David P. Willis ed., 1989); see also, Davis, supra note 170. 

207. FN206. Only 28% of African-Americans had public insurance.; Long, supra note 205, at 203; see also Davis, supra note 63, at 1. 

208. FN207. Short et al., supra, note 204; See also, Long, supra note 205, at 203; Davis, supra note 170, at 1. 

209. FN208. Short et al., supra note 204. 

210. FN209. Id.; Davis, supra note 170, at 3-6. 

211. FN210. Davis, supra note 170, at 5. 

212. FN211. Id. (reporting that as of 1988, the mean earnings for European-American males was 36% higher than African-American males). 

213. FN212. In 1990, 61% of African-American families with children under the age of 18 were single caregivers, (i.e. single parent, single foster parent, single relative, single grandparent) compared to 23% of similar European-American families. Davis, supra note 170, at 5. 

214. FN213. Id. at 6. 

215. FN214. Davis, supra note 170, at 28; Short et al., supra note 204. 

216. FN215. Short et al., supra note 204; Davis, supra, note 170, at 28. Of poor individuals, 36% of European-Americns are uninsured compared to 35% of African- Americans. Of low-income individuals, 31% of European-Americans are uninsured compared to 30% of African-Americans. Finally, of middle/high income individuals, 9% of European-Americans are uninsured compared to 16% of African- Americans. Id. 

African-Americans are more likely to be uninsured because they are more likely to be unemployed or employed in low paying positions which do not provide health care benefits. For instance, in 1989, 30.7 percent of African- Americans were poor, compared with 12.8 percent of European-Americans. In 1990, the African-American unemployment rate (11.3 percent) was 140% more than European-Americans (4.7 percent). Finally, the mean earnings of European- American males was 36 percent higher than African-American males. U.S. House of Representatives, Committee on Ways and Means, 1991. Green Book, Background Material and Data on Programs within the Jurisdiction of the Committee on Ways and Means, Washington, D.C.: U.S. Government Printing Office, May 7 (1991). 

217. FN216. Numerous policy responses has been suggested for increasing insurance coverage. The three main proposals are employer mandate coverage which require all employers to provide health insurance, expansion of Medicaid coverage or a combination of employer mandated and expansion of Medicaid. Long, supra note 168, at 200-12. It is estimated that even with a combined employer mandate and medicaid expansion some 2.1 million African-Americans will remain uninsured. Id. at 211. Thus, a fourth proposal, universal health insurance, has been suggested. 

218. FN217. This Week with David Brinkley, (ABC television broadcast, Feb. 2, 1992). 

219. FN218. Davis, supra note 170, at 11-12. 

220. FN219. Id. at 11. 

221. FN220. Id. at 11-13. 

222. FN221. Id. at 13. 

223. FN222. Id. 

224. FN223. Id. at 15-18. 

225. FN224. Id. Acute benefits for low income families would no longer be covered under Medicaid. Instead, states would contribute toward the new public plan coverage of acute care benefits. Id. However, Medicaid would continue to provide supplemental benefits and long-term care. Id. 

226. FN225. Id. at 18-20. 

227. FN226. Id. at 20-21. 

228. FN227. Id. 

229. FN228. Id. app. (chart 2). 

230. FN229. The chart below is a visual representation of how well "Expanding Insurance Coverage" meets the various criteria. A minus sign (-) means that the criteria is not met. A plus sign (+) means that the criteria is met. A question mark (?) means that it is uncertain as to how well the criteria will be met. 

[Note: The following TABLE/FORM is too wide to be displayed on one screen. 

You must print it for a meaningful review of its contents. The table has been 

divided into multiple pieces with each piece containing information to help you 

assemble a printout of the table. The information for each piece includes: (1) 

a three line message preceding the tabular data showing by line # and 

character # the position of the upper left-hand corner of the piece and the 

position of the piece within the entire table; and (2) a numeric scale 

following the tabular data displaying the character positions.] 

******** This is piece 1. -- It begins at character 1 of table line 1. ******** ------------------------------------------------------------------------- 

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Political 

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231. FN230. Id. at 12; See generally Paul Cotton, Insurance Loss Threatens Medical Gain, 266 JAMA 2185 (1991) (explaining that healthy people are increasingly unable to get what health care they do need due to severe medical underwriting practices by health insurance companies); Limits on Medical Coverage May Affect 1 of 3 under 65, ATLANTA J. & CONST., June 19, 1991, at B3 (detailing how an underwriting guide from an insurer contained 84 conditions - from acne to varicose veins - that it permanently excluded from health insurance coverage); Private System Places Millions at Risk, Citizen Action Report Says, 18 Pens. Rep. (BNA) 1048 (June 24, 1991) (discussing how private health insurance policies have lifetime limits on coverage, routinely deny coverage for any treatment or device that they do not recognize as accepted medical practice, exclude from underwriting such conditions as allergies or mild headaches be permanently excluded and deny coverage for pregnancy and cancer). 

232. FN231. Davis, supra note 170, at 12. 

233. FN232. Id. at 13-14. 

234. FN233. See supra notes 183-186 and accompanying text. 

235. FN234. Alexander M. Capron, Containing Health Care Costs: Ethical and Legal Implications of Changes in the Methods of Paying Physicians, 36 CASE W. RES. L. REV. 708 (1986). 

236. FN235. Yoder, Physicians Payment Methods: Forms and Levels of Physicians' Compensation, in INSTITUTE OF MEDICINE, REFORMING PHYSICIAN PAYMENT: REPORT OF A CONFERENCE 87, 88 (1984). 

237. FN236. Id. 

238. FN237. See supra text and notes accompanying footnote 200. 

239. FN238. Capron, supra note 234, at 708. In particular, the payors' methods of calculating fees to be paid further complicated the picture. The practice of covering "usual, customary and reasonable (UCR) cost" allowed the provider to charge whatever the market would bear -- and they usually did. 

When the maximum payments available under usual and customary became public knowledge, there was a natural tendency on the part of physicians. . . to move to the maximum available. . . . Once that was done, the whole concept of usual and customary, based on physicians' pricing as an independent entity unaffected by their peers or others in the community, was gone. The whole program changed its nature both as to Medicare and as to private, usual and customary. . . . Prices rose dramatically. . . . The doctor could find [the maximum UCR] out very readily by simply testing the system by raising his fees until he hit the upper limit, and they did. 

Sylvia A. Law & Barry Ensminger, Negotiating Physicians' Fees: Individual Patients or Society? (A Case Study in Federalism), 61 N.Y. U. L. REV. 1, 34 (citing Transcript at 27-98-99 Kartell v. Blue Shield of Mass., Inc., 582 F. Supp. 734 (D. Mass. 1984) (testimony of John Larkin Thompson, president of Blue Shield of Massachusetts)). 

240. FN239. When insurance induces a person to use more medical care than he or she would use if paying for the services directly, then the insurance is a "moral hazard" with respect to the person's indifference to cost. MARK HALL & IRA ELLMAN, HEALTH CARE LAW AND ETHICS IN A NUTSHELL 8 (1989). 

241. FN240. Capron, supra note 234, at 709. 

242. FN241. W.G. Manning et al., A Controlled Trial on the Effect of a Prepaid Group Practice on Use of Services, 310 NEW ENG. J. MED. 1505-10 (1984). 

243. FN242. Hall & Ellman, supra note 239, at 11 (1990). 

244. FN243. See supra note 234 and accompanying text. 

245. FN244. See supra note 233 and accompanying text. 

246. FN245. Utilization review is the process by which an organization determines if medical services are appropriate and necessary. In the managed care product, this involves examining providers' authorization and furnishing services to detect variations from the norm that may point to unnecessary or inappropriate care. Pamela S. Bouey, Peer Review In Managed Care Setting, in COM. LAW AND PRAC. COURSE AND HANDBOOK SERIES, MANAGED CARE 1988: LEGAL AND OPERATIONAL HEALTH CLASSES (1988). When the third-party payer detects variation, either it does not pay the claim [retrospective utilization management programs analyze data on hospital admissions, patterns of treatment and utilization of certain procedures or refuses to authorize the provision of the service (concurrent and prospective)]. Under a prospective review system, most non-emergency hospital admissions must receive prior approval and an initial approved length of stay is assigned. Richard Hinden & Douglas Elden, Liability Issues for Managed Care Entities, 14 SETON HALL LEGIS. J. 1, 52 (1990). 

247. FN246. If payers did not combine utilization review with financial risk shifting, the review process alone would have limited effectiveness in controlling costs. Consequently, payers use various financial risk-shifting mechanisms. These mechanisms cause the provider (physician) to change his or her pattern of practice from over-utilization to "appropriate utilization" at best and "under-utilization" at worst. 

Financial risk shifting can arise in a variety of arrangements: ownership interest, joint-venture, or a "bonus" arrangement in which the third-party payer shares the surplus from "cost-effective" care with the physician. See generally, Paul M. Elwood, Jr., When MDs Meet DRGs, 57 HOSP., Dec. 16, 1983, at 62-63; E. Haavi Morreim, The MD and the DRG, 15 HASTINGS CTR. REP., June 1985, at 30, 34-35; Capron, supra note 234, at 725-29. While the form may vary, the penalties have similar effects. For instance, payers indirectly penalize physicians by giving them less profits or directly penalize them by reducing capitation payments each time they make "inappropriate referrals." However, not all risk shifting mechanisms have the same impact. Some have a greater potential than others for causing the physician to act in a way that is not consistent with the patient's best interests. For instance, because mechanisms, like physician diagnostic-related groups and capitation, require the physicians to bear individual loss, they have the greatest risk. 

248. FN247. With the stabilization of HMOs as a cost control mechanism, payers were pushed to find more efficient cost control methods or plans. The push resulted in the proliferation of other managed care arrangements, most notably preferred provider organizations (PPOs). PPOs contract directly with an employer through its health benefits department or indirectly through an insurance carrier. Typically, while the choice of providers is limited, the overall expense to the patient is lower than with traditional insurance. Physicians contracting with PPOs agree to accept both utilization review controls and financial risk- shifting structures. Payers give consumers economic incentives to use the PPOs' physicians. National Health Lawyers Association, Introduction To Alternative Delivery Mechanisms: HMOs, PPOs & CMPs 11 (Jeanie M. Johnson ed., 1986). Greg de Lissovoy, et. al., Preferred Provider Organizations: Today's Models and Tomorrow's Prospects, 23 INQUIRY 7, 7-8 (1986). 

Monetary incentives focused on the patient effectively obviate freedom of choice. If a patient is unable to pay the difference, he or she will have no choice but to utilize the preferred provider. Approximately 20 states have attempted to resolve this issue by passing laws which limit the reimbursement differential between PPO and non-PPO utilization. It is unclear whether such limitations protect "freedom of choice" since to do so would limit the effectiveness of managed care products. Daniel Forbes, Cut Health Care Costs, Get Sued?, DUN'S BUS. MONTH, July 1986, at 39; See also, Edward J. Hopkins & Gary Davis, Restricted Choice--A Liability of Alternative Delivery Systems, 58 FLA. B. J. 145, 145-46 (1984); Dr. Norman Payson, A Physician's Viewpoint on PRO's, 6 WHITTIER L. REV. 699-05 (1984). 

249. FN248. Current cost-containment efforts shift the risk of financial loss for health care in whole or in part to the providers of that care. Galen D. Powers, Allocation of Risk in Managed Care Programs, in MANAGED HEALTH CARE: LEGAL AND OPERATIONAL ISSUES FACING PROVIDERS, INSURERS, AND EMPLOYERS 279 (1986) [hereinafter Allocation of Risk]. Physicians are offered economic incentives to act as the third-party payer's agent-the "gatekeeper" to health care services. Carolyn M. Clancy & Bruce E. Hillner, Physicians as Gatekeepers: the Impact of Financial Incentives, 149 ARCHIVES INTERNAL MED. 917, 917-20 (1989). This change shifts the focus of the health care system from the doctor-patient relationship to the doctor-payer relationship. Ultimately, the doctor and payer will determine the quality of care received by the patient and the patient's access to that care. The gatekeeping role is not new to physicians. They have used their position in several ways. For instance, physicians have used their authority as health care gatekeepers to resist hospitals' and insurers' efforts to influence medical treatment. Furthermore, they have generally used their role to obtain more services for the patient, not less. Now, however, they use their position to "save" money for third party payers by ordering fewer services. See, Robert Scheier, Twin City MDs Fight IPA Hospital Contracts, AM. MED. NEWS, Feb. 28, 1986. 

250. FN249. No matter how one looks at gatekeeping schemes they will eventually alter the perceptions and expectations of society, physicians, patients and third-party payers. How these parties will feel about what is owed to whom, what treatments are appropriate in what circumstances, and even what qualifies as a disease will be altered. Capron, supra note 234, at 730-33. These changes run the risk of injuring individuals merely because they cannot get access to the treatment that they need. When this failure to obtain appropriate medical care is due to cost containment efforts, who shall bear the cost? If cost containment is an important societal goal, then the cost of injuries should be spread throughout the society. Soon payers will routinely withhold (or decline to pay for) certain interventions that might benefit certain patients but that simply cost too much because it is the collective societal attitude not to "check on physicians' temptation to place their own interest ahead of their patient's interests. Instead society [attempts] to use physicians' selfish motivation to restrain full pursuit of patients' interest." Capron, supra note 234, at 749. "By asserting incentives that result in the physicians' having their own finances at risk, the new methods of physician reimbursement turn physicians into gatekeepers for [third-party payers]. Their decisions would no longer be based on medical criteria alone (i.e., does this medicine have something to offer this patient?) but would take into account the financial risk if they admit patients into the system whose care costs more than insurance will pay." Capron, supra note 234, at 753. 

251. FN250. Bouey, supra note 245, at 1. 

252. FN251. "Retrospective utilization management programs analyze data on hospital admissions, patterns of treatment and utilization of certain procedures." Hinden & Elden, supra note 245, at 52. 

253. FN252. "Under a prospective review system, most non-emergency hospital admissions must receive prior approval and an initial approved length of stay is assigned." Hinden & Elden, supra note 245, at 52. 

254. FN253. Utilization review may take several forms: 

Pre-admission review for scheduled hospitalization which determines the medical necessity of a scheduled inpatient admission, of expensive procedures, or of outpatient procedures. Initial determination is made by a nurse review coordinator using established criteria. Almost all managed care products use pre-admission certifications. Bouey, supra note 207, at 11. A registered nurse usually conducts off-site pre-admission certification. If there is a scheduled admission prior to hospitalization, the patient's physician completes a review form. She describes the patient's medical condition, and the treatment plan, and forwards the form to the nurse review coordinator. The nurse notifies the physician, patient and hospital of the decision regarding the appropriateness of admission and length of stay. Harold Bischoff, Utilization Review and Health Maintenance Organizations, 13-14 (1989) (fellowship thesis, American Hospital Association). There is, of course, an appeal process that is conducted by a physician. 

Admission review for unscheduled hospitalization determines the medical necessity of unscheduled in-patient admissions or other admissions not covered by pre-admission review. Most managed care products use concurrent review. The primary exception is hospitals that are paid based upon diagnostic-related groups. Bouey, supra note 245, at 10. 

Second opinions for elective surgery. Bouey, supra note 245 at 11; 

Concurrent review (or, length of stay ["LOS"] certification) determines the medical necessity of a continued hospital stay. When the LOS certificate expires either the patient or the provider may request extension. Bouey, supra note 245, at 12; Hinden & Elden, supra note 245, at 52. A concurrent review is conducted by a nurse reviewing the patient's treatment plan. The nurse conducts the review at the hospital using established medical criteria. If the nurse judges the treatment plan to be appropriate, s/he approves the stay until the next review cycle or the patient is discharged. If s/he does not approve the treatment plan, the nurse refers the case to a physician advisor who either confirms the need for continued treatment or suggests alternate treatment. Bischoff, supra note 253, at 11. 

Gate-keeping by primary physician determines, in a variety of ways, whether or not a patient should be seen. Bouey, supra note 245, at 14. 

Retrospective claims review disallows payments of claims for utilization abuses. Since it is not as effective as prospective or concurrent review, use of retrospective claims review is declining. Bouey, supra note 245, at 14. However, it is useful as a tool to research provider claims. For example, it would be useful in determining whether the objective laboratory data (biopsy) and subjective data (surgeon notes) coincide with the length of stay or the length of surgery. Bischoff, supra note 253, at 15. Consequently, retrospective review can be a very important tool in a managed care agency such as an HMO. 

255. FN254. Karen Davis & Diane Rowland, Uninsured and Undeserved: Inequalities in Health Care in the United States 61 Milbank Memorial Fund Q. 149, 155-58 (1983). 

256. FN255. Davis, supra note 170, at 9. 

257. FN256. Id. 

258. FN257. See Disadvantaged Minority Health Improvement Act of 1990, Pub. L. No. 101-527, 104 Stat. 2311. The establishment of the Office of Minority Health within the Office of the Assistant Secretary for Health in the Department of Health & Human Services was codified in Title XVII of the Public Health Service Act. The Disadvantaged Minority Health Improvement Act [hereinafter DMHIA] provided for a broad range of activities relating to improving the health status of African-Americans and other minorities. For instance, the Office of Minority Health [hereinafter OMH] is required to establish objectives and to coordinate all activities within the Department of Health & Human Services related to minority health, including disease prevention, health promotion, service delivery, and research. Furthermore, OMH is required to enter into interagency agreements with public health service agencies to increase the participation of minorities in the service and its promotion programs. 

259. FN258. Id. at s 3. 

260. FN259. Id. at s 4. 

261. FN260. Id. at s 5. 

262. FN261. Id. at s 6. 

263. FN262. Id. at s 8. 

264. FN263. Id. at s 9. 

265. FN264. Id. at s 10. 

266. FN265. Arkansas, Illinois, Iowa, Missouri, Ohio, Texas. Ohio Office of Minority Health, Characteristics of Minority Health Entities by State (Table 1) (Unpublished information on file at Case Western Reserve Health Matrix Journal of Law-Medicine office). 

267. FN266. Delaware, Michigan, Mississippi and New Jersey. Id. 

268. FN267. Alabama, Georgia, Hawaii, Indiana, Massachusetts, Oregon, South Carolina and Virginia. Id. 

269. FN268. Michigan ($900,000), New Jersey ($500,000), Ohio ($1,600,000) and Oregon ($1,838,241). 

270. FN269. Id. 

271. FN270. The chart below is a visual representation of how well "Targeting Services" meets the various criteria. A minus sign (-) means that the criteria is not met. A plus sign (+) means that the criteria is met. A question mark (?) means that it is uncertain as to how well the criteria will be met. 

[Note: The following TABLE/FORM is too wide to be displayed on one screen. 

You must print it for a meaningful review of its contents. The table has been 

divided into multiple pieces with each piece containing information to help you 

assemble a printout of the table. The information for each piece includes: (1) 

a three line message preceding the tabular data showing by line # and 

character # the position of the upper left-hand corner of the piece and the 

position of the piece within the entire table; and (2) a numeric scale 

following the tabular data displaying the character positions.] 
 

******** This is piece 1. -- It begins at character 1 of table line 1. ******** 
 

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Horizontal Vertical Economic Preference Privacy Stigma 

Equity Equity Efficiency Satisfaction 

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- + ? ? - - 

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1...+...10....+...20....+...30....+...40....+...50....+...60....+...70... 

******* This is piece 2. -- It begins at character 74 of table line 1. ******** 

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Political 

Feasibility 

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74...80....+. 

272. FN271. Title VI of the 1964 Civil Rights Act, Pub. L. No. 99-352, 378 252 (codified at 42 U.S.C. ss 2000d-200d-4 (1982). 

273. FN272. See, H.R. DOC. NO. 318, 88th Cong., 2d Sess. (1964). See generally, Mitchell Rice & Woodrow Jones, Jr., Public Policy Compliance/Enforcement and Black American Health: Title VI of the Civil Rights Act of 1964, in HEALTH CARE ISSUES IN BLACK AMERICA: POLICIES, PROBLEMS AND PROSPECTS 100-17 (Woodrow Jones, Jr. & Mitchell F. Rice eds., 1987); Dorn et al., supra note 100, at 439- 40 (interperpreting the Title VI regulations); Sidney Watson, Reinvigorating Title VI: Defending Health Care Discrimination-It Shouldn't Be So Easy?, 58 FORDHAM L. REVIEW 939, 943-48 (1990). 

274. FN273. 45 C.F.R. s 80.3(b)(2) (1991) (emphasis added). 

275. FN274. 45 C.F.R. s 80.13(i) (1991). DHHS provides federal assistance "to more than 6,800 hospitals, 13,700 out-patient and primary care facilities, various state and local public health agencies, 8,000 day care centers and 37,000 local services agencies. . . . [T]here are more than 43,000 DHHS recipients serving more than 93 million beneficiaries." Rice and Jones, supra note 236, at 100. 

276. FN275. Although it does not include federal contracts of insurance or guaranty 42 U.S.C.A. s 2000d-1 (1981); 42 U.S.C.A. s 2000d-4 (1981), it does include: Medicare and Medicaid constitute federal financial assistance. See United States v. Baylor Univ. Medical Ctr., 736 F.2d 1039, 1046-47 (5th Cir. 1984) cert. denied 469 U.S. 1189 (1985) (Comprehensive Citations); Supplemental Security Income Payments are not federal financial assistance. See Sobral-Perez v. Heckler, 717 F.2d 36, 38-41 (2d Cir. 1983) cert. denied, 466 U.S. 929 (1984); Health planning grants 45 C.F.R. s 80 app. A, pt. 1, at 92; Loans and loan guarantees for hospitals and other medical facilities, 45 C.F.R. s 80 app. A., pt. 1, at 109 (1991) and Maternal and Child Health Grants and Crippled Children Services grants 45 C.F.R. s 80 app A., pt 1 (1991). 

277. FN276. The program includes an entire agency or institution if any part receives federal financial assistance. 42 U.S.C. ss 2000d, 2000d-4a (1982); Civil Rights Restoration Act of 1987, Pub. L. No. 100-259, 102 Stat. 28, 28-29. See O'Conner v. Peru State College, 781 F.2d 632, 639-42 (8th Cir. 1986). 

278. FN277. 45 C.F.R. s 80.3(b) (6) (i) (1991). 

279. FN278. 42 U.S.C. s 2000d-1 (1982). 

280. FN279. Cf., 45 C.F.R. s 80.3(B)(1)(vii)(2) (1991) (Health Education and Welfare); 15 C.F.R. s 8.4(b)(2) (1991) (Commerce). 

281. FN280. Cf, 45 C.F.R. s 80.3(B)(1)(vii)(2) (1991) (Health Education and Welfare) 15 C.F.R. s 8.4(b)(2) (1991) (Commerce). 

282. FN281. 45 C.F.R. s 80.3(b)(1)(i) (1991). 

283. FN282. 45 C.F.R. s 80.3(b)(1)-(3) (1991). 

284. FN283. Id. 

285. FN284. For example, referral of white mental patients to individual counseling and blacks to group counseling; or the dumping of indigent emergency room patients from private, largely "white" hospitals to public hospitals would be prohibited under Title VI. Dorn et al., supra note 100, at 440-41. 

286. FN285. Restricted admission practices which have a discriminatory effect include: not having physicians on staff or otherwise available who accept Medicaid patients; or requiring preadmission deposits as a condition of obtaining care. Dorn et al., supra note 100, at 441. 

287. FN286. Id. 

288. FN287. Id. 

289. FN288. The chart below is a visual representation of how well the "Eliminating Discrimination" meets the various criteria. A minus sign (-) means that the criteria is not met. A plus sign (+) means that the criteria is met. A question mark (?) means that it is uncertain as to how well the criteria will be met. 

[Note: The following TABLE/FORM is too wide to be displayed on one screen. 

You must print it for a meaningful review of its contents. The table has been 

divided into multiple pieces with each piece containing information to help you 

assemble a printout of the table. The information for each piece includes: (1) 

a three line message preceding the tabular data showing by line # and 

character # the position of the upper left-hand corner of the piece and the 

position of the piece within the entire table; and (2) a numeric scale 

following the tabular data displaying the character positions.] 
 

******** This is piece 1. -- It begins at character 1 of table line 1. ******** 

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Horizontal Vertical Economic Preference Privacy Stigma 

Equity Equity Efficiency Satisfaction 

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+ + ? + - ? 

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******* This is piece 2. -- It begins at character 74 of table line 1. ******** 

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Feasibility 

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74...80....+. 

290. FN289. Although, Title VI does have affirmative action provisions and rules. 

291. FN290. Agencies may refuse to grant funds or terminate funding to any recipient found in violation of the Title VI regulations. The termination is limited to the particular program or part of program. While no court order is necessary, judicial review is available at the request of the fund recipient. See 45 C.F.R. s 80.8 (1991); See generally Dorn et al., supra note 100, at 442-44. 

292. FN291. 45 C.F.R. s 80.7(b) (1991). 

293. FN292. One solution to the issue of ignorance of rights may be to require hospitals to give notice to patients that they have the right to file a complaint with Office of Civil Rights if they feel that they have been denied services or that the quality of services has been affected because of race. 

294. FN293. 45 C.F.R. s 81.23 (1991). 

295. FN294. Dorn et al., supra note 100, at 444. 

296. FN295. See Cheyney State College Faculty v. Hufstedler, 703 F.2d 732, 738 (1983) (holding that a study of action was appropriate as some of the problems could be more readily obtained through flexibility of the ongoing administrative process); see generally Dorn et al., supra note 100, at 444. 

297. FN296. Dorn et al., supra note 100, at 444. 

298. FN297. Id. 

299. FN298. Id. 

300. FN299. Dorn et al., supra note 100, at 444-46. 

301. FN300. See, Guardians Ass'n v. Civil Serv. Comm'n, 463 U.S. 582, 593-95 (1983); Consolidated Rail Corp v. Darrone, 104 S.Ct. 1248, 1252-53 & n.9 (1984). Plaintiff may recover equitable retrospective and prospective relief. 463 U.S. at 602-03. Court not yet addressing whether plaintiff may recover damages. 463 U.S. at 630. 

302. FN301. See e.g., Wards Cove Packing Co. v. Atonio, 109 S.Ct. 2115, 2124-27 (1989) (providing general reference to burdens of proof; International Bd. of Teamster v. United States, 431 U.S. 324, 335 (1977); See also, Watson, supra note 272, at 958-59. 

303. FN302. Watson, supra note 237 at, 971-75. 

304. FN303. Id. at 959-60. 

305. FN304. Id. at 960 (quoting United States v. Jacksonville Terminal Co., 451 F.2d 418,451 (5th Cir. 1971) quoted in Pettway v. American Cast Iron Pipe Co., 494 F.2d 211, 245 (5th Cir. 1974), cert denied 439 U.S. 1115 (1979). 

306. FN305. See, Civil Rights Act of 1991, Pub. L. No. 102-166 (Nov. 21, 1991), 105 Stat. 1071, 102d Cong., 1st Sess. (1991) (codifying interpretation of Civil Rights Act of 1964, Title VII, which had been enunciated in Griggs v. Duke Power Co., 401 U.S. 424 (1971), and repudiated in Wards Cove Packing Co. v. Antonio, 490 U.S. 642 (1989). 

307. FN306. Bryan v. Koch, 627 F.2d 612, 619-20 (1980) (holding that Title VI does not implicitly require a recipient to consider alternatives to proposed placement of closing of a public facility); NAACP v. Medical Ctr., Inc., 657 F.2d 1322, 1334-37 (3rd Cir. 1981). 

308. FN307. Watson, supra note 272, at 971-75 

309. FN308. Id. at 973.

310. FN309. Id. at 978. 

311. FN310. See, KNOWLES & PREWITT, supra note 15, at 96 (placing burden of mobilizing medical resources on health institutions due to their relationship with medical community and patients). 

312. FN311. Id. 

313. FN312. This quote is taken from an article about South Africa with merely name changes from South Africa to the U.S. and Apartheid to Racism, it is equally true about the United States of America. Elena Nightingale, et al., Apartheid Medicine: Health and Human Rights in South Africa, 264 JAMA 2097, 2102 (1990