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Inadequacy of Legal Efforts

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Vernellia R. Randall
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Vernellia R. Randall

. INADEQUACY OF LEGAL EFFORTS TO ELIMINATE RACIAL DISCRIMINATION IN HEALTH CARE

Racial Discrimination in Health Care in the United States as a Violation Of the International Convention on the Elimination of All Forms of Racial Discrimination, [a1] 14 University of Florida Journal of Law and Public Policy 45-91 (Fall, 2002)

It might be that civil rights laws often go unenforced; it might be that current inequities spring from past prejudice and long standing economic differences that are not entirely reachable by law; or it might be that the law sometimes fails to reflect, and consequently fails to correct, the barriers faced by people of color.

-- Derrick Bell(144)

There are a number of federal laws which address access to health care: Title XVIII (medicare)(145) and Title XIX (medicaid)(146) of the Social Security Act, Title IX,(147) and the Hill Burton Act.(148) However, federal law related to eliminating racial discrimination in health care delivery is limited to Title VI of the Civil Rights Act.(149) Racial inequality in health care persists in the United States despite laws against racial discrimination, in significant part *66 because of the inadequacy of Title VI.(150) First, despite a regulatory requirement to produce data,(151) the Office of Civil Rights Title VI enforcement effort has produced little consistent data for evaluating Title VI compliance. (152)Second, there has been "little uniformity in how different states handle Title VI requirements, little guidance, little analysis of the information collected by this process, [and] no research and development."(153) Third, Title VI lacks specific definitions of prohibited discrimination and acceptable remedial action.(154) Fourth, OCR has relied on individual complaints as a means of enforcement.(155)

Even if the provisions of Title VI were improved and data collected, the legal system within which Title VI operates would still be inadequate for the particular difficulties present in the health care system. That is, the legal system has had particular difficulty addressing issues of unthinking discrimination, discrimination resulting from actions based on biases and stereotypes. While legal standards for discrimination have not always centered on intent, they do so now.(156) Thus, to prove a disparate treatment claim an individual must show that the defendant intentionally discriminated.(157) Such a standard means that few of the discriminatory acts that occur in the health care system can be successfully litigated, since most occur from unthinking or unconscious biases. As long as the law requires a conscious discriminatory purpose for disparate treatment liability, individual discrimination claims cannot address the issue of unconscious prejudice.(158)

Furthermore, the health care system presents several additional problems. First, similar to the situation that arises when racial minorities use housing and lending institutions, individuals can be totally unaware that the provider or institution has discriminated against them. Second, because of *67 the very specialized knowledge required in medical care, individuals can be totally unaware that they have been injured by the provider. Third, the health care system, through managed care, has actually built-in incentives that encourage unconscious discrimination.(159) Because of these issues, an appropriate legal structure is essential to eliminating institutional/cultural racism.

In an effective public health policy, appropriate state and federal laws must be available to eliminate discriminatory practices in health care. The crux of the problem, given managed care, the historical disparity in health care, and unthinking discrimination, is that the law does not address the current barriers faced by minorities, and the executive branch, the legislatures and the courts are all reluctant to hold health care institutions and providers responsible for institutional racism. The U.S. Commission on Civil Rights found:

There is substantial evidence that discrimination in health care delivery, financing and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by federal agencies ... [Such failure has] ... resulted in a failure to remove the historical barriers to access to quality health care for women and minorities, which, in turn has perpetuated these barriers.(160)

 

Up
ICERD
Racial Disparity in Health Status
Institutional Racism in US Health Care
Inadequacy of Legal Efforts
US Violations of ICERD
Recommendations and Conclusions
Appendix A US Report
Appendix B White Shadow Report Excerpts
Appendix C: Concluding Remarks 1475th CERD Meeting
Appendix D Concluding Observations

 

144. [FN144]. See, e.g., Derrick A. Bell, Jr., AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (1987); Alan D. Freeman, Legitimizing Racial Discrimination Through Anti-Discrimination Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049 (1978).

145. [FN145]. Social Security Amendments of 1965, Pub. L. No. 89-97, Titles XVIII, 79 Stat 286; the act does not contain any general anti-discrimination clauses although the implementing regulations require providers and facilities to abide by Title VI.

146. [FN146]. Id.

147. [FN147]. 20 U.S.C. 1681-88 (2002) (limited to sex discrimination in educational programs).

148. [FN148]. 42 U.S.C. 291-291o (2002) (requires uncompensated care and community service by facilities that receive funding under Hill-Burton Acts).

149. [FN149]. See, e.g., Watson, supra note 99; DAVID BARTON SMITH, HEALTH CARE DIVIDED: RACE AND HEALING A NATION (1999); David Barton Smith, Addressing Racial Inequities In Health Care: Civil Rights Monitoring And Report Cards, 23 J. HEALTH POL. POL'Y & L. 75 (1998); Randall, Racist Health Care, supra note 59.

150. [FN150]. See, e.g., Noah, Racial Disparities in the Delivery of Health Care?, 35 SAN DIEGO L. REV. 135 (1998); Daniel K. Hampton, Title VI Challenges By Private Parties To The Location Of Health Care Facilities: Toward A Just And Effective Action, 37 B.C. L. REV. 517 (1996); Marianne L. Engelman Lado, Breaking the Barriers of Access to Health Care: A Discussion of the Role of Civil Rights Litigation and the Relationship Between Burdens of Proof and the Experience of Denial, 60 BROOK. L. REV. 239 (1994).

151. [FN151]. 28 C.F.R. 42.406(a) (1992); 45 C.F.R. 80.6(b) (1991).

152. [FN152]. See, e.g., SMITH, HEALTH CARE DIVIDED, supra note 149; Watson, supra note 62.

153. [FN153]. See, e.g., SMITH, HEALTH CARE DIVIDED, supra note 149.

154. [FN154]. See, e.g., 45 C.F.R. 80.3(b) (1991); Watson, supra note 62.

155. [FN155]. See, e.g., Watson, supra note 62.

156. [FN156]. See, e.g., Jessie Allen, A Possible Remedy for Unthinking Discrimination, 61 BROOK. L. REV. 1299 (1995).

157. [FN157]. See, e.g., id.

158. [FN158]. See, e.g., id.

159. [FN159]. See, e.g., Bell, supra note 144; Sheri Lynn Johnson, Unconscious Racism and the Criminal Law, 73 CORNELL L. REV. 1016 (1988); Charles R. Lawrence III, The Id, the Ego and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317 (1987); David Benjamin Oppenheimer, Negligent Discrimination, 141 U. PA. L. REV. 899 (1993).

160. [FN160]. U.S. COMMISSION ON CIVIL RIGHTS II, supra note 4, at 275-76.

 
Related Pages:
Home ] Up ] ICERD ] Racial Disparity in Health Status ] Institutional Racism in US Health Care ] [ Inadequacy of Legal Efforts ] US Violations of ICERD ] Recommendations and Conclusions ] Appendix A US Report ] Appendix B White Shadow Report Excerpts ] Appendix C: Concluding Remarks 1475th CERD Meeting ] Appendix D Concluding Observations ]
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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

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 03/10/2010

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