IV. THE HEALTH
SECURITY ACT MAINTAINS A CULTURALLY INCOMPETENT SYSTEM BASED ON
HEALTH CARE REFORM
OF HEALTH CARE
FOR ETHNIC AMERICANS
AND THE POOR? Vernellia
60 Brooklyn Law Review 167-235 ( 1994).
A person does not have meaningful access to health care if
that person is not provided health care within the context of his
or her cultural background(170)
Merely providing a person with a piece of paper (insurance) or a
provider does not mean that that person will receive health care
that assists in improving the person's health status. For
centuries, Americans indulged in the fantasy that all persons
(native Americans, immigrants and slaves) blended into one great
'melting pot' to become Americans. While it is true that there
are unique American cultural similarities that cut across all
groups, this country has always had a diverse population of
races, ethnic groups, subcultures and religions.
That diverse mix will continue. By the end of this century,
39% of the population will be from foreign-born parents(171)
At the same time, 50% of all Americans will be either African
American, Hispanic American, Asian American or Native American(172)
America is a 'micro-world reflecting (the) cultural diversity of
the entire world.(173) A. The
Perpetuation of European American Culture
The medical care system is a representation of one
subculture-the middle- class, middle-aged, European American. The
system focuses on individual autonomy rather than family
involvement(174) It assumes a
basic trust in the health care system instead of distrust(175)
It relies on a western European American concept of
communications(176) It is built
on a western European concept of wellness, illness and health
care(177) Consequently, the more
a patient differs from the cultural prototype (middle-class,
middle-aged, European American) the more likely the person will
not have 'meaningful access' to health care.
Merely providing financial coverage for health care does
nothing to assure that ethnic Americans will have access to care
that is culturally competent(178)
One barrier to culturally competent care is physicians' own
negative perceptions about ethnic Americans(179)
This barrier exists in part because the health care system is
designed around the cultural needs of middle-class European
Americans. Ethnic Americans and poor individuals seem less
compliant and more difficult to care for because they have
differing needs and problems in accessing care(180)
The problem, however, is not poor patients or ethnic Americans,
but the health care system's inability to provide effective care
to diverse populations(181) If
increased compliance and improved health status are the goals,
then the health care system must be flexible enough to match a
community's cultural, ethnic, lifestyle and socioeconomic needs(182)
The HSA does little to address the issue of assuring culturally
competent care. For instance, despite the fact that ethnic
Americans respond well to community-based health education
programs, the Act fails to require health plans to provide such
activities(183) Furthermore, it
fails to require removal of the barriers to the effective
utilization of such services. Rather, the Act permits, but does
not require, states to provide financial incentives to ensure
that health plans provide for extra services such as interpreting
services(184) Finally, since the
HSA never explicitly defines 'disadvantaged groups,' the scope of
the incentives is indeterminate.
Health care requires interaction between the patient seeking
care and the provider. When individuals do not understand, speak
or read English, they may avoid contact with the health care
system. Although some Americans do not understand English well
enough to be able to talk with their physicians, the Act does not
require that health care plans address these language barriers(185)
Language barriers can defeat the provision of health care if
essential information cannot be conveyed(186)
Consequently, although universal coverage makes it easier for
many ethnic Americans to seek and obtain effective health
services, language barriers will continue to inhibit their use of
the health care system, unless the system is required to
restructure itself to address those concerns(187)
B. Ineffective 'Comprehensive' Coverage
The HSA's univeral coverage does not cover many of the
services needed by poor Americans(188)
For instance, it does not cover eyeglasse(189)
or hearing aids(190) and
provides that no person 18 years or older can receive prevention,
diagnosis or treatment of dental disease before January 1, 2001(191)
These items may be of marginal expense to middle-income persons,
but to the poor they are not only expensive but they are also
essential corrective treatment.
The Act also provides insufficient 'comprehensive coverage'
for mental health and substance abuse. Although the Act covers
inpatient and residential mental illness and substance abuse
treatment, intensive nonresidential mental illness and substance
abuse treatment, and outpatient mental illness and substance
abuse treatment(192) these
services are available subject to significant limitations(193)
Given the serious significant mental health and substance abuse
problems in ethnic American and poor communities, basic mental
health services are inadequate(194)
In addition, the proposal to phase-in mental health benefits over
five years is particularly troubling since political changes may
result in the non-delivery of benefits.
While the evidently cut-throat competition of a health care
market will make ethnic American patients fair game, the HSA
fails to assure that ethnic American communities have providers
who can provide culturally competent care. Nor does the Act
anticipate the need to direct the regional alliance and health
plans to develop culturally competent policies for the treatment
of ethnic Americans. While there is a generalized list of Uniform
Conditions of Participation for health plans to be established by
the National Health Board, these conditions are oriented to
management, contract conflict resolution, financial and marketing(195)
They are not patient- or service-oriented. More specifically,
they do not require plans to show that they have the
infrastructure to assure services to all population groups. To
assure that health plans do serve the needs of ethnic Americans
and poor communities, an additional conditions of participation
should be added: to require health care plans to decrease the
health status deficits of ethnic and disadvantaged Americans; to
provide culturally competent care; and to prohibit adherence to
rules, regulations and laws that discriminate on the based of
race, class, ethnicity, language, gender or sexual preference.
While the Act certainly has a number of provisions that are
beneficial to ethnic Americans, one wonders why the only sections
which mention culturally appropriate care are those which provide
for financial incentives(196)
training of providers(197) and
the funding of school-based health clinics(198)
Why doesn't the HSA require health care plans to provide
culturally appropriate care? Its failure to do so assures that
the private sector will not provide culturally appropriate care
to ethnic Americans.
|170. FN170. 'Culture' is employed in
various manners. It has been defined as an 'integrated system of
learned patterns of behavior, ideas, and products characteristic
of a society.' Vernellia R. Randall, Ethnic Americans, Long Term
Health Care Providers and the Patient Self-Determination Act, in
Long Term Health Care Providers and the Patient
Self-Determination Act (Marshall Kapp ed., forthcoming 1994). See
generally Henry S. Perkins, Cultural Differences and Ethical
Issues in the Problem of Autopsy Requests, 87 Texas Medicine/The
Journal 1991. It is a body of learned values, beliefs and
behaviors that depict a group of people. 'Culture provides the
basic framework by which individuals interpret their
surroundings, the behavior of the people around them, and the
events that befall.' Randall, supra. Many factors determine a
person's culture. They include race, nationality, native
language, education, occupation, religion, socioeconomic factors
and area of origin. See generally Randall, supra; Alan Harwood,
Guidelines for Culturally Appropriate Health Care, in Ethnicity
and Medical Care (1981). These factors affect values, beliefs and
behaviors. A subculture is defined by values, beliefs and
behaviors that are peculiar to a particular subgroup within a
culture. See generally Randall, supra.
171. FN171. White House Commission on
Immigration and Refugee Policy (1982) (hereinafter, Immigration
& Refugee Policy).
172. FN172. Id.
173. FN173. See generally I.
Murillo-Rhode, Unique Needs of Ethnic Minority Clients in a
Multiracial Society: A Socio-Cultural Perspective, in Affirmative
Action: Toward Quality Nursing Care for a Multiracial Society
(1980); Miriam Ross, Societal/Cultural Views Regarding Death and
Dying, Topics in Clinical Nursing 5 (1981).
174. FN174. The existing health care
system has not sufficiently promoted family involvement. It
focuses on the individual and illness care rather than family and
wellness care. This is unfortunate since the concept of family
has a particular influence on wellness care and health promotion.
See Gabriel Smilkstein, The Cycle of Family Function: A
Conceptual Model for Family Medicine, 11 J. Fam. Pr. 223, 224
(1980). Furthermore, 'family' has different meanings across
cultures and ethnic groups. See Randall, supra note 170.
Different cultural priorities may modify the degree to which
families are involved in treatment decisions including the
involvement of the extended family. Particularly offensive in
some cultures may be the European American method of personal
decision-making that focuses on the individual, instead of the
family. For many ethnic Americans illness is a family affair, and
family members are involved in the patient's medical decisions
and care. See Alan Harwood, Mainland Puerto Rican, in Ethnicity
and Medical Care supra note 170, at 401; Stephen J. Kunitz &
Jerrold E. Levy, Navajos, in Ethnicity and Medical Care, supra
note 170, at 337; Michael S. Laguerre, Haitian Americans, in
Ethnicity and Medical Care, supra note 170, at 198; Janet M.
Schreiber & John P. Homiak, Mexican Americans, in Ethnicity
and Medical Care, supra note 170, at 301. To provide access to
quality health care, providers must appreciate cultural
differences in kinship terms, in role expectations and in the
role of the family in major decision-making.
175. FN175. The existing health care
system supposes that a patient will interpret a provider's
behavior to be in his or her best interest. However, many
individuals in our society distrust the health care system, in
particular ethnic Americans. African Americans' distrust is
rooted in slavery, sharecropping, peonage, lynching, Jim Crow
laws, disenfranchisement, residential segregation, job
discrimination, insufficient health care and inappropriate
scientific experimentation. See James Jones, The Tuskegee Legacy:
AIDS and the Black Community (Twenty Years After: The Legacy of
the Tuskegee Syphilis Study), 22 Hastings Ctr. Rep. 38 (1992);
Thomas A. Laveist, Segregation, Poverty and Empowerment: Health
Consequences for African Americans, 71 Milbank Q. 41 (1993);
Lorene Cary, Why It's Not Just Paranoia: An American History of
'Plans' for Blacks, Newsweek, Apr. 6, 1992, at 23. For instance,
African Americans may feel that managed care providers will
denythem necessary services. Many Southeast Asian Americans
identify the health care system with death. Laura Uba, Cultural
Barriers to Health Care for Southeast Asian Refugees, 107 Pub.
Health Rep. 544, 546 (1992). Many Hispanics perceive providers as
obstacles to receiving any meaningful help. Wendy Mettger &
Vicki S. Freimuth, Is there a Hard-to-Reach Audience?, 105 Pub.
Health Rep. 232 (1990). Consequently, after years of neglect and
culturally insensitive care, there is often a deep distrust of
the health care system. This is true even when those providing
the health care are of the same ethnic community. Forgotten
Americans-Special Report on Medical Care for Blacks, 9 American
Health: Fitness of Body and Mind 52 (1990). Historically,
Hispanic Americans, particularly Mexican Americans, have not had
access to good housing, schooling or health services. Neglect
combined with bigotry and discrimination has encouraged Hispanic
Americans to be suspicious of the health care system. Schreiber
& Homiak, supra note 174, at 301. Obviously, a significant
question is how this general distrust will be impacted by a
system of health care designed to deny health care rather than to
provide services. In particular, utilization review processes may
allow providers to make decisions which will adversely impact
persons of color more than European Americans. When that happens,
some ethnic Americans' distrust in the health care system may be
176. FN176. Communication is basic to
obtaining quality health care. A person may have doctors in the
community, a person may have money in his or her pocket, a person
may have insurance, but if health care providers cannot
communicate with their patients, they cannot provide effective
quality health care. See The Association of Asian Pacific
Community Health Organizations, supra note 6, at 6 (maintaining
that the lack of linguistically accessible services presents a
barrier for many Asian and Pacific Islander Americans in need of
health care); Lifting Barriers to Asian and Pacific Islander
Health Care: Issues and Recommendations (unpublished manuscript,
on file with the author).
How different cultures communicate is very important.
Different linguistic groups see and conceive reality differently.
See Gustavo M. Quesada, Language and Communication Barriers for
Health Delivery to Minority Group, 10 Soc. Sci. & Med. 323,
324 (1976). Ethnic Americans' views of health care are shaped by
the language used. To the extent that a person's primary language
is not English, communication and language barriers will exist.
177. FN177. See Donald Gelfand &
Barbara W.K. Yee, Trends & Forces: Influence of Immigration,
Migration, and Acculturation on the Fabric of Aging in America,
15 Generations 7 (1991) (health care professionals who treat
elderly immigrants need to understand cultural beliefs concerning
etiology and appropriate treatments for illness; for example,
explanations for illness and disease using culturally defined
norms about 'hot' and cold' forces are common among Southeast
Asians and differ markedly from Western concepts); Susan Pollak,
Melancholia and Depression: From Hippocratic Times to Modern
Times, 22 Psych. Today 73 (1988) (pointing out that many
non-Western cultures do not have an equivalent concept of
depression; depression assumes different meanings and
consequences depending on the culture in which it occurs);
Charles E. Rosenberg, Disease in History: Frames and Framers, 67
Milbank Q. 1 (1989) (discussing the social construction of
disease and illness); N.J. Temple & D.P. Burkitt, Towards a
New System of Health: The Challenge of Western Disease, 18 J.
Comm. Health 37 (1993) (pointing out that the concept of Western
disease has become well-established).
178. FN178. Bonnyman, Jr. supra note 104,
179. FN179. Barbara M. Aved et al.,
Barriers to Prenatal Care for Low-Income Women, 158 West. J. Med.
493, 497 (1993).
180. FN180. Id.
181. FN181. Michelle A. Bardack &
Susan H. Thompson, Model Prenatal Program of Rush Medical College
at St. Basils Free Peoples Clinic, 108 Pub. Health Rep. 161,
(1993) (inadequacy of medical care for the disadvantaged is due,
at least in part, to the result of the lack of committed
physicians capable of providing culturally relevant care).
182. FN182. Jaime A. Davidson, Diabetes
Care in Minority Groups: Overcoming Barrier to Meet These
Patients' Special Needs, 90 Postgraduate Med. 153, 158 (1991).
183. FN183. 'A health plan may offer
education and training classes at its discretion.' HSA s 1127(b).
184. FN184. Id. s 1203(e)(3).
185. FN185. Twenty-five percent of
Hispanic Americans do not understand English well enough to be
able to talk with their physicians. Davidson, supra note 182, at
186. FN186. Davidson, supra note 182, at
162. Language and communication barriers exist beyond the role
language plays in shaping reality. An emphasis on written
communication ignores that many individuals prefer to understand
information through oral or visual communications. Simply
providing information (written, oral or visual) does not ensure
knowledge or understanding. Providing written information will
not be an adequate means of communicating to persons from
cultural backgrounds other than middle-class European American.
Furthermore, expressed language, whether written or oral, is a
major source of conflict and misunderstanding in intercultural
situations. Ross, supra note 173, at 4-5. For instance, an
inability to understand the expressions of others or of others to
understand the individual can be a major source of frustration
for ethnic Americans. With sufficient frustration, non-English
speaking clients may delay seeking care. Even for English
speaking clients, illness, depression, frustration and
embarrassment may cause persons proficient in English to revert
to their native language. Culture also influences the forms of
responses in conversation. Ross, supra note 173, at 6-7.
Similarly, a patient's emotional response to treatment will
differ across cultures. Ross, supra note 173, at 5- 7; Laguerre,
supra 174, at 191. Finally, culture influences which topics a
person considers appropriate for conversation among strangers.
Ross, supra note 173, at 6-7
187. FN187. Ginzberg & Ostow, supra
note 158, at 2559. Communication barriers exist because of how
different linguistic groups see and conceive reality. They exist
because of cultural differences in interpreting expressed
language. Culturally different forms of response, affect,
approach and the appropriateness of the topic for conversation,
all maintain communication barriers. Universal coverage does not
remove those barriers.
188. FN188. The Act, however, does
require the National Health Board to specify particular clinical
preventive items and services for high risk populations. HSA s
189. FN189. Eyeglasses and contact lenses
are covered only for individuals who are less than 18 years of
age. HSA s 1141(b)(4).
190. FN190. Id. s 1141(b)(3).
191. FN191. Id. s 1126(b)(1), (2).
192. FN192. Id. s 1115(a).
193. FN193. Coverage for inpatient and
residential mental illness and substance abuse treatment is
limited by criteria determined by the plan. HSA s 1115(c)(2).
Furthermore, prior to January 1, 2001, treatment for inpatient
and residential mental illness is limited to 30 days. Id. s
1115(c)(2)(C). A maximum of 30 additional days of treatment may
be covered if a health professional designated by the health plan
in which the individual is enrolled determines in advance that (i)
the individual poses a threat to his or her own life or the life
of another individual; or (ii) the medical condition of the
individual requires inpatient treatment in a hospital or a
psychiatric hospital to initiate, change or adjust
pharmacological or somatic therapy. Id. Coverage for intensive
nonresidential mental illness and substance abuse treatment is at
the discretion of the health plan. Id. s 1115(d)(2)(A). However,
the plans may not exercise the discretion adequately in areas
that have significant substance abuse problems.
Prior to January 1, 2001, the number of covered days of
intensive nonresidential mental illness and substance abuse
treatment is limited to 60 days. Id. s 1115(d)(2)(D). An
additional 60 days may be approved at the discretion of the plan.
Coverage for outpatient treatment is at the discretion of the
health plan. Id. s 1115(d)(2)(A). Prior to January 1, 2001, the
HSA limits psychotherapy and collateral services to 30 visits for
each type of service per individual. Id. s 1115(e)(2)(C)(i). The
Act limits coverage for substance abuse counseling and relapse
prevention to 120 visits and group therapy substance abuse
counseling and relapse prevention to 30 visits. Id. s 1115(e)(2)(C)(ii).
194. FN194. The large homeless
population, at least 33% of whom suffer from some form of mental
illness, is one indication of the need for a more significant
mental health approach.
195. FN195. The health plans must meet
Uniform Conditions of Participation established by the National
Health Board. These include requirements for enrollment and
coverage, HSA s 1402; community rating, id. s 1403; truth-in-
marketing, id. s 1404; grievance procedure, id. s 1405;
Utilization Management, id. ss 1406, 1412; financial solvency,
id. s 1408; quality assurance id. s 1410; verifying credentials
of practitioners and facilities, id. s 1411; confidentiality, id.
s 1413; and data management and reporting. Id. s 1413.
196. FN196. Id. s 1203(e)(3) (permitting
states to use financial incentives for health plans to remove
barriers to access based on cultural differences); Id. s 3424(d)
(federal funding to qualified community health group to remove
barriers to access to the including those based on cultural
groupings); Id. s 3424(e) (federal funding to qualified community
health group to provide services to individuals with limited
English within the individuals' cultural context most appropriate
to such individuals).
197. FN197. Id. s 3031(a) (federal
funding to train health professionals and administrators in the
provision of culturally sensitive care).
198. FN198. Id. s 3602(a)(6); Id. ss
3631(b), 3631(b)(10), 3635(a)(4), 3671(c)(9) (requiring programs
which receive funding for comprehensive school health services to
assure that instructional materials and approaches are sensitive
to cultural and ethnic issues). The Act requires state plans,
applications from local educational agencies, and applications
from educational grantees for school health implementation grants
to discuss how such school health education programs will be
tailored to the extent practicable to be culturally and
linguistically sensitive and responsive to the various needs of
the students served, including individuals with disabilities, and
individuals from disadvantaged backgrounds (including racial and
ethnic minorities). Id.