1	Using Civil Rights Law to Eliminate Racial Discrimination in Health Care and Health Research Vernellia Randall Professor of Law The University of Dayton School of Law Website: http://academic.udayton.edu/race/
2	"It might be that civil rights laws often go un-enforced; 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 A. Bell, Jr., AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE (Basic Books, 1987)
3	Federal Laws and Access to Quality Health Care Laws that Affect Access Title XVIII (Medicare) Title XIX (Medicaid) of the Social Security Act Title IX (Educational Institutions) Hill Burton Act. Laws related to Eliminating Discrimination Title VI of the Civil Rights Act.
4	The Civil Rights Act of 1964 Section 601 of Title VI provides: “No person in the United States, shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” Courts interpret as intentional discrimination only
5	Interpretative Regulations A recipient. . . may not. . . utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination of their race, color or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. 45 C.F.R. ' 80.3(b)(2) (1991) This is disparate Impact discrimination. Courts limit enforcement to government agencies.
6	"Scope of Title VI" Scope of Title VI Any public or private entity or individual that receives federal financial assistance. Federal financial assistance includes Money awarded through grant, loan, or contract., Does not include federal contracts of insurance or guaranty Includes receipt of Medicare, Medicaid Potential of having a broad range effect. hospitals, out-patient and primary care facilities, various state and local public health agencies Day Care centers Local services agencies Physicians and other providers Once a program has been determined to violate Title VI, the program "must take affirmative action to over come the effects of prior discrimination."
7	Problems with Title VI Little consistent data for evaluating Title VI compliance. Lack of uniformity in how different states handle Title VI requirements Lack of statutory definition of prohibited discrimination and acceptable remedial action. Reliance on individual complaints as a means of enforcement.
8	Other Issues Not Addressed in Current Law Inability to Address “Unconscious or Unthinking Discrimination” Individuals are generally unaware of discrimination Individuals are generally unaware that they have been injured Managed care, has financial risk-shifting incentives which may encourage “unconscious" discrimination
9	"In an effective public health..." In an effective public health policy, appropriate state and federal laws must be available to eliminate discriminatory practices in health care. Thus, the crux of the problem, given managed care, the historical disparity in health care, and "unthinking discrimination, the laws do not address the current barriers faced by minorities; We must hold health care institutions and providers responsible for intentional and disparate impact discrimination.
10	Health Care Anti-Discrimination Law Elements of an Effective State or Federal Law
11	Authorize and fund the use of medical testers An 'aggrieved person' should include the individual who has been injured one who believes that he or she will be injured individuals engaged as testers organizations engaged in testing organizations representing a class base on disparate impact Important: because much of health care discrimination goes unreported or undetected.
12	Make disparate impact illegal Health Care discrimination rarely overt or intentional discrimination Most Health Care discrimination result of unthinking bias or stereotypes or disproportionate negative impact of policies, practices or procedures - or disparate impact
13	Interaction of Prejudice and Discrimination
14	Allow for a private right of action for disparate impact discrimination Limiting enforcement to agencies will be inadequate. insufficient staff Limits Avenues of redress. Limited in their capacity to mandate redress for aggrieved plaintiffs Termination of funds is onerous
15	Require comprehensive data collection and reporting Data must be disaggregated by health status health care (including institution and provider info) The only way to monitor the well being of individuals in discriminated groups lack of a uniform data collection method makes obtaining an accurate and specific description of racial discrimination in health care difficult
16	"Race Matters" Race Matters. Race Matters because racism and racial discrimination matters Disaggregating data based on race is important because it helps to make the impact of racism and racial discrimination visible and, thus allows us to address the root problem. We need facility and provider data collection and public reporting
17	Require a health report card for every health agency, provider group or facility Report cards that reflect racial disparities will provide a strong evidence that racism - - "intentional or unintentional, institutional or individual-is affecting patient care.” Existing and proposed health care "report cards" could be used Race already being collected as medical record Need to compile and report racial and ethnic information in a format that protects patient confidentiality and privacy
18	Assure adequate fines & regulatory enforcement importance of rigorous enforcement of regulation as a primary vehicle for policing the health services cannot be overemphasized significant civil penalty other than termination of funds fines collected deposited directly into a restricted account that could be used only to enhance and improve racial disparities
19	Are Health Care Disparities and “An Unfortunate Fact of Life”?
20	African American Health Experience - *1619 to 2005
21	Race and Health Care in the 21st Century