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Marianne Engelman Lado

excerpted from: Marianne Engelman Lado, Unfinished Agenda: the Need for Civil Rights Litigation to Address Race Discrimination and Inequalities in Health Care Delivery, 6 Texas Forum on Civil Liberties and Civil Rights 1- 45 (Summer 2001)(218 Footnotes Omitted)

IV. Litigation and Advocacy (p. 34 - 44)

There are a number of different tracks that a strategically crafted litigation and advocacy campaign might take, and, indeed, the pervasiveness of the problem creates the need to choose among lines of attack. For example, during the 1990s individuals and community groups contacted LDF about a wide range of issues--from the relative difficulty faced by people of color in need of organ transplants to the question of whether Title VI or Title VII affords a remedy to the denial of hospital staff privileges. LDF assistance was also sought by medical school affirmative action officers evaluating the merits and legality of ongoing programs, and by women seeking representation to challenge state regulations on the availability of services in medically underserved communities of color, on the lack of ob/gyn services in metropolitan areas and rural communities, and on the way in which unsafe working conditions threaten the reproductive health of African American women, who are disproportionately represented in unhealthy industries and hazardous jobs. Each of these problems might be amenable to litigation.

This section of the article will briefly touch upon three potential, interrelated directions for advocacy. These are intended only to be suggestive, but were chosen from among the range of possibilities based on the following criteria, which should be considered by organizations when formulating a strategy about their own priorities: (1) the strategy's capacity to address barriers to access faced, particularly, by low-income communities of color; (2) possible nationwide impact; (3) flexibility, i.e., whether the strategy enhances the group's ability to be responsive to community concerns; (4) whether the strategy is amenable to litigation; (5) the strategy's potential for building coalitions across racial and ethnic lines; and (6) practicality (including cost and the likelihood of attracting financial support).

A. Advocacy to Build Mechanisms for Civil Rights Enforcement

Regulations promulgated by the Justice Department to coordinate enforcement of non-discrimination in federally assisted programs mandate that federal agencies "shall in regard to each assisted program provide for the collection ofdata and information from applicants for and recipients of federal assistance sufficient to permit effective enforcement of Title VI." Although the collection of data is only one minimal component of an enforcement program, it is a necessary prerequisite to other activities and, thus, an important initial step for reform efforts. Indeed, the collection of comprehensive information is the first step toward development of an affirmative oversight and monitoring program to evaluate Title VI compliance by recipients of federal funds.

In contrast to the regulations promulgated by HHS, which do not on their face require each recipient of federal funds to collect and report racial and ethnic data on a regular and systematic basis, enforcement of housing and employment discrimination laws is built on mandatory and systematic record keeping.

The lack of data collection and reporting permits providers to engage in exclusionary and segregatory practices without fear of exposure or sanction. In 1978, Kenneth Wing wrote, "A major shortcoming of the Title VI enforcement program in the past has been that it produced no data from which Title VI compliance could be evaluated." "To perform its functions," Wing warned, "OCR must regularly collect and analyze data indicating the kind and amount of services provided to racial minorities." Two decades later, little has changed; OCR still fails to compile data in a systematic way. "Identified as a major weakness of civil rights monitoring efforts almost from their inception," David Barton Smith wrote, "efforts to improve the information available have produced little."

The failure to maintain data systematically not only hampers administrative efforts to ensure compliance, but also complicates litigation by private parties. In order to establish a prima facie case that a recipient's policy or practice resulted in an unjustified discriminatory effect in violation of Title VI before Alexander v. Sandoval, plaintiffs had to demonstrate that the challenged practice had a disproportionate, adverse impact on members of a particular racial or ethnic group, usually through the use of statistical evidence. Thus, for example, efforts in the 1990s by LDF, CCR, the Legal Aid Society, and Legal Services attorneys to develop litigation against MCO's for allowing their physicians to refuse Medicaid recipients were delayed by the lack of data needed to calculate the racial and ethnic composition of the population of Medicaid enrollees, the individuals that are adversely affected, and the commercial enrollees, the reference group. Investigation of potential litigation now requires work with experts, such as demographers, industry analysts, and medical geographers, to fashion sound methodology for finding or estimating the necessary numbers.

In 1993, in the face of OCR's failure to develop a system for data collection, the Tennessee Interfaith Coalition for Justice in Health Care filed suit seeking to compel HHS to collect data and information from recipients of federal assistance sufficient to permit effective enforcement of Title VI. The plaintiffs argued that HHS had not required uniform race and ethnic data collection or reporting from health care providers produced routine reports, thereby contravening Justice Department regulations. Although the case was dismissed on jurisdictional grounds, administrative reform and, in particular, the development of systematic data collection processes at HHS, remains necessary to promote civil rights compliance and should be pursued by civil rights organizations through other forms of advocacy.

As David Barton Smith noted, the growth of managed care and other changes in the health sector have created a new emphasis on statistical monitoring. Smith wrote:

Major structural changes in the organization of health care. . . have produced substantial changes in the way medical care is monitored. . . . In response to these changes, a massive consolidation and integration of physicians, hospitals, and other service providers is taking place. Increasingly, integrated and computerized clinical and financial information systems serve as the essential backbone of these delivery systems and health plans.

These changes are reflected in the nature of the information collected by providers and purchasers of health care. Different 'report cards' have been developed to assure accountability, consumer choice, and goal-directed action. Most have undergone extensive review and development. Only minor changes in the reporting formats would be necessary for civil rights monitoring purposes.

Indeed, the consolidation of the health care industry, coupled with the current drive to standardize measures to monitor and assess health services and outcomes, present new opportunities to develop and implement systems for the collection and reporting of racial and ethnic data.

B. Impact Litigation Against Managed Care Organizations to Challenge Redlining and Other Discriminatory Practices

The health care industry is undergoing an unprecedented transformation. The move to managed care is perhaps the most significant change, and is already affecting low-income people of color, as well as the health care providers working in medically underserved communities. As researchers at the Center for Health Policy Research point out, "The growth of managed care for Medicaid patients, who are disproportionately minority has been . . . dramatic. In 1981 there were 750,000 Medicaid beneficiaries enrolled in managed care plans. By 1993 that figure has surpassed 8 million persons, a quarter of all beneficiaries." As of June 1996, 12.8 million, or 38.6% of Medicaid beneficiaries, were enrolled in an MCO. For low-income populations, and particularly those individuals with special health needs, the consequences are not yet known. MCOs may cut per patient costs by limiting patient access to services, and research suggests that access to health care for many low-income African Americans may actually suffer rather than improve as a result.

Nonetheless, the recent consolidation of health care providers and movement of patients into managed care provide a moment of opportunity for improving the organization of medical services and for litigation toward that same end. Medicaid has always been a voluntary program, and thus refusals to treat poor patients of color, many of whom are either uninsured or eligible for Medicaid, have been difficult to challenge. Physicians and, to some degree, facilities, were able to rationalize patient selection decisions based on economic considerations. As recipients of federal funds, MCOs, on the other hand, are also prohibited from excluding patients from participation in, denying patients the benefits of, or subjecting patients to discrimination under their programs. The economic rationalization for discriminatory patient selection or treatment practices becomes more difficult, however, when MCOs become the intermediaries, since MCOs negotiate multiple contracts with employers and other purchasers of health care, each of which has its own terms and rates. Unless the state's Medicaid program pays rates that are significantly lower than any of the commercial purchasers, an MCO has little reason to offer a Medicaid enrollee restricted services or to allow its participating physicians to refuse to treat Medicaid recipients. MCOs can, thus, be held responsible for ensuring that their networks treat all enrollees equally and that patients are protected against policies and decisions that have unjustified adverse effects on the basis of race or ethnicity, such as excluding Medicaid patients from treatment by participating physicians.

Disconcerting reports of MCO practices have emerged in recent years. From 1995 through 1997, LDF received complaints that physicians in one state that had implemented a mandatory managed care program for Medicaid recipients, routinely scheduled appointments with Medicaid enrollees on different days than their commercial enrollees. Tuesdays might be reserved for Medicaid managed care patients, for example, while the private enrollees of the same MCO might be invited to the office on Wednesdays and Thursdays. Similarly, a cooperating attorney in another state reported that a managed care company in a small town provided a list of physicians to its private pay enrollees that included a pediatric practice's office telephone numbers and address, but provided its Medicaid enrollees, a disproportionate number of whom were African American, a different listing, which indicated that the same physicians could only be seen at a clinic. Moreover, the Public Advocate for the City of New York released findings of a study indicating that six MCOs that offered both Medicaid and commercial plans in the New York area provided two different lists of primary care physicians--"one for Medicaid recipients and one for everyone else." While some physicians were available to all enrollees, many were on the commercial list that did not appear on the list given to Medicaid patients. In yet another state, a legal services office began an investigation of allegations of redlining by area MCOs. The MCOs were said to be marketing their services to Medicare recipients in white neighborhoods but avoiding African American areas, though many residents would otherwise qualify for their services.

Sara Rosenbaum, director of the Center for Health Policy Research and Professor of Health Care Sciences at George Washington University, wrote, "the early evidence from managed care suggests both the existence of discriminatory practices and areas of potential concern in which greater research is warranted." Specifically, she predicted the emergence of the following behaviors, which either (a) discriminate against people of color who seek to join an MCO by discouraging or otherwise evading their enrollment, or (b) discriminate among enrollees by offering or providing inferior services to African American or Latino participants:

1. An MCO may maintain shorter hours of operation and fewer locations in African American or Latino neighborhoods than in white areas.

2. An MCO might use enrollment counseling practices to "cherry pick," or encourage some patients and not others to enroll. For example, a plan might tell an African American family whose child has sickle cell anemia that its providers do not offer specialized treatment for that condition.

3. An MCO might avoid contracts with providers in certain locations, thereby maintaining fewer physicians in African American or Latino neighborhoods. Provider to patient ratios, then, might be maintained at different levels in communities of color than in white areas.

4. An MCO might also apply standards in poor areas, such as a requirement that physicians be board certified, that are not applied in middle and upper class neighborhoods. For example an MCO may market its services to patients in both suburban and urban neighborhoods. In the suburb, the MCO would accept all currently practicing physicians as providers in their plan. In the city, though, it might accept only physicians with unscathed records who are board certified, and then designate a few clinics as participating providers. Thus, Medicaid recipients in the city would have more limited access than their counterparts in suburban areas. 5. An MCO might discriminate by identifying and penalizing "high cost" providers in a manner that discriminates against physicians who treat larger numbers of African American and Latino patients. For example, a plan might impose monetary sanctions or exclude a physician whose patients consistently showed higher levels of hospitalization or used more specialized care.

Litigation against managed care organizations to challenge these types of practices is perhaps the most promising direction for the near future. It would build on the expertise of civil rights organizations, allow for collaboration with allies and supporters, and have an impact on an industry that is in flux and perhaps vulnerable to pressure. Litigation to challenge redlining practices or MCO policies that allow physicians to opt out of treating Medicaid enrollees but not commercial enrollees for whom the doctors are paid on a comparable pay scale, raises the specter of segregation and has the potential to generate an intuitive empathy in the general public.

C. Developing New Models of Litigation to Retain and Build Medical Infrastructure in Underserved Areas

At first blush, it is hard to imagine a role for litigation to address the dearth of medical personnel and lack of health care infrastructure in poor communities of color. Although the problem may seem compelling, the question is what, if anything, can civil rights law firms do without repeating the legal failures of the hospital closure and relocation cases?

The approach taken by LDF, PRLDF, CCR and their co-counsel in the effort to challenge the privatization of New York City Health and Hospital Corporation (HHC) facilities illustrates how national or regional civil rights organizations can develop effective responses to community concerns, once having recognized the lack of medical infrastructure in low-income communities of color as a civil rights issue. In the early months of 1995, members of the Community Advisory Board of Queens Hospital Center (the Queens CAB) learned that the Mayor of New York City had decided to privatize their hospital, along with Elmhurst Medical Center (the other public hospital in Queens), and Coney Island Hospital (in Brooklyn). The future of HHC, a public benefits corporation established under state law to provide comprehensive care to all New York City residents regardless of their ability to pay, was uncertain.

Although the privatization of New York's public hospitals was in some ways a local and highly political issue, the potential loss of health care accessible by poor communities of color followed a long-term trend. Thus, in 1995, LDF received a number of requests to file a challenge under Title VI, and its regulations. In recognition of the significance of the issues involved and the intensity of community concern, LDF offered to become involved despite its decision not to initiate litigation under Title VI and to convene a legal strategy session. In 1995, interested attorneys and community representatives gathered to brainstorm about possible procedural flaws in the Mayor's approach to the sale, as well as potential legal theories. The participants, who came from organizations with distinct constituencies and interests, agreed to continue working together where possible. Representatives from the Commission on the Public's Health System and the Campaign to Save Our Public Hospitals participated in the conversation, informed the conversation with their knowledge of the facts and their ideas, and agitated for legal action on a rapid timetable. At the same time the community groups maintained control over organizing at the grass-roots level, understanding that legal activity should not supplant other forms of advocacy that were in their domain.

Through a lengthy process of consultation, research, and development, the lawyers were able to look beyond the traditional civil rights statutes and analyze a range of bases for mounting a legitimate legal challenge. Although the familiarity acquired with the particular laws that gave rise to causes of action--New York's Uniform Land Use and Review Procedure (ULURP); the State Environmental Quality Review Act (SEQRA); and the Health and Hospitals Corporation Act --may be of little use in future cases challenging privatization or the departure of health services from medically underserved areas, the methodology developed for generating legal theories and representing and working with clients is replicable. The final proposal offered by this article, then, is that national and regional organizations continue to pursue these new models of litigation, which provide the flexibility to develop legal strategies on behalf of community residents struggling to maintain access to health care for themselves, their families and their neighbors.

Introduction
Racial Disparities and Civil Rights
Historical Perspectives and Civil Rights Enforcement
Litigation and Advocacy
Conclusion

 
Related Pages:
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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
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Email: randall@udayton.edu

 

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 03/10/2010

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