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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
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