Civil Rights in a Changing Health Care System

Health Affairs

Volumn 16, Issue 1, 1997, Pages 90-105

  Rosenbaum, Sara ^a   Serrano, Rafael ^a   Magar, Michele ^a   Stern, Gillian ^a  

^a NONE

Author keywords

[No Author keywords available]

Indexed keywords

CIVIL RIGHTS; CIVIL RIGHTS ACT 1964; COOK V. OCHSNER; GOVERNMENT; GOVERNMENT REGULATION; HEALTH CARE AND PUBLIC HEALTH; HEALTH CARE DELIVERY; HEALTH CARE PLANNING; HEALTH CARE POLICY; HEALTH INSURANCE; HUMAN; LEGAL APPROACH; LEGAL ASPECT; MEDICAID; MINORITY GROUP; PATIENT SELECTION; POVERTY; REVIEW; SOCIAL PSYCHOLOGY; UNITED STATES;

CIVIL RIGHTS ACT 1964; COOK V. OCHSNER; HEALTH CARE AND PUBLIC HEALTH; LEGAL APPROACH; MEDICAID;

CIVIL RIGHTS; FEDERAL GOVERNMENT; GOVERNMENT REGULATION; HEALTH CARE REFORM; HEALTH SERVICES ACCESSIBILITY; HUMANS; MANAGED CARE PROGRAMS; MANAGED COMPETITION; MEDICALLY UNDERSERVED AREA; MINORITY GROUPS; PATIENT SELECTION; POVERTY; PREJUDICE; UNITED STATES;

EID: 0007662382     PISSN: 02782715     EISSN: None     Source Type: Journal    
DOI: 10.1377/hlthaff.16.1.90     Document Type: Article

References (46)

1. See, for example, Cook v Ochsner Foundation Hospital et al., 61 F.R.D. 354 (E.D. La. 1972). The federal court in New Orleans ruled that the plaintiffs had raised valid claims under both Title VI of the 1964 Civil Rights Act and the Hospital Survey and Construction Act (also known as the Hill-Burton Act). As with Title VI, the Hill-Burton Act's community service requirements prohibit the denial of care for any reason unrelated to a person's need for care.
2. Consider, for example, the practices of Denny's restaurant chain that were brought to light in the early 1990s. These practices entailed a systemic effort to avoid giving service to black customers through a variety of means, including written rules against hiring and promotion, pervasive nonservice, and the institution of an "advance payment" rule for African American customers only (a practice eerily reminiscent of the preadmission deposit requirements used by certain hospitals to deter minority patients from admission and outlawed in the case of Hill-Burton facilities in 1979). See H. Kohn, "Service with a Sneer," The New York Times Magazine (6 November 1994): 43.
3. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
4. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
5. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
6. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
7. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
8. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
9. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
10. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
11. See, for example, M. Lillie-Blanton and A. Alfaro-Correa, In the Nation's Interest: Equity in Access to Health Care (Washington: Joint Center for Political and Economic Studies, 1995); Center for Health Economics Research, Access to Health Care: Key Indicators for Policy (Princeton, N.J.: CHER, November 1993); National Center for Health Statistics, Health, United States, 1993 (Hyattsville, Md.: U.S. Public Health Service, 1994); and Council on Scientific Affairs, "Hispanic Health in the United States," Journal of the American Medical Association 265, no. 13 (1991): 248-252. Regarding discrimination in health care, see, for example, D. Falcone and R. Broyles, "Access to Long-Term Care: Race as a Barrier," Journal of Health Politics, Policy and Law (Fall 1994): 583-595; D.B. Smith, "The Racial Integration of Health Facilities," Journal of Health Politics, Policy and Law (Winter 1993): 851-869; D.B. Smith, "Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States," The Milbank Quarterly 68, no. 4 (1990): 561-596; N. Lewin-Epstein, "Determinants of Regular Source of Care in Black, Mexican, Puerto Rican, and Non-Hispanic White Populations," Medical Care 29, no. 6 (1991): 543-557; and S.W. Funkhouser and D.K. Moser, "Is Health Care Racist?" Advances in Nursing Science 12, no. 2 (1990): 47-55.
12. 42 U.S. Code, sec. 2000a et seq. For an overview of the law, see S. Watson, "Reinvigorating Title VI: Defending Health Care Discrimination - It Shouldn't Be So Easy," Fordham Law Review 58, no. 3 (1990): 939-978.
13. 42 U.S. Code, sec. 2000d-4a, as amended by Section 6 of P.L. 100-259, the Civil Rights Restoration Act of 1988. This provision was added to overturn the Supreme Court's decision in Grove City College v Bell, 465 U.S. 555 (1984), in which the court limited the reach of the law to only those programs or activities within an institution that directly received the federal funds.
14. See 45 C.F.R. 80 App. A (1993); United States v Baylor University Medical Center, 736 F.2d 1039 (5th Cir. 1984). Although the statute at issue in Baylor was Section 504 of the Rehabilitation Act, the court's finding that Medicare and Medicaid reimbursement constitutes federal financial assistance is based on its analysis of Title VI.
15. See 42 U.S. Code, sec. 2000d-1 and its implementing regulations. Persons may also bring direct legal action in court to challenge a violation of the act or implementing regulations without first exhausting administrative remedies.
16. 45 C.F.R. 80.
17. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
18. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
19. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
20. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
21. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
22. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
23. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
24. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
25. Connecticut v Teal, 457 U.S. 440, 446 (1982); and NAACP v Medical Ctr., 657 F.2d 1322, 1332 (3rd Cir. 1981) ("To establish a prima facie case under Title VI . . . some definite, measurable disparate impact is required."). Some courts have used the "80 percent" trigger as the threshold for discrimination, which requires a finding that the challenged practice results in a selection rate for the protected class that is less than 80 percent that for the group with the highest selection rate. Fudge v City of Providence Fire Dept., 766 F.2d 650, 658-9 n. 10 (1st Cir. 1985); and Firefighters Inst. for Racial Equality v City of St. Louis, 616 F.2d 350, 356 (8th Cir. 1980). Other courts have held that a statistically significant disparity occurs if the selection rate for the protected class is greater than two or three standard deviations from the expected rate for that class. Castaneda v Partida, 430 U.S. 482, 496 n. 17 (1977); and Hazelwood School District v United States, 433 U.S. 299, 309 n. 14 (1977). Courts have based the requirements for proving a Title VI violation on those required to prove a violation of Title VII of the 1964 Civil Rights Act. See Georgia State Conference of Branches of NAACP v Georgia, 665 F.2d 1403, 1407 (11th Cir. 1985). However, "[a]t least one commentator has argued persuasively that because Title VI obligations attach only where a public or private entity has voluntarily accepted federal funds, those obligations should be more strictly enforced, and defendants' justifications given significantly less deference than in the Title VII context where coverage is unavoidable and unrelated to the receipt of federal funding." A. Jenkins, "Title VI of the Civil Rights Act of 1964: Racial Discrimination in Federally Funded Programs," in Civil Rights Litigation and Attorney Fees Annual Handbook, ed. B. Wolvovitz et al., citing Watson, "Reinvigorating Title VI."
26. See S.D. Ivie, "If You're Black, Stay Back," The Health Law Bulletin (September 1979): 1-14; S. Watson, "Health Care in the Inner City: Asking the Right Question," North Carolina Law Review 71, no. 4 (1993): 1648, 1666-1671; and J. Perkins, "Race Discrimination in America's Health Care System," Clearinghouse Review (Special Issue 1993): 862-874.
27. See S.D. Ivie, "If You're Black, Stay Back," The Health Law Bulletin (September 1979): 1-14; S. Watson, "Health Care in the Inner City: Asking the Right Question," North Carolina Law Review 71, no. 4 (1993): 1648, 1666-1671; and J. Perkins, "Race Discrimination in America's Health Care System," Clearinghouse Review (Special Issue 1993): 862-874.
28. See S.D. Ivie, "If You're Black, Stay Back," The Health Law Bulletin (September 1979): 1-14; S. Watson, "Health Care in the Inner City: Asking the Right Question," North Carolina Law Review 71, no. 4 (1993): 1648, 1666-1671; and J. Perkins, "Race Discrimination in America's Health Care System," Clearinghouse Review (Special Issue 1993): 862-874.
29. R. Rosenblatt, S. Law, and S. Rosenbaum, Low and the American Health Care System (New York: Foundation Press, forthcoming). The only exception to the patient selection autonomy given health care providers can be found in the case of hospitals built with Hill-Burton funding, which must make their services available to the community; hospitals covered by Title VI and other federal civil rights laws, which are prohibited from engaging in exclusionary admissions practices; and hospitals that participate in Medicare and thus are subject to the Emergency Treatment and Active Labor Act.
30. S. Rosenbaum et al., Negotiating the New Health Care System: An Analysis of Contracts between Managed Care Organizations and Primary Health Care Providers (Washington: The George Washington University Center for Health Policy Research, 1995).
31. National Academy for State Health Policy, Managed Care: State of the Art (Portland, Me.: NASHP, 1990).
32. For example, many Medicaid contracts with managed care plans permit plans to seek disenrollment for "noncompliant" patients, commonly defined as patients who fail to keep appointments, do not follow instructions, or threaten providers. It is not unheard of for states to allow plans to avoid certain patients altogether. New York State's 1995 Request for Proposals provides that "[h]ealth plans may not refuse an assignment or seek to disenroll a member or otherwise discriminate against a member on the basis of age, sex, race, physical or mental handicap/developmental disability, national origin, or type of illness or condition, except when that condition can better be treated by another provider type. . ." (emphasis added). There does not appear to be any study suggesting that the poor are any more noncompliant than similarly situated private enrollees. Indeed, in 1994 testimony before the House Energy and Commerce Committee at a Chicago field hearing on managed care for the poor, officials from one managed care company selling services to both publicly and privately insured persons indicated that while the poor were sicker than their other patients, they were easy to manage because they "never asked for services."
33. Rosenbaum et al., Negotiating the New Health Care System.
34. See G.G. Bonnyman Jr., "Stealth Reform: Market-Based Medicaid in Tennessee," Health Affairs (Summer 1996): 306-314.
35. For example, physicians in public practice have reported that private physicians in their communities refuse to permit them to participate in "call groups," a practice that makes their practice more difficult. Also, see Glana v Vernick, 756 F.Supp. 632 (D. Mass. 1991); In re Madera Community Hospital (O.C.R. Region IX, 1981); Linton v Carney, 779 F.Supp 925, 1990 U.S. Dist.; In re Community Memorial Hospital of San Buenaventura (HHS Office for Civil Rights Docket no. 09917801) (failure to provide notices in English and Spanish about interpreter services in patient admissions packets violates Title VI); and a complaint filed with the HHS Office for Civil Rights alleging that a U.S./Mexico border hospital dressed its security personnel in uniforms virtually identical to those worn by federal Border Patrol to frighten away undocumented persons. In re McAllen Medical Center (HHS Office for Civil Rights, filed January 1991), cited in Perkins, "Race Discrimination in America's Health Care System," in Clearinghouse Review, 871.
36. For example, physicians in public practice have reported that private physicians in their communities refuse to permit them to participate in "call groups," a practice that makes their practice more difficult. Also, see Glana v Vernick, 756 F.Supp. 632 (D. Mass. 1991); In re Madera Community Hospital (O.C.R. Region IX, 1981); Linton v Carney, 779 F.Supp 925, 1990 U.S. Dist.; In re Community Memorial Hospital of San Buenaventura (HHS Office for Civil Rights Docket no. 09917801) (failure to provide notices in English and Spanish about interpreter services in patient admissions packets violates Title VI); and a complaint filed with the HHS Office for Civil Rights alleging that a U.S./Mexico border hospital dressed its security personnel in uniforms virtually identical to those worn by federal Border Patrol to frighten away undocumented persons. In re McAllen Medical Center (HHS Office for Civil Rights, filed January 1991), cited in Perkins, "Race Discrimination in America's Health Care System," in Clearinghouse Review, 871.
37. Regarding location of services, see Bryan v Koch, 627 F.2d 612 (2d Cir. 1980), in which the court stated that while it was questionable whether New York City's decision to close a Harlem hospital created a sufficiently adverse disparate impact on minority Harlem residents to violate Title VI, the city's justification for its decision was adequate; Jackson v Conway, 476 F.Supp. 896 (E.D. Mo. 1979), aff'd 620 F.2d 680 (8th Cir. 1980), in which the court used an effective foreclosure standard to rule that there was no clear showing of discriminatory impact stemming from the city of St. Louis's decision to relocate acute inpatient facilities and certain emergency department and outpatient facilities to a hospital more than three miles away, because the increased distance that residents would have to travel did not constitute an effective denial of care; and United States v Bexar County, 484 F.Supp. 855 (W.D. Tex. 1980), in which the court held that the plaintiffs were unable to prove that the relocation of inpatient maternity and newborn nursery services from downtown San Antonio to another hospital located eleven miles away would have a disparate impact on minority residents, because a shuttle service provided transportation between the two sites and because the higher quality of care available at the new site more than offset transportation problems. In contrast, a federal judge in California issued a preliminary injunction enjoining hospital construction in Latimore v County of Contra Costa, No. C 94-1257 SBA (N.D. Calif. 1984). The court found that the county's decision to rebuild its sole hospital on its original site had a disproportionate adverse impact on the county's minorities, most of whom lived in areas that were not adequately served by public transportation routes that reached the hospital. The court dissolved its injunction four months later after the county quadrupled the number of shuttles linking minority communities to the hospital.
38. Regarding location of services, see Bryan v Koch, 627 F.2d 612 (2d Cir. 1980), in which the court stated that while it was questionable whether New York City's decision to close a Harlem hospital created a sufficiently adverse disparate impact on minority Harlem residents to violate Title VI, the city's justification for its decision was adequate; Jackson v Conway, 476 F.Supp. 896 (E.D. Mo. 1979), aff'd 620 F.2d 680 (8th Cir. 1980), in which the court used an effective foreclosure standard to rule that there was no clear showing of discriminatory impact stemming from the city of St. Louis's decision to relocate acute inpatient facilities and certain emergency department and outpatient facilities to a hospital more than three miles away, because the increased distance that residents would have to travel did not constitute an effective denial of care; and United States v Bexar County, 484 F.Supp. 855 (W.D. Tex. 1980), in which the court held that the plaintiffs were unable to prove that the relocation of inpatient maternity and newborn nursery services from downtown San Antonio to another hospital located eleven miles away would have a disparate impact on minority residents, because a shuttle service provided transportation between the two sites and because the higher quality of care available at the new site more than offset transportation problems. In contrast, a federal judge in California issued a preliminary injunction enjoining hospital construction in Latimore v County of Contra Costa, No. C 94-1257 SBA (N.D. Calif. 1984). The court found that the county's decision to rebuild its sole hospital on its original site had a disproportionate adverse impact on the county's minorities, most of whom lived in areas that were not adequately served by public transportation routes that reached the hospital. The court dissolved its injunction four months later after the county quadrupled the number of shuttles linking minority communities to the hospital.
39. Regarding location of services, see Bryan v Koch, 627 F.2d 612 (2d Cir. 1980), in which the court stated that while it was questionable whether New York City's decision to close a Harlem hospital created a sufficiently adverse disparate impact on minority Harlem residents to violate Title VI, the city's justification for its decision was adequate; Jackson v Conway, 476 F.Supp. 896 (E.D. Mo. 1979), aff'd 620 F.2d 680 (8th Cir. 1980), in which the court used an effective foreclosure standard to rule that there was no clear showing of discriminatory impact stemming from the city of St. Louis's decision to relocate acute inpatient facilities and certain emergency department and outpatient facilities to a hospital more than three miles away, because the increased distance that residents would have to travel did not constitute an effective denial of care; and United States v Bexar County, 484 F.Supp. 855 (W.D. Tex. 1980), in which the court held that the plaintiffs were unable to prove that the relocation of inpatient maternity and newborn nursery services from downtown San Antonio to another hospital located eleven miles away would have a disparate impact on minority residents, because a shuttle service provided transportation between the two sites and because the higher quality of care available at the new site more than offset transportation problems. In contrast, a federal judge in California issued a preliminary injunction enjoining hospital construction in Latimore v County of Contra Costa, No. C 94-1257 SBA (N.D. Calif. 1984). The court found that the county's decision to rebuild its sole hospital on its original site had a disproportionate adverse impact on the county's minorities, most of whom lived in areas that were not adequately served by public transportation routes that reached the hospital. The court dissolved its injunction four months later after the county quadrupled the number of shuttles linking minority communities to the hospital.
40. Regarding location of services, see Bryan v Koch, 627 F.2d 612 (2d Cir. 1980), in which the court stated that while it was questionable whether New York City's decision to close a Harlem hospital created a sufficiently adverse disparate impact on minority Harlem residents to violate Title VI, the city's justification for its decision was adequate; Jackson v Conway, 476 F.Supp. 896 (E.D. Mo. 1979), aff'd 620 F.2d 680 (8th Cir. 1980), in which the court used an effective foreclosure standard to rule that there was no clear showing of discriminatory impact stemming from the city of St. Louis's decision to relocate acute inpatient facilities and certain emergency department and outpatient facilities to a hospital more than three miles away, because the increased distance that residents would have to travel did not constitute an effective denial of care; and United States v Bexar County, 484 F.Supp. 855 (W.D. Tex. 1980), in which the court held that the plaintiffs were unable to prove that the relocation of inpatient maternity and newborn nursery services from downtown San Antonio to another hospital located eleven miles away would have a disparate impact on minority residents, because a shuttle service provided transportation between the two sites and because the higher quality of care available at the new site more than offset transportation problems. In contrast, a federal judge in California issued a preliminary injunction enjoining hospital construction in Latimore v County of Contra Costa, No. C 94-1257 SBA (N.D. Calif. 1984). The court found that the county's decision to rebuild its sole hospital on its original site had a disproportionate adverse impact on the county's minorities, most of whom lived in areas that were not adequately served by public transportation routes that reached the hospital. The court dissolved its injunction four months later after the county quadrupled the number of shuttles linking minority communities to the hospital.
41. The segregation of the poor by race has been repeatedly documented in the work of William Julius Wilson and others. See J. Fossett and J. Perloff, The New Health Reform and Access to Care: The Problem of the Inner City (Washington: Kaiser Commission on the Future of Medicaid, 1995).
42. In a study of managed care organizations, board certification was ranked only sixth as a measure of physician quality. S.E. Palsbo et al., HMO Industry Profile, 1993 ed. (Washington: Group Health Association of America, 1993), 49-52.
43. "Two Lists: Commercial and Medicaid Managed Care Providers" (New York: Office of the Public Advocate of New York City, 1995). After obtaining provider lists (with great difficulty) for six managed care plans that offer products to both Medicaid and commercial sponsors, the public advocate determined that plans maintained two provider lists, one for Medicaid patients and one for other patients. Even network providers within ZIP codes in which Medicaid enrollees resided were not on the Medicaid list. This suggests that these providers were not placed off limits to guard against the selection of a geographically inaccessible provider, but for some other reason. This report followed shortly a separate report from the New York State Department of Health detailing lengthy waiting periods for basic health services for Medicaid managed care patients.
44. The National Association of Insurance Commissioners (NAIC) has noted this as a potential access discrimination problem and drafted the Model Managed Care Provider Network Adequacy Act (Washington: NAIC, 1995). Specifically, the model regulation prohibits carriers from maintaining networks that discriminate against providers that serve populations "presenting a risk of higher than average claims, losses or health service utilization."
45. For example, a standard service contract between managed care plans and a state Medicaid program recently reviewed by the center allowed plans up to 120 days from the date of a patient's initial request for an appointment to schedule a new patient visit. The same plan conceivably could use a more prompt time frame for measuring the appropriateness of new patient visits in the case of private enrollees.
46. See Madison-Hughes v Shalala, 80 F.3d 1121, 1996 U.S. App. (6th Cir).