California and the National Health Law Project
I moved to California in 1979 and worked all over the country helping legal services attorneys with health law litigation and legislation for the next four years. I worked for the National Health Law Project, headed by a civil rights attorney, Sylvia Drew Ivie, the daughter of Dr. Charles Drew. We had a contract with the Office of Civil Rights to research, write and train attorneys on discrimination in health care.
In Simkins v. Moses Cone Hospital, the court decided that segregated hospital facilities had to end. https://northcarolinahistory.org/encyclopedia/simkins-v-cone-1963/ In Cook v. Ochsner Medical Foundation where New Orleans area private hospitals saw few or no Medicaid or uninsured patients, the court held that hospitals receiving federal hospital construction funds had to provide a reasonable volume of free care to the uninsured unable to pay and could not discriminate by refusing to serve Medicaid and Medicare patients. https://law.justia.com/cases/federal/district-courts/FSupp/319/603/2135130/ and see discussion of Hill Burton and Cook v. Ochsner at https://www.repository.law.indiana.edu/cgi/viewcontent.cgi?article=3515&context=ilj
The Supreme Court in Washington v. Davis had moved from proof of disparate impacts to proof of intentional discrimination in assessing the constitutionality of a government’s discriminatory actions. https://supreme.justia.com/cases/federal/us/426/229/ What did that mean? If, for example, the Boston City Council had proposed to close the neighborhood community health clinics in Roxbury but left open the clinics in South Boston and East Boston, that would show “disparate impact”. If they had expressed their reasoning in racial tones, that would show intent to discriminate.
The Civil Rights Act of 1964 prohibited discrimination on the basis of race, sex or national origin; it applied to schools and travel, voting and employment, education, health care and any other program or service funded in whole or in part by the federal government. So that meant a doctor or hospital receiving Medicare or Medicaid payments could not discriminate, and neither could the Medicaid agency. Under Title VI both intentional discrimination and disparate impacts are prohibited, according to the federal agencies responsible for implementing it. “This prohibition applies to intentional discrimination as well as to procedures, criteria or methods of administration that appear neutral but have a discriminatory effect on individuals because of their race, color, or national origin. Policies and practices that have such an effect must be eliminated unless a recipient can show that they were necessary to achieve a legitimate nondiscriminatory objective. Even if there is such a reason the practice cannot continue if there are alternatives that would achieve the same objectives but that would exclude fewer minorities.” https://www.hhs.gov/civil-rights/for-individuals/special-topics/needy-families/civil-rights-requirements/index.html The Supreme Court in Alexander v. Sandoval held that a private right of action under Title VI is not available for disparate impacts, but only for intentional discrimination. https://supreme.justia.com/cases/federal/us/532/275/ That’s lawyer talk for you lose unless you have racist talk by government policy makers on tape or in writing.
Racism in health care and coverage takes so many different forms. In Arizona, the state delayed implementing Medicaid from 1965 ‘til 1982-3, largely because they did not want to pay the costs to cover their very large Native American populations who often have little access to health care and live with many untreated medical conditions. When Arizona finally did so, it adopted mandatory managed care (HMOs) and competitive markets for its entire program — a path later followed in California. Public hospitals formed public HMOs and competed successfully. https://www.healthaffairs.org/doi/full/10.1377/hlthaff.6.4.46 When the Affordable Care Act passed, Arizona implemented the Medicaid expansion for the working poor and reduced its uninsured rates from over 17% to about 10%. Nearby Texas could readily do the same, but to this date has failed and refused to do so, leaving its public and rural hospitals, its counties and local property tax payers to shoulder the burdens of a system with highly inequitable access for the poor, whether Latino, Black, White or mixed race. Texas has been and still is leading the efforts to derail the ACA.
Many Southern states with high percentages of uninsured have very favorable federal matching rates and strong economic incentives to expand Medicaid for the poor; the ACA provides a 90/10 match to extend Medicaid to the working poor. Those with Republican Governors and legislatures like Mississippi, Georgia, Alabama, Florida, South Carolina and Georgia failed and refused, thus denying care and coverage to large numbers of low income African Americans and Hispanics and Whites who would otherwise qualify. https://www.brookings.edu/blog/usc-brookings-schaeffer-on-health-policy/2020/02/19/there-are-clear-race-based-inequalities-in-health-insurance-and-health-outcomes/ This would improve health coverage and improve health outcomes. https://healthpayerintelligence.com/news/medicaid-expansion-may-impact-patient-outcomes-in-southern-states Sedentary lifestyles, poor access to health care, smoking, poverty and poor diets combine with a regional hostility to public programs for the poor (mostly paid for by taxes from the citizens of more affluent states). https://theconversation.com/5-charts-show-why-the-south-is-the-least-healthy-region-in-the-us-89729
There are straightforward solutions to help poor African Americans that would be equally beneficial to poor rural whites as well.
https://tcf.org/content/report/racism-inequality-health-care-african-americans/?agreed=1 Arkansas, Louisiana, Kentucky, New Mexico and West Virginia are all comparably poor states that have expanded Medicaid to their working poor. There have been some truly exemplary Southern Governors and mayors leading the efforts to improve education, health status and incomes in the region, but the region is plagued by the racist reactions to civil rights for minorities and by a nearly implacable and hard to comprehend hostility to public programs so essential to the poor of all races and largely financed by the taxpayers of more affluent regions.
During these years, I burned with a white-hot anger at those whom I perceived as oppressing the poor and was quite intolerant of any with opposing viewpoints. Only at sea did I find some surcease from the burning anger I felt towards those who were making life so tough for my clients and attacking the very basis of their subsistence – the Dukakis and the King Administrations in Massachusetts and the Reagan Administration nationally. The Reagan Administration began a decades long trend of Robin Hood in reverse – cutting programs for the poor to pay for vast tax cuts for the rich. These perverse economic policies have prevailed with intermittent intervals of forward progress for the last 40 years, creating a yawning gap between the very rich and the rest of us. In some states, the declining support for the safety net has been far worse while in others, significant progress has been made. Starting with Nixon, there has been a move to incarceration, particularly of brown and black men; this has been accompanied by a progressive abandonment of the nation’s commitment to civil rights and equal opportunity for every US citizen. Trump is drawing heavily on Nixon and Reagan for his political playbook.
Prepared by: Lucien Wulsin
Dated: 9/6/20