A flurry of articles have reported on an initiative by the U.S. Department of Justice (DOJ) to fundamentally alter federal enforcement of U.S. civil rights laws barring discrimination on the basis of race, color, or national origin. The DOJ effort has begun to take hold in the Departments of Education and Housing and Urban Development. Should it reach the U.S. Department of Health and Human Services (HHS), the implications for health policy are profound.
The DOJ effort threatens the so-called “disparate impact” standard, which pertains to policies and practices that, while not discriminatory as written, disproportionately and adversely affect people of color. Title VI of the 1964 Civil Rights Act bars discrimination in federally assisted programs on the basis of race, color, and national origin. Title VI thus applies to the health care system, including state Medicaid and Children’s Health Insurance Program agencies, managed care organizations, hospitals, nursing homes, pharmacies, and other health care providers. Further, Title VI applies both to federally assisted services such as research grant funding, and activities undertaken by the institution that receives the funding but that may not directly receive federal funds.
The U.S. Supreme Court has interpreted the statute itself as explicitly addressing only intentional discrimination. But regulations adopted immediately following passage also address seemingly neutral policies and practices that produce a disproportionate adverse impact on minority groups. Under these regulations, hospitals could no longer limit admitting privileges to physicians who were members of local medical societies that barred minority members; by excluding minority physicians, hospitals effectively excluded their patients as well. Hospitals could likewise no longer redline minority neighborhoods though strategic locations and ambulance routes or refuse to participate in Medicaid. All of these policies might rest on neutral justifications, but their effects on people of color were severe.
These federal regulations have long been understood as reflecting congressional intent and furthering the law’s deepest purpose. Exercising government-wide powers, DOJ has issued overarching implementation rules while agencies such as HHS maintain program-specific rules. For example, HHS rules bar federally funded entities, either directly or through their subcontractors, from using administrative methods “which have the effect” of either discriminating or impairing the performance of programs on the basis of race, color, or national origin.
The Affordable Care Act extended the law’s reach, applying its standards to the health insurance marketplaces and to private insurers that offer subsidized plans through federally assisted contracts of insurance.
Holding the health system to the disparate impact standard has concrete implications. It means that it is no longer legal to place Medicaid patients on “Medicaid” floors or in “Medicaid” nursing home wings. It means that in moving to more affluent communities, hospitals are expected to assess the impact on neighborhoods left behind and to take steps to mitigate impact, such as setting up satellite clinics. Nondiscrimination means making Medicaid, CHIP, and marketplace-subsidy applications available in community languages spoken, and that translation assistance is offered. It means that health professional education includes cultural competency training, and that health care systems emphasize recruitment of bilingual clinicians familiar with their patients’ culture and heritage. Today, hospitals, health systems, and insurers design their managed care and provider networks with an eye toward inclusiveness.
In short, policies and practices that promote fair treatment and avoid racially identifiable harm today transcend law and have become a social norm. A regulatory rollback to permit federally assisted programs, health providers, and insurers to disregard the impact of their policies and practices on those whom Title VI is intended to protect would effectively legitimize practices that directly or indirectly promote or maintain health care discrimination.