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Racial And Ethnic Health Disparities And The Unfinished Civil Rights Agenda
Civil rights–era efforts to end disparities in health care in federally financed health programs faced three successively more difficult challenges: (1) ending Jim Crow practices, (2) eliminating more subtle forms of segregation, and (3) assuring nondiscriminatory treatment in integrated settings. Federal efforts peaked with the implementation of the Medicare program. Visible symbols of Jim Crow disappeared, and most crude disparities in access were eliminated. The unfinished parts of the civil rights–era agenda, the persistence of more subtle forms of segregation, and the failure to assure nondiscriminatory treatment pose major challenges to current efforts to eliminate health care disparities.
Between 1946 and 1966 the view that racial and ethnic disparities in health care were in part the result of separate and unequal treatment and that federal policy could do something about it gained support. The resurgence of interest in eliminating inequities in care can benefit from an understanding of the distinctive challenges faced in this period and the unfinished agenda that current efforts have inherited.
The civil rights–era efforts to end disparities in health care in federally financed health programs faced three successively more difficult challenges: (1) ending Jim Crow practices that segregated patients by race; (2) eliminating more subtle forms of segregation shaped by physician referral practices, insurance status, and residential location; and (3) assuring that once racial and ethnic minorities had access to the same health care settings as whites, they would receive nondiscriminatory treatment. The combined challenge was massive. Overt segregation in the South and in the Border States was pervasive. In communities not large or affluent enough to afford separate and unequal hospitals, blacks were cared for in inadequate segregated wards or excluded altogether. In 1946, for example, 87.1 percent of U.S. white births and 45.2 percent of U.S. black births took place in a hospital, compared with 69.3 percent of white births and 9.6 percent of black births, respectively, in Mississippi.1 In many northern metropolitan areas without official Jim Crow practices, segregation, while more subtle, was almost as complete. It resulted from the exclusion of black physicians from admitting privileges to historically white hospitals and the informal understanding of white physicians who did have privileges about where it was acceptable to admit their black patients. Medical staff appointments at hospitals are reviewed for renewal every year or so. As one Chicago physician observed, "Doctors are not always courageous, and they sure knew that in some of those hospitals with the ghetto approaching that it would be a sacrilege to admit a black."2 In Chicago in 1954, of seventy-six hospitals, only two—the county hospital and a historically black hospital—accounted for 60 percent of all black births and 77 percent of all black deaths in the city.3 Many blacks with good insurance coverage were admitted to the county hospital for indigents, thus bypassing facilities closer to where they lived. Finally, there was no accountability. No information existed that could be used to objectively test the assumption that physicians and hospitals provided nondiscriminatory treatment. There were not even gross measures of disparities in access. Although one has to assume that such disparities were large, no one really knew because no one bothered to measure them. Information on access disparities—the "smoking gun" that could assign some of the responsibility for health disparities to the way in which health care was organized and financed—was lacking. National estimates on disparities in blacks’ access to health care did not even begin to be collected until the introduction of the National Health Interview Survey (NHIS) in 1958.
During the civil rights era, the federal government played a central, but progressively less effective, role in addressing each of these three successively more difficult challenges. Desegregation. "Desegregation" as it is used here means ending policies that explicitly exclude racial and ethnic minorities but may involve only token accommodation, not full integration. Federal efforts to desegregate hospitals followed the flow of federal dollars, first to facilities operated by the federal government, then to the medical school facilities, and finally to the vast majority of U.S. acute care hospitals through the implementation of Medicare. The same executive orders by President Harry Truman in 1948 ending racial discrimination in federal employment and segregation in the armed services were applied to the Veterans Administration (VA) hospitals and other federal facilities.4 By the time of the Brown v. Board of Education decision in 1954, all VA hospitals no longer provided any accommodations separated by race. Desegregation of the VA hospitals proceeded smoothly even in such bastions of resistance as Jackson, Mississippi. In 1956, in spite of complaints from the Jackson Citizens Council and well-organized, state-financed resistance to all forms of desegregation, state land was donated for the construction of a $15 million federally funded, fully desegregated facility in this fully segregated community.5 Responding to civil rights group pressures, the Kennedy administration in 1961 began to force major changes in the operation of medical schools and their hospitals by increasingly making desegregation a condition for research grants and contracts. Federal research dollars represented a growing proportion of medical school budgets and a measure of their national prestige. Southern schools did not want to be relegated to second-class status. The University of North Carolina Medical School Hospital, reaching an understanding with civil rights groups and not wishing to draw attention, quietly integrated in 1962 without any public notice.6 In 1964 the University of Mississippi Medical Center in Jackson quietly eliminated all of the "White" and "Colored" signs with the blessing of the state’s political leaders, who were publicly committed to preserving segregation.7 Two-fifths of the University of Mississippi Medical Center’s budget came from federal sources, and the legislature, in spite of its unanimous opposition to desegregation, had no intention of making up the shortfall. Medical school and VA hospitals represent distinctive segments and a small proportion of U.S. hospitals. Nevertheless, these successes suggested that local opposition was largely symbolic, and they emboldened federal officials.8 Impact of Medicare. The discriminatory practices of the bulk of the U.S. health care system, however, remained insulated from the influence of federal financial pressure until the passage of Medicare. While the 1946 Hill-Burton legislation provided federal matching funds for hospital construction, it explicitly permitted the construction of racially exclusionary facilities.9 After the Brown decision, this was challenged, and the federal courts concluded in 1964 that through acceptance of Hill-Burton funds based on approval of their use as part of a state-supported plan, nonprofit hospitals were an "arm of the state" and thus could not violate the equal protection provisions of the Fourteenth Amendment.10 This decision helped support the inclusion of Title VI in the Civil Rights Act of 1964, which prohibits the provision of any federal funds to organizations or programs that engage in racial segregation or other forms of discrimination. The first major test of Title VI enforcement came with the implementation of Medicare in 1966. The growing pressure from the civil rights movement and President Lyndon Johnson’s personal commitment to the enforcement of Title VI in the implementation of Medicare provided momentum to the Medicare Title VI certification effort. The skeleton staff of the Office for Equal Health Opportunity (OEHO), who were responsible for this certification, was supplemented by "volunteers" recruited from the various branches of the Department of Health and Human Services (HHS, then Health, Education, and Welfare, or HEW) and temporarily reassigned. This had the advantage of (1) making it impossible in the short run for southerners with seniority on the House Ways and Means and Senate Finance Committees to undermine the effort by limiting its resources, and (2) recruiting committed staffers, many of whom had already become involved in civil rights activities as private citizens. The group assigned to this effort worked with local chapters of the National Association for the Advancement of Colored People (NAACP), members of the National Medical Association (which represents African American health professionals), and local coalitions organized to protest against other forms of segregation. Many of the members of these groups were employed at local hospitals and served as the certification effort’s eyes and ears. This informal network made it impossible for hospitals to circumvent the intent with mere paper compliance. Perhaps more important, Medicare payments to hospitals promised to be generous, and thereby essential. In essence, hospitals had to choose between affluence through compliance and bankruptcy. Board members of voluntary hospitals are not publicly elected and can generally be counted on to use their insulated positions to protect the financial viability of the enterprise they oversee. Not surprisingly, more than 1,000 hospitals quietly integrated their medical staffs, waiting rooms, and hospital floors in less than four months. Integration. Hospitals. The Medicare Title VI offensive in 1966 pushed well beyond simply prohibiting racial exclusion and removing the visible symbols of Jim Crow. Just as with school officials in the South, some hospital officials argued for "freedom of choice," which would have symbolically desegregated historically white hospitals and produced only minor changes in their racial composition.11 Under such an arrangement, black patients would have the right to "choose" whether they wanted to be admitted to an all-black wing or one that had previously been all white.12 Federal officials, however, concluded that having such a choice was incompatible with integration. For OEHO inspectors, this meant physically changing the hospital’s structure and processes and not just eliminating the visible symbols of a segregated system of care in a facility or having hospital administrators sign a form saying that they did not discriminate. Entrances and waiting rooms had to be changed so that patterns of voluntary segregation would not replace official policies of segregation.13 Blood supply. In Louisiana, even though hospitals had begun to integrate, the state’s blood supply remained segregated. Again, patients were not given the "choice" of what blood they could use. All of the hospitals in the state were notified that unless the state’s blood supply were integrated, all hospitals would be out of compliance with Title VI. The blood supply was integrated overnight.14 Hospital room assignment. The acid test for Title VI certification of hospitals, however, was race-blind room assignment. Patients were not to be asked upon admission whether they minded being assigned to a room with a patient of another race; admission officials were required to assign patients in a race-blind way. In the fall of 1966, Sen. John Stennis (D-MS) tried to soften this by inserting an amendment in the HEW appropriations bill prohibiting the use of funds appropriated by the act to require race-blind assignment to rooms in situations in which, as ascertained by a patient’s physician, it would be "contrary to the beneficiary’s physical and mental well being."15 Although this potential loophole was deleted from the final bill, Senator Stennis did succeed in extracting assurances in writing from HEW secretary John Gardner that permitted an individual patient to be placed in segregated accommodations if the attending physician, the medical staff, or the hospital administrator’s designee determined that it was medically necessary.16 However, a decision by the Fourth Circuit Court of Appeals rejected any variation from race-blind patient assignment.17 Judge Simon Sobeloff, who wrote the majority opinion, noted in a letter to a colleague, "The Secretary might just as well say as to public schools that, while the law forbids segregation by race, if the principals or school superintendents certify that in their opinion it is better for the welfare of any child to segregate him, he, the Secretary, will treat such a certificate as conclusive. This would be a fine kettle of fish."18 Although never directly challenged, this rejection of absolute deference to medical judgment produced the rapid conversion to private room accommodations in many hospitals. Impact of geographic segregation. Federal efforts in the longer run, however, were less successful in overcoming the more subtle factors contributing to the persistence of de facto segregation. Just as with public schools, patterns of geographic residential segregation continued to contribute to segregation and the resulting disparities in health care. For example, residential segregation is higher in metropolitan areas in the Northeast and Midwest. Consequently, hospital care for Medicare beneficiaries in these areas is now much more segregated by race than it is in the South.19 Primary care. Primary care provided to blacks and whites continues to be, to a large extent, more separate and unequal than hospital care and may contribute to persistent disparities in referrals for diagnostic and specialized procedures.20 Distribution of federal resources. The federal government initially attempted to assure an equitable distribution of health care resources by imposing planning requirements on federal dollars. In exchange for matching funds for hospital construction, Hill-Burton required a state plan that attempted to assure an equitable distribution of hospital beds by area and, in the case of some states in the South, by race. Federal regional planning efforts and certificate-of-need requirements in the 1970s went further, attempting to prevent the duplication of services and, indirectly, encourage racial integration through the regionalization of more costly specialized services. Hospital relocation. These attempts at planning did not prevent some health care "white flight" that began in the late 1960s. Some hospitals relocated from decaying inner-city areas to more affluent and mostly white suburban areas. Civil rights groups’ Title VI challenges to these relocations were generally ineffective.21 Federal cost controls. Federal regional health planning efforts were abandoned in the 1980s and replaced with cost controls on payments to providers. Cost controls have the potential for shifting demand and supply in a way that aggravates inequities in treatment.22 In some metropolitan areas this has occurred through expansion of tertiary care services to affluent, more profitable, and predominantly white suburban areas. This has tended to increase the segregation, disparities, and overall cost of specialized procedures.23 Accountability. Title VI of the 1964 Civil Rights Act is clear about its intent: No entity receiving federal dollars shall, on the grounds of race, color, or national origin, exclude people from participation, deny benefits, or subject them to discrimination.24 What is not clear is how successful federal efforts have been in assuring this intent in Medicare, Medicaid, and other federally financed health programs. In terms of crude overall measures, Title VI enforcement in these federal health programs was a remarkable success. The visible symbols of Jim Crow disappeared. Within Medicare, there was a progressive narrowing of differences in spending and use. In 1967, the first full year of the program, spending per nonwhite enrollee was 26 percent lower for hospital care and 40 percent lower for physician services than comparable spending for white enrollees, but by 1995, spending per nonwhite enrollee was 21 percent higher for hospital services and 13 percent higher for physician services than it was for whites.25 These shifts in expenditures in the Medicare program corresponded to changes in patterns of use by race in the overall population: In 1964 blacks had age-adjusted hospital discharge rates that were only 75 percent of whites’ rates and physician contact rates that were 73 percent of whites’ rates. In 2001, age-adjusted hospital discharge rates for blacks were 41 percent higher than for whites, and overall physician visit rates were roughly equivalent.26 Such indicators of improved access, of course, say nothing about whether blacks were treated equally. In a decision in 1966 that makes no sense in today’s context, HEW chose to exempt physicians participating in Medicare from Title VI compliance. Part B of Medicare, the part that paid for physician services through a voluntary, federally subsidized plan, was defined as a "contract of insurance" with its subscribers and not a direct grant of public funds. Such contracts were specifically exempted from Title VI requirements (Sec. 605). This exclusion in the law was designed to allay the concerns of some senators from the South that Title VI, because of the federal insurance of bank deposits, might be used to block mortgages for housing that were racially discriminatory. The Fair Housing Act of 1968 rendered this concession irrelevant. Whatever rationale for use of the Title VI exemption existed at the time, it has long since evaporated as hospitals have acquired physician practices, as Medicare has provided combined payments to managed care plans, and as state Medicaid plans have acquired Part B coverage for their beneficiaries. Nevertheless, a hospital could pass Title VI certification while, through the racially exclusionary admission practices of its medical staff, remaining segregated. In several such apparent instances, the Medicare Title VI certification effort attempted to test the boundaries of the physician exemption, arguing that hospitals had oversight over the admitting practices of their medical staffs and thus were accountable for them. These efforts failed.27 Perhaps a more troubling and longer-term consequence of this exemption was that no federal effort was ever mounted to collect data and monitor the extent of discriminatory medical treatment. No federal testing program was developed similar to those developed to monitor discrimination in housing and employment.28 No public reporting requirements have been imposed as have been on lenders for home mortgage applications and approval rates by race as a result of the Home Mortgage Disclosure Act of 1975.29 Yet, despite repeated calls for such data and the overwhelming role that federal dollars play in financing medical services, the void persists.30 There has never been a lack of regulatory authority to require such collection and reporting; it has always been a lack of political will.31 Within the constraints of a brief essay, of course, one cannot do justice to the complexity of the changes that took place in health care during the civil rights era or acknowledge all of those who played a role in those changes. It is clear, however, that the federal government played the central role in desegregating and eliminating gross disparities in care by race. Those changes required the will to use its financial leverage and the self-interest of hospitals and local communities to accommodate themselves to the changes to obtain those federal dollars. Nevertheless, the federal effort failed in assuring a full degree of integration and ongoing accountability. These more demanding tasks met more resistance as the civil rights groundswell subsided after 1966. They remain key parts of the unfinished federal civil rights agenda. Yet, for a brief period, in the heady days just before the implementation of Medicare, it seemed as if there was enough federal will and national unity to make it over even these barriers to assuring equal treatment. Let us hope we can still get there.
David Barton Smith (David.Smith{at}Temple.edu) is a professor in the Department of Risk, Insurance, and Healthcare Management at the Fox School of Business and Management, Temple University, in Philadelphia. This paper is based in part on research funded by the Robert Wood Johnson Foundation’s Investigator Awards in Health Policy Research Program, Grant no. 026426 (IHP).
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The Challenges
Addressing The Challenges
