B. Availability of Health Care Providers
Another barrier to health care is the lack of accessible medical providers. Studies show that there is a limited supply of health resources in poor, racial, and ethnic minority communities, thus necessitating the creation of hospital-based providers and community health centers. Geographic proximity is critical for Hispanic and African American communities, because people in these communities are more likely to rely on public transportation, which increases the time and costs required to receive care. This is also an important issue in the Native American community, because most health care services provided by the Indian Health Service are provided in rural areas and on reservations. Yet, over 50% of Native Americans live in urban areas. Additionally, many non-Native health care providers refuse to serve Native Americans because of uncertainty about reimbursement.
The lack of accessible medical providers is exacerbated by two obstacles: (1) difficulty in maintaining health care facilities within the community and, (2) difficulty in training sufficient numbers of physicians of color, who are the health care providers that typically provide health care to people of color.
(i) Health Care Facilities
The main reason minority communities have difficulty maintaining health care facilities within their boundaries is economics--their clientele cannot afford to pay for the services provided. Consider, for example, the June 25, 2001, closing of D.C. General Hospital, located in the southeastern quadrant of the District of Columbia, an area that is characterized by poverty and poor health status. Southeast D.C. has the highest concentrations of low-income and Black residents in the city, and is plagued by high incidences of heart disease, infant mortality, and cancer. Of the eleven hospitals located in the District of Columbia, D.C. General was one of three located in southeast D.C.
For years there were rumblings from Congress and some quarters of the District Government about closing the hospital as a cost-cutting measure, in spite of the fact that the hospital saw over half of the trauma cases in the District and provided the bulk of uncompensated care (36%) to D.C. residents. The crux of the financial problem was that the hospital was treating a significant number of patients who were uninsured, the hospital was mismanaged, and the facility was poorly maintained and obsolete. Additionally, there was evidence that the services D.C. General provided to its uninsured patients could be purchased at half the cost from private hospitals and clinics in other parts of the District. In light of these circumstances and factors, the closing of D.C. General was inevitable.
When these communities have sought legal recourse to keep health care providers, like hospitals, from closing or moving to seemingly more prosperous areas like the suburbs, they have largely been unsuccessful. Typically, aggrieved community members assert an action against the hospital under Title VI of the Civil Rights Act of 1964 in an attempt to block the hospital's pending move. Title VI provides, “no person in the United States shall, on the grounds of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program or activity receiving Federal financial assistance.” The Supreme Court has held that the Title VI statute prohibits only intentional discrimination. However, the regulations enforcing the statute go even further and specifically prohibit recipients from determining the site or location of a facility:
with the effect of excluding individuals from, denying them the benefits of, or subjecting them to discrimination under any programs to which this regulation applies, on the ground of race, color, or national origin, or with the purpose or effect of defeating or substantially impairing the accomplishment of the objectives of [Title VI] or [its implementing regulations].
Unfortunately, due to a recent Supreme Court case, Alexander v. Sandoval, the regulations will not be as powerful a tool in eradicating discrimination based on discriminatory effects because private litigants, including advocacy organizations, can no longer bring a private right of action under the regulations. Private litigants can only bring suits for intentional discrimination under Title VI and its implementing regulations. Sandoval does not prevent the Office of Civil Rights from bringing discriminatory effects cases under the Title VI regulations. Additionally, while the regulations are still valid, several justices on the Supreme Court have also questioned the validity of the regulation prohibiting discriminatory impact.
Courts analyzing Title VI regulation claims use a burden-shifting model, which requires that the plaintiffs make a prima facie showing that the relocation of the hospital discriminatorily impacts minorities. If plaintiffs meet this burden, the burden shifts to the defendants to show that the disproportionate impact is a matter of necessity, or that the relocation is manifestly related to the facility's legitimate goals. The plaintiffs may rebut the defendant's necessity claim by showing that other less discriminatory relocation alternatives exist.
Bryan v. Koch exemplifies the typical unsuccessful Title VI action challenging a hospital's closure decision. There, despite the court's finding that the plaintiffs sufficiently established that the closure of a hospital disproportionately impacted African Americans and Latinos, the Second Circuit ultimately held that there was no Title VI violation. If a Title VI violation were found, it would have allowed the court to block the closure of the hospital. Specifically, in Bryan, the Sydenham Hospital was located in central Harlem, New York City, and 98% of its patients were African American or Latino. The City argued that it needed to close Sydenham to reduce expenditures and increase efficiency within the municipal hospital system. In particular, it argued that Sydenham was the smallest hospital within the system, operated under a large deficit, had an obsolete facility in need of costly renovation, and was thirty minutes away from other hospitals that offered comparable services and accepted Medicaid patients. The majority opinion rejected the plaintiffs' argument that less discriminatory alternatives existed, such as hospital mergers, regionalization of services, increasing Sydenham's service, or increasing Medicaid reimbursement. The court focused solely on whether Sydenham was the most appropriate hospital to close among the seventeen municipal hospitals.
Justice Kearse, who dissented in part, criticized the majority's decision because it did not carefully scrutinize the city's decision-making process, nor its decision. Judge Kearse stated:
No one would contest the fact that the City must assign priorities among competing economic demands and evaluate political and economic alternatives. But in my view, when a recipient of federal moneys makes a decision to use those moneys in a way which has disparate racial impact Title VI requires that the recipient show, at the very least, that its decision was the product of a rational decision-making process. The City has made no such showing here as to its decision to close Sydenham.
According to Judge Kearse, the city's decision to close Sydenham was not the product of a rational decision-making process, because there was no consideration of cost saving techniques other than closure of a hospital within the city's hospital system. Additionally, Judge Kearse found that the evidence showed that the hospitals in the surrounding area (allegedly adequate alternatives to Sydenham hospital) would not be able to treat the number of patients left by Sydenham's closure. The facts showed that the hospital beds at these nearby hospitals were full, and that these hospitals would not accept uninsured or underinsured patients if these beds were otherwise occupied.
(ii) Minority Health Care Professionals
Not only do minority communities have difficulty retaining health care facilities, but they also have difficulty finding health care professionals willing to provide health care services. Studies show that “minority doctors open practices in minority neighborhoods in far greater numbers (nearly three-to-one) than do whites.” However, there is a shortage of minority physicians, and their rate of enrollment in medical schools is declining. In the United States, for most minority groups there is a disparity between the percentage of practicing minority physicians and the percentage of minorities within the population. For example, in 1998, Blacks, Hispanics, and American Indian/Alaska Natives constituted less than 6% of medical school graduates, yet these three groups made up 28% of the U.S. population. Additionally, recent court challenges to the use of race as an admission criterion to colleges and universities, such as the case of Hopwood v. Texas, adversely impacted the numbers of minorities enrolling in medical school. For example, between 1994 and 1996, enrollment of African American students in medical schools declined 8.7%, and enrollment of African Americans in Texas' public medical schools alone dropped 54%. This trend is likely to exacerbate the existing disparity between minority physicians and the number of minorities within the United States population.
The medical school enrollment of minorities in the 1990s increased and peaked in 1995 with an enrollment rate of 12.4%. This increase was due in part to affirmative action programs, which most medical schools implemented in the 1970s in order to increase the number of minority physicians. According to Michael Scotti, the Vice President of the American Medical Association's professional standards division, affirmative action programs significantly increased the numbers of women and Asians in medical schools, but did little to increase the number of African Americans and Hispanics. In 2000, while African Americans made up 12.3% of the United States population, they made up only 7.4% of students enrolled in medical school. The medical school enrollment rate for Native Americans was 0.8%, in contrast to their United States population percentage of 0.9%, and the rate for Mexican Americans and Puerto Rican-Mainlanders, who represent 8.5% of the population, was 3.3%. Asian Americans, on the other hand, are not underrepresented in the medical profession. In 2000, Asian Americans were 3.7% of the U.S. population, yet represented 19.8% of medical school graduates.
Despite the disparities between the number of minorities enrolling in and graduating from medical school, and the number of minorities within the United States population, voluntary efforts to rectify these disparities have faced legal challenges. The first and only Supreme Court challenge to a medical admissions program designed to increase the number of minority applicants was Regents of the University of California v. Bakke. In Bakke, the medical school operated a two-track admission policy, with a general admissions track, and a special admissions track for disadvantaged minority students. According to the University, the special admissions system was designed to (i) reduce the historic deficit of traditionally disfavored minorities in medical schools and in the medical profession, (ii) counter the effects of societal discrimination, (iii) increase the number of physicians who will practice in communities currently underserved; and (iv) obtain the education benefits that flow from an ethnically diverse student body. A white male whose application to medical school was rejected challenged the legality of the school's special admissions program under the Equal Protection Clause of the Fourteenth Amendment.
The Equal Protection Clause provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” The Supreme Court rendered a splintered plurality opinion, with Justice Powell providing the swing vote to affirm the California Supreme Court's finding that the University's admissions program was unconstitutional, and to reverse the California Supreme Court order enjoining the University from giving any consideration to race in the admissions process. However, writing for the Court, Justice Powell did state that race may be one of a number of factors considered by the school in considering applications. While Justices Brennan, White, Marshall, and Blackmun supported the use of race in the admissions process, they did so for different reasons.
Prior to May 14, 2002, only one federal Court of Appeals followed Justice Powell's rationale in Bakke when determining the constitutionality of a professional school's use of race in its admissions policy. In Smith v. University of Washington, the Ninth Circuit held that a “properly designed and operated race-conscious admissions program . . . would not be in violation of Title VI or the Fourteenth Amendment.” The court declined to follow other admission cases that found violations of the Fourteenth Amendment. The Ninth Circuit followed Marks v. United States and stated that the holding from a fragmented decision of the Supreme Court should be viewed as the position taken by those members concurring in the judgments on the narrowest grounds. Additionally, the Supreme Court has stated that “if precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.”
Since Bakke, several federal courts of appeal have found race-based admissions programs to be unconstitutional. These courts have either rejected the notion that diversity in the student body is a compelling interest and found that the use of race as an admission criterion is per se violative of the Fourteenth Amendment, or have found that the admissions program at issue was not narrowly tailored to survive strict scrutiny.
Additionally, several states have passed legislation barring the use of race in admissions policies. In 1996, California voters passed Proposition 209, which bars the use of race in public education policies. Thereafter, in 1998, voters in the State of Washington passed Initiative Measure 200, which provides, “the state shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of ... public education.” These initiatives further limit the use of affirmative action programs designed to increase the numbers of minority physicians. The effect of court challenges and legislative initiatives on medical school enrollment of minority students is devastating. In 1998, two years after the passage of Proposition 209 in California, the enrollment of underrepresented minorities in California medical schools declined 32% from the mid-1990s.
