Efforts reportedly underway at the U.S. Department of Justice (DOJ) could fundamentally alter federal enforcement of U.S. civil rights laws barring discrimination on the basis of race, color, or national origin, according to Sara Rosenbaum, JD, the Harold and Jane Hirsh Professor of Health Law and Policy at the George Washington University Milken Institute School of Public Health (GW Milken Institute SPH). In a blog published by the Commonwealth Fund, she explains the profound implications for health policy.
Rosenbaum discusses the health care implications of the DOJ effort to curtail the longstanding “disparate impact” standard that since 1964 has guided enforcement of Title VI of the Civil Rights Act, which bars discrimination in federally assisted programs on the basis of race, color, and national origin. In health care, the reach of Title VI is as broad as the full range of federal health care programs – Medicaid, the Children’s Health Insurance Program (CHIP), subsidized insurance plans under the Affordable Care Act, all health care providers that participate in these programs, and the agencies that administer them, Rosenbaum explains. Title VI also reaches universities, hospitals, and health systems that train health professionals and participate in federally funded research.
In addition to describing how the disparate impact standard reaches beyond intentional acts of discrimination to consider the discriminatory impact of policies and practices, Rosenbaum’s blog details the implications of holding the health system to the disparate impact standard. “Today, hospitals, health systems, and insurers design their managed care and provider networks with an eye toward inclusiveness,” she writes in the blog.
The disparate impact standard “means that it is no longer legal to place Medicaid patients on “Medicaid” floors or in “Medicaid” nursing home wings,” Rosenbaum explains. It means that translation assistance must be available, and that, in moving to more affluent communities, hospitals will be 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,” she writes. “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.”
Eliminating the disparate impact standard, simply put, could return the nation to a time when recipients of federal funding could turn a blind eye to the impact on members of racial and ethnic minority groups of the impact of their policy and management practices, Rosenbaum says.
The blog, “What Could a Rollback in U.S. Civil Rights Policy Mean for Health Care?” is available here