Gender disparities and discrimination in healthcare treatment are vast. (1) Women in pain are deemed hysterical, (2) heart attacks in women are caught less frequently than in men due to symptom presentation differences, (3) and women are screened less often than men for some cancers. (4) Meanwhile, in order to be fully reimbursed for healthcare services, legislative reforms increasingly evaluate hospitals and physicians based on their performance as it relates to quality measurements, otherwise known as pay for performance. (5) This particular method of reimbursement expanded after the Patient Protection and Affordable Care Act (6) (ACA) enacted pay for performance standards, particularly for hospitals and physicians participating in Medicare. (7)
The pay for performance standards included in the ACA were a missed opportunity to explicitly name and address existing gender disparities in healthcare. (8) For example, the ACA evaluates and potentially penalizes hospitals and doctors based on their quality standards with acute myocardial infarctions (commonly known as heart attacks). (9) When hospitals actively fail to diagnose and to treat heart attacks in women, they may be losing reimbursement money under the ACA. (10) However, the language of the ACA hides the gendered aspect of this loss. (11) Gender disparities and discrimination in healthcare negatively impact pay for performance reimbursements for both hospitals and physicians and result in hospitals losing reimbursement payments, especially via Medicare. (12)
To ensure better quality healthcare for female patients and maximum reimbursement levels for hospitals and physicians providing Medicare services, this Note will examine two categories of possible solutions: legislative and ground-based. (13) First, Congress could amend the ACA and its Medicare provisions to explicitly call for reductions in gender-based healthcare disparities. (14) Second, hospitals throughout the country could implement ground-based efforts such as unconscious bias training for all healthcare providers. (15)
This Note adopts feminist legal theory as a lens through which to view the problem of gender disparities in healthcare and pay for performance reforms by asking about gender implications of a law, thus asking "the woman question" ("Woman Question"). (16) Specifically, this Note asks how and why the ACA fails to adequately address gender-based disparities in healthcare. (17) This question presumes the current law is non-neutral (18) and seeks to "expose those features and how they operate" (19) before turning to potential solutions. (20) A non-neutral law may appear on its face to be neutral towards women and men, but affect women and men differently. (21) Asking the Woman Question in the context of gender disparities and pay for performance reform reveals how women's healthcare "reflects the organization of society rather than the inherent characteristics of women." (22) Analyzing the ACA through a feminist lens requires a look "beneath the surface" of the law to identify its gender implications. (23) Framing the analysis in this way does not necessitate a solution which favors women but requires a "decision ... that is defensible in light of [gender] bias." (24)
Part I of this Note examines the existing gender disparities in healthcare, especially in the areas of cardiovascular disease, pain management, and cancer. Part II analyzes pay for performance reforms in the ACA. First, Part II looks at the Affordable Care Act generally. Then, Part II turns to the Medicare reforms in the ACA, focusing on the Hospital Readmissions Reduction Program and the Hospital Value-Based Purchasing Program. Part III integrates gender-based disparities in healthcare and pay for performance reforms, proposing solutions at both the legislative and ground-based levels. The Note argues that if hospitals prompted their physicians to consider, for example, the differences in how women and men present with heart attacks, the hospitals' scores on pay for performance quality measures would rise. (25) This in turn would mean higher reimbursement for hospitals, many of which desperately need reimbursement funds to remain in business. (26)
EXISTING GENDER DISPARITIES IN HEALTHCARE
Disparities plague the healthcare industry. (27) The National Institutes of Health defines health disparities "as differences in the incidence, prevalence, mortality, and burden of diseases and other adverse health conditions that exist among specific population groups." (28) Disparities in the healthcare industry appear across many demographics, including gender, sex, race, socioeconomic status, sexual orientation, and citizenship status. (29) Gender-based disparities (30) in the healthcare system are a vast and overlooked problem. A large body of work studies healthcare disparities based on race, ethnicity, and socioeconomic status. (31) While this scholarship is useful in searching for and proposing solutions to gender-based healthcare disparities, this Note will isolate gender as much as possible.
Medical institutions and providers are not immune to perpetuating harmful gender stereotypes that are ingrained in American society. (32) Gender bias "pervades medicine, beginning with medical-school admissions and education, encompassing research facilities and medical journals, and culminating in how women are treated as patients in clinics, hospitals, and physicians' offices across the country." (33) For example, society views women as much more emotional than men, (34) in some cases leading providers to classify pain not as a physical problem, but as a mental problem. (35) Society also views women as better-equipped to deal with pain, so healthcare providers may expect women to endure pain more easily than men. (36) The negative impacts of gender disparities hurt all players in the healthcare system, including patients, doctors, hospitals, and insurance providers. Gender disparities in healthcare are frequently seen in the treatment of cardiovascular disease, pain management, and certain cancers. (37)
"Cardiovascular disease (38) (CVD) ... is the number-one killer of women" (39) and affects approximately 41.3 million women. (40) Despite that, many physicians perceive women to have a lower risk for cardiovascular disease compared to men. (41) Women often experience heart attack symptoms differently than do men. (42) While men tend to feel intense pressure in their chest, women "may experience shortness of breath, pressure or pain in the lower chest or upper abdomen, dizziness, lightheadedness or fainting, upper back pressure or extreme fatigue." (43)
When women do have chest pain, physicians often view their pain as an emotional or psychological problem rather than as a manifestation of heart attack. (44) Physicians also tend to be more influenced by a female patient's psychological symptoms and rely on harmful, negative stereotypes of women when they present with symptoms of coronary heart disease. (45) Women with CVD tend to have a higher morbidity rate and experience more "impairment in [their] quality of life" compared to similarly situated men, (46) perhaps as a consequence of underdiagnosing CVD in women.
Gender disparities continue even after doctors diagnose a heart attack and begin treatment. (47) For example, "men are 6.5 times more likely to be referred for cardiac catheterization than women." (48) Further, "26% of men versus 14% of women receive clot-dissolving drugs after a heart attack." (49) Moreover, women of all ages are more likely to be readmitted to a hospital following heart attacks. (50) Gender disparities in the diagnosis and treatment of CVD in women thus present a real and potentially life-threatening problem for the women they affect. (51)
Physicians tend to take women's pain less seriously than they do men with similar symptoms. (52) When doctors treat women's pain, their treatment is consistently inadequate. (53) In one study, these differences were true "regardless of [the] provider[s'] ... gender, suggesting that an unconscious bias may exist." (54) Research suggests that healthcare providers also tend to express disbelief towards women's pain far more often than they do with men. (55)
Disparate treatment of pain severely harms women. (56) For example, one study showed that women were less likely to receive opioid pain medication than men. (57) Further, the women in the study were forced to wait longer to receive pain medication than men, even when they rated their pain level the same. (58) Other studies articulate gender biases when women present with pain. (59) When experiencing pain, normatively physically attractive women are less likely to be taken seriously by physicians or treated appropriately for her pain. (60) Unsurprisingly, when healthcare providers do not take women's pain seriously, physicians provide lower quality pain management methods to women than men. (61)
Gender disparities in clinical decision-making have been shown in both colon cancer and lung cancer. (62) Women are less likely than men to be screened for colon cancer. (63) By the time women are actually diagnosed with colon cancer, the disease is often at a more advanced stage and thus harder to treat. (64) When female and male smokers with equal risk factors for lung cancer were treated, men were "more likely to be referred for diagnostic testing for lung cancer than women." (65) Given the shock and severity of any cancer diagnosis, these disparities are particularly concerning.
The gender disparities present in cardiovascular care, pain management, and cancer screening can neither be explained nor justified by medical science. (66) As such, health disparities based on gender deserve to be critically examined. (67) Moreover, hospitals and healthcare providers need to be encouraged to meaningfully reduce gender-based disparities. (68) Pay for...