CONTENTS INTRODUCTION I. HEALTH CARE SCARCITY AND RATIONING II. SCARCITY, QUEUES, AND HEALTH DISPARITIES III. RATIONING BY PRICE AND ABILITY TO PAY IV. RACE, RATIONING, AND THE AFFORDABLE CARE ACT CONCLUSION INTRODUCTION
During the recent battle over health care reform, "rationing" became a dirty word. Republicans asserted that Americans would not put up with limits on health care, while Democrats vigorously denied that the United States rations health care or that health care reform would result in rationing. (1) For instance, former U.S. vice presidential candidate Sarah Palin warned that the reforms would bring "rationing" into the American health care system, a result that she described as "evil" and "un-American." (2) "And who will suffer the most when they ration care?" she asked, to which she immediately responded: "[t]he sick, the elderly, and the disabled, of course," (3) During the summer of 2010, President Obama even urged Democratic governors to avoid using the term "rationing," presumably because it invokes strong feelings and has a negative connotation for most Americans. (4)
Health care is a scarce resource and all scarce resources are rationed in one way or another. (5) Neither the United States nor any other society can afford to provide to every individual the health care services that each citizen needs or wants. (6) As a result, in some circumstances we cannot provide health care services that would yield positive benefits to patients.
In 2000, U.S. Supreme Court Justice David Souter firmly rejected the false notion that the United States does not ration health care: " [W] hatever the HMO, there must be rationing and inducement to ration ... inducement to ration care goes to the very point of any HMO scheme." (7) Regardless of the organizational form, executives of health plans and provider organizations operating within a budget must set limits on the amount of medical services produced and the acquisition of resources such as health care professionals, facilities, drugs, and equipment.
Rationing has always been present in the American health care system. Physicians have, in effect, always rationed care by exercising clinical discretion about marginal benefits by asking, for instance, whether a patient should receive therapy that may provide the patient only minimal benefits. (8) Limiting the patient's choice of physician and hospital, requiring copays and deductibles, and demanding preauthorization for certain procedures are all forms of rationing. (9) Health insurers have used a person's health--in the form of preexisting conditions, current health status, family history, or previous claims--to differentiate among insureds in both pricing and coverage. (10) Although the Affordable Care Act (ACA) does not state it that way, the health insurance reforms contained within the legislation seek to put an end to insurance companies rationing by health status and gender.* 11 Still, the ACA permits insurers to charge more based on age, geographic location, and tobacco use. (12)
The largest and clearest example of rationing is American society's willingness to allow 40 to 50 million individuals to be uninsured in order to conserve our scarce health care resources. (13) Even in emergency rooms, evidence suggests that people without health insurance may receive less health care than those with insurance. (14)
Rationing by race is a particularly pernicious method of allocating health care resources. Health care has been rationed by race in the Jim Crow system of a segregated health care system and through structural, institutional and interpersonal racial bias. (15) For instance, African American patients were not admitted to hospitals and clinics in many parts of the country during the twentieth century, giving whites exclusive use of those scarce recourses. (16) Racist policies endorsed by the American Medical Association (AMA) prevented African American physicians from joining state and county medical societies, a precursor to admitting and caring for patients at local hospitals. (17)
The federal government gave express approval to the practice of rationing by race with the passage of the Hill-Burton Act of 1946, (18) which provided federal funding to segregated hospital facilities. (19) More recently, the "hospital flight" movement of the 1970s rationed health care by race as hospitals relocated some or all of their services from inner city areas to more affluent white suburbs. (20) Even today, African Americans disproportionately reside in poor quality nursing homes compared to whites, a result researchers attribute to discrimination, in the form of both disparate treatment and disparate impact. (21)
Even during national tragedies, race (and class) affects the health care allocation decision. Compare the government's response to the terrorist attacks on 9/11 to its response to Hurricane Katrina: In the aftermath of both events, survivors faced obstacles in obtaining health care because of job loss and displacement. (22) As Beatrix Hoffman astutely observed, "Congress agreed to expand Medicaid to temporarily cover survivors of 9/11, but refused to do the same for victims of Katrina. These contrasting experiences add another chapter to the history of rationing and denial of health care rights in the United States." (23)
Rationing by race is one of the many factors that have historically contributed to health disparities. (24) Facially neutral resource allocation methods such as leveraging physician status to get to the head of a line to see a specialist (rationing by physician status), or rationing based on the ability to pay are both problematic because they bring larger societal race-based inequalities and disadvantages into the health care system. These and other implicit rationing schemes permeate the health care system and continue to generate racial and ethnic health care disparities. (25) Because these implicit rationing schemes are so prevalent, they are not seen as rationing but as "the nature of everyday life. (26) The disproportional burden shouldered by people of color, however, remains hidden.
This Article does not attempt to exhaustively catalogue all forms of rationing. Indeed, health care is implicitly rationed in myriad ways, across numerous settings, and within all clinical institutions. The purpose of this Article is to add the voices and concerns of patients of color to the rationing dialogue.
The Article is divided into four parts. Part I explains the problem of health care scarcity and defines rationing. Part II establishes that scarcity leads to queues for health care services and waitlists. Part II goes on to assert that physician status and power determines who gets to the head of the queue in clinically ambiguous situations, and it argues that this resource allocation method disadvantages patients of color and produces health care disparities. Part III examines rationing based on price and ability to pay and concludes that this manner of allocating scarce resources is unjust and is a subtle form of structural racial bias. Finally, Part IV examines rationing under the Affordable Care Act with a focus on the burdens and potential benefits to communities of color.
HEALTH CARE SCARCITY AND RATIONING
From an economic perspective, scarcity results from a disparity between the demand for health care services and the supply. (27) Demand for health care is vast. Indeed, as Reinhart Priester eloquently explained, "The appetite for healthcare is infinitely expandable, since it is almost always possible to secure some small benefit from additional treatment." (28) Even if we could eliminate the considerable amount of health care resources spent wastefully and inefficiently, health care would remain scarce, in the sense that choices among competing health needs would still have to be made.* 29 And although we could increase the expenditures devoted to healthcare, we still could not provide services to everyone who needs them due to the continued development of newer and more costly technologies, an aging population, and other factors fueling the demand for health care.
On the supply side, the legal and regulatory environment, as well as organizational design and economic incentives, act to lower the amount of health care services produced. Doctors are highly regulated and in that manner, they are restricted in supply. (30) State regulatory requirements such as certificate of need (CON) constrain new investments in hospitals, services, and equipment. (31) Scope of practice regulations prevent non-physician providers from performing primary care functions that many are well-qualified to do. (32) A number of overlapping regulations restrict the number of foreign doctors, bar nurse practitioners from performing traditional doctor duties, and keep telemedicine from replacing in-person doctor visits. (33) The regulation of the pharmaceutical market and medical technologies also limits the supply of scarce health care resources to clinical care institutions.
As Maynard aptly described it, the scarcity in healthcare means that "choices have to be made about who will be given the 'right' of access to care and who, as a result of denial, will be left in pain and discomfort, and, in the limit, to die." (34) The essential question then is not will we ration health care, or even should we ration health care; rather, the question is how will we ration health care services. (35)
Because of the tension between the demand for health services and the supply and cost of providing them, rationing can be found in all health care systems. (36) Nations such as Canada with a publicly funded health care system reject price rationing and instead ration health care at two levels: (37) At the macro level, rationing is performed through governmental decisions about the overall size of the global health care budget. (38) At the micro level, health care is expressly or implicitly ranked and...