Addressing health care disparities rarely focuses on how the "gold" (meaning the federal dollars flowing into the nation's health system) has, at different times, both widened and narrowed health care disparities. This paper describes (1) the early attempts to use the power of the federal purse to address disparities that led to the enactment of Title VI of the 1964 Civil Rights Act; (2) how Title VI, as applied in the implementation of Medicare, reduced disparities; and (3) the lessons that this story offers for similar opportunities in the implementation of the Affordable Care Act (ACA). Reducing disparities with the implementation of the ACA will require (1) rekindling the spirit of the grass roots movement that captured the Title VI enforcement process with the implementation of Medicare; (2) exposing adversaries through data disclosure and taking advantage of the "invisible army" that supports these goals; (3) using the power of both the economic and ethical versions of the Golden Rule; and (4) creating the political insulation and urgency necessary to reduce health care disparities.
CONTENTS INTRODUCTION I. EARLY FEDERAL USE OF THE POWER OF THE PURSE A. Health Care Before the Civil Rights Movement B. The Integration of the Veteran's Administration Hospitals C. The Integration of the Medical School Hospitals D. Using Federal Funds to Integrate All Hospitals II. ENFORCING TITLE VI IN MEDICARE AND MEDICAID A. A Grassroots Movement B. Visible Adversaries and an Invisible Army C. Both Versions of the Golden Rule D. Multiple Barriers to Political Interference III. LESSONS FOR THE IMPLEMENTATION OF THE ACA A. Transparency B. Full Accountability C. Greater Universality of Coverage CONCLUSION INTRODUCTION
Most approaches to addressing racial disparities in health care in the United States do not look "outside the box." They focus on incremental, palliative changes leaving the basic system for financing care untouched. (1) Yet, health care has always been shaped by the economic version of the Golden Rule--those with the gold, rule. Health care providers respond to financial incentives and those incentives, for most of our history, have contributed to disparities.
Indeed, many argue that race has always been a concealed part of the logic of health care financing in the United States. Race is a part of the "American exceptionalism" that has made the financing of the U.S. health system so different from that of other developed nations. (2) Race has contributed to making the United States the only remaining industrialized nation lacking some form of universal health insurance coverage for its citizens. Race is hidden in the U.S. health system's compromise patchwork of solutions: the expansion of private insurance, the creation of producer cooperative solutions in the form of voluntary Blue Cross plans, the creation of its dominant, voluntary hospitals sector, the ideology of individualism, and the opposition to public solutions in favor of the promotion of free market solutions. All of these "solutions" have a disparate impact on blacks and other disadvantaged minority groups, mocking the now universally embraced national goal of the elimination of health care disparities that have remained unchanged for more than thirty years.
Yet, also concealed in the evolution of the U.S. health system is a more hopeful story. At times, the flow of federal funding has been directed to combat racial and social class distinctions that have been used to divide and fragment the U.S. health system. The most significant example of this took place a half century ago with the introduction of Medicare. For the first time, the federal government used the requirements of Title VI of the Civil Rights Act of 1964 to control the flow of federal funds to hospitals. This Article tells the story of that struggle. In Part I, I describe the early attempts to use the power of the federal purse to address disparities that led to the enactment of Title VI. In Part II, I discuss how Title VI was enforced in the implementation of Medicare. Finally, in Part III, I discuss the lessons that this story offers for similar opportunities in the implementation of the Affordable Care Act (ACA).
EARLY FEDERAL USE OF THE POWER OF THE PURSE
Health Care Before the Civil Rights Movement
Despite fading memories and a peculiar rebirth of nostalgia about the pre-Medicare and Medicaid days, health care in the United States at the end of World War II was markedly different than it is now. Indeed, it was appalling. Those without insurance or the ability to pay were relegated to the charity wards and the indigent clinics of public hospitals and medical schools. Blacks were at the bottom of this caste system of care. In the South, blacks were either excluded altogether from community hospitals, or they were relegated to separate and typically inferior accommodations in basement wards or separate buildings. The result was a much higher rate of riskier home deliveries and a higher death rate from automobile accidents because of more restricted access to hospital emergency care. (3) Many blacks had to rely on those white physicians who would accept them as patients, often in segregated waiting rooms where they would wait until all of the white patients had been seen. (4) Similar discrimination took place in public hospital and medical school clinics. In northern cities, segregation of hospital and medical care was often almost as complete as in the South, only in the North, the segregation of hospitals and medical care was shaped by residential segregation and the informal practice patterns of physicians and hospitals. For example, Chicago hospitals in 1960 came close to matching the segregation patterns of hospitals in the Deep South in spite of laws passed prohibiting hospital discrimination in admission practices. (5)
If one could not access a service, one could not use it. Rates of use of all forms of inpatient or outpatient care were substantially lower for blacks as opposed to whites. Usage rates for services of all kinds were also directly related to income. However, usage rates were still lower for blacks regardless of income. (6) The degree of morbidity and thus the need for services was greater in the black population as well as in low income populations regardless of race. From the beginning of modern medicine in the United States (circa 1910), the harsh economic version of the Golden Rule (those with the gold, rule), as opposed to its ethical version (do unto others as you would have done unto you), ruled. Consequently, the use of medical services was directly related to income and inversely related to need.
Black physicians were also excluded from privileges and training opportunities at most historically white medical schools and hospitals. As many as 500 black hospitals, often under-resourced, had been created to serve black patients and physicians. (7) Even in the white facilities that accepted black patients (though, often in segregated accommodations), their white medical staffs typically refused staff privileges to black physicians, thus preserving the economic monopoly such exclusion assured the white medical staffs. Indeed, the first successful effort in eliminating racial discrimination in hospital privileges involved an anti-trust case rather than a civil rights challenge. In February of 1961, ten black Chicago physicians filed a suit in U.S. District Court against multiple defendants including the state of Illinois, various local hospital and medical associations, and fifty-six Chicago hospitals. (8) A verdict in favor of the plaintiffs could have imposed substantial sanctions on the hospitals (e.g., treble damages for the perhaps lifetime earnings of more than 300 black Chicago physicians or possibly more than a billion dollars). This threat, along with pressure from Mayor Daley, resulted in the creation of a special committee of hospital leaders and an out-of-court accommodation that assured privileges for about 120 black physicians admitting them at one of the historically white hospitals in Chicago. (9)
The Integration of the Veteran's Administration Hospitals
Beginning with the Truman Administration, the executive branch had achieved small victories in battles desegregating hospitals even in well-entrenched bastions of segregation by threatening to withhold federal funding. The federal power of the purse was first applied in eliminating segregation in Veteran's Administration (VA) facilities, then to medical schools seeking National Institutes of Health (NIH) funding, and, finally in an important legal precedent, to voluntary hospitals receiving funds under the Hill-Burton Act of 1946. These accomplishments went largely unnoticed but they still played an important role in setting the stage for the struggle to force desegregation of all hospitals with the implementation of Medicare.
In 1948, President Harry S. Truman ordered both an end to segregation in the armed services and discrimination in federal employment. (10) These orders forced the eventual desegregation of all of the nation's VA hospitals. The battle over the construction of a new VA hospital in Jackson, Mississippi in 1956 demonstrated how accommodations were worked out even in one of the most rigidly enforced Jim Crow communities in the nation. The old, now desegregated VA hospital in Jackson, was overcrowded and in need of replacement. At the behest of veterans' groups, the Mississippi legislature passed a bill in 1954 donating state land for the new VA hospital. The federal government had approved approximately $15 million ($133 million in 2014 dollars) for the project. (11) When the Jackson White Citizens Council discovered that the new facility located on donated state land would be racially integrated, they persuaded a Mississippi legislator to submit a bill to rescind the state land offer. Veterans' groups objected. As one veteran noted, "the...