Non-Profit Hospitals, Tax Exemptions and Access for the Uninsured

These comments approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additional number who are underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. These problems tend to be discussed primarily, although not exclusively, as problems of access. To put the question in specific terms: Is tax exemption for non-profit hospitals a tool that could be used effectively to address, or at least to help to address, these problems? Should we try to fashion tax exemption standards for non-profit hospitals into a tool for responding to some of the challenges posed by the growing number of uninsured in our society

Discrimination Against the Unhealthy in Health Insurance

This is the published version

Non-Profit Hospitals, Tax Exemption and Access for the Uninsured

I want to approach the topic of tax exemption for non-profit hospitals from the perspective of the 46 plus million Americans who have no health insurance and the significant additionalnumber whom we might characterize as underinsured. In essence, persons who are underinsured have some form of health coverage but they remain at serious risk for significant out-of-pocket expenditures when they become sick. From this perspective, the key question is what role, if any, do the non-profit health care sector and, more particularly, non-profit hospitals have to play in addressing the vexing problems posed by the large number of uninsured and underinsured. We tend to think of these problems primarily, although not exclusively, as problems of access

Giving Meaning to Meaningful Access in Medicaid Managed Care

As states seek to shift Medicaid recipients with disabilities out of traditional fee-for-service settings and into managed care plans, vexing questions arise about the impact on access to needed care and providers for beneficiaries with medically complex needs. With many states expanding their Medicaid program as part of health care reform and cost-containment pressures continuing to mount, this movement will likely accelerate over the next several years. This Article examines the possibility that disability discrimination law might provide a mechanism for prodding states in the planning stage to anticipate and plan for likely access issues, as well as for challenging any systemic access problems that arise as enrollment proceeds. Although the Supreme Court’s 1985 decision in Alexander v. Choate signaled a reluctance to use disability discrimination law to police the decisions of state Medicaid policy makers, Choate’s holding need not be an insurmountable barrier if compulsory enrollment in Medicaid managed care has an adverse disparate impact on people with disabilities. Before they can compel managed care enrollment for many disabled Medicaid beneficiaries, state officials must obtain approval from the federal Centers for Medicare & Medicaid Services (CMS). This Article argues that the process of obtaining CMS approval lays the foundation for a disparate impact claim under § 504 of the Rehabilitation Act and the Americans with Disabilities Act. More specifically, it argues that access-related standards contained in states’ waiver applications – if those standards are not met – can support a claim that a state fails to provide disabled Medicaid enrollees with “meaningful access” to the state’s Medicaid benefits. Such a claim should be cognizable, even under Choate. Thus, this Article provides a conceptual roadmap for disability advocates for framing such a claim, while also highlighting both the advantages of this approach and its potential shortcomings

Infected Judgment: Legal Responses to Physician Bias

Substantial evidence indicates that clinically irrelevant patient characteristics, including race and gender, may at times influence a physician\u27s choice of treatment. Less clear, however, is whether a patient who is the victim of a biased medical decision has any effective legal recourse. Heedful of the difficulties of designing research to establish conclusively the role of physician bias, this article surveys published evidence suggesting the operation of physician bias in clinical decision making. The article then examines potential legal responses to biased medical judgments. A patient who is the subject of a biased decision may sue her doctor for violating his professional duties, including his fiduciary obligation to the patient. Courts may be unwilling, however, to expand the scope of physicians\u27 professional liability beyond existing medical malpractice law. While federal anti-discrimination laws may prohibit some instances of biased medical decisions, those laws leave many instances of physician bias unaddressed. Moreover, those laws typically would require a patient to prove that her doctor acted intentionally in discriminating, a daunting task if the physician\u27s bias is unconscious, as is probably often the case. Finally, under either a professional liability action or a civil rights suit, the patient faces the fundamental problem of proving that bias in fact infected her physician\u27s judgment. Because of these difficulties, the article concludes that existing law does not provide a ready remedy for a patient who is the victim of a biased medical decision

Threats to Medicaid and Health Equity Intersection

The year 2017 proved politically tumultuous in the U.S. on many fronts, but perhaps none more so than health care. For enrollees in the Medicaid program, it was a “year of living precariously.” Long-promised Republican efforts to repeal the Affordable Care Act also took aim at Medicaid, with proposals to fundamentally restructure the program and drastically cut its federal funding. These proposals provoked pushback from multiple fronts, including formal opposition from groups representing people with disabilities and people of color and individual protesters. Opposition by these groups should not have surprised the proponents of “reforming” Medicaid. Both people of color and people with disabilities carry disproportionate burdens of ill health and face more significant barriers to accessing quality health care than other groups. As a consequence, the Medicaid program is particularly important to both groups. Ultimately, defensive strategies by people with disabilities and people of color helped stymy both the efforts at “repeal and replace” and proposed changes to Medicaid. This successful advocacy raises a question about what other health-related concerns people with disabilities and people of color share. Considering these groups’ interests in contemporary Medicaid policy issues is a good place to start. To that end, this Article explores the relevance of race to states’ Medicaid expansion choices and the vulnerability of community-based services for people with disabilities in the event of funding cuts to Medicaid. I also suggest that marginalized groups may share similar concerns relating to Medicaid policy initiatives in two additional areas: growing interest in Medicaid work requirements and experiments with adopting value-based payment models for Medicaid providers. These are areas where collaborative advocacy may enhance the ability of people of color and people with disabilities to protect their common interest

Affirmatively Furthering Health Equity

Pervasive health disparities in the United States undermine both public health and social cohesion. Because of the enormity of the healthcare sector, government action, standing alone, is limited in its power to remedy health disparities. This article proposes a novel approach to distributing responsibility for promoting health equity broadly among public and private actors in the healthcare sector. Specifically, it recommends that the Department of Health and Human Services issue guidance articulating an obligation on the part of all recipients of federal healthcare funding to act affirmatively to advance health equity. The Fair Housing Act’s requirement that recipients of federal housing funds take steps to affirmatively further fair housing, an obligation justified by the history of government support for racial residential segregation, inspires this proposal. Perhaps less well known is the government’s role in producing and tolerating de facto segregated healthcare facilities and racial health disparities. Antidiscrimination laws, including Title VI of the Civil Rights Act, Section 1557 of the Affordable Care Act, and Section 504 of the Rehabilitation Act, provide statutory underpinnings for an affirmatively furthering health equity (AFHE) obligation. Moreover, existing legal and regulatory frameworks relating to hospital tax exemption, community-based supports for disabled people, and administration of Medicare and Medicaid suggest models for implementing an AFHE obligation. Receipt of federal funding by hundreds of thousands of health sector actors should come with some responsibility for working toward ameliorating health inequities