Impact on Minority Populations of State Refusals to Expand Medicaid under the Affordable Care Act

By: Aaron Kostyk

Blog Category: Race & Healthcare

The recent Supreme Court decision in National Federation of Independent Businesses v. Sebelius struck down federal penalties on states that refuse to expand their Medicaid programs under the Affordable Care Act (“ACA”). The Court held that these penalties exceeded the scope of the government’s spending powers. This made the expansion of Medicaid programs essentially voluntary on a state by state basis. Not surprisingly, some states don’t want to accept federal funds to expand their programs. As of October 22, 2013, twenty six states were moving forward with Medicaid expansion and twenty four were not.

Refusal to accept federal funding for Medicaid expansion creates a “gap” in coverage between existing Medicaid programs and subsidies under the ACA and minorities account for a significant portion of the persons in this gap. Minority populations are more likely to be uninsured than the White population (13%), as compared with nonelderly Hispanics (32%), followed by American Indians/Alaska Natives (27%), Blacks (21%), and Asians/Pacific Islanders (18%). These populations are also more likely to have issues accessing affordable healthcare. Furthermore, given that roughly six out of ten Medicaid recipients are persons of color, minorities are more likely to be disproportionately affected by state refusals to expand their Medicaid programs. People in the gap who fall between one hundred percent of the federal poverty level (the current level of Medicaid coverage) and one hundred and thirty eight percent of the federal poverty level (the level at which ACA subsidies apply) will again be without options if states refuse to accept the money to cover them. The ACA has the potential to improve access to healthcare for historically under served populations. Furthermore, it is important to note that the majority of Medicaid recipients are children. In conclusion, states should set aside ideology and act in the best interest of their most vulnerable populations by expanding Medicaid.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

Sources:

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2607 (2012).

Health Coverage by Race and Ethnicity: The Potential Impact of the Affordable Care Act, The Henry J. Kaiser Family Foundation, available at http://kff.org/disparities-policy/issue-brief/health-coverage-by-race-and-ethnicity-the-potential-impact-of-the-affordable-care-act/, (publication #8423).

Samantha Artiga & Jessica Stephens, The Impact of Current State Medicaid Expansion Decisions on Coverage by Race and Ethnicity, The Henry J. Kaiser Family Foundation, July 02, 2013, available at http://kff.org/disparities-policy/issue-brief/the-impact-of-current-state-medicaid-expansion-decisions-on-coverage-by-race-and-ethnicity/, (publication #8450).

Status of State Action on the Medicaid Expansion Decision, as of October 22, 2013, The Henry J. Kaiser Family Foundation, available at http://kff.org/health-reform/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/ (last visited Oct. 26, 2013).

Race and Biomedical Research: Not So Black and White

By: Dr. Robert Gorkin
Blog Category: Race & Healthcare

In a fascinating report, Ken Batai and Rick A. Kittles critically review the use of the notion of race as a variable to categorize participants in biomedical research given the recent advances in human molecular genetics.[1]  They conclude that classifications using skin color, or self-identification with a racial or ethic (SIRE) group do not yield genetically meaningful categories.  Indeed, using such traditional racial classifications can be a confounding variable.

Modern evolutionary genetics, including data from the Human Genome Project, gives strong support to the idea that Homo sapiens originated in Africa and later migrated into the other continents.  Once established, these geographically and genetically isolated populations continued to undergo genetic divergence. However, since DNA tends to be conserved, the genome contains a number of ancestry informative markers (AIM’s).

Volumes of data belie the idea that molecular genetics provides an underlying biological reality (at the DNA sequence level) that validates the notion of race.  In fact, the genetic variability within racially defined groups is often far greater than that separating the races.  The problem occurs because the term “race” carries substantial cultural and social meanings, but has no clear biological meaning.  The American Sociological Association and the American Association of Anthropologists both concur with this viewpoint.  Furthermore, the sociopolitical meaning of the term can change over time. “For example, the U.S. Bureau of the Census used eight categories of racial groups in 1890, five in 1900, seven in 1950 and by 1990, the list had grown to 16 different choices.”[2]

Nevertheless, certain AIM’s are able to give researchers reliable genetic information about an individual’s continent of origin.  However, SIRE’s for African-Americans do not seem to accurately reflect this genetic information.  For example, one study showed that only 34% of SIRE African-American’s possessed more than 90% West-African AIM’s.

The bottom line here is that SIRE’s are not necessarily good proxies for the genetic makeup of an individual. The authors recommend using AIM’s to accurately assess the individual ancestry of subjects enrolled in biomedical studies to unravel the genetics of disease.  Pharmacogenetic studies of effect of genes on the metabolism and action of drugs are another arena where individual ancestry assessments would be superior to traditional racial classifications.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.  


[1] Ken Batai & Rick A. Kittles, Race, Genetic Ancestry, and Health, 5 Race & Soc. Probs. 81-87 (2013).

[2] Id. at 83 (citation omitted).

Why the Racial and Political Divide over the Affordable Care Act?

By: Deanna Watson
Blog Category: Race & Healthcare

The United States is divided racially divided over the Affordable Care Act (ACA) or ObamaCare. In general, research shows that whites are the least supportive of this healthcare reform.[1] Despite not one single Republican voice in Congress, ACA was a major legislative achievement for President Barack Obama.[2] However when Republicans took control of congress in 2010, the Republicans in the House of Representatives symbolically voted unanimously to repeal the law.[3] Among other benefits, ACA extends the age of dependents able to be covered under their parents’ healthcare plan; insurance companies can no longer deny coverage to those with pre-existing conditions; and it extends Medicare benefits for the growing populations of our nation’s senior citizens.

With all of these new or expanded benefits, it is unclear why it is so poorly supported by many whites and Republicans. Already, the Affordable Care Act has benefitted the nearly 85% of Americans who already have insurance: 3.1 million young adults have gained coverage through the parents’ plans; 6.6 million seniors are paying less for prescription drugs; 105 million Americans are paying less for preventative care & no longer face lifetime coverage limits; 13.1 million Americans have received rebates from insurance companies; 17 million children with pre-existing conditions no longer denied coverage or charged extra.[4] Women (as well as the general population) have more access to preventative care and treatment.[5] Logically, when there is more access to prevention, the whole country and globe is better for it.

In reference to race, the ACA will level out the inequalities among races’ access to healthcare. Blacks suffer from higher rates of a range of illnesses as compared to the general population.[6] Blacks have the highest mortality rate of any racial and ethnic group for all cancers combined and for most major cancers, including stomach, liver, prostate, and colon cancers.[7]

An especially interesting provision of ACA is that insurers will be held more accountable. Health insurers must justify any rate increase of 10% or more before the increase takes effect.[8] It is clear that the healthcare system is a broken system. With the rising costs of healthcare, it just does not make sense that this issue polarizes the country the way it has.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 


[1] Mollyann Brodie et. al., Regional Variations in Public Opinion on the Affordable Care Act, 36 J. Health Pol. Pol’y & L. 1097, 1101 (2011).

[2] Michael Henderson & D. Sunshine Hillygus, The Dynamics of Health Care Opinion, 2008 – 2010: Partisanship, Self-Interest, and Racial Resentment, 36 J. Health Pol. Pol’y & L. 945, 945 (2011).

[3] Id.

[4] U.S. Dep’t of Health & Human Servs., The Affordable Care Act and African Americans, http://www.hhs.gov/healthcare/facts/factsheets/2012/04/aca-and-african-americans04122012a.html (last visited Oct. 11, 2013) [hereinafter ACA and African Americans].

[5] U.S. Dep’t of Health & Human Servs., The Affordable Care Act and Women, http://www.hhs.gov/healthcare/facts/factsheets/2012/03/women03202012a.html (last visited Oct. 11, 2013).

[6] ACA and African Americans, supra note 4.

[7] Id.

[8] U.S. Dep’t of Health & Human Servs., Rate Review, http://www.hhs.gov/healthcare/insurance/premiums/rate-review.html (last visited Oct. 11, 2013).

Racial Discrepancies at Low-Quality Hospitals in Segregated Regions

By: Caitlin Conk

Blog Category: Race & Healthcare

Research has shown that black patients more frequently undergo surgery at low-quality hospitals than do white patients. Researchers focused on racially segregated areas, where there is a close proximity of both high and low-quality hospitals. After analyzing national Medicare data for all patients who underwent one of three high-risk surgical procedures in 2005-08, researchers found black patients were more likely than white patients to undergo surgery in low-quality hospitals for all three surgical procedures. Blacks were also less likely than whites to undergo surgery at high-quality hospitals for all three operations. Researchers noted the racial disparities were not due to a lack of geographic proximity to higher-quality hospitals. Black patients actually live closer to high-quality hospitals performing these procedures than white patients.

What is causing this racial disparity? Researchers believe it has to do with the history of residential segregation. Black patients living in regions with high degrees of racial segregation were even more likely to undergo surgery in low-quality hospitals. Whereas, blacks living in regions with low degrees of residential racial segregation were no more likely than whites to receive care in low-quality hospitals.

How can we fix these disparities? Researchers suggest two different policies to merge the racial disparity. First, strategies that would direct black patients to higher-quality hospitals need to be put into place. Second, an improvement to care at low-quality hospitals is critical. Until these policies are put into place, the racial disparities in health care will continue throughout our nation.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race. 

Source:

Justin Dimick et al., Black Patients More Likely Than Whites to Undergo Surgery At Low-Quality Hospitals In Segregated Regions, 32 Health Aff. 1046 (2013), available at http://content.healthaffairs.org/content/32/6/1046.full?sid=83af67f6-c05c-4690-a9ad-0ba3ac880120.

The Limits of the Affordable Care Act and the Impact on Minorities

By: Chris Pine
Blog Category: Race & Healthcare

State refusals to expand Medicaid through the Affordable Care Act leaves millions without coverage, particularly African-Americans. The Supreme Court’s decision to strike down the ACA’s mandatory Medicaid expansion has left the question of expansion up to the states.  To encourage expansion, the federal government will carry the entire cost of each state’s Medicaid expansion for the first three years.  After 2016, the federal government will continue to cover a minimum of 90% of the costs.

Nonetheless, 26 states have declined to expand Medicaid coverage.  Some of these states have prohibited Medicaid expansion without first gaining legislative approval.  Others have delayed a decision by tasking committees to further study the impact of expansion on their state.  In Maine, the governor vetoed Medicaid expansion. Republican governors and GOP controlled legislatures have been the common denominator among anti-expansion states.

The result is that many poor will find themselves in the void between those who qualify under that state’s current Medicaid standards and those in higher income brackets, who qualify for subsidies.  A disproportionate number of African-Americans will find themselves in this no-man’s-land of ineligibility.  This particularly the case in the Deep South, in states like Mississippi, Alabama, and Georgia, with Arkansas as the loan exception.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

Sources:

Sabrina Tavernise & Robert Gebeloff, Millions of Poor Are Left Uncovered by Health Law, New York Times (Oct. 2, 2013), available at http://www.nytimes.com/2013/10/03/health/millions-of-poor-are-left-uncovered-by-health-law.html.

Status of State Action on the Medicaid Expansion Decision, as of September 30, 2013, The Henry J. Kaiser Family Foundation (Oct. 10, 2013), http://kff.org/medicaid/state-indicator/state-activity-around-expanding-medicaid-under-the-affordable-care-act/#map.

Lethal Disparity: Why Are Black Patients Dying More Than Whites?

By: Jason Gibson
Blog Category: Race and Healthcare

A new study conducted by Justin Dimick and the University of Michigan is trying to help us understand why black patients generally have a higher mortality rate after major surgeries than their white counterparts. A popular theory is that due to racial disparities, black patients are more likely to receive care at poor quality hospitals.  Surprisingly, the authors of this study discovered that black patients are more likely to live near high-quality hospitals with lower mortality rates.  However, these patients tend to forego these hospitals and instead choose to receive care at lower quality hospitals.  But why would anyone make this choice?

Perhaps it’s cultural.  It’s human nature for people to gravitate to those who are similar.  This theory could also be supported by the fact that doctors who work in predominately black communities continue to make referrals to traditional “minority-serving” hospitals.  Another theory is that many of these minority-serving hospitals largely treat those who receive government assistance such as Medicaid.

Whatever the cause of this disparity, this will be one of the many tests of which to grade the Affordable Care Act.  The Act, which is being slowly implemented throughout the country, was designed to address not only racial disparities, but disparities among the impoverished and uninsured as well.  If the disparity in mortality is connected to the uninsured, then we should see a positive shift these statistics.  However, if not, then perhaps the focus should be more on re-educating both the minority communities and health care professionals.

The opinions expressed herein are strictly those of the author and do not necessarily reflect the opinions of the Widener Journal of Law, Economics & Race.

Source:

Asahi Shimbun, Racial Disparities In Health Care: Justin Dimick and Coauthors’ June Health Affairs Study, Health Affairs Blog (Jun. 4th, 2013, 2:47 PM), http://healthaffairs.org/blog/2013/06/04/racial-disparities-in-health-care-justin-dimick-and-coauthors-june-health-affairs-study/.

Fall 2013 Blog Topics

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 The Widener Journal of Law, Economics and Race would like to announce our Fall 2013 Blogs

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Our blogs will feature the following four topics:

      1)  Racial Implications of Recent Supreme Court Decisions

2)  Immigration Reform

3)  Race and Healthcare

4)  Minimum Wage and the Economy

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New blog entries will be added every Monday. Thank you for supporting the Widener Journal of Law, Economics & Race!

OFCCP abandons their position in attempting to implement widespread Affirmative Action policies in the health care industry

Blog Category: Affirmative Action

Written by: *Dan Baum

The Office of Federal Contract Compliance Programs (“OFFCP”) announced that they will rescind Directive 293. Directive 293 provides guidance in determining whether a health insurance provider falls under OFFCP’s jurisdiction. OFFCP jurisdiction is necessary to subject healthcare employers to Affirmative Action commands.

Prior to this, a ruling by OFFCP had announced for the first time that it has jurisdiction over healthcare providers enrolling in the Medicare advantage program and Medicare prescription drug programs (parts C and D).  Historically, the OFCCP has taken the position that participation in Medicare, TRICARE and Medicaid is a healthcare provider’s acceptance of financial assistance, not their acceptance of a government contract.  Healthcare organizations with 50 or more  employees that enter into employment contracts with the federal government are subject to affirmative action obligations under the Rehabilitation Act of 1973, and the amended Veteran’s Readjustment Assistance Act of 1974. The two acts require employers to ensure non-discrimination in their employment practices, and create written affirmative action plans to ensure compliance.

Because healthcare providers’ acceptance of Medicaid has traditionally been viewed as financial assistance, they were usually  outside of OFCCP’s jurisdiction.  However, in Florida Hospital of Orlando, an Administrative Law Judge (“ALJ”) stated that healthcare providers participating in TRICARE are government contractors, implicating that they would be subjected to Affirmative Action requirements.  However, the passage of the National Defense Authorization Act essentially reversed the findings of Florida Hospital and directive 293. In response, the OFCCP gave up their fight for obtaining jurisdiction by rescinding the directive.

For now healthcare providers will not be subjected to Affirmative Action requirements under the OFCCP, however, OFCCP stated in a webinar that they will be reviewing on a case-by-case basis  to determine whether Medicare (specifically parts C and D) providers will be subjected to OFCCP contract/subcontract jurisdiction.  Therefore providers must continue to monitor their sources of federal revenue to determine whether they are within OFCCP’s jurisdiction, and if so, ensure compliance with Affirmative Action regulations.

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*Dan Baum is currently a staff member on the Widener Journal of Law, Economics and Race. To learn more about Dan Baum, click here to view his page: Dan Baum
Sources:
Health Lawyers Weekly, Feb 18, 2011, Vol. IX Issue 7. OFCCP Clarifies When Healthcare Providers Must Comply with Affirmative Action, available at: http://www.hallrender.com/health_care_law/library/articles/753/Bumgarner_HLW_article1.pdf
Fulbright & Jaworski L.L.P., Publication, OFCCP Rescinds Directive Regarding Its Jurisdiction Over Health Care, available at: http://www.fulbright.com/index.cfm?DETAIL=yes&FUSEACTION=publications.detail&NEWPAGE=0&PUB_ID=5499&SITE_ID=494&pf=y
Smith, Gambrell & Russell, L.L.P., Publication, OFCCP Rescinds Medical Providers Directive 293, available at: http://www.sgrlaw.com/resources/client_alerts/1838/

The Widener Journal of Law, Economics & Race 2012 Fall Semester Blogs

The Widener Journal of Law, Economics & Race would like to announce its 2012 Fall semester blogs.

This semester, the blogs will focus on four central topics:

1) Immigration, 2) Affirmative Action, 3) Race and Economics in the Media and 4) The Economics of Discrimination.

New blog entries will be added every week, up until finals so that we can keep the Widener Community informed about these important topics. The blogs can be accessed by clicking the blogs & posts link.

Thank you once again for all of your support.

 

Sara Horatius, Web & Technology Editor

Raynes McCarty Lecture Live Webcast

Widener University School of Law is pleased to announce that Princeton University Professor Paul Starr will deliver the fifth-annual Raynes McCarty Distinguished Lecture in Health Law on Widener’s Delaware campus and at The Union League of Philadelphia, both on Thursday, Nov. 19.

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Starr holds the Stuart Chair in Communications and Public Affairs at Princeton’s Woodrow Wilson School of Public and International Affairs. His lecture, “Health Care Reform: The Long View,” is expected to put the current political battle over health-care reform into historical perspective and explore the future of the health-care system.

Starr received the 1984 Pulitzer Prize for nonfiction and Bancroft Prize in American history for “The Social Transformation of American Medicine” and the 2005 Goldsmith Book Prize for “The Creation of the Media.”

He will first give the lecture during a luncheon event at The Union League of Philadelphia. The luncheon begins at noon and the lecture starts at 12:30 p.m. He will repeat the talk that day for the law school community at 4 p.m. in the Ruby R. Vale Moot Courtroom on the Delaware campus.

One substantive Delaware and Pennsylvania continuing legal education credit is available for attendance at either lecture. There is no cost to attend either event, including the luncheon, thanks to a generous gift from the Raynes McCarty law firm, based in Philadelphia. Raynes McCarty attorneys represent the catastrophically injured in the courts and the legislature. It is one of the country’s most philanthropic and civic-minded firms.

The Health Law Institute on Widener University School of Law’s Delaware campus is frequently ranked among the top-10 programs in the nation. Institute Director and Law Professor John G. Culhane said the Law School is proud to host Starr.

“We are delighted that Paul Starr will be our Raynes McCarty lecturer this year,” Culhane said. “He has a powerful command of the issues on health-care reform and, as someone even the White House has looked to for advice, should provide a thought-provoking hour of discussion. His remarks come at a time when health-care reform is at the height of our nation’s consciousness. Widener’s Health Law Institute is pleased to again present such a high-quality lecture on such a timely topic. I encourage the legal community and the Widener family to come out in force for this important event.”

Starr has written extensively on American society, politics, and domestic and foreign policy. He co-founded “The American Prospect” nearly 20 years ago with Robert Kuttner and Robert Reich. The liberal magazine about politics, policy and ideas is published monthly in print and online. His short book “The Logic of Health-Care Reform,” published in 1992 and reissued in a revised and expanded edition in 1994, laid out the case for a system of universal health insurance and managed competition. He served as a senior advisor at the White House during 1993, in the formulation of the Clinton health plan.

Attorneys interested in attending either lecture and receiving the continuing legal education credit may register by calling Karla Harris at 302-477-2704 or emailing kmharris@widener.edu. There is no fee but space is limited. Business attire is required.

****This article was written by the public relations department of the Widener University School of Law, and was found at the following Widener Law Website Page