¹ Caiman, Neil S., Out of the Shadow, 19 Health Aff. 170, 170 (2000)Google Scholar.

² Medical error is defined as the failure of planned patient care action. This can occur either when the planned action is not completed as intended or when the wrong plan is chosen to achieve the desired result. See Committee on Quality of Health Care in America, Institute of Medicine, To Err is Human: Building A Safer Health System 1-3 (Linda T. Krohn et al. eds., 2000).

³ Id.

⁴ See id. at ix.

⁵ In a disproportionate adverse impact discrimination claim, the plaintiff must be able to identify a particular racially neutral policy or practice that has a statistically significant adverse effect on a protected racial or ethnic group. Once the plaintiff establishes a prima facie case, the burden shifts to the defendant to justify the challenged practice by putting forward a legitimate nondiscriminatory reason for the policy or practice. If this showing is made, the plaintiff may still prevail by demonstrating that the health care provider's legitimate interest can be met by using a less discriminatory alternative. For a detailed explanation of the shifting burdens of proof, see Watson, Sidney D., Reinvigorating Title VI: Defending Health Care Discrimination—In Shouldn't Be So Easy, Fordham L. Rev. 939 (1990)Google Scholar [hereinafter Reinvigorating Title VII.

⁶ Congress passed Title VI of the Civil Rights Act on July 2, 1964, Pub. L. No. 88-352, 78 Stat. 241. The Medicare Act, known as the Health Insurance for the Aged Act, was passed on July 30, 1965, Pub. L. No. 8997 Title I, 79 Stat. 290.

⁷ Caiman, supra note 1, at 172-73.

⁸ See Morehouse Medical Treatment and Effectiveness Center, Racial and Ethnic Differences in Access to Medical Care: A Synthesis of the Literature, at http://www.kff.org/content/1999/19991014a/SYNTHESIS OF LITERATURE.pdf. (last visited May 14, 2001).

⁹ See U.S. Comm'N on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Vol. I. The Role of Governmental and Private Health Care Programs and Initiatives 11 (1999). Minority Americans also suffer from higher death rates. See id. at 10. Blacks are significantly more likely to die from heart disease, cancer and HIV than whites. See id. Native Hawaiians are twice as likely as whites to die from heart disease, cancer and diabetes. See id. at 33. Infant mortality rates are two-anda-half times higher for African-Americans, twice as high for Native Hawaiians, and one-and-a-half times higher for Native Americans. See id. at 11, 33. These race-based disparities in health status, morbidity and mortality go on and on. See id. at 23-46.

¹⁰ See, e.g., Blustein, Jan, Medicare Coverage, Supplemental Insurance, and the Use of Mammography by Older Women, 332 New Eng. J. Med. 1138, 1139-40 (1995)CrossRefGoogle Scholar; Gornick, Marian E. et al., Effects of Race and Income on Mortality and Use of Services Among Medicare Beneficiaries, 335 New Eng. J. Med. 791 (1996)CrossRefGoogle Scholar (stating Black Medicare enrollees have fewer mammograms, flu vaccinations and visits to physicians for ambulatory care); Access: Minority, Low-Income Elderly Not Taking Full Advantage of Medicare, Health Care Pol'y Rep. (BNA) No. 42, at D-41 (Oct. 23, 1995), (discussing how rate of physician visits are lower for Black Medicare recipients than for whites); Physicians: Black, Hispanic Medicare Beneficiaries Lack Easy Access to Care, Pprc Reports, Medicare Rep. (BNA) No. 20, at D-9 (May 14, 1993) (reporting that Black Medicare patients receive only 89% of the primary care that whites receive and use physicians only 82% as much as whites.).

¹¹ I use “Black” to denote a specific cultural group rather than a skin color and will therefore capitalize it throughout this article. When I use the term “white” it does not describe a discrete cultural group, therefore it is not capitalized.

¹² See Forrest, Christopher & Whelan, Ellen-Marie, Primary Care Safety-Net Delivery Sites in the United States: A Comparison of Community Health Centers, Hospital Outpatient Departments, Physicians' Offices, 284 Jama 2077, 2079-80 (2000)CrossRefGoogle Scholar (finding that the primary care visit rates for Blacks was 33% lower than the rate for white, non-Hispanic population); Physicians: Black, Hispanic Medicare Beneficiaries Lack Easy Access to Care, Pprc Reports, supra note 10, at D-9 (reporting that Black Medicare patients use the emergency room 2.7% more than whites).

¹³ See Paul Eggers & Linda G. Greenberg, Racial and Ethnic Differences in Hospitalization Rates Among Medicare Beneficiaries, Health Care Financing Rev., Summer 2000, at 91, 91 (asserting that Asian Americans have lower hospitalization rates than whites); Gornick et al., supra note 10, at 791.

¹⁴ See generally Gornick et al., supra note 10; D. Robert Harris et al., Racial and Gender Differences in Use of Procedures for Black and White Hospitalized Adults, 7 Ethnicity and Disease 91 (1997) (finding that Blacks were significantly less likely than whites to receive a major therapeutic procedure in slightly less than one half of the diagnosis categories); Maynard, Charles et al., Blacks in the Coronary Artery Surgery Study (CASS): Race and Clinical Decision Making, 76 Am. J. Pub. Health 1446 (1986)CrossRefGoogle Scholar (finding that the racial difference is not due to differences in clinical characteristics of Blacks and whites); Peterson, Eric D., et al., Racial Variation in the Use of CoronaryRevascularization Procedures: Are the Differences Real? Do they Matter?, 336 New Eng. J. Med. 480, (1997)CrossRefGoogle Scholar (noting that African-Americans underwent fewer surgeries than whites even after controlling for personal and hospital characteristics). See also Ayanian, John Z. et al., Racial Differences in the Use of Revascularization Procedures After Coronary Angiography, 269 Jama 2642, 2646 (1993)CrossRefGoogle Scholar (concluding that differences in the rates of vascularization procedures differ by race); Escarce, Jose J. et al., Racial Differences in the Elderly's Use of Medical Procedures and Diagnostic Tests, 83 Am. J. Pub. Health 948, 952 (1993)CrossRefGoogle Scholar (discussing the racial differences in the use of medical care); Johnson, Paula A. et al., Effect of Race on the Presentation and Management of Patients with Acute Chest Pain, 118 Annals Internal Med. 593, 599 (1993)CrossRefGoogle Scholar (finding that even after adjusting for multiple clinical factors Blacks still had much lower rates of coronary artery bypass); A. Marshall McBean & Marian Gornick, Differences By Race in the Rates of Procedures Performed in Hospitals for Medicare Beneficiaries, 15 Health Care Financing Rev., Summer 1994, at 77 (analyzing administrative data from the Medicare program to compare differences by race in the use of seventeen major procedures performed in hospitals); Wenneker, Mark B. & Epstein, Arnold M., Racial Inequalities in the Use of Procedures for Patients with Ischemic Heart Disease in Massachusetts, 261 Jama 253, 255 (1989)CrossRefGoogle Scholar (finding that racial differences remain even after controlling for insurance status); John Yergan et al., Relationship Between Patient Race and the Intensity of Hospital Services, 25 Med. Care 592, 600 (1987) (finding that African-American pneumonia patients receive fewer hospital services than white patients, even when the study controlled for source of payment, income and location where services were delivered). A 1994 longitudinal study of 172 medical procedures found that for 36 procedures, whites had higher procedure rates than Blacks in at least seven of the eight years of the study, white patients receive more advanced and intensive treatments like coronary bypass, arthroscopic surgery, kidney transplants, and procedures related to the circulatory and musculatory systems than did Blacks. In contrast, Blacks received more procedures related to renal failure, abortion, glaucoma, and limb amputations. Report of the U.S. Commission on Civil Rights, 9, 14 (1999), citing Dept. of Health & Hum. Services, Public Health Service, Agency for Health Care and Policy Research, Trends in Hospital Procedures Performed on Black Patients and White Patients: 1980-1987, Providers Studies Research Note 20, Ahcpr Pub. No. 94-003, 5-7 (Apr. 1994).

¹⁵ See e.g., Marian E. Gornick, Disparities in Medicare Services: Potential Causes, Plausible Explanations, and Recommendations, 21 Health Care Financing Rev., Summer 2000 at 23, 28-29 (noting that, as of 1997, the rates of selected cardiovascular and cerebrovascular procedures per 1,000 Medicare enrollees over age 65 are significantly higher for whites. These procedures include coronary artery bypass graft, percutaneous transluminal coronary angioplasty, sonography of the carotid artery, and thromboendarterectomy) [hereinafter Disparities in Medicare Services]; Maynard et al., supra note 14, at 1447 (concluding that racial differences remain even after controlling for clinical characteristics). See also Ayanian et al., supra note 14, at 2642 (finding that racial differences remain even after controlling for clinical condition); Ferguson, Jeffrey A. et al., Examination of Racial Differences in Management of Cardiovascular Disease, 30 J. Am. Coll. Cardiol. 1707 (1997)CrossRefGoogle Scholar; Johnson, supra note 14, at 593 (finding that even after adjusting for multiple clinical factors Blacks had much lower rates of coronary artery bypass); Peterson et al., supra note 14, at 480 (noting that Blacks were less likely than whites to undergo angioplasty and bypass surgery); Peterson, Eric D. et al., Racial Variation in Cardiac Procedure Use and Survival Following Acute Myocardial Infarction in the Department of Veterans Affairs, 271 Jama 1175, 1175 (1994)CrossRefGoogle Scholar (finding that Blacks received fewer cardiac procedures than whites); Steven Udvarhelyi, I. et al., Acute Myocardial Infarction in the Medicare Population: Process of Care and Clinical Outcomes, 268 Jama 2530, 2530 (1992)Google Scholar (concluding that procedure use varies as a function of gender and race); Wenneker, supra note 14, at 255 (finding substantial interracial differences in cardiac procedure rates); Whittle, Jeff et al., Racial Differences in the Use of Invasive Cardiovascular Procedures in the Department of Veterans Affairs Medical System, 329 New Eng. J. Med. 621, 623 (1993)CrossRefGoogle Scholar (finding that the rate of invasive cardiac procedures is higher for white patients than for black patients).

¹⁶ See Council on Ethical and Judicial Affairs, Black-White Disparities in Health Care, 263 Jama 2344, 2345 (1990) (finding that Black women are less likely than white women to have caesarian sections).

¹⁷ See Ayanian, John Z. et al., Quality of Care by Race and Gender for Congestive Heart Failure and Pneumonia, 37 Med. Care 1260 (1999)CrossRefGoogle Scholar (assessing quality of care by race and gender); Council on Ethical and Judicial Affairs, supra note 16, at 2345 (finding that African-Americans hospitalized for pneumonia are less likely than whites to receive medical services, particularly intensive care, even though their symptoms, source of payments and incomes are similar); John Yergan et al., supra note 14, at 600 (finding that patient race can be a significant characteristic in determining the intensity of care provided in hospitals).

¹⁸ See e.g., Ayanian, John Z. et al., The Effect of Patients' Preferences on Racial Differences in Access to Renal Transplantation, 341 New Eng. J. Med. 1661 (1999)CrossRefGoogle Scholar (assessing the relation between race and patients' preferences with respect to transplantation); Baker-Cummings, Christie et al., Ethnic Differences in the Use of Peritoneal Dialysis as Initial Treatment of End-Stage Renal Disease, 274 Jama 1858, 1860 (1995)CrossRefGoogle Scholar (finding that African-Americans are 55 percent less likely than whites to use peritoneal dialysis and are less likely to be referred for renal transplantation, are more likely to wait for a donor, and are less likely to receive a transplanted kidney); see also Council on Judicial and Ethical Affairs, supra note 16, at 2345; Gaston, Robert S. et al., Racial Inequity in Renal Transplantation, 270 Jama 1352, 1352 (1993)CrossRefGoogle Scholar (examining the racial impact on kidney allocation policies).

¹⁹ See e.g., McBean & Gornick, supra note 14, at 82 (noting “total hip replacement” surgeries as one of the largest differences by race in the rates of performed procedures).

²⁰ See e.g., Blustein, supra note 10, at 1139.

²¹ See e.g., Bach, Peter B. et al., Racial Differences in the Treatment of Early-Stage Lung Cancer, 341 New Eng. J. Med. 1198 (1999)CrossRefGoogle Scholar (noting that Blacks are less likely to receive surgical treatment for early stage, non-small-cell lung cancer); Carrie N. Klabunde, Trends and Black/White Differences in Treatment for Nonmetastatic Prostrate Cancer, 36 Med. Care 1337 (1998) (finding that although use of radiation therapy did not differ markedly, Black men were less likely to undergo radical prostatectomy); Mitchell, Jean M., Access to Bone Marrow Transplantation for Leukemia and Lymphoma: The Role of Sociodemographic Factors, 15 J. Clinical Onc. 2644 (1997)CrossRefGoogle Scholar (showing that Black patients are less likely to undergo bone marrow transplantation).

²² See e.g., Guadagnoli, Edward et al., The Influence of Race on the Use of Surgical Procedures for Treatment of Peripheral Vascular Disease of the Lower Extremities, 130 Arch. Surg. 381 (1995)CrossRefGoogle Scholar (noting that Blacks are more likely to have amputation and less likely to have leg sparing procedures).

²³ See Physicians: Black, Hispanic Medicare Beneficiaries Lack Easy Access to Care, Pprc Reports, supra note 10, at D-9.

²⁴ See e.g., Kahn, Katherine L., Health Care for Black and Poor Hospitalized Medicare Patients, 271 Jama 1169 (1994)CrossRefGoogle Scholar.

²⁵ See Sirey, Jo Anne, Predictors of Antidepressant Prescription and Early Use Among Depressed Outpatients, 156 Am. J. Psychiatry 690, 690 (1999)Google Scholar.

²⁶ See Richard D. Moore, Racial Differences in the Use of Drug Therapy for HIV Disease in an Urban Community, 330 New Eng. J. Med. 763, 763 (1994).

²⁷ See Cleeland, Charles S., Pain and Treatment of Pain in Minority Patients with Cancer, 127 Ann. Int. Med. 813, 813 (1997)CrossRefGoogle Scholar.

²⁸ For years, the only data that could be retrieved from government data banks for research purposes identified patients only as “White,” “Black” or “Other.” See Eggers & Greenberg, supra note 18; see also Ikemoto, Lisa C., The Fuzzy Logic of Race and Gender in the Mismeasure of Asian American Women's Health Needs, 65 U. ClN. L. Rev. 799, 805-806 (1997)Google Scholar. More recent data, although it uses the categories of Black, white, Hispanic, Asian/Pacific Islander, American Indian/Alaskan and Other, is still of limited help because these groupings tend to lump together vastly different groups and disguise intra-group differences. See U.S. Dept. of Health & Hum. Services, CDC and National Center for Health Statistics, Core Health Data Elements: Report of the National Committee on Vital and Health Statistics: Aug. 1996, at http://www.ncvhs.hhs.gov/ncvhsrl.htm (last visited May 15,2001).

²⁹ See e.g., Carlisle, David M., Racial and Ethnic Differences in the Use of Invasive Cardiac Procedures Among Cardiac Patients in Los Angeles County, 1986-1988, 85 Am. J. Public Health 352 (1995)CrossRefGoogle Scholar; Eggers & Greenberg, supra note 18.

³⁰ See Nancy De Lew and Robin M. Weinick, An Overview: Eliminating Racial, Ethnic, and Ses Disparities in Health Care, 21 Health Care Financing Rev., Summer (2000), at 1,2, citing R.M. Andrews and A. Elizhauser, Access to Major Procedures: Are Hispanics Treated Differently than Non-Hispanic Whites? (1998) (unpublished manuscript).

³¹ See Cleeland, supra note 27, at 813.

³² See generally Todd, Knox H., Ethnicity as a Risk Factor for Inadequate Emergency Department Analgesia, 269 Jama 1537 (1993)CrossRefGoogle Scholar (concluding that Hispanics with isolated long-bone fractures are twice as likely as non-Hispanic whites to receive no pain medication in the Ucla emergency medicine center).

³³ See Cornelius, Llewellyn J., Barriers to Medical Care for White, Black, and Hispanic American Children, 85 J. Nat'L Med. Ass'N 281, 284 (1993)Google Scholar; Disparities in Medicare Services, supra note 15, at 32-34 (questioning why elderly Black Medicare beneficiaries receive less preventive services and tests and more non-elective procedures); Gornick et al., Effects of Race and Income on Mortality and Use of Services Among Medicare Beneficiaries, supra note 10, at 781; Mutchler, Jan E. & Burr, Jeffrey A., Racial Differences in Health and Health Care Service Utilization in Later Life: The Effect of Socioeconomic Status, 32 J. Health & Soc. Behav. 342, 352 (1991)CrossRefGoogle Scholar.

³⁴ See Agency for Healthcare Research and Quality, Research Activities, 2 (reporting on Robin Weinick, Samuel Zuvekas, et al., 57 Med. Care Res. & Rev. 36 (2000)) (one-half to three-fourths of treatment disparities would remain even if racial and ethnic differences in income and health insurance coverage were eliminated.); Disparities in Medicare Services, supra note 15, at 33 (“When income distributions are standardized, differences between black and white persons in Medicare utilization rates for services such as ambulatory physician visits, emergency room physician visits, MRIs, mammographies, amputations of lower limbs, and bilateral orchiectomies are often diminished but do not disappear entirely.”).

³⁵ See Ayanian et al., supra note 17, at 1260 (finding that “Black patients with congestive heart failure and pneumonia received lower quality of care overall” by using “explicit process criteria and implicit review”); Kahn et al., supra note 24, at 1169 (finding that patients who are Black and from poor neighborhoods have worse processes of care and greater instability at discharge); Kevin A. Schulman et al., The Effect of Race and Sex on Physicians' Recommendations for Cardiac Catherization, 340 New Eng. J. Med. 618, 623, 625 (finding that the race and sex of patient affected physicians' likelihood of referral for cardiac catherization even after adjustments for patient's symptoms, clinical characteristics, and probability of coronary disease); Ferguson et al., supra note 15, at 1707. But see, Leape, Lucian L. et al., Underuse of Cardiac Procedures: Do Women, Ethnic Minorities, and the Uninsured Fail to Receive Needed Revascularization?, 130 Ann. Intern. Med. 183, 188 (1999)CrossRefGoogle Scholar (finding that although revascularization procedures are underused, there was no variation in rate of use by patient ethnic group);

³⁶ See Webster'S Third New Int'L Dictionary, 772 (1986).

³⁷ See Ayanian et al., supra note 18, at 1663; Brawn, Peter N., Stage at Presentation and Survival of White and Black Patients with Prostate Carcinoma, 71 Cancer 2569, 2572 (1993)3.0.CO;2-R>CrossRefGoogle Scholar (noting that more Black men with CP have more advanced stages of the diseases, which may be because they get diagnosed and treated later than their white counterparts); Morehouse Medical Treatment and Effectiveness Center, supra note 8; Oddone, Eugene A. et al., Understanding Racial Variation in the Use of Carotid Endarterectomy: The Role of Aversion to Surgery, 90 J. Nat'L Med. Ass'N 25, 25 (1998)Google Scholar (noting that African-American patients expressed more aversion to hypothetical surgery than whites).

³⁸ See van Ryn, Michelle, The Effect of Patient Race and Socio-Economic Status on Physicians' Perceptions of Patients, 50 Soc. Sci. & Med. 813, 813 (2000)CrossRefGoogle Scholar (finding that physicians tend to perceive African-Americans and poor people negatively). In one recent study, researchers used video-taped patient-actors who looked similar, dressed the same and used the same script, so that all the “patients” would have the same occupation, insurance status and risk. The videotaped patient interviews were presented to 720 primary care physicians who were asked to make a treatment recommendation based upon the videotaped encounter. The study results show that men and whites were the most likely patients to be referred for cardiac catherization. See Schulman et al., supra note 35, at 619-25.

³⁹ . See Anne Fadiman, the Spirit Catches You and You Fall Down (1997); Beverly Coleman-Miller, A Physician's Perspective on Minority Health, Health Care Financing Rev., Summer 2000, at 45, 49. See generally American Medical Association, Ad Hoc Committee on Health Literacy for the Council on Scientific Affairs, Health Literacy Report of the Council on Scientific Affairs, 281 Jama 552 (1999); Cooper-Patrick, Lisa et al., Race, Gender, and Partnership in the Patient-Physician Relationship, 282 Jama 583 (1999)CrossRefGoogle Scholar.

⁴⁰ See SWatson, Sidney D., Health Care in the Inner City: Asking the Right Question, 71 N.C. L. Rev. 1647, 1650-51 (1993)Google Scholar (finding that hospitals in minority neighborhoods had closed) [hereinafter Health Care in the Inner City].

⁴¹ See e.g., Williams, David R., Race and Health: Basic Questions, Emerging Directions, 7 Annals of Epidemiology 322 (1997)CrossRefGoogle Scholar.

⁴² See Williams, David R. & Rucker, Toni D., Understanding and Addressing Racial Disparities in Health Care, 20 Health Care Financing Rev., Summer 2000Google Scholar, at 75, 76.

⁴³ David Barton Smith, Health Care Divided: Race and Healing A Nation 32 (1999) (citing a confidential interview) [hereinafter Health Care Divided].

⁴⁴ See Randall, Vernellia R., Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African American Perspective on Bioethics, 15 St. Louis U. Pub. L. Rev. 191, 191-95(1996)Google Scholar.

⁴⁵ See Health Care Divided, supra note 43, at 11-12 (noting every major plantation had a hospital to care for its slave laborers and that slaves sometimes received better health care than did poor whites). However, slaves were also the subjects of horrific medical experimentation. See Randall, supra note 44, 196-97.

⁴⁶ See id. at 12 (noting effect of Jim Crow laws on health care for Blacks).

⁴⁷ See generally Mitchell F. Rice & Woodrow Jones, Jr., Public Policy and the Black Hospital: from Slavery to Segregation and Integration (1994) (discussing the historical and social significance of Black hospitals). See also Gamble, V.N., Germs Have N O Color Line: Blacks and American Medicine, 1900-1940, 105-18 (1989)Google Scholar; Smith, David Barton, Addressing Racial Inequities in Health Care: Civil Rights Monitoring and Report Cards, 23 J. Health Pol., Pol'Y & L. 75, 79 (1998)CrossRefGoogle Scholar [hereinafter Addressing Racial Inequities].

⁴⁸ See Michael Meltsner, Equality and Health, 115 U. PA. L. Rev. 1, 22-38 (1966).

⁴⁹ See Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959, 969 (4th Cir. 1963) (en banc). For a discussion of Hill-Burton funding for segregated health care, see Kenneth Wing, Title VI and Health Facilities: Forms Without Substance, 30 Hastings L. J. 137, 143-44 (1978).

⁵⁰ See Health Care Divided, supra note 43, at 13-14 (noting treatment of Black patients by white doctors).

⁵¹ See Addressing Racial Inequities, supra note 47, at 79 (discussing the “legacy of pre-civil rights era health services”).

⁵² See Health Care Divided, supra note 43, at 15-16 (noting limitations on Black doctors' practice).

⁵³ See generally Rice & Jones, supra note 47.

⁵⁴ See Gamble, supra note 47, at 58; Health Care Divided, supra note 43, at 16-21.

⁵⁵ See Coleman-Miller, supra note 39, at 48-49 (“My mom…talked about her sister being burned years ago—no doctor or hospital would see her because she was a black patient. [She] collected gray spider webs every day from the ceiling of the bam and placed them on her wounds. As her sister and my mother recall, her burns healed with very little scarring and no infection.”). See also Maya Angelou, I Know Why the Caged Bird Sings (1969) (“Since there was no Negro dentist in Stamps, nor doctor either, for that matter, Momma had dealt with previous toothaches by pulling them out (a string tied to the tooth with the other end looped over her fist), pain killers and prayer.”)

⁵⁶ See Health Care Divided, supra note 43, at 28-29 (describing the Black community's contributions to medical care).

⁵⁷ Charlotte Borst, Teaching Obstetrics at Home: Medical Schools and Home Delivery Services in the First Half of the Twentieth Century, 220 Bull. Hist. Med. 220, 240.

⁵⁸ See Addressing Racial Inequities, supra note 47, at 81 (discussing early legislation).

⁵⁹ See generally Health Care Divided, supra note 43, at 32-142 (discussing integration of health care facilities at the state and federal levels).

⁶⁰ See id. at 68-74 (describing the process by which medial societies gradually admitted Black doctors).

⁶¹ Id. at 91-92.

⁶¹ 323 F.2d 959.

⁶³ See Health Care Divided, supra note 43, at 82 (discussing the significance of the Simkins decision).

⁶⁴ Simkins, 323 F. 2d at 966.

⁶⁵ See id. at 969.

⁶⁶ See Addressing Racial Inequities, supra note 47, at 82 (discussing the importance of the Simkins decision).

⁶⁷ Simkins, 323 F.2d at 965.

⁶⁸ See Health Care Divided, supra note 43, at 101-06 (describing the impact of Simkins decision).

⁶⁹ See id. at 113-14.

⁷⁰ See 110 Cong. Rec. 1542 (1964) (statement of Rep. Lindsey).

⁷¹ See Health Care Divided, supra note 43, at 110 (noting that Dhew wanted to use its funding to influence school desegregation efforts).

⁷² See id. at 110-14 (describing implementation of Hill-Burton).

⁷³ See id. at 155 (noting that Medicare funds would mean the difference between financial success and insolvency for most hospitals).

⁷⁴ See id. at 278 (noting that the federal government had limited staffing for enforcement of Medicare compliance); Wing, supra note 49, at 158.

⁷⁵ See id. at 124-25 (detailing relationship between Title VI and Medicare).

⁷⁶ See id. at 124-25, 128-29 (discussing the implementation of Medicare and describing its implementation as a crusade of President Johnson).

⁷⁷ See id. at 132 (noting that President Johnson was “adamant” about the Medicare program beginning on time and all providers complying with Title VI).

⁷⁸ See id.

⁷⁹ See id. at 129-31 (outlining the guideline requirements enclosed in the letter). The recently promulgated Title VI guidelines forbade completely separate institutions and discrimination in hiring and staff privileges as well as segregated room, floor and ward assignments. The compliance guidelines required that patients be treated in a nondiscriminatory manner and required hospitals to take corrective action if there was a significant variation between the racial composition of patients and the population of the area the hospital served as the result of past discrimination. See id.

⁸⁰ See id. at 159-61 (noting that nursing homes concluded that there would be no government intervention if discriminatory practices were not flaunted).

⁸¹ See id. at 131-32 (remarking that only those in the office of Equal Health Opportunity could appreciate how audacious the move was).

⁸² See id. at 141, 144 (noting that 6,593 hospitals received Title VI clearance and President Johnson commented that this was over 92% of the nation's hospital beds).

⁸³ See id. at 144-45 (commenting on the theoretical position of segregated hospitals as outside the sphere of the federal government's influence).

⁸⁴ See id. at 114 (detailing the integration of Grady Memorial Hospital).

⁸⁵ See id. at 137 (describing other quick integrations).

⁸⁶ See Addressing Racial Inequities, supra note 47, at 84 (discussing the importance of Medicare dollars to the desegregation of health care).

⁸⁷ Some have described the integration of hospitals as “akin to a religious conversion.” Id. at 84, citing Beardsley, E., Goodbye to Jim Crow: The Desegregation of Southern Hospitals, 1945-1970, 60 Bull. Hist. Med. 367 (1986)Google Scholar. Others, less flatteringly, describe its “success as questionable.” Wing, supra note 49, at 159. Reality lies somewhere between the two extremes and requires an understanding of the time and staffing limitations.

⁸⁸ See Smith, supra note 47, at 85 (discussing the importance of Medicare dollars to the desegregation of health care).

⁸⁹ See id. at 84.

⁹⁰ See id.

⁹¹ See id. at 85.

⁹² See Health Care Divided, supra note 43, at 314-16 (detailing the role of hospitals in desegregation).

⁹³ See Addressing Racial Inequities, supra note 47, at 84.

⁹⁴ See id. at 83.

⁹⁵ Caiman, supra note 1, at 172-73.

⁹⁶ See Health Care Divided, supra note 43, at 154, 159, 173-75 (discussing hospital admissions and physician referrals).

⁹⁷ See id. at 175 (discussing the de facto segregation that remained after the implementation of Title VI).

⁹⁸ See Watson, Sidney D., Medicaid Physician Participation: Patients, Poverty and Physician Self Interest, 21 Am. J.L. & Med. 191, 191 (1995)Google Scholar (finding that some doctors refuse to treat Medicaid patients).

⁹⁹ See Health Care in the Inner City, supra note 40, at 1650.

¹⁰⁰ See 45 C.F.R. § 80.3(b)(l)(vii)(2) (2001). The Title VI statute prohibits only intentional discrimination. However, the regulations reach unintentional acts that have a disparate racial impact. For a discussion of case law upholding the validity of this regulation, see Reinvigorating Title VI, supra note 5, at 939. The Title VI regulations also require health care providers that accept federal funds to take affirmative action to overcome the effects of prior discrimination and prohibit hospitals or institutions from establishing facility locations that have the effect of discriminating against minority patients. See 45 C.F.R. § 80.3(b)(6)(i), (b)(3).

¹⁰¹ See Health Care in the Inner City, supra note 40, at 1647-49 (finding that the poverty rate for Black families is three times the rate for white families, a third of all Black households and almost half of all Black children live in poverty, nearly 30% of Black households report having no assets and more than 50% have assets of $5000 or less, Blacks are 50% more likely than whites to have no health insurance and five times as likely to be covered by Medicaid).

¹⁰² See Reinvigorating Title VI, supra note 5 at 939.

¹⁰³ See Elston v. Talladega Cty. Bd. of Ed., 997 F.2d 1394, 1407 (11th Cir. 1993). See also Reinvigorating Title VI, supra note 5 at 939.

¹⁰⁴ See Elston, 997 F.2d at 1407. Even if the defendant can establish a legitimate non-discriminatory reason, the plaintiff may still prevail by demonstrating that the health care provider's legitimate interest can be met by using a less discriminatory alternative. See Reinvigorating Title VI, supra note 5, at 956-57.

¹⁰⁵ See Institute Of Medicine, Health Care in the Context of Civil Rights, app. E, (1981) Case Study: Cook v. Ochsner, 174-84.

¹⁰⁶ See Reinvigorating Title VI, supra note 5, at 967.

¹⁰⁷ See Latimore v. Cty. of Contra Costa, No.CV-94-01257-SBA, 1996 WL 68196 (9th Cir. 1996); NAACP v. Med. Ctr., Inc., 657 F.2d 1322, 1324 (3rd Cir. 1981); Bryan v. Koch, 627 F.2d 612, 614 (2nd Cir. 1980); U.S. v. Bexar, 484 F. Supp. 855, 859 (W.D. Tex. 1980).

¹⁰⁸ j n Wilmington, Delaware, a five-year lawsuit challenging a plan to reduce the size of the inner-city hospital and to build a new hospital in the white suburbs cost the hospital more than a million dollars to litigate, and the delay in construction increased the cost of the new suburban hospital by $78 million. A negotiated settlement between the hospital and the federal government provided for free shuttle bus transportation between the inner city and the new suburban hospital, but nothing more. See Health Care Divided, supra note 43, at 179.

¹⁰⁹ See Reinvigorating Title VI, supra note 5, at 942.

¹¹⁰ The federal government can terminate funds to any program or activity found to be in violation of Title VI, its implementing regulations or guidelines. See 42 U.S.C. § 2000d-l, 2 (2000). Section 2000d-l provides an opportunity for a hearing prior to termination or a final refusal to grant assistance. Section 2000d-2 provides for judicial review of such actions. The fund recipient has a right to request an administrative hearing and to seek judicial review, but the agency does not need a court order. See id. After the Supreme Court's recent decision in Alexander v. Sandoval, 121 S. Ct. 1511 (2001), private parties have no private right of action to enforce the disparate impact regulations promulgated under Title VI against private institutions.

¹¹¹ See 42 U.S.C. § 2000d-l. The sanction is termination of federal funds only to the “particular program, or part thereof, in which such noncompliance has been found.” Id.

¹¹² See Reinvigorating Title VI, supra note 5, at 966-71 (discussing several court decisions regarding the role of financial considerations in Title VI claims).

¹¹³ See Sidney D. Watson, Race, Ethnicity & Hospital Care: The Need for Racial and Ethnic Data, 30 J. Health & Hosp. L., 125, 129. The Office for Civil Rights within the Department of Health and Human Services is responsible for Title VI compliance. It does not routinely collect race and ethnicity-based data. See U.S. Comm'N on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally-Assisted Programs 233 (June 1996). Title VI compliance merely requires the completion and filing of a form. The state agencies responsible for Title VI certification have no standard forms or procedures. No analysis or summary reports are routinely completed to document these efforts. While OCR conducts its own compliance reviews of facilities, budget limitations make it possible to do only a few each year in each region. These efforts are hampered by lack of access to other sources of information. Other than using census data, investigators often must rely on hand tabulation from facility records. The lack of access to adequate information has long been acknowledged as an impediment to civil rights enforcement. See Addressing Racial Inequities, supra note 47, at 92.

¹¹⁴ See generally Addressing Racial Inequities, supra note 47, at 92-100; H. Jack Geiger, Race and Health Care: An American Dilemma?, 335 New Eng. J. Med. 815 (1996); President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry, Quality First: Better Health Care of All Americans (Final Report) (1998). For a discussion of the importance of collecting data on socioeconomic class as well as race, see, e.g., Adler, Nancy et al., Socioeconomic Inequalities in Health—No Easy Solution, 24 Jama 3140 (2000)Google Scholar; Gary Pickens et al., Can We Measure the Impact of Social and Economic Status on Risk-Adjusted Costs of Inpatient Care?, at http://www.ahsr.org/1999/abstracts/pickens.htm. (last visited May 17, 2001).

¹¹⁵ In 1994, HCFA collaborated with all segments of the industry, but without consumer input, to develop a new uniform claim form which excluded race and ethnicity information. See Addressing Racial Inequities, supra note 47, at 92-100. See also Law, Sylvia A., A Right to Health Care That Cannot Be Taken Away: The Lessons of Twenty-Five Years of Health Care Advocacy, 61 Tenn. L. Rev. 771, 791 (1994)Google Scholar. The Uniform Institutional Provider Claim Form, popularly known as UB-82 and now UB-92, is a critical document in health care. All health care institutions claiming reimbursement under Medicare and Medicaid use this uniform billing form. The current version of the form does not solicit information regarding the race and ethnic identity of the patient. See id.

¹¹⁶ See The National Committee for Quality Assurance, The Health Plan Employer Data and Information Set (Hedis), at http://www.ncqa.org/Communications/Publications/ncqaoverview.pdf (last visited May 17,2001).

¹¹⁷ See e.g., Addressing Racial Inequities, supra note 47, at 95-96; Epstein, Arnold M., Rolling Down the Runway: The Challenges Ahead for Quality Report Cards, 279 Jama 1691 (1998)CrossRefGoogle Scholar; Fiscella, Kevin et al., Inequality in Quality: Addressing Socioeconomic, Racial, and Ethnic Disparities in Health Care, 283 Jama 2579 (2000)Google Scholar; Woolhandler, Stephanie & Himmelstein, David, Reverse Targeting of Preventive Care Due to Lack of Health Insurance, 259 Jama 2872 (1988)CrossRefGoogle Scholar.

¹¹⁸ See Ford Fessenden & Robert Fresco, The Health Divide, For Blacks, A Doctor Gap, Newsday, Nov. 30, 1998, at A28 (reporting that Black patients from Nassau, Suffolk, and Queens who get high-tech heart procedures are more likely to be treated by a surgeon with less experience). See also Fiscella, supra note 117, at 2579-83.

¹¹⁹ See Woolhandler & Himmelstein, supra note 117, at 2872.

¹²⁰ See Addressing Racial Inequities, supra note 47, at 92, 98; Geiger, supra note 114, at 815; Health Care in the Inner City, supra note 40, at 1647-54; Law, supra note 115, at 791.

¹²¹ See Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996) (reporting that plaintiffs alleged that Dept. of Health & Human Services and its Office of Civil Rights violated Title VI by failing to require health care providers to routinely report race and ethnicity data).

¹²² See Report of the United States Commission on Civil Rights, the Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Vol. II 141-42 (1999). See generally President's Advisory Commission on Consumer Protection and Quality in the Health Care Industry, supra note 114.

¹²³ See E.C. Schneider et al., Enhancing Performance Measurement, 282 Jama 1184 (1999) (reporting that the National Committee on Quality Assurance, the accrediting agency for managed care organizations (“MCOs”), recommends that MCOs include racial/ethnic and socioeconomic data as part of the core information on patients).

¹²⁴ See Fiscella, supra note 117, at 2582, (reporting that two panels of community leaders—one black and one Hispanic—expressed support for collection of race and ethnicity data by health plans if the information is not collected prior to enrollments) (citing an oral communication with David Nerenz).

¹²⁵ See Sidney D. Watson, A Civil Right to Health Care, 22 J.L. Med. & Ethics 126, 137 n. 96 (1994) (describing the uniform claim form).

¹²⁶ See Addressing Racial Inequities, supra note 47, at 94-100; Fiscella, supra note 117, at 2580-81.

¹²⁷ See Health Care Fairness Act, H.R. 3250, 106th Cong. § 301(b) (2000) (mandating that the National Academy of Sciences prepare and submit a report including information of effects of race and ethnicity on access to health care).

¹²⁸ See generally Mukamel, Dana B. & Mushlin, Alvin I., Quality of Care Information Makes a Difference: An Analysis of Market Share and Price Changes After Publication of the New York State Cardiac Surgery Mortality Reports, 36 Med. Care 945 (1998)CrossRefGoogle Scholar (finding that hospitals and physicians with better outcomes experienced higher rates of growth in market shares). See also Keller, Robert B. et al., Dealing with Geographic Variations in the Use of Hospitals, 72 J. Bone & Joint Surg. 1286 (1990)CrossRefGoogle Scholar (describing the Maine Medical Assessment Foundation organized by orthopedists and other doctors to deal with the problem of variations in rate of hospitalization).

¹²⁹ Many have warned that providers paid on a capitated basis will likely attempt to avoid minority patients, and urge that capitation rates be adjusted to account for patients—like minorities— who are likely to have greater care needs. See Physician Payment Review Commission, 1997 Annual Report to Congress, Implementing Risk Adjustment in the Medicare Program 77 (1997); Health Care in the Inner City, supra note 40, at 1662.

¹³⁰ See Iowa Ignores Conventional Wisdom on Behavioral Health, State Health Watch, Sept. 1999, at 3.

¹³¹ See Kentucky Plans Offered Financial Reward for Meeting Health Outcome Measures, State Health Watch, Nov. 1998, at 8.