Understanding the laws and regulations governing the care of medically underserved populations is critical for clinicians serving these patients. Federal and state laws address barriers to health care and create a legal duty to furnish health care under limited circumstances. The law also shapes and drives the public and private health insurance arrangements that pay for most health care, including care delivered to low-income and vulnerable populations.

This chapter examines three major bodies of US law that govern health-care practice for medically underserved populations: (1) access to health care; (2) insurance coverage for low-income populations through Medicaid and state health insurance exchanges; and (3) health-care quality and patient rights.

HEALTH CARE AS A LEGAL RIGHT

Whether there is a right to health care has long been a subject of debate in the United States, a nation that places significant emphasis on the concept of individual legal rights. This cultural emphasis on individual rights is exemplified, of course, in the US Constitution’s Bill of Rights, which defines the legal relationship between individuals and government. The right to health care is not among the rights set forth, although some legal scholars have attempted to argue that the right to health care at least to preserve life should be considered an element of constitutional due process.

The Affordable Care Act (ACA) moves the United States significantly toward a system of national health insurance, although one made up of disparate sources of coverage (Medicare, Medicaid, employer-sponsored group plans, and coverage bought on an individual basis) and not subject to any uniform regulatory scheme governing cost, access, and quality. In addition, the US health-care system continues to rest on a fundamental value of freedom—one in which people remain free to say “no” to coverage (although potentially risking a tax penalty) and in which, with an extremely limited exception, health-care providers remain free to select the patients they will treat, considering factors unrelated to the need for health care.

Other nations tend to approach the bond between citizens and government somewhat differently. Laws governing universal health systems in other wealthy nations are based on the assumption that the entire population will be included in the national health-care system (e.g., the British National Health Service, Canada’s Medicare program, or the regulated multipayer systems found in Switzerland or Israel). Unlike the United States, these nations have introduced uniform cost controls in order to maintain population-wide coverage without excessive expenditures. Similar to the United States, on the other hand, these nations overwhelmingly depend on private providers to care for residents, although these nations also supplement private resources with clinical providers organized and located in medically underserved communities.

The laws of a nation are a reflection of its core values. In the United States, the autonomy of the medical profession has been honored above the right of health care for individuals. Under basic principles of common law (the core system of judicial principles on which US health law rests), individuals have no legally enforceable right to health care, and health professionals and health-care institutions have no corresponding legal duty to provide care.¹ The autonomy of the medical profession is also codified in the American Medical Association’s (AMA)’s code of ethics, which specifies that “a physician shall … except in emergencies, be free to choose whom to serve, with whom to associate, and the environment in which to provide medical care.”²

However, these core common law principles have been overridden by states and Congress, in certain limited respects. For example, some states require hospitals to provide emergency care to their communities as a basic condition of licensure. Furthermore, since 1986, Congress has required all Medicare-participating hospitals (i.e., receiving federal funds) with emergency departments (EDs) to furnish screening and stabilization services to individuals who come to the hospital seeking treatment for emergency medical conditions.¹ This obligation is known as The Emergency Medical Treatment and Labor Act (EMTALA).²

Federal civil rights laws (and potentially human rights laws in many states) also protect the rights of individual patients. Civil rights laws may bar health-care providers from discriminating on the basis of race, ethnicity, language, and disability, and sex. Some states go further and bar discrimination based on gender identity or sexual orientation. But with the exception of federal regulations implementing the Hill Burton Act (discussed later), no federal law ever has barred discrimination explicitly on the basis of either poverty or an individual’s status as a publicly insured person.

In the case example, both EMTALA and civil rights laws that bar discrimination against qualified individuals with disabilities come into play when an HIV-infected person seeks emergency care from a hospital. Indeed, the example is drawn from an actual incident that came before a federal court in Ohio,³ which held that the hospital was obligated to treat the individual on grounds related to both EMTALA and the Americans with Disabilities Act (ADA), which bars discrimination by public accommodations (including health-care providers) against qualified persons with a disability.³ Indeed, the ADA applies even in nonhospital health-care settings, because health care is considered a “place of public accommodation”⁴ that must be open to all persons who can meet the basic requirements for care (i.e., who are able to pay). For example, in a case involving a dentist in private practice who refused to fill a cavity for an asymptomatic HIV-positive patient citing personal safety concerns, the US Supreme Court held that asymptomatic HIV constitutes a disability under the ADA and that as places of public accommodation, office-based health-care providers could not refuse service in their offices to HIV-positive patients who could pay for services, unless the provider could prove that such a patient poses a direct threat. (In this case, the dentist could not prove his claim).⁴

IMPACT OF RACE AND ETHNICITY

The Court’s 1954 landmark decision in Brown v. Board of Education⁵ ultimately permeated all aspects of public life, including the South’s legally segregated health-care system.^6,7 Although legally sanctioned racial segregation ended by the mid-20th century, significant health disparities based on race and ethnicity persist. Research suggests that vestiges of racial and ethnic discrimination are displayed in the attitudes and beliefs of health professionals and the culture of clinical practice.⁶ In a legal context, these attitudes and beliefs potentially (today, thankfully rarely) can show up as intentional discrimination (e.g., refusing to treat a patient because of the color of her skin). But legal discrimination also can flow from “facially neutral” policies and practices (such as where to locate a hospital) that on the surface have nothing to do directly with race or national origin but that can have a discriminatory impact. For example, institutions sometimes segregate Medicaid beneficiaries (who disproportionately are members of racial or ethnic minority groups) into separate hospital or nursing home wings, or separate managed care provider networks. The intent is to segregate by insurance status, but the impact falls disproportionately on minority patients.⁸

The refusal of health-care providers to participate in Medicaid (typically because of low payment levels) has long served as a de facto means of perpetuating racial discrimination in a clinical practice, because of the disproportionate dependence on the program by minority patients.⁹

IMPACT OF POVERTY

The example of Medicaid nonparticipation also illustrates the often-intertwined nature of race and poverty where health-care segregation and exclusion are concerned. Poor persons, who are disproportionately members of racial and ethnic minority groups, are far more likely to be uninsured or publicly insured.¹⁰ Yet federal civil rights laws do not recognize poverty as a suspect classification that can trigger a finding of discrimination. Furthermore, even where federal civil rights laws might reach de facto discrimination (e.g., not taking Medicaid because of low payments, which in turn falls more heavily on minority patients), the law also gives defendants in civil rights cases a “business necessity” defense¹¹ to a claim of discrimination, meaning that as a legal matter even if discrimination is shown, the availability of such a defense makes it impossible to win a case. An important feature of the ACA was aimed at expanding access to care in Medicaid and included the provision that temporarily increased Medicaid fees for primary care to Medicare payment ­levels. Following expiration in 2014, the provision was not extended.

THE EMERGENCY TREATMENT AND LABOR ACT

The Emergency Treatment and Labor Act (EMTALA) creates a legally enforceable right of access to certain services furnished by Medicare-participating hospitals with EDs (the vast majority of US hospitals). EMTALA applies to all persons regardless of health insurance status, legal US status, income, or other personal characteristics.¹² Many states have laws that parallel EMTALA requirements and that may apply to all licensed hospitals regardless of their Medicare participation status.

EMTALA was enacted to stop the practice of “patient dumping,” that is, turning away or prematurely discharging people in need of hospital care. Medical indigence is often the basis for these practices, but as the opening case example illustrates, patient dumping takes place for reasons that can go beyond the inability to pay for care.

EMTALA is complex and nuanced; at the same time, however, EMTALA establishes certain fundamental requirements that together impose an unprecedented enforceable legal right to screening and stabilization care on the part of individuals who seek emergency care from a covered hospital. EMTALA creates two basic hospital duties (Table 4-1).

The Duty to Provide an “Appropriate” Medical Examination

Hospitals must provide an “appropriate” examination to an individual who “comes to” a hospital’s “dedicated ED” seeking care for an “emergency medical condition” (42 U.S.C. §1395dd(e)(1)(A)). The concept of “comes to” can include persons who are not yet physically inside the ED but who are on the grounds of the hospital or in reasonable proximity, as well as people who are being transported to a facility by ambulance (42 C.F.R. §489.24). A “dedicated ED” can include not only the actual ED but other parts of a hospital that function as EDs a majority of the time (e.g., a hospital’s off-campus outpatient facility) (42 C.F.R. §489.24). An “appropriate” examination means one that is nondiscriminatory and that adheres to the hospital’s emergency examination protocols (42 C.F.R. §489.24).

Under EMTALA, an “emergency medical condition” means a “medical condition manifesting itself by acute symptoms of sufficient severity (including severe pain) such that the absence of immediate medical attention could reasonably be expected to result in (a) placing the health of the individual (or, with respect to a pregnant woman, the health of the woman or her unborn child) in serious jeopardy; (b) serious impairment to bodily functions; or (c) serious dysfunction of any bodily organ or part” (42 U.S.C. §1395dd(e)(1)). This definition presumably would include psychiatric disturbances that present a risk of serious physical injury to either the patient or another person regardless of whether or not psychiatric services are provided by the hospital.

The Duty to Provide Stabilization Care

The second EMTALA obligation is the duty to stabilize an emergency condition. In cases in which a patient cannot be stabilized with existing hospital resources, a hospital can, under carefully controlled circumstances, effectuate a medically appropriate transfer of an unstable patient. A medically appropriate transfer is one that is conducted in a medically appropriate manner, and in which a personal certification by a physician at the transferring facility that the benefits of the transfer outweigh its risks and a receiving institution has agreed to accept the transfer (42 U.S.C. §1395dd(b)). “Stabilized” is defined as meaning “that no material deterioration of the [emergency medical] condition is likely, within reasonable medical probability, to result from or occur during the transfer of the individual from a facility” (42 U.S.C. §1395dd(e)(3)). In the case of a pregnant woman having contractions, the concept of medical emergency means “that there is inadequate time to effect a safe transfer to another hospital before delivery, or that transfer may pose a threat to the health or safety of the woman or the unborn child” (U.S.C. §1395dd(e)(1)).

Potential Consequences of an EMTALA Violation

Violation of EMTALA can result in a hospital’s exclusion from Medicare, as well as serious financial sanctions imposed on both the hospital and its physicians. In addition, both individuals and hospitals that are “dumped on” have explicit rights under the law and can sue offending hospitals to vindicate those rights (42 U.S.C. §1395dd(d)). In the example of Mr. Pool, the hospital’s effort to turn away an HIV-positive patient without furnishing a medical examination and either necessary stabilization or a medically appropriate transfer raised a potential EMTALA claim. In addition, had his partner driven Mr. Pool to a public hospital that accepted the case, that hospital might have a claim against the “dumping” facility (Box 4-1).

TITLE VI OF THE CIVIL RIGHTS ACT OF 1964

The 1964 Civil Rights Act is one of the great landmarks in US law. The Act (Title II) establishes civil rights protections in “places of public accommodation” such as restaurants, hotels, and public transportation systems. Unlike the ADA, however, health-care providers were not classified as public accommodations in 1964; such an effort would have quite literally sunk the law given the widespread segregation that still prevailed in the South and the power of Southern Members of Congress over the measure. Instead, the Civil Rights Act reached health care through a separate Title VI, which broke new ground by prohibiting discrimination based on race or national origin by “recipients of federal assistance” (42 U.S.C. §2000d (2004)) and then by classifying federal health and health-care financing programs as “federal assistance.” Despite this advance, when Medicare was enacted in 1965, an agreement was reached (nowhere evident in the statute itself)¹² that Medicare Part B (physician payment) would not be treated as federal financial assistance. Physicians who do not participate in any federal programs or whose only participation is in Medicare Part B on a non-assignment basis are not subject to Title VI of the Civil Rights Act. The federal government, as of spring 2014, classifies qualified health plans as federally assisted entities for purposes of Title VI and certain other federal civil rights laws.

Under Title VI, the concept of “discrimination” covers both acts of intentional segregation and exclusion, as well as practices that have the effect of subjecting persons to segregation and exclusion. Because of a US Supreme Court’s decision issued in 2001, private individuals can sue to remedy intentional acts of discrimination, but only the federal government can enforce the de facto (i.e., effects) test.¹³

Conduct that might be considered as potentially in violation of the de facto test would be segregating hospital or nursing home patients by source of payment (e.g., maintaining an “all-Medicaid” floor or wing, a problem that actually has arisen in both hospital and nursing home settings).¹² Another example would be a health maintenance organization (HMO) that enrolls both privately insured and Medicaid-insured persons but that offers different provider networks based on payer status or that, in the case of an HMO that uses a single network, allows some of its specialists to refuse to accept Medicaid patient referrals (an often-rumored practice).

The Department of Health and Human Service’s (HHS) Office for Civil Rights has issued guidelines that require federal assistance recipients to make their services accessible to patients with limited English-speaking abilities.¹⁴ The guidelines offer a range of compliance approaches for providing both oral and written interpretation and translation services. Federal recipients decide which services to provide by using a four-factor test that weighs the number of limited English people served, the frequency they come into contact with a particular program or service, the nature and importance of the activity, and the resources available. In addition, the guidelines provide incentives for compliance by permitting affected organizations to secure certification of compliance. Facilities considered by HHS to comply with the law have an additional and strong defense when individuals file complaints about the lack of services accessible to persons with limited English-speaking abilities.

THE AMERICANS WITH DISABILITIES ACT