Over the past two weeks, the United States—already hit hard by the COVID-19 pandemic—has reckoned with another public health crisis: police violence against Black Americans. The protests and outrage galvanized by the killing of George Floyd by a Minneapolis police officer have renewed public attention to the pervasiveness of racial inequality throughout the United States. With this backdrop, it is hard to ignore the disproportionate impact COVID-19 has had on Black Americans, who are dying at a rate twice as high as their share of the population.
In this blog post series, we have focused on how innovation and health laws have exacerbated the COVID-19 pandemic thus far, and how they can help spur development of affordable preventatives, diagnostics, and treatments. But we also think it is important to recognize how these laws and other legal institutions have often been complicit in creating the structural framework within which these racial disparities have persisted. In this post, we highlight the work of scholars who have focused on this issue and explain how structural racism contributes to disparities in COVID-19 cases and deaths, access to treatments among those who have been afflicted, and access to the most effective preventative interventions.
Structural racism and disparities in COVID-19 cases and deaths
Structural racism—the “confluence of institutions, culture, history, ideology, and codified practices that generate and perpetuate inequity among racial and ethnic groups”—pervades almost every aspect of society. It is also a major driver of health inequities. In her 2015 book, Just Medicine: A Cure for Racial Inequality in American Health Care, Professor Dayna Bowen Matthew explains that “83,870 minority patients die annually due to health care disparities,” and that these disparities persist “even after controlling for differences in insurance status [or] income.” A 2017 report in The Lancet similarly documents how the paths between structural racism and poor health run broad and deep; they include economic injustice and social deprivations, environmental and occupational health inequities, psychosocial trauma, targeted marketing of health-harming substances, inadequate health care, state-sanctioned violence, political exclusion, maladaptive coping behaviors, and stereotype threats. (To name but a few.)
Far from being some “great equalizer,” COVID-19 exacerbates structural racism in myriad ways. Last month, JAMA ran a number of articles on COVID-19’s impacts on Black communities in the United States. These included difficulties in Black COVID-19 patients receiving high quality health care; poor training of healthcare workers in responding to the social determinants of health; a failure to collect patients’ racial or ethnic information for 50% of U.S. COVID-19 cases; and the variety of ways in which some health innovations traffic in privilege in ways unavailable to large segments of Black patients. Health care innovation—the focus of this series—is not a panacea for the “deeply entrenched history of health care disparities.” Yet few health care innovations, if any, get at some of the root causes of these inequities. Too often, they exacerbate the existing inequities.
Structural racism in access to health care for COVID-19 patients
Inequalities in insurance coverage and income exacerbate racial health disparities in the United States. As Professors Lonnie Snowden and Genevieve Graaf write, “African Americans rely on Medicaid disproportionately because the African American poverty rate is about three times the White poverty rate.” In addition, states with higher Black populations have disproportionately refused to expand Medicaid under the Affordable Care Act (ACA). Thus, as Professor Jamila Michener explains, the Medicaid gap—in which low-income adults are “not poor enough to qualify for Medicaid, but too poor to take advantage of the ACA’s market subsidies”—has a substantially disproportionate effect on Black and Latinx Americans, a problem that Professor Michener argues is exacerbated by the federalist delegation of Medicaid authority to states. Affording treatment, whether hospitalization or medicines, is accordingly more difficult for Black patients. The federal government is covering some costs related to COVID-19 treatment, but not everything, and the remaining burden falls disproportionately on Black patients.
Professors Ruqaiijah Yearby and Seema Mohapatra point out that Black Americans have substantially lower access to health care even when it is affordable because it is simply less accessible. Hospitals disproportionately close and relocate as the local Black population increases; physicians similarly leave when hospitals do. With respect to COVID-19 specifically, “racial and ethnic minorities lack access to COVID-19 tests and testing sites.” Rather, “[t]esting centers are more likely to be in well-off suburbs of predominantly white residents than in low-income neighborhoods that are predominantly black,” according to Professors David Williams and Lisa Cooper.
And as Professor Matthew writes, even when minority patients can access care, they receive worse care because of the implicit (or explicit) bias of health-care providers. As she explains:
[H]ealth care providers unintentionally discriminate against racial and ethnic minority patients—and . . . their unintentional discrimination directly and substantially contributes to ethnic and racial health care disparities. Moreover, the evidence also shows that patients hold implicit biases and thus react to providers’ discrimination through the lens of their own experiences with race bias and inequity. The result is a viciously reciprocal cycle of miscommunication between doctors and patients that ultimately harms patients’ health. (p. 4)
Implicit bias has been shown in many studies, including physicians rating Black patients less well along several dimensions, as Professor Kimani Paul-Emile reports. Accordingly, Black patients “receive poorer quality of care than whites,” according to Professors Yearby and Mohapatra, whether in terms of fewer tests conducted or therapies withheld. The law doesn’t help; Title VI of the Civil Rights Act as interpreted by the Department of Health and Human Services does not apply to health care providers.
How could the law help? As Professors Yearby and Mohapatra note, “African Americans and other minority populations are bearing the brunt of COVID-19. As such, they should have access to treatments and vaccines that will hopefully be developed for COVID-19 and policies that take into account should be developed in this regard.” Direct federal provision of inexpensive or free care could help provide this access, especially in states that have refused to expand Medicaid. With respect to the lack of availability of facilities and the problems of implicit bias, Professor Matthew turns back to the Civil Rights Act and calls for a reinvigorated Section VI, which “has been and could continue to be the most effective legal tool for eradicating racial and ethnic discrimination in American health care” if expanded in scope to include, among other things, the problem of implicit bias in health care (p. 195) by, among other things, including health care providers in its purview. This legal reform would give Black patients—especially Black communities whose health has borne the brunt of such systemic racism—legal standing to challenge such ill treatment.
Structural racism in access to interventions to prevent COVID-19
Structural racism doesn’t just affect access to health care to treat Black COVID-19 patients—it affects Black patients’ access to preventative tools, too. But many of these preventative tools, for a variety of reasons, are both underdeveloped or unevenly distributed. Two weeks ago, we explained why IP laws are unlikely to encourage the development of “nonexcludable” interventions to prevent COVID-19. These notably include wearing masks or personal protective equipment (PPE) and social distancing, but there is a significant need for incentives to improve information about these interventions and to help identify other nonexcludable innovations.
The nonexcludable innovations that do exist, however, are not equally available and accessible to all Americans—and may be out of reach for many Black patients. Preventive tools like masking and social distancing are more available to people who can work from home, who can drive rather than take public transportation, and who have living situations with low housing density, to name just a few factors. As Professor Clyde Yancy has compellingly written, “Being able to maintain social distancing while working from home, telecommuting, and accepting a furlough from work but indulging in the plethora of virtual social events are issues of privilege. In certain communities these privileges are simply not accessible.” Even if a person can wear a mask, for example, it may not be safe to do so—many Black men have been targeted by police or others for wearing masks in public, as several recent news reports have indicated.
One critical area analyzed by Professors Yearby and Mohapatra helps bring these dynamics into focus: structural racism in employment. There has been a great deal of public attention to the ways in which COVID-19 has proven especially deadly to nursing home residents around the country. But there has been far less attention to the essential workers who work in the long-term care industry, either in nursing homes or as home health aides. Of the 4.5 million Americans in the long-term care workforce, 82% are women (compared to 48% of the overall workforce), 26% are Black (compared to 12% of the overall workforce), and 58% make less than $30,000 a year. These essential workers—disproportionately Black women—are more likely to be exposed to COVID-19 as part of their work.
Again, legal institutions are complicit in this problem. Short-term changes are unlikely to alter the workforce composition, but they could better protect the workers who are currently on the COVID-19 front lines. We have previously explained how federal regulators could have done more to improve supplies of PPE; recently released federal data showed that more than 250 nursing homes lack any surgical masks, and more than 500 lack the specialized N95 masks which are able to prevent infection—to say nothing of the thousands of homes which have some PPE but are within a week of running out.
Further, as Professors Yearby and Mohapatra note, many home health care workers are classified as independent contractors and lack paid sick leave and unemployment benefits. The $2 trillion Coronavirus Aid, Relief, and Economic Security (CARES) Act expanded these benefits to many workers but exempted health care providers—including nursing home and home health providers, as determined by the Department of Labor—from the paid sick leave benefits. Many Black health care workers thus not only receive insufficient protection from COVID-19 transmission while at work; they also may be required to stay home without pay if they become sick or are exposed while at work (as is disproportionately likely). Especially in the relative absence of testing for these workers, some may continue working even after exposure, not knowing that they have the disease.
COVID-19 is a global tragedy, particularly for the most vulnerable. But a number of the scholars whose work we have highlighted here also view COVID-19 as an opportunity for structural change. In the words of Professor Yancy, “This is a moment of ethical reckoning. The scourge of COVID-19 will end, but health care disparities will persist. . . . The US has needed a trigger to fully address health care disparities; COVID-19 may be that bellwether event. Certainly, within the broad and powerful economic and legislative engines of the US, there is room to definitively address a scourge even worse than COVID-19: health care disparities.”
This post is part of a weekly series on COVID-19 innovation law and policy. Author order is rotated each week.
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