By focusing on race-based equity initiatives and segregating these services from Cleveland Clinic's general programming, the health system is violating the Affordable Care Act of 2010 and Title VI of the Civil Rights Act of 1964, alleged Cara Tolliver, associate counsel with the Wisconsin Institute for Law and Liberty. The organization filed the complaint with the HHS Office for Civil Rights on Aug. 14.
“Our healthcare system should just be looking at patients who need [care] and not assuming that just because they have a certain skin pigmentation that they do or don't need something,” Tolliver said.
The HHS Office for Civil Rights would not comment on an open investigation, but said the office "resolves each matter appropriately."
Related: Anti-'woke' backlash forces health industry to adapt DEI efforts
Cleveland Clinic responded to the complaint in a statement that said the system's mission is “to care for all individuals across the communities we serve regardless of race, ethnicity or other characteristics.”
The health system is not the first to face pushback on health equity efforts. In 2022, several groups sued the New York State Department of Health over a policy that encouraged providers to consider patients' race and ethnicity as risk factors for severe illness and death from COVID-19 when distributing oral antiviral medications and monoclonal antibodies.
Tolliver warned that with a number of health systems running programs similar to Cleveland Clinic's, more organizations could face legal action from the Wisconsin Institute for Law and Liberty or others.
Researchers and analysts say the politicization of diversity, equity and inclusion initiatives and the Supreme Court’s 2023 decision to limit the use of race in college admissions are creating an environment that is ripe for legal attacks.
“There's a war on DEI and health equity right now, because people don't really understand what's happening in these programs,” said Dr. Georges Benjamin, executive director of the American Public Health Association.
Health equity programs aren’t giving more care to one patient versus another based on race or ethnicity, Benjamin said. Instead, they are identifying high-risk patients with a likelihood for poor outcomes, who are often people of color, and putting together resources to help those individuals get the same care as others, he said.
Tackling care gaps is a routine part of clinical practice and quality-improvement processes, said Dr. Joseph Betancourt, president of the Commonwealth Fund, a healthcare research organization. Interventions to close these gaps aren't only for patients from minority communities — they can be geared toward various demographics including women, older adults, adolescents and people with substance use disorders, he said.
While social determinants of health are multifactorial, Betancourt said many studies have demonstrated racial and ethnic disparities in the provision of healthcare.
Even when researchers control for socioeconomic status, environment, education and geography, they find minorities are still likely to receive lower-quality care compared with white patients, Betancourt said. For example, people from minority populations have a lower probability of receiving referrals to see cardiac specialists or get kidney transplants, he said.
Providers working to combat disparities must do a better job at being upfront and articulating why programs were developed, how the evidence supports the need for such efforts, and how facilities will help all patients receive adequate care, Betancourt said. This could be one way to prevent future complaints or lawsuits, he said.
Health system leaders could also consider changing program criteria to focus on factors including geographic residence, social isolation or a history of poverty.
“It's fight or flight,” said Sara Rosenbaum, professor emerita of health law and policy at the George Washington University Milken Institute School of Public Health. “Will healthcare providers be willing to defend what they're doing, or will they immediately modify their programs?”
Northwell Health has taken a cautious approach.
The health system is very intentional about the way its health equity programs are described, while trying not to draw attention to efforts that could be misinterpreted, said Dr. David Battinelli, executive vice president and physician-in-chief at the New Hyde Park, New York-based health system.
At the same time, Northwell Health leaders also need a certain amount of courage to not be deterred or scared off entirely from working to eliminate disparities, Battinelli said.
“We don't treat populations differently,” he said. “What we try to do is make sure that we are not delivering care in such a way that it results in different outcomes. This is a quality of care issue. When some groups have different outcomes, we investigate why that is.”
The industry should be aiming to remove race as a factor in determining clinical care, but systemic racism, bias and oppression should be recognized as major contributors to inequitable health outcomes, said Duane Reynolds, managing partner and chief health equity officer with the Chartis Group, a healthcare consulting firm.
Reynolds said information on patients' race should be replaced with something more specific, such as ethnic origin, so providers can still have data that offer insight into the needs of various populations when combined with things such as gender and ZIP code.
“It should be our commitment as a healthcare system to take care of all individuals, and in some cases, that means equitably, by redistributing resources to communities and the individuals that need it most based on their suffering,” he said.
