ACEP Takes Lead in Protecting Healthcare Staff Diversity

September 23rd, 2024

Legal challenges, proposed regulation would ban DEI initiatives

By Gary Evans, Medical Writer

There is an inevitable tectonic shift occurring that will lead to a defining demographic moment: By 2050 multicultural minorities will represent the majority population in the United States.¹

Thus, non-white patients very well could represent a large portion of those hospitalized on any given day. Accumulating research underscores that this multicultural mix of patients will fare much better if there is a diverse healthcare work force to care for them.

“Studies show that diversity among health professionals promotes better access to healthcare, improves healthcare quality for underserved populations, and better meets the healthcare needs of our increasingly diverse population,” the American College of Emergency Physicians (ACEP) states in its position paper on diversity, equity, and inclusion (DEI) programs.² “Additionally, increasing diversity in the workforce has the potential to reduce existing health disparities and decrease their associated economic and social burdens.”^3-5

A meta-analysis found that diversity, both in healthcare and other industries, improves worker performance, but the benefits are dependent on the culture change necessary.

“Creativity and innovation appear to blossom in more diverse settings,” the authors conclude.⁶ “Risk assessment is more precise and balanced in more creative environments. These two core skills — risk assessment and creativity — are vital in a healthcare setting. Simple diversity is not a panacea. First, the organization must set diversity-friendly policies and foster an open environment that minimizes the negative consequences of frictions that are inevitable with any culture change.”

The numbers tell the tale of the current challenge. In 2021, the U.S. census found that Hispanic and Black residents account for 19% and 14%, respectively, of the U.S. population. However, among active physicians in 2018, only 5.8% identified as Hispanic and 5% as Black, according to ACEP’s diversity statement.

Considering registered nurses (RNs) in the United States, in 2022, the RN population was 80% white, 7.4% Asian, 6.9% Hispanic, 6.3% Black, 2.5% more than one race, 0.4% Native American or Alaska Native, and 0.4% Native Hawaiian or other Pacific Islander. ⁷

Ongoing DEI efforts are starting to improve diversity, but these programs now are under “insidious” attack, says the American Nurses Association.⁸

Emboldened by the June 29, 2023, U.S. Supreme Court decision to eliminate race as a factor in college and medical school admissions, there are those more than willing to risk being on both the wrong side of history and the looming demographic fait accompli.

“In light of recent legislative efforts to eliminate diversity, equity, and inclusion initiatives that impact medical education, ACEP reaffirms our unwavering commitment to ensuring a diverse and representative emergency physician workforce and opposes any legislation that runs counter to this goal,” the organization said in an April 1, 2024, statement.⁹ (For additional details, see https://www.reliasmedia.com/blogs/hospital-report-2/acep-calls-for-congressional-action-on-boarding-crisis-violence)

Proposed law would ban DEI

In an April 2024 visit to Capitol Hill for an advocacy and leadership conference, ACEP asked Rep. Greg Murphy, MD, (R-NC) why he introduced a bill that would effectively ban DEI programs in all medical schools.

According to Murphy’s office, the bill “would cut off federal funding to medical schools that force students or faculty to adopt specific beliefs; discriminate based on race or ethnicity; or have diversity, equity, and inclusion offices or any functional equivalent. The bill also would require accreditation agencies to check that their standards do not push these practices, while still allowing instruction about health issues tied to race or collecting data for research.”¹⁰

ACEP President Aisha Terry, MD, MPH, met with Murphy for a one-on-conversation before he spoke to the larger group of emergency physicians attending the advocacy event.

“[Murphy] emphasized that he is in favor of a diverse physician workforce but concerned about forced liberal policy and ideology in medical school, which he feels distracts from the goal of producing well-equipped physicians,” Terry said after the meeting. “I shared that I that I am not aware of any objective or anecdotal data that the bar has been lowered, that diversity inherently comes at the expense of quality, that DEI initiatives negatively impact the quality of medical education, or that physician diversity impairs health outcomes. In fact, there is plenty of data to the contrary.”

When Murphy spoke to a larger audience of some 400 ACEP members, Blake Denley, MD, president of the Emergency Medicine Residents' Association (EMRA), asked Murphy, “How can you support federal government’s interference in medical education that would prohibit the medical community’s efforts to develop a diverse group of leaders with data-driven efforts?”

According to an ACEP report on the meeting, “Rep. Murphy did not directly answer the questions directed at him and simply repeated his generalized concerns about politics in medicine.”¹¹

Terry, ACEP's first Black president, said she was raised in a strong family environment and received multiple advanced academic degrees, yet her risk of mortality during pregnancy is still two to four times higher than a white woman.

“When we have those disparities, that’s a flaming red flag that something is wrong with the system,” Terry said. “There is an urgent problem, Congressman, which needs to be addressed. And I believe it is linked to diversity, bias, and cultural competence to some degree.”

ACEP is rallying its members to become aware of the proposed law and submit ideas and concerns about preserving diversity in the healthcare workforce.

“ACEP is not afraid to defend our policies while having tough conversation on topics about which we might not agree,” Terry said. “ACEP believes in holding elected officials accountable.”

Of course, such federal legislation may never pass given the current political uncertainty, but many state legislatures are moving on anti-DEI laws. Along these lines, a national organization called Do No Harm is targeting DEI programs in healthcare with lawsuits and complaints to the U.S. Office of Civil Rights.

“Many U.S. medical schools offer scholarships and programs that illegally discriminate based on sex, gender identity, race/ethnicity, color, or nationality,” according to the Do No Harm website.¹²

Jenner & Block LLC, a law firm looking at this issue, cites Article III of the portion of the Constitution that establishes the judicial branch as the best defense for healthcare organizations. Essentially, this article requires that those aggrieved must establish actual harm against them that would be remedied by a verdict in their favor.

“Review eligibility requirements and public-facing statements for DEI programs,” the law firm recommends.¹³ “Across claims, Article III standing continues to be the biggest obstacle for Do No Harm’s anti-DEI efforts, partly due to the difficulty in alleging a concrete injury for anonymous plaintiffs who have yet to apply — and be rejected from — diversity programs in healthcare.”

This issue is somewhat akin to the reverse discrimination claims of the past, which argue that you cannot correct historical inequities by penalizing those who benefited through past advantages. The Southern Poverty Law Center calls this “white privilege.”¹⁴ To cite but one example, Black soldiers after World War II did not benefit from all of the provisions in the GI Bill, particularly those that guaranteed low home mortgages for white soldiers.

“Black veterans were not able to take advantage of this benefit because banks would not make loans for mortgages in black neighborhoods,” the Smithsonian reports.¹⁵ “Additionally, they faced rampant racism if they attempted to buy into suburban neighborhoods, which at the time were overwhelmingly white.”

Against this backdrop of history and current attacks, DEI programs at hospitals, medical schools, and nursing schools still are trying to encourage and increase minority representation in the healthcare workforce.

“The data are clear that diversity drives excellence and that delivering healthcare through a lens of equity leads to better outcomes not only for people from minoritized backgrounds, but better outcomes for all people,” says Jasmine Marcelin, MD, FACP, FIDSA, vice chair of equity at the University of Nebraska Medical Center “These bills and attacks on the values of justice, equity, diversity, and inclusion in healthcare are part of a larger, intentional strategy to solidify structural racism in healthcare and education by rolling back the progress that has been made in this country toward achieving equality and justice over the last 50 to 100 years.”

Formidable allies

There are some formidable allies in this work. The Centers for Disease Control and Prevention (CDC) has formed an Office of Health Equity (OHE) that is raising awareness and encouraging action.

“The future health of the nation will be determined to a large extent by how effectively we work with communities to eliminate health disparities among those populations experiencing a disproportionate burden of disease, disability, and death,” the CDC OHE states.¹⁶ “Persistent health disparities in our country are unacceptable and correctable. CDC advances health equity and women’s health issues across the nation through CDC’s science and programs. OHE also increases CDC’s capacity to leverage its diverse workforce and engage stakeholders.”

In addition, last year the Joint Commission created a voluntary advanced certification for healthcare equity to help organizations close the gaps in access and quality among patient groups where disparities are frequent. The Joint Commission cited a few stats that give a snapshot of the problem, including that the maternal mortality rate for Black women is four times higher than that for non-Hispanic White women, and diabetes rates are more than 30% higher among Native Americans and Latinos than among Whites.¹⁷

The Joint Commission also made healthcare equity a National Patient Safety Goal, with NPSG.16.01.01 emphasizing that “improving healthcare equity is a quality and patient safety priority. For example, healthcare disparities in the patient population are identified and a written plan describes ways to improve healthcare equity.”¹⁸

The Joint Commission is a deemed authority for the Centers for Medicare and Medicaid Services (CMS), which has launched a 10-year plan to address healthcare inequities. This includes assistance in helping organizations set up programs and access the necessary data.

“The Health Equity Technical Assistance Program helps health care organizations ready themselves to systematically take action to address health and healthcare disparities,” the CMS reports.¹⁹ “[This includes] personalized coaching and resources to help embed health equity into a strategic plan; help with data collection and analysis; and help developing a language access plan and ensuring effective communication with individuals, families, and caregivers.”

Again, the Supreme Court decision on affirmative action gave DEI critics some cover to question and criticize these efforts at inclusion. A dissenting opinion by Justice Sonia Sotomayor argued specifically that “increasing the number of students from underrepresented backgrounds who join the ranks of medical professionals improves healthcare access and health outcomes in medically underserved communities.”²⁰

For example, a study on a shortage of Black primary care providers (PCP) could have scarcely drawn a clearer and more direct conclusion: “Greater Black PCP representation levels were associated with longer life expectancy and were inversely associated with all-cause mortality rates for Black individuals,” the authors reported.²¹

“They hope to [reduce] the number of physicians from minoritized backgrounds, ban discussions about equitable healthcare, and pretend that health disparities do not exist,” Marcelin says. “Those of us who are advocates for equity in healthcare will continue our efforts to galvanize the general public. We will continue to train doctors from minoritized and historically excluded backgrounds, and continue to ensure that patients experience care through a lens of equity. This work never ends, and we are in it for the long haul. “

References

1. Daniels, C. Multicultural Americans to become majority population by 2050: Report. The Hill Jan. 17, 2024. https://thehill.com/homenews/4412311-multicultural-americans-majority-population-2050/
2. American College of Emergency Physicians. Workforce Diversity in Health Care Settings. Revised June 2023. https://www.acep.org/patient-care/policy-statements/workforce-diversity-in-health-care-settings
3. Woreta FA, Gordon LK, Knight OJ, et al. Enhancing diversity in the ophthalmology workforce. Ophthalmology 2022;129:e127–e136. https://doi.org/10.1016/j.ophtha.2022.06.033
4. Mensah MO, Sommers BD. The policy argument for healthcare workforce diversity. J Gen Intern Med 2016;31:1369-1372.
5. LaVeist TA, Pierre G. Integrating the 3Ds—Social determinants, health disparities, and health-care workforce diversity. Public Health Rep 2014;129(Suppl 2):9-14. https://doi.org/10.1177/00333549141291S204
6. Gomez LE, Bernet P. Diversity improves performance and outcomes. J Natl Med Assoc 2019;111:383-392. https://www.ucdenver.edu/docs/librariesprovider68/default-document-library/jmna-articles-bonuscontent-2.pdf
7. American Association of Colleges of Nursing. Nursing Workforce Fact Sheet. Updated April 2024. https://www.aacnnursing.org/news-data/fact-sheets/nursing-workforce-fact-sheet
8. American Nurses Association. ANA Opposes Actions that Prohibit DEI Education and Programs. May 15, 2023. https://www.nursingworld.org/news/news-releases/2023/ana-opposes-leg-against-dei/
9. American College of Emergency Physicians. ACEP Statement on a Diverse Emergency Physician Workforce. April 1, 2024. https://www.acep.org/news/acep-newsroom-articles/acep-statement-on-a-diverse-emergency-physician-workforce
10. U.S. Congressman Gregory F. Murphy, MD. Murphy introduces bill to ban DEI in medicine. Published March 19, 2024. https://murphy.house.gov/media/press-releases/murphy-introduces-bill-ban-dei-medicine
11. American College of Emergency Physicians. Action Day as LAC24 Attendees Meet with Members of Congress. April 16, 2024. https://www.acep.org/news/acep-newsroom-articles/lac24---tuesday-april-16-2024
12. Do No Harm. https://donoharmmedicine.org/
13. Jenner & Block LLC. Client Alert: Healthcare Industry Emerges as the New Front for Anti-DEI Attacks. March 12, 2024. https://www.jdsupra.com/legalnews/client-alert-healthcare-industry-1520568/
14. Collins, C. What Is White Privilege, Really? Southern Poverty Law Center. Learning from Justice. https://www.learningforjustice.org/magazine/fall-2018/what-is-white-privilege-really
15. Smithsonian American Art Museum. After the War: Blacks and the G.I. Bill. https://americanexperience.si.edu/wp-content/uploads/2015/02/After-the-War-Blacks-and-the-GI-Bill.pdf
16. Centers for Disease Control and Prevention. About CDC’s Office of Health Equity (OHE). https://www.cdc.gov/health-equity/about/index.html
17. The Joint Commission. Advancing Health Equity, Together. 2024: https://www.jointcommission.org/our-priorities/health-care-equity/#:~:text=Effective%20January%201%2C%202023%2C%20new,care%20%26%20human%20services%20accreditation%20programs.
18. The Joint Commission. National Patient Safety Goals. January 2024. https://www.jointcommission.org/standards/national-patient-safety-goals/-/media/165e86f799754481bdd1d554e92b8581.ashx
19. Centers for Medicare and Medicaid Services. CMS Framework for Health Equity 2022–2032. 2022: https://www.cms.gov/files/document/cms-framework-health-equity-2022.pdf
20. Supreme Court of the United States. Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. Decided June 29, 2023. https://www.supremecourt.gov/opinions/22pdf/20-1199_hgdj.pdf
21. Snyder JE, Upton RD, Hassett TC, et al. Black representation in the primary care physician workforce and its association with population life expectancy and mortality rates in the US. JAMA Netw Open 2023;6:e236687. doi: 10.1001/jamanetworkopen.2023.6687