I. Introduction

      Prior to 1964, racial segregation and discrimination in health care was government funded under the Hospital Survey and Construction Act, better known as the Hill-Burton Act. Specifically, section 622(f) of the Hill-Burton Act proscribed federal funding for “separate but equal” health care services. The United States tried to put an end to racial discrimination in the health care system by intervening in a private action that challenged the constitutionality of the Hill-Burton Act and with the enactment of Title VI of the Civil Rights Act of 1964, which banned racial discrimination in health care for institutions receiving federal funding. As a tactic to make health care entities end racial discrimination, the government coupled the requirements of Title VI with participation in the Medicare and Medicaid programs. Before health care entities could become eligible for Medicare and Medicaid funding, the government had to certify the entities' compliance with Title VI. Each action was a blow to the pervasive de jure segregation emblematic of a Jim Crow United States. However, ample evidence shows that the federal government has consistently and systematically failed to enforce Title VI to prohibit racial discrimination in health care. This failure has culminated in the continuation of separate and unequal health care services, resulting in racial inequities in health care. The consignment of African Americans to unequal health services is illustrated by racial inequities faced by elderly African Americans. By reviewing the health inequities faced by elderly African Americans, this paper will show that the central reason for the continuation of these inequities is racial discrimination.

       Raised during the Jim Crow era of legalized racial discrimination, elderly African Americans remain subject to lingering vestiges of de facto racial discrimination in the health care system, blocking their access to necessary health care services and causing racial inequities in care. Studies have shown that in 1950, before the end of Jim Crow, the life expectancy rates of African American men and White men over the age of sixty-five was the same. Since 1950, elderly African Americans' life expectancy has continued to decline even after the advent of Title VI, which granted them “equal” access to health care services. African Americans' lack of equal access to quality health care is instrumental in higher mortality rates. For example, more African Americans have died from coronary disease, breast cancer, and diabetes than Whites, even though more Whites suffer from these diseases than African Americans. Even if elderly African Americans survive the lack of equal access to quality health care, this lack of access significantly compromises their health condition as evidenced by their overuse of services for untreated chronic conditions.

      Under Medicare, the only health services elderly African Americans have greater access to than Whites are for services to care for untreated conditions, such as the removal of tissue for late stage pressure sores. The overuse of these services leaves elderly African Americans more disabled than Whites and requires them to obtain more assistance conducting activities of daily living, such as dressing, eating, and showering. Assistance for these activities is provided by the long-term care system through home health care agencies, nursing homes, and assisted living facilities. Empirical studies of the long term care system show that there are significant racial inequities in the quality of care provided elderly African Americans by the long term care entities, such as nursing homes.

      In fact, two decades of empirical studies demonstrate that elderly African Americans are on average two times more likely to reside in poor quality nursing homes than Whites. This is a result of some quality nursing homes systematically denying admission to African Americans, relegating African Americans to substandard nursing homes. Research studies show that African Americans' access to necessary rehabilitative treatment provided by quality nursing homes is impeded because of their race. These studies found that African Americans face longer delays in transfer to nursing homes, because some White residents either implicitly or explicitly request only White roommates and some nursing homes acquiesce to these requests by denying admission to African American patients. Denied from admission to these quality nursing homes, most elderly African Americans only gain access to poor quality nursing homes. Even if African Americans gain access to quality nursing homes, national studies show that African American “nursing home residents are less likely to receive medically appropriate treatments, ranging from cardiovascular disease medication to pain medication to antidiabetes drugs” than Whites residing in the same nursing home. Researchers and jurists have offered innumerable “neutral” reasons to explain the continuation of these racial inequities in health care, including cultural differences, geographic racial segregation, and socioeconomic status. However, for at least decades, researchers have noted that regardless of their gender, education, or socioeconomic status, African Americans lack equal access to quality health care compared to Whites. Legal and medical experts assert that the most likely explanation for African Americans' lack of equal access to quality nursing home care is racial discrimination in the form of both disparate treatment and disparate impact.

      This evidence has been submitted to the U.S. Department of Health and Human Services (“HHS”), the governmental agency in charge of enforcing Title VI in health care, in the form of research findings and private complaints against the perpetrating nursing homes. However, little has been done to put an end to these practices even though Title VI prohibits racial discrimination. Underfunded and understaffed, the Office of Civil Rights (“OCR”), the division of HHS responsible for enforcing Title VI, has never terminated a nursing home proven to have violated Title VI in its thirty-seven year history. Moreover, OCR does not collect racial or admission flow data, regulate nursing homes' admission practices, or survey the racial makeup of nursing homes. Without collecting data, regulating admission practices, or surveying nursing homes, OCR is poorly situated to prohibit racial discrimination in nursing homes, which prevents elderly African Americans from obtaining equal access or quality. Consequently, the burden of solving this problem has been left to elderly African Americans and their advocates, who have sought to rectify these discriminatory practices by suing the perpetrators for violation of Title VI. Often little direct evidence is available in the long-term care field showing intentional discrimination. Therefore, most cases have centered on the theory of disparate impact and Medicaid bias. Nevertheless, the United States put an end to private Title VI claims asserting discrimination through disparate impact with the Supreme Court's decision that Title VI only granted private individuals the right to sue for intentional racial discrimination. The duty to rectify disparate impact cases in health care was left to OCR, which to date has never filed a lawsuit under Title VI to protect minorities from racial discrimination in health care. Therefore, the Supreme Court's ruling that there is no private right of action has left federal government agencies with the responsibility of addressing racial discrimination, but to date government reports show that the agencies have failed to pursue effective measures to prevent racial discrimination. Congress has not stepped in to address the failure of federal administrative agencies to enforce Title VI, and the federal courts have ruled against private parties trying to induce federal administrative agencies to enforce Title VI. Left with no avenue to rectify disparate impact discrimination through federal courts or through regulatory action, African Americans have henceforth been relegated to poor quality, segregated nursing homes.

      In the past, scholars have suggested incremental approaches that the government could use to improve Title VI compliance, such as revising Title VI regulations and policies and applying the standards from disability law to Title VI jurisprudence. The government has failed to adopt any of these suggestions, so the time has come for elderly African Americans and their advocates to induce the government to diligently enforce Title VI by pursuing legal solutions that are likely to be more efficacious. Professor Dayna Bowen Matthews has suggested using the False Claims Act to sue government entities for falsely certifying compliance with Title VI as a method to put an end to racial discrimination and collect money for the aggrieved parties. In the same vein as this inventive suggestion, I propose the use of the Medicaid Act, the Fair Housing Act, and the International Convention on the Elimination of All Forms of Discrimination (“CERD”). First, elderly African Americans can file actions against the federal government for failing to provide African Americans with quality nursing home care, a violation of the Medicaid Act. Second, elderly African Americans could file actions against offending nursing homes under the Fair Housing Act for denying access to housing based on race. Finally, a complaint could be submitted to the United Nations under CERD for the failure of the United States to prevent racial discrimination in health care. Each of these solutions possesses a different strength and weakness, which the author will further discuss in more detail in future articles. Nevertheless, without any action on the part of elderly African Americans and their advocates, the issue of racial discrimination in health care will remain unchanged as it has for the last forty-two years.

      This article uses empirical data and government reports to examine the government's disregard for elderly African Americans' right to equality in health care by using the problems with the long-term care system as a case study. Section II reviews the history of de jure discrimination in health care institutions. The government's solution to eradicate racial discrimination in the health care system is examined in Section III. One of the government's solutions was the enactment of Title VI, which prohibits racial discrimination. Forty-two years after the enactment of Title VI, racial discrimination is still pervasive in health care as evidenced by empirical data. The continuation of de facto racial discrimination in health care is examined in Section IV, and the failure of the government to eradicate this discrimination is discussed in Section V. Finally, Section VI suggests solutions to encourage the federal government to diligently enforce Title VI, unlike prior legal jurisprudence, which proscribed possible private rights of action under Title VI.