C. Reasons for Delay and Denial of Equality

      Innumerable reasons have been offered to explain the continuation of these health inequities, including cultural differences, geographic racial segregation, socioeconomic status, and racial discrimination. It is clear that these reasons, taken together, have caused racial inequities in accessing quality health care services. However, when each factor is controlled the biggest predictor of lack of access to quality health  care is race.

       *463 First, the theory of cultural differences has been proffered by scholars, like Professor Steven Wallace, as one reason for the current inequities in accessing nursing home services. Some researchers speculate that African Americans tend to use more family care than nursing home care because of their cultural beliefs. However, studies conducted by the Institute of Medicine and Professor Jim Mitchell show that there is little cultural difference between elderly African Americans and Whites in their choice to use institutional care. Cultural differences seem to play a bigger part in Whites' decisions to deny admittance to African Americans to quality nursing homes than African Americans preferences to stay at home.

      According to researchers, elderly Whites do not want to room with African Americans because of “cultural differences,” and, therefore, African Americans are denied admission to quality nursing homes because of their “cultural difference.” Unfortunately, these “cultural differences” actually mean racial differences. For example, a religiously based nursing home in Ohio was not very receptive to admitting African American patients because the nursing home specialized in providing culturally sensitive services to elderly Hungarian patients. However, the nursing home admission staff was receptive to non-Hungarian Whites who did not share the same culture as their other residents, leaving one to wonder if the cultural difference was simply a racial difference. This use of “cultural difference” to mask racial discrimination is not limited to this nursing home in Ohio; it has appeared in New York. In fact, since 1984, studies have shown that religiously based nursing homes in New York are more willing to admit Whites from different religious backgrounds than African Americans. According to research studies, the most segregated nursing homes in New York *464 are voluntary religious facilities. Thus, the theory of cultural differences seems to be used by many nursing homes as a proxy to deny admission to African Americans because of their race, rather than a choice by African Americans to forgo nursing home care.

      Second, Professor Steven Wallace has suggested that geographical segregation is the fundamental cause of racial inequities in nursing homes. Specifically, African Americans are placed in poor quality nursing homes because that is all that is available in the neighborhoods in which they live. However, a study of four states showed that, for three of the states, this was not the case. In Mississippi, New York, and Ohio, census data showed that the percentage of African Americans residing in predominately White neighborhoods was much higher than the population of African Americans residing in nursing homes in that neighborhood. The researchers found that the racial segregation in nursing homes in these three states was greater than the surrounding geographical racial segregation, and thus concluded that geographical segregation could not fully explain racial segregation in nursing homes in these states. Intentional racial discrimination by the nursing homes was also the reason for the racial inequities in admission to nursing homes.

      Even if geographical racial segregation is one of the reasons for racial inequities in admission to nursing homes, numerous legal and medical scholars, including Professors Steven Wallace and David Williams, have still shown that one of the fundamental reasons for the continuation of geographical racial segregation is racial discrimination. Studies have shown that “explicit discrimination in housing persists” as “[t]here has been little change in [the] levels of segregation in the last 20 years.” This racial segregation is not self-*465 imposed by African Americans, as they “reflect the highest support for residence in integrated neighborhoods.” The abovementioned research suggests that some of the nursing home admission staff in predominately White neighborhoods use a combination of racial geographic segregation and racial preferences to keep out African Americans. Hence, regardless of when one views the problem of racial inequities in health care, whether at the point of selection of residence in the neighborhood or at the point of selection of residence in a nursing home, racial discrimination is a barrier to African Americans gaining access to safe, quality health care.

      Finally, some scholars argue that the lower socioeconomic status of African Americans is the ultimate reason for racial inequities in health care. Throughout the medical literature a battle has raged for the last three decades concerning the significance of race and socioeconomic status in creating inequities in health care. Even as this debate continues, no researcher would deny that even when socioeconomic status is controlled, racial inequities still remain that are not explained by educational level, geographic location, or disease status. Professor Steven Wallace even notes, “The patterns of institutional practices based on race in hospitals and nursing homes . . . suggests that a class-based approach alone will not *466 eliminate differences in the health care provided to older Blacks.” Nevertheless, scholars maintain that socioeconomic status is central to nursing home admission because private pay patients are preferred over Medicare or Medicaid patients. This theory is contrary to studies, which show that White Medicaid patients entering into a nursing home experience less of a delay than African American patients. In North Carolina, Medicaid patients experienced a one-day delay on transfer to a nursing home while African Americans experienced a three-day delay regardless of payment status. This delay in transfer was due to the admission practices of some quality nursing homes, which chose to admit White patients and deny African Americans. This decision was made without thought to financial status.

      Professors Mary Fennel and David Barton Smith's work show that race is a better predictor of residing in a substandard nursing home than socioeconomic status. Even Professor Steven Wallace recognized the failure of socioeconomic status to explain the problems of racial inequity in New York nursing homes. In New York, Whites resided in one-third of the quality nursing homes, while minorities resided in half of the poor quality public nursing homes. Because the institutions were funded by the same payment source, Medicaid, the pattern was ascribed to racial discrimination. Instead of being the source of the disparity in admission to quality nursing homes, socioeconomic status seems more like the proxy. Nursing homes use payment status as a means to deny beds to African Americans using Medicaid, but simply certify another bed as Medicaid if presented with a White patient. Because of this data, researchers have concluded that even if differences in socioeconomic *467 status were addressed, there would still remain racial inequities in the provision of nursing home care.

      Four main barriers have been suggested to explain why racial inequities in health care persist: cultural differences, geographic racial segregation, socioeconomic status, and racial discrimination. It is clear from the literature that no one factor has been accepted as the central reason for the inequities. A review of the nursing home system and its problems suggests that racial discrimination is the central reason for racial inequities in accessing quality nursing home care. First, the only cultural difference noted by studies is that some Whites prefer not to room or be in a facility with African Americans. Second, racial segregation in quality nursing homes was greater than the geographical racial segregation in the neighborhood. Third, even when socioeconomic status was controlled, racial inequities in access to quality nursing homes persisted. Finally, a review of the literature discussing the causes for the geographical racial segregation and socioeconomic status of African Americans identifies racial discrimination as one of the reasons for the continuation of the ills of African Americans. If racial inequities in the quality of nursing home care are not caused by cultural differences, geographical racial segregation, or socioeconomic status, why is racial discrimination the culprit?

      Based on empirical research, race remains the central barrier to elderly African Americans accessing quality nursing home care. African Americans in North Carolina were delayed 3 to 10.7 days in transfer to nursing homes. In Pennsylvania, elderly African Americans were delayed in transfer for months because they could not find a nursing home to accept them, and they had to reside in the *468 hospital. The delays in transfer result from a denial of admission to quality nursing homes. Research studies in New York and St. Louis show that race remains the greatest predictor of accessing quality nursing home care. White patients were three times more likely to be admitted to a quality nursing home than were African Americans. Based on this research, race remains the central factor in accessing nursing home care, but do these practices violate Title VI?

      Title VI prohibits both disparate treatment and impact because of race, and specifically outlaws the denial of benefits because of race. According to two decades of research and government reports, some nursing homes have consistently violated Title VI by using race to deny benefits to African Americans. In two different studies of North Carolina nursing homes, researchers showed that elderly African Americans were delayed access to medically necessary services because of their race. In the first study, the research found that the nursing homes denied admission to African Americans based on the rooming preferences of their patients. If White patients did not want to room with African American patients, then no African American patients were admitted until a match could be found. Usually, no match could be found, so African Americans were forced to remain in hospitals or shipped to predominately African American nursing homes, which tend to be substandard homes.

      In the second study, Professors David Falcone and Robert Broyles found that the racial discrimination went beyond this *469 matching decision. They discovered that discrimination in transfer delays took “three different forms all of which are institutionalized and have an adverse disparate impact on African Americans.” First, there is “passive discrimination” that “refers to the practice of acceding to others' discriminatory preferences.” This racial discrimination is morally reprehensible, against the law, and costly for the government. When a patient is delayed in being transferred from the hospital to a nursing home, the hospital bears the cost, which is then passed on to the government. Second, there is “entrepreneurial discrimination” based on the preferences of residents or reactions of the market. Third, there is “cultural distinctiveness” discrimination. This is the misconception that racial groups prefer to be with people of their own kind. The need to stay in business is used to explain the untenable practice of keeping African American residents limited to a small number, to attract prospective or actual residents. Regardless of the type of racial discrimination, all three of these forms of discrimination lead to the same outcome: The delayed transfer of African Americans from hospitals to nursing homes because African Americans are denied admission to quality nursing homes based on race. Thus, nursing homes' use of race to deny African Americans access to medically necessary rehabilitative services is a violation of Title VI. Consequently, although there may be a number of factors that cause racial inequities in health care, the central reason is the continuation of racial discrimination in health care in violation of Title VI.

      The majority of this research, which has been reported to the government, shows that some government-funded nursing homes continue to violate Title VI. Although these findings of racial discrimination in health care have been presented to the state and federal governments, nothing has been done. In the case of New York, the problems were first presented to the government in 1984. A study completed in 1992 by the New York State Advisory Committee to the U.S. Commission on Civil Rights showed that these *470 same problems persisted. The federal government is also guilty of failing to enforce Title VI to prevent racial discrimination in health care. The U.S. Commission on Civil Rights reviewed the progress of federal agencies enforcement of Title VI in 1974 and 1996. Each time the U.S. Commission on Civil Rights found that the federal agencies, such as HHS, responsible for enforcing Title VI were not fulfilling the mandates of the Act. This has left African Americans with no regulatory avenue to put an end to this discrimination. Notwithstanding federal agencies' failure to enforce Title VI, the Supreme Court has barred private parties from disparate impact claims under Title VI. The lack of Title VI enforcement by HHS and the Supreme Court's ruling barring private parties from bringing disparate impact Title VI claims has left elderly African Americans subject to racial discrimination without any means to rectify the problem.