V. De Facto Segregation and Disparate Impact: The Promise of a Dream Denied

      The United States promised to eradicate racial discrimination against African Americans in all facets of public life with the passage of the Civil Rights Act of 1964. In particular, the enactment of Title VI was significant because it “mandate[d] the exercise of existing authority to eliminate discrimination by Federal fund recipients and would furnish the procedure to support this purpose.” The purpose of Title VI was to put an end to all “discriminatory activities, including denial of services; differences in quality, quantity, or manner of services.” Through both inactivity and intentional actions, the United States has reneged on its promise to prevent racial discrimination in health care.

      Section 602 of Title VI provides that the United States government prevent racial discrimination that denies African Americans access to quality health  care. If the government delegates this responsibility to the states, then the “[f]ederal agencies must evaluate the quality of Title VI efforts conducted by State recipients and provide assistance whenever necessary” to comply *471 with the mandates of section 602. To date, the government has failed to put an end to racial discrimination in health care and to monitor the efforts of the states, allowing the continuation of racial discrimination by federally funded health care entities, in violation of Title VI. Illustrative of the continuation of racial discrimination is the failure of African Americans to be admitted to and provided quality care by nursing homes funded by the federal government.

      By underfunding civil rights enforcement, the federal government has failed to address this racial discrimination in the provision of nursing home care. With the absence of government enforcement by HHS, an agency of the executive branch, elderly African Americans were left to bring cases against nursing homes that racially discriminate. Since 1964, nursing homes have removed most forms of disparate treatment racial discrimination, but disparate impact racial discrimination remains. Even with two decades of empirical data and government reports showing the prevalence of discrimination as a result of disparate impact and the failure of the government to rectify this discrimination, the Supreme Court barred a private right of action challenging disparate impact discrimination based on “a flawed and unconvincing analysis of the relationship between sections 601 and 602 of the Civil Rights Act of 1964, ignoring more plausible and persuasive explanations detailed in [the Supreme Court's] prior opinions.”

A. Government Inactivity

      Since the passage of the Civil Rights Act of 1964, scholars have noted the failure of HHS to prevent and eradicate racial discrimination in health care as mandated by Title VI of the Civil Rights Act of 1964. Critics have noted that HHS “permitted formal assurances of compliance to substitute for verified changes in behavior, failed to collect comprehensive data or conduct affirmative compliance reviews, relied too heavily on complaints by victims of discrimination, inadequately investigated matters brought to the Department, and failed to sanction recipients for demonstrated *472 violations.” The creation of OCR in 1967 did little to address the critics' comments because HHS has underfunded and understaffed OCR. For example, HHS has a financial assistance budget of $225 billion, eight times that of the U.S. Department of Education (“DOE”), but HHS devotes only $22.2 million for its civil rights budget, one half of the civil rights budget of the DOE. The civil rights staff of HHS is one-third as large as that of the DOE. From 1981 to 1993, OCR's staff declined from 524 to 309, while the OCR staff specifically responsible for Title VI enforcement decreased from 246 to 108.

      Hampered by underfunding and understaffing, OCR, the division of HHS responsible for Title VI enforcement in health care, has systematically failed to address racial discrimination in health care as prescribed by Title VI. OCR has failed to conduct adequate preaward reviews, investigate private complaints, or collect information necessary to determine whether nursing homes are continuing to racially discriminate. These failures have been due both to changes in executive branch policy and a lack of commitment by OCR to fulfill the dictates of Title VI.

      For instance, in 1968, the Secretary of HHS separated OCR's enforcement of Title VI from the authorization of federal funding and regulation of nursing homes. This authority to regulate nursing homes participating in programs such as Medicare was delegated to the Centers of Medicare and Medicaid Services (“CMS”), a division of HHS, and the authority to regulate nursing homes under Medicaid was delegated to the states. This shift meant that OCR had no authority to review Title VI compliance of nursing homes regulated *473 by CMS or by the states. OCR's only responsibility became completing a review of nursing homes before they were certified to participate in Medicare, a preaward review. Notwithstanding its limited role in award reviews, OCR has not always been fastidious in reviewing nursing home compliance with Title VI. Even though OCR's internal procedures for complying with Title VI requirements called for detailed review of new nursing home applicants, over a twelve-year span, from 1981 to 1993, most of OCR's reviews were cursory desk-audits. These desk-audits included a review of preaward assurances of nondiscrimination by nursing homes, but according to the U.S. Commission on Civil Rights, the information provided was not sufficient to determine actual Title VI compliance. Hence, beneficiaries could suffer discrimination before HHS could identify it at the postaward stage.

      All postaward review of Medicare certified facilities was delegated to CMS, which has done little to enforce the requirements of Title VI. All Title VI compliance reviews of Medicare nursing homes were delegated to the states in 1980. The states' duties included reviewing private complaints and spot-checking reviews of compliance documents. According to the U.S. Commission on Civil Rights, “HHS has not implemented a systematic process to review States' Title VI compliance activities on a regular basis.” Instead, HHS has delegated some minimal responsibilities to OCR. Under Medicare, OCR has remained responsible for handling private complaints received by the state and reviewing the states' findings. OCR's only Title VI compliance review of Medicare certified nursing homes has been in response to private complaints, and according to *474 the United States House of Representatives, OCR failed to even complete this task.

      A 1987 report from the United States House of Representatives Committee on Government Operations found “that OCR unnecessarily delayed case processing, allowed discrimination to continue without federal intervention, routinely conducted superficial and inadequate investigations, failed to advise regional offices on policy and procedure for resolving cases, and abdicated its responsibility to ensure that HHS policies are consistent with civil rights law, among other things.” Furthermore, the Committee on Government Operations “criticized OCR's reluctance to sanction noncompliant recipients and recommended that OCR pursue investigations of complaints as well as compliance reviews in more systematic ways.” The failure to resolve cases to ensure that nursing homes do not continue to racially discriminate violates the spirit of the requirements of section 602 of Title VI, which mandates OCR to take steps to remediate racial discrimination by nursing homes.

      Since the House of Representatives committee report regarding the problems of OCR, OCR has not made a good faith effort to fulfill its statutory duties. In the 1990s, when OCR received complaints from private parties, it still failed to fulfill its Title VI mandate of combating racial discrimination. For instance, in 1993, ten of the twenty-one complaints filed resulted in findings of noncompliance with the requirements of Title VI. Every complaint was resolved through voluntary commitments to cease and desist discriminatory practices. No cases were referred to the U.S. Department of Justice, nor did HHS initiate any administrative proceedings. Thus, the perpetrators of racial discrimination were given a slap on *475 the hand, while the victims of the discrimination who suffered harm were left with no relief.

      In addition to handling complaints, OCR's internal policies to fulfill the dictates of Title VI require OCR to collect and review nursing home data, such as the number of beds and racial and ethnic data on patient admissions. OCR has not fulfilled this mandate of Title VI. In 1994, HHS decreed that it would not collect racial and ethnic data regarding services provided in nursing homes receiving federal funding. OCR does not review any racial data of residents from the states or collect any report on services provided, so there is no opportunity to evaluate whether racial groups are treated disparately. Without the collection of racial and ethnic data, there are no means by which OCR can evaluate whether nursing homes are “using criteria or methods of [administration] which [have] the effect of subjecting individuals to discrimination” because of their race. Now that nursing homes have implemented “facially neutral” practices that have a disparate impact on African Americans, it is impossible for OCR to evaluate these discriminatory practices without collection or review of this data. For instance, although a nursing home may decide not to admit a patient because he or she is African American, it is difficult to ascertain this practice of racial discrimination because OCR does not collect any data concerning those who apply for admission, and thus there are no statistics indicating who is admitted versus who is denied.

      As a defense to its failure to enforce Title VI, OCR may assert that, since its creation, the executive branch has failed to make addressing racial discrimination in health care a priority. For instance, until the Department of Education was created in 1979, most of OCR's Title VI efforts were devoted to education desegregation, while “only 4 percent of OCR's compliance efforts were *476 devoted to health and social services.” OCR spent the next twenty-seven years litigating cases concerning interracial adoption and the implementation and regulation of the Health Insurance Portability and Accountability Act. However, this is not an excuse, because section 602 of Title VI mandates that OCR to take steps to prevent racial discrimination by government-funded health care entities. Nevertheless, OCR has focused on non-life-threatening issues leading to the proliferation of racial inequities in health care due to racial discrimination, which continue to seriously compromise the health of elderly African Americans across the nation. OCR does not collect nor review racial data from the states to determine whether nursing homes are discriminating against African Americans. Moreover, when OCR receives private complaints concerning the racially discriminatory practices of nursing homes, it does not impose remedies. It merely accepts the offending nursing home's promise that the behavior will be corrected. The failure of OCR to remediate racial segregation and discrimination in health care, particularly in nursing home admissions and the provision of quality care, represents a failure to enforce Title VI. Private parties have tried to put an end to the discrimination by filing civil cases against nursing home violators, but the courts have barred these suits claiming that the authority to rectify the problems remains with the same government agencies notorious for not enforcing Title VI. The Supreme Court's actions have negated African Americans' right to equal access to government-funded services.

B. The Evisceration of Title VI

      No longer do nursing homes advertise or admit that their facilities are “white only.” Instead, a plethora of research studies show that some nursing homes simply deny admission and quality care to African Americans based on race, using “neutral policies” *477 such as cultural differences, geographical racial segregation, and socioeconomic status. Consequently, private parties now use Title VI to combat racial discrimination through disparate impact.

      In the 1970s and 1980s, elderly African Americans brought lawsuits in Linton ex rel. Arnold v. Commissioner of Health & Environment and Taylor v. White against the government, regarding nursing homes' use of Medicaid to discriminate against African Americans. The plaintiffs in these lawsuits asserted that the states' policies for Medicaid bed certification allowed nursing homes to racially discriminate. Some nursing homes would deny African American Medicaid patients admission because the nursing home did not have any Medicaid beds, but if a White Medicaid patient sought admission, then another Medicaid bed would be certified. Thus, nursing homes used Medicaid as a proxy to deny African Americans admission based on neutral policies, in violation of Title VI. Serving as an example for subsequent Title VI cases, the plaintiffs in Linton and Taylor asserted successful claims using the theory of disparate impact discrimination to show that the states' policies were supporting the racially discriminatory practices of the nursing home industry. The Supreme Court put an end to these suits when it decisively ended private parties' right to challenge disparate impact cases in Alexander v. Sandoval.

      In Sandoval, a non-English-speaking American, Sandoval, filed a federal case challenging the failure of the Alabama Department of Public Safety (“Department”) to provide driver's license exams in languages other than English. Sandoval asserted that the use of English-only exams excluded people on the basis of race, color, and national origin from obtaining a driver's license. Section 601 of Title VI prohibits discrimination based on race, color, and national origin that prevent individuals from participating in any program *478 receiving federal funding. Because the Department received federal funding from the U.S. Department of Justice, Sandoval alleged that exclusion of people based on race, color, and national origin was a violation of Title VI. The Department argued that its actions did not violate Title VI because the discrimination was not intentional. The discrimination resulted from a provision of the Alabama Constitution that English was the official language of Alabama and, thus, the discrimination was a result of disparate impact of “neutral policies.” The Supreme Court reviewed the case solely for the purpose of determining whether private parties had a right to sue under Title VI for discrimination as a result of disparate impact.

      The Supreme Court ruled that private parties do not have a right to sue for disparate impact discrimination. The Court reasoned that, because the language of section 601 of Title VI only grants a private right of action for intentional discrimination, regulations that prohibit disparate impact do not apply because section 601 permits disparate impact. The Court found that disparate impact cases could only be addressed under section 602 of Title VI, because the only prohibition against disparate impact discrimination is found in the regulations referring to section 602. Supreme Court precedent dictates that there is no private right of action because a private plaintiff cannot bring a suit based on regulations for acts not prohibited by the statute. Thus, the Supreme Court ruled that the Title VI regulations do not provide a private right of action for disparate impact, because private parties do not have a private right of action under Title VI to sue for disparate impact.

      The Court made this decision even though, when the statutory language of Title VI was passed in 1964, the artificial court-created distinction between good and bad racial discrimination, i.e., disparate impact versus disparate treatment, had not been announced. This *479 distinction was not created until 1971. Congress has not revised the language of Title VI since 1964, yet the courts have continued to change their perception of what the language means. Justice Stevens notes in his dissent that for thirty years after the Supreme Court devised this distinction between disparate treatment and disparate impact, private plaintiffs had a private right of action to challenge disparate impact discrimination under Title VI. The majority negated this precedent, by barring victims' access to the courts. Moreover, the majority's decision to bar private parties' access to the federal courts under Title VI is contrary to the intent of Congress. When enacting Title VI, members of Congress specifically discussed the Simpkins case, a private case challenging racial discrimination, using it as an example of the rights granted under Title VI. Because Congress enacted Title VI before the distinction between disparate treatment and disparate impact, the legislature did not address whether the distinction affects private rights of action. Notwithstanding this fact, Congress noted the import of private rights of action to enforce Title VI separate from the government's authority to enforce Title VI.

      Due to the majority's opinion in Alexander v. Sandoval, African Americans have been forced once again to take the matter in their own hands. By barring African Americans from obtaining judicial review and negating all agency review under Title VI through underfunding and understaffing, the United States has left African Americans with little hope to rectify racial discrimination under Title VI. Therefore, elderly African Americans and their advocates must seek innovative solutions to address the continuation of racial discrimination in health care, such as the Medicaid Act, the Fair Housing Act, and CERD, to force the government to take steps to end racial discrimination in health care.