*480 VI. Solutions

      Two decades of empirical studies and government reports suggest that the best predictor of admission to a quality nursing home is race, regardless of the geographic location, type of nursing home (religious, not for profit, for profit), or payment source of the resident. The failure of OCR, charged with enforcing Title VI, to prevent racial discrimination and segregation in health care, has left vulnerable elderly African Americans to be relegated to substandard nursing homes. Even when brought to the attention of nursing home administrators, state regulators, and federal regulators, there has been no change. The most direct ways to rectify this problem would be using the political system or filing a lawsuit against the government for abdicating its legal responsibility to prevent racial discrimination under Title VI. However, neither avenue seems promising in the current political climate.

      Regardless of the political party in the executive or legislative branch since 1964, little has been done to address racial discrimination in long-term care. As discussed above, numerous government reports show that HHS, an Executive Branch agency, has routinely failed to effectively enforce Title VI. These reports have been presented to Congress, which has done little to induce HHS to improve its Title VI enforcement efforts. In light of this political reality of inactivity in Title VI enforcement, the only redress available to racial discrimination victims has been through the *481 courts. In spite of this, the federal courts have seemingly closed this avenue.

      In Madison-Hughes v. Shalala, patients sued the Secretary of HHS for failing to enforce section 602 of Title VI. Specifically, the patients challenged the Secretary's failure to collect racial data and information needed to prove the continuation of racial discrimination in health care. The Court of Appeals for the Sixth Circuit ruled that this duty was discretionary, because the only duty of HHS was to obtain Title VI compliance reports from health care entities with as much information as necessary. According to the court, the extent to which HHS monitored and enforced Title VI was under the discretion of HHS. Therefore, although the language of Title VI says that the federal government must enforce Title VI, it does not say how. The “how” is in the discretion of the Secretary. Based on Madison-Hughes, as long as the government is investigating complaints and seeking voluntary compliance, it is enforcing Title VI. This is the case even though reports from the House of Representatives and the U.S. Commission on Civil Rights note that racial discrimination continues almost unfettered, as it did before the passage of Title VI. The court's decision in Madison-Hughes has cast significant doubt on the success of actions directly challenging the government's failure to enforce Title VI. Nevertheless, elderly African Americans and their advocates cannot give up the fight.

      To solve this continuing problem of racial discrimination in nursing homes, African Americans have several options, including using the Medicaid Act, the Fair Housing Act, and CERD to induce the federal government to actively and effectively enforce Title VI. The least controversial claim is under Medicaid. Elderly African Americans could sue the United States in federal court for failing to provide quality nursing home care, as required by the Medicaid *482 Act. This approach was successfully used by Medicaid recipients in Colorado to induce the federal government to improve access to quality care in nursing homes under Medicaid. Elderly African Americans can also file complaints with the U.S. Department of Housing and Urban Development (“HUD”) for housing discrimination. Elderly African Americans can employ HUD to send out racially different testers to nursing homes to request admission, and compile this data to support an intentional discrimination lawsuit under the Fair Housing Act against nursing homes that racially discriminate. Finally, elderly African Americans could use international law to pressure the United States to prevent the continuation of racial discrimination in nursing homes by filing a complaint under CERD. Full analysis of each solution, including the strengths and weaknesses, will be discussed in future articles, but a brief discussion of each solution follows.

A. The Medicaid Act

      As discussed in Section V.B, elderly African Americans have used the Medicaid Act in concert with Title VI to challenge the failure of nursing homes to provide equal access. The availability *483 of these claims has been called into question because of the Supreme Court's decision to bar private rights of action for disparate impact claims under Title VI. Nevertheless, elderly African Americans can still use the Medicaid Act to pressure state and federal governments to enforce Title VI.

      Under the Medicaid Act, the federal and state governments are required to regulate the actual care provided to residents. If the care does not comply with the Medicaid Act, then the federal and state governments are required to discipline the nursing home. As discussed above, empirical studies show that many elderly African American Medicaid patients are not provided quality health care and the nursing homes are not sufficiently disciplined for not providing quality care. Thus, the federal and state governments are failing to fulfill their duties under the Medicaid Act to require nursing homes to provide quality care to African American Medicaid recipients. Because the federal and state governments are not effectively disciplining substandard nursing homes and are allowing substandard nursing homes to remain in government-funded programs, the government is in violation of the Medicaid Act. Thus, elderly African American residents should file a claim against the government for violating Medicaid. Such an action would be sustainable if reviewing courts were to follow the holding of Estate of Smith v. Heckler.

      In Heckler, Colorado residents living in Colorado nursing homes brought a class action civil rights suit against the Secretary of Health and Human Services. The Medicaid recipients asserted that the *484 Secretary violated their constitutional right to receive quality medical and psychosocial care in nursing homes by failing to fulfill his statutory duty under Medicaid to regulate the actual care provided in nursing homes. The Secretary argued that HHS had fulfilled the requirements of Medicaid by publishing advisory enforcement standards that govern state inspection of Medicaid certified nursing homes. The arguments of both the plaintiff and defendant centered on the duties of the Secretary under the Medicaid Act to regulate nursing homes' care.

      The Medicaid Act authorizes the Secretary to fund state plans to provide “health care to needy persons” through agreements with private and public persons and institutions capable of providing such services. Under § 1396(a) of the Social Security Act, the Secretary could only approve state plans that included the condition that the plan provide a description of the methods of inspection the state would use to certify that the nursing homes provided high quality care. The Secretary had the authority to “look behind” the state's determination of a nursing home's compliance with the state Medicaid plan. Based on the “look behind” provision, if the Secretary found that the state plan was deficient and the state failed to show that it had implemented an effective inspection program, the Secretary had to reduce the percentage of federal funds given to the state's Medicaid program.

      The United States Court of Appeals for the Tenth Circuit ruled that the Secretary had violated the plaintiffs' constitutional rights by failing to regulate the actual care of patients. The court reasoned that the federal forms, which the states were required to use to evaluate the facilities, failed to ensure patients received quality care and thus violated the dictates of the Medicaid Act because the purpose of the Act was to provide high quality medical care to needy *485 persons. The court reviewed the legislative history of the “look behind” provision and found that Congress passed the law “to assure that Federal matching funds are being used to reimburse only those [skilled nursing facilities] . . . that actually comply with [M]edicaid requirements.” Consequently, the court ruled that, by granting the Secretary the “look behind” authority, Congress mandated that the Secretary, when the Secretary had cause, make an independent determination of whether a Medicaid certified nursing home actually meets the requirements of the state plan, irrespective of the state's findings. According to Congress, cause included complaints made to the Secretary by the residents, advocates, or others about the quality of care or condition of the facility. Because the residents in this case had complained to the Secretary about the quality of care, and the Secretary failed to use his authority under the “look behind” provision, the court remanded the case back to the district court and ordered the district court to compel the Secretary to revise and implement new Medicaid regulations that focused on the quality of care furnished to Medicaid recipients in nursing homes.

      This decision by the court of appeals not only affected Medicaid regulations, but it also influenced the regulation of Medicare certified nursing homes because the enforcement system HHS advised the states to use in regulating Medicaid certified facilities was the same system HHS used in regulating Medicare certified facilities. Hence, the decision also called into question the *486 validity of the Medicare regulations. This class action lawsuit, coupled with the findings of an independent federal government report on poor nursing home quality, was the catalyst for significant congressional changes in the way that nursing homes were regulated under Medicaid and Medicare. Just as these Medicaid recipients challenged the enforcement of quality of care regulations by the Secretary, so should elderly African Americans.

      Data shows that elderly African Americans are subject to poor quality care regardless of whether they are residing in nursing homes with Whites or not. Professor Fennell has noted that “it is possible for a nursing home to provide, on average, high quality of care and to also exhibit a substantial disparity on the levels of care received by majority and minority residents.” A study of several states, including New York, Kansas, Mississippi, and Ohio, found that when Whites and African Americans reside in the same facility, the quality of care provided is different. In addition to these racial inequities in care when residing in the same facility, there are significant inequities when the races reside in different nursing homes. According to national data compiled from Medicare forms, African Americans reside in nursing homes with “lower ratings of cleanliness/maintenance and lighting.” Because it has been consistently demonstrated for the last two decades that elderly African Americans experience poor quality nursing home care, elderly African Americans should file a suit against the Secretary of HHS for failing to provide quality care as required by the Medicaid regulations. As in the Heckler case, the Secretary has cause to “look behind” the caregiving of the nursing homes, because many Title VI complaints and research studies have noted the poor quality of nursing homes based on race. Neither the Secretary nor HHS has increased the discipline of these nursing homes, which provide substandard quality of care to African Americans, or decreased Medicaid payments to states that fail to adequately discipline these nursing homes. Therefore, to obtain a lasting change, elderly African Americans and their advocates should file an injunctive and declaratory claim seeking the fulfillment of the promise of quality in nursing home care.

       *487 Filing a case such as this one can be timely and costly. However, this may be the best option to induce the federal government to improve the quality of nursing homes. The courts may question whether the Secretary's actions are enough to obtain quality nursing home care, and thus it is within the discretion of the Secretary on how to provide quality services. However, because there is enough empirical data to show that the nursing homes in which African Americans reside are of substandard quality, it really is not a matter of methodology, but a matter of attainment of quality care. Furthermore, based on the history of Linton and Taylor, plaintiff Medicaid cases have been successful in getting the state and federal government to change their regulatory behavior. This option will not improve the quality of care provided to private pay elderly African Americans residing in nursing homes not participating in the Medicare or Medicaid programs. However, it will provide assistance to some of the most vulnerable elderly, indigent African Americans. Another option for increasing government involvement in the continued fight against racial discrimination in nursing homes is to file claims under the Faire Housing Act for housing discrimination.

B. The Fair Housing Act

      During the passage of Title VI, Congress noted that, unlike hospitals, nursing homes were more than simple treatment centers. Nursing homes were viewed as private residences funded by the government. In the 1960s, Congress was unwilling to wage a massive attack to integrate these “homes,” but elderly African Americans can now use this to their advantage. Because nursing homes are considered “homes,” it is clear that the use of race to prohibit admission to these government-sponsored homes constitutes a violation of the Fair Housing Act. Under the Fair Housing Act, those providing housing are prohibited from denying rental of a dwelling because of race. In fact, section 3604(a) prohibits refusals to deal and avoidance techniques used to deny housing to racial *488 minorities, even if a definite rejection is not given. One well-recognized avoidance technique is informing racial minorities that housing does not exist, while telling Whites that there are units available. To establish a prima facie case under the Fair Housing Act, one needs to prove: (1) that the victim “is a member of a racial minority”; (2) that the victim “applied for and was qualified to rent” “certain property or housing”; (3) that the victim was rejected; “and (4) [t]hat the housing or rental property remained available thereafter.” Under section 3612 of the Fair Housing Act, the federal government has the authority to prevent racial discrimination in housing in violation of section 3604(a).

      Like OCR in health care, HUD is required to investigate private complaints of racial discrimination in housing. If HUD finds that the complaint is valid, it can institute an administrative action against the perpetrator, and if the party is found to have violated the Fair Housing Act, then a civil penalty in the amount of $10,000 to $50,000 can be assessed. Like the administrative process of OCR, *489 the HUD process has been noted for its delays and failures to adequately resolve cases in which guilty determinations have been made. Nevertheless, unlike OCR, HUD has actually initiated administrative complaints against perpetrators. The better government avenue is to get the U.S. Attorney General to file a civil claim in district court to resolve the matter. Although it is within the sole discretion of the U.S. Attorney General to file cases, there has already been one nursing home case under the Fair Housing Act concerning racial discrimination.

      In the early 1990s, the federal government filed an action against Lorantffy Care Center (“Lorantffy”), a nursing home, for housing discrimination based on its alleged racially discriminatory admission practices. The government used the Fair Housing Act to show that the nursing home had racially discriminated against African Americans seeking admission to the nursing home. The government asserted that Lorantffy had violated section 3604 of the Fair Housing Act, because it used avoidance techniques to deny admission to African Americans when the nursing home had beds available. The director of the local fair housing agency used a series of fair housing tests to determine if the nursing home discouraged African Americans from applying for admission.

      In each of the four tests, the testers were instructed to inquire about availability of admitting an elderly relative to the nursing home on short notice. The tests were structured to match a Black tester and a White tester as closely as possible in all relevant traits, such as medical condition and method of payment. Based on the tester evidence, the United States asserted that the admission staff of the nursing home, the social worker, and executive director did not make the same effort to adequately guide Black testers through the process of qualifying for a nursing home as they did for the White testers, violating section 3604 of the Fair Housing Act.

       *490 The nursing home asserted several defenses for its different treatment of the White and Black testers. First, Lorantffy explained that each tester conducted him or herself in a different manner, and thus received varying responses from the admission staff of Lorantffy. Second, Lorantffy was specifically established to provide a nursing home for older Hungarians with an Eastern/Hungarian atmosphere, so they provided Hungarian and Eastern European food, furnishings, art, literature, and entertainment. The implication of that assertion is that the admission decisions were based on cultural differences and not racial differences. Third, Lorantffy submitted that it rarely admitted “walk-in” applicants, as occurred in the testing, but rather most of Lorantffy's residents were referred by hospitals. Finally, Lorantffy argued that the United States used the same structure to test Lorantffy that it has traditionally used to test apartments, despite nursing homes presenting far more complex situations. For example, the nursing home must determine if it can meet the medical needs of a patient. The jury found the nursing home not guilty of violating the Fair Housing Act.

      Although the government lost this initial case, it does not mean the government cannot use the Fair Housing Act to rectify racial discrimination in health care. It simply means that some changes need to be made in the strategy and evidence presented. First, all the testers need to fill out an application to reside in the nursing home. Second, the prospective residents should be prescreened and approved for admission to a nursing home by the appropriate state office. Third, the testers should provide screeners with physician-approved documents for admission. Fourth, the government should also use a physician or hospital discharge staff to call on behalf of the testers and seek admission for African American and White patients. Finally, the government needs to use the empirical data on racial discrimination and a nursing home expert to address how racial *491 discrimination is used by the nursing home industry to prevent the admission of African Americans to quality nursing homes. By implementing these changes, a lawsuit based on the Fair Housing Act is more likely to be successful.

      Using the housing discrimination framework definitely has its weaknesses, for like the Title VI framework in HHS, HUD's administrative prosecution of alleged perpetrators has not been stellar. Furthermore, it is in the sole discretion of the U.S. Attorney General to take a case to federal court. Thus, as under Title VI, private parties are subject to the whims of the federal government when it comes to enforcement of the Fair Housing Act. Researchers have also discussed at length the fact that African Americans remain in geographical racial segregation because of racial discrimination, preventing them from moving into White neighborhoods in spite of the Fair Housing Act's prohibition against racial discrimination. However, by using this system, legal advocates would be able to continue to fight against racial discrimination in health care in court rather than just through regulatory actions, and could reap the rewards of civil penalties and monetary damages missing under Title VI. If these domestic options fail, elderly African Americans and their advocates should take the fight to the international community.

      International attention garnered from the Civil Rights movement may have forced the federal government to initiate steps to end de jure segregation, which trickled down to health care entities and nursing homes. Although the international pressures of trying to stop the spread of communism are no longer present, using domestic and international measures to publicize the problem can force the government to become more active in the fight against racial discrimination.

*492 C. The International Convention on the Elimination of All Forms of Racial Discrimination

      The International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) prohibits the United States. from funding racial discrimination. The CERD directs member states, such as the United States, to “condemn racial discrimination and undertake to pursue by all appropriate means . . . a policy of eliminating racial discrimination in all its forms.” Member states are in violation of the CERD when they fail to implement measures to eradicate intentional and unintentional forms of racial discrimination. Private parties have the right to file a complaint concerning a member state's violation of the CERD with the Committee on the Elimination of Racial Discrimination (“the Committee”) when there is no meaningful way to address the issue domestically. Once a complaint is found valid, not only does the member state have to change its policies and procedures, but also there is a right to seek reparations for damages suffered. Although it took twenty-eight years for the United States to ratify the CERD, it is now in force.

      Under the CERD, the United States is required to put an end to all discrimination committed by public institutions. The broad goals of the CERD are to be implemented to protect the enjoyment of *493 several rights, such as equal access to health care. Comparable to the mandates of the CERD, Title VI prohibits racial discrimination by public institutions that are funded and the subject of government regulation. Moreover, Title VI and the CERD both govern individuals' right to enjoy numerous fundamental freedoms on equal footing, such as the right to education and health care. The United States has violated the CERD by failing to enforce Title VI and continuing to fund nursing homes that commit racial discrimination.

      Specifically, the United States, a member state, is not complying with the requirements of the CERD because nursing homes that receive federal funding continue to discriminate against African Americans without any action by the government. HHS has failed to enforce Title VI, thereby relegating elderly African Americans to substandard nursing home care. Since the passage of the Civil Rights Act of 1964, critics have noted the failure of HHS to prevent and eradicate racial discrimination in health care as mandated by section 602 of Title VI of the Civil Rights Act of 1964. The effects of racial discrimination on the well-being of elderly African Americans is evidenced by their failure to access quality health  care regardless of their gender, education, health insurance, or socioeconomic status.

      Decades' worth of research studies show that African Americans are systematically denied access to quality nursing homes. This evidence has been submitted to OCR in the form of research findings and in the form of complaints against the perpetrating nursing homes. Nevertheless, the federal government continues to fund these facilities. Thus, the burden of enforcing Title VI to *494 combat racial discrimination in health care has been placed on private parties. However, the Supreme Court decisively ended private parties' right to challenge these cases when it decided Alexander v. Sandoval, leaving private parties who have been discriminated by health care institutions with no other avenue of redress.

      Because there are few domestic means to address the continuation of implicit government-sanctioned racial discrimination and segregation in nursing homes, elderly African Americans should file a complaint with the Committee, for the United States' violation of the CERD. The only drawback is that the findings of the Committee are not binding, but this is better than the voluntary compliance sought by OCR that never materializes. Furthermore, a binding decision can be obtained by filing a claim with the International Court of Justice, with the consent of the United States. To date the United States has not consented to or recognized the authority of the International Court of Justice to resolve complaints. Thus, the most one could hope for is that the United States will voluntarily comply in enforcing Title VI. Notwithstanding this less-than-perfect outcome from international law, elderly African Americans can put pressure on the United States government by bringing both domestic and international action. This dual litigation strategy would put pressure on the United States both in court and in the public forum. Furthermore, if the Medicaid and Fair Housing cases were not successful, it would serve as further support for the international action, demonstrating that there are no further domestic avenues available to elderly African Americans to end racial discrimination in health care. Filing these actions simultaneously in federal court and with the Committee may be the pressure needed to galvanize the government into enforcing Title VI.

      It is the responsibility of government to prevent racial discrimination. However, the government has failed to take care of its legal responsibility. Therefore, private parties must use the lessons from the civil rights movement and file claims and complaints against the perpetrators to put an end to racial discrimination in health care. By using current domestic and international law in innovative means, elderly African Americans can induce the government to fulfill its forty-two-year promise of equality in health care. The benefit of using the Medicaid Act, the Fair Housing Act, and CERD is that the relief requires the issuance *495 of an order against the government or the perpetrators of racial discrimination. In the past, orders have required the government to adopt new standards by which to fulfill the requirements of these laws. If the government or the perpetrators of racial discrimination do not comply with these standards, the plaintiffs have the authority to go back to court or to the Committee to seek compliance with the order. Each action has its own weakness, which will be fully discussed in future articles. Nevertheless, it is clear that filing these claims will be better than current options available to many elderly African Americans, who are disproportionately suffering from a lack of access to quality health care.