II. De Jure Segregation and Disparate Treatment: The History of Racial Segregation and Discrimination in Health Care

      A review of the history of health care in the United States reveals that numerous developments in medical technology, health insurance products, and health care institutions were due to racial segregation and discrimination. Scholars note that modern gynecological techniques were mastered on slave women, the development of private health insurance was to ensure the defeat of racially integrated government insurance, and the development of private hospitals ensured the racial segregation of patients. The influence of racial discrimination in the development of the health care system in the United States was so pervasive that even the federal government promoted racial segregation with the passage of the Hill-Burton Act to fund separate but equal health care services. During the Civil Rights era, racial segregation changed from de jure to de facto, while racial discrimination evolved from disparate treatment to disparate impact. Illustrative of the historical shift in the United States from de jure to de facto segregation and from disparate treatment to disparate impact racial discrimination is a review of the evolution of the long-term care system during the twentieth and twenty-first centuries. Reviewing the history of racial segregation and discrimination in long term care is important to crafting a solution to the current discriminatory practices used by the long-term care system as well as in the entire health care system.

      Throughout the development, regulation and funding of nursing homes, some form of racial segregation and discrimination has been present. In the 1800s, the nursing home system was segregated based on class. Rich Whites were housed in private charitable facilities, while poor Whites were housed in county or public general hospitals, psychiatric hospitals, poor houses, and poor farms. African Americans were not even allowed to take part in this system until 135 years later. African Americans received their care from families regardless of whether they were slaves or not.

      With the passage of the Social Security Act of 1935 (“SSA”), the federal government established federal funding for the elderly under the Old Age Assistance Program, but prohibited public institutions from receiving Old Age Assistance payments. Hence, only private institutions housing the elderly, i.e., nursing homes, could receive payment under this program. This prohibition was particularly significant because in the 1930s the health care system was racially separated based on whether the institution was public or private. Most African Americans received their care at public institutions, while Whites received their care at private institutions. Because public institutions were prohibited from receiving SSA funding, the passage of the SSA served as a means to foster the segregation of races in the long-term care system. With the influx of cash, private nursing homes developed to consist of acute care or geriatric wings in private hospitals for the rich Whites, and private boarding houses for poor and disabled Whites. Racial segregation in the long term care system was further exacerbated by the enactment of the Hospital Survey and Construction Act of 1946, better known as the Hill-Burton Act. Although, the Hill-Burton Act provided funding for the construction of public health care institutions, such as hospitals that provided care to African Americans, equality was not achieved because the federal government authorized the use of intentional racial discrimination.

      The Hill-Burton Act allotted funding for the construction of hospitals and granted states the authority to regulate this construction. Hospitals used this funding to construct, among other things, nursing home wards and freestanding geriatric hospitals to care for the elderly, the precursors to current day nursing homes. The Act also provided that adequate health care facilities be made available to all state residents without discrimination of color. This language seemingly granted adequate funding without discrimination, but section 622(f) negated this promise. Section 622(f) of the Hill-Burton Act stated:

       [S]uch hospital or addition to a hospital will be made available to all persons . . . but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group . . . . Thus, the Act was designed to induce the states, through financial support, to supervise, regulate, and maintain the placement of adequate racially segregated hospital and nursing home facilities throughout their territory. To accomplish this goal, the states had to review all applications for funding and submit a detailed plan to the Surgeon General for authorization of funding. Under section 622(f) of the Hill-Burton Act, states could opt to participate in the federal program based on a separate but equal plan providing for segregated facilities. Fourteen states submitted “separate but equal” applications to the Surgeon General, who then reviewed the States' plans to ensure that there was equitable distribution of funding. The Surgeon General accomplished the goal of keeping health care institutions segregated, but the equitable distribution of funding was never realized. The inequitable use of African Americans' tax money for the construction of health care facilities from which they were barred was commonplace under the Hill-Burton Act. Thus, the federal government's funding of public institutions did not equalize the dichotomy of racial segregation in health care developed under the SSA, particularly in the long-term care system.

      In the 1960s, the federal government unsuccessfully tried to address such racial discrimination in the health care system in three specific ways: intervening in the Simpkins v. Moses H. Cone Memorial Hospital case, passing the Civil Rights Act of 1964, and passing the Medicare and Medicaid Acts. However, the failure of the federal government to consistently and systematically enforce the laws prohibiting racial discrimination has culminated in the continued de facto segregation of elderly African Americans to substandard nursing homes.