B. Title VI of the Civil Rights Act
On June 19, 1963, when the Civil Rights Act was first introduced, President John Kennedy said in a message to Congress:
Events of recent weeks have again underlined how deeply our Negro citizens resent the injustice of being arbitrarily denied equal access to those facilities and accommodations which are otherwise open to the general public. That is a daily insult which has no place in a country proud of its heritage-- the heritage of the melting pot, of equal rights, of one nation and one people. No one has been barred on account of his race from fighting or dying for America--there are no ‘white’ or ‘colored’ signs on the foxholes or graveyards of battle. Surely, in 1963, 100 years after emancipation, it should not be necessary for any American citizen to demonstrate in the streets for the opportunity to stop at a hotel, or to eat at a lunch counter in the very department store in which he is shopping, or to enter a motion picture house, on the same terms as any other customer. Enacted in memorial to President Kennedy, the passage of the Civil Rights Act was a monumental feat. Congress enacted the Civil Rights Act of 1964 banning racial discrimination in housing, employment, and health care. Title VI of the Civil Rights Act was the vehicle used by Congress to put an end to discrimination in health care. One member of Congress noted that Title VI “represented the moral sense of the Nation that there should be racial equality in *447 Federal assistance programs.” Title VI provides both a private right of action and mandates for government enforcement. The private right of action is found in section 601, which reads:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
This language prohibits racial discrimination by health care facilities funded by the federal government. Private parties have a right to sue health care facilities that violate section 601 based on intentional racial discrimination that prevents participation or the access to benefits under federally funded health care programs. Congress delegated the task of eradicating racial discrimination in health care to HHS. The mandates of enforcement for HHS are found in section 602, which states:
Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity, by way of grant, loan, or contract other than a contract of insurance or guaranty, is authorized and directed to effectuate the provisions of section 2000d [section 601] of this title with respect to such program or activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.
Section 602 of Title VI requires HHS to undertake measures to ensure that those health care entities receiving federal funding, such as nursing homes, do not discriminate on the basis of race, color, or national origin. To achieve racial integration in health care, Title *448 VI of the Civil Rights Act requires the Secretary of HHS to promulgate regulations prohibiting federal funding of nursing home and requiring written assurances of nondiscrimination from nursing homes.
HHS promulgated Title VI regulations on December 4, 1964. In 1967, HHS created the Office of Civil Rights (“OCR”) to be the primary civil rights office for HHS and enforce these Title VI regulations. The director, who is the head of OCR and the Special Assistant to the Secretary for Civil Rights, reports directly to the Secretary of HHS. OCR has one headquarter office and ten regional offices and is organized into two departments: the Office of Management Planning and Evaluation and the Office of Program Operations. The regional offices conduct Title VI complaint investigations and preaward reviews and report to the Office of Program Operations. These Title VI compliance investigations and reviews are all based on the Title VI regulations. In fact, health care entities are prohibited from:
Utiliz[ing] criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin.
This regulation forbids health care entities from using neutral policies that have the effect of subjecting African Americans to racial discrimination or impairing their ability to access quality health care. To ensure that health care entities are complying with these *449 mandates, OCR is required to review compliance reports and collect “racial and ethnic data showing the extent to which members of minority groups are beneficiaries of and participants in federally-assisted programs.”
Notwithstanding these strong enforcement mandates of the statutory and regulatory language of Title VI to eradicate racial discrimination, the promise of Title VI has proven to be illusionary. To enforce Title VI, section 602 provides the government with the right to terminate or refuse funding to a noncompliant nursing home, but:
[N]o such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the Federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report. Thus, Congress sought compliance first through voluntary means and left only the choice of termination from all federal health care programs as a remedy. The failure of Congress to provide remedies or sanctions, other than termination, for the violation of Title VI has severely restricted the regulation of health care entities under Title VI. Moreover, requiring HHS to first seek voluntary compliance after a violation has been proven renders Title VI little more than a *450 guide to what should happen, and not a law that one must obey. With limited enforcement mechanisms available under Title VI, Congress relied on the attractiveness of extra funding from participation in the Medicare and Medicaid programs to entice health care entities to comply with civil rights requirements. However, in most cases the prospect of additional funding has done little to spur nursing homes to adopt racially neutral admission and provision of care policies.
