C. Medicare and Medicaid Acts

      With the enactment of Title VI of the Civil Rights Act of 1964, the right to equal enjoyment and access to health care became the subject of federal government regulation. Using its spending power, Congress made compliance with Title VI mandatory before a nursing home could become eligible to receive Medicare or Medicaid funding. Enacted in 1965, the Medicare and Medicaid Acts increased federal funding to all health care entities, including nursing homes. Medicare pays for sundry health care services provided to the elderly and consists of three parts: Part A (Hospital Insurance), Part B (Supplemental Medical Insurance), and Part C (Medicare Managed Care). Part A covers nursing home care for persons over the age of sixty-five if they are placed in a nursing home within thirty days of being in the hospital for three or more consecutive days, or after longer than thirty days when medically necessary. Medicare covers up to one hundred days of care received at a nursing home. Once Medicare coverage runs out, Medicaid will cover medically necessary nursing home services for the elderly. Medicaid provides reimbursement for nursing home care for indigent elderly, but is also used by affluent elderly patients that spend down their resources. Medicaid eligibility for the elderly differs significantly by state, but once a patient qualifies for Medicaid, the *451 state will pay for nursing home services until a patient leaves the nursing home.

      Medicare and Medicaid funding was instrumental in putting an end to racial discrimination in hospitals across the country. Faced with the loss of a substantial revenue stream, most hospitals integrated overnight. Nursing homes, however, were not interested in government funding and the government was not dedicated to forcing racial integration. During the 1960s and 1970s, the time and eligibility requirements of Medicare did not provide steady income for nursing homes and the low reimbursement rates of Medicaid caused many nursing homes to forgo participation in the programs. Instead, nursing homes sought private pay patients. Furthermore, the government was reluctant to force Whites and African Americans to live together in nursing homes. Compared to hospitals, the government viewed nursing homes as private residences, and thus did not actively enforce racial integration. Professor David Barton Smith found that “[t]he nursing-home industry concluded that so long as discriminatory practices were not flaunted, there would be no intervention by federal officials.” In 1967, when nursing home enrollment in Medicare began, most homes were still “owner-operated converted houses” and viewed more as private residences than health care entities. Therefore, as long as nursing homes made a good faith effort by marketing with nondiscriminatory language and submitting written assurances of *452 nondiscrimination, the government certified nursing homes that continued to use racial discriminatory practices to participate in Medicare and Medicaid.

      By the 1980s, any racial integration based on the lure of federal funding was obliterated by government cutbacks in response to rising health care costs. The government initiated cutbacks even though studies showed that to achieve racial integration of health care entities, such as nursing homes, the states needed to increase reimbursement rates for Medicaid. The inability of the government to induce nursing homes to racially integrate with the passage of the Medicare and Medicaid Acts was not the government's only failure. By the time nursing homes began participating in these programs, the issue of Title VI enforcement was no longer a focal point of the government, and African Americans have henceforth been relegated to substandard quality, segregated nursing homes.

      The quality of Medicare and/or Medicaid certified nursing homes is evaluated by state health agencies conducting annual recertification inspections of each Medicare and/or Medicaid certified nursing home. This recertification process is called “survey and certification.” Under the current “survey and certification” system, once a nursing home is certified to participate in Medicare or Medicaid, the home is visited every nine to fifteen months by a state health agency survey team comprised of, among others, nurses, nutritionists, social workers, and physical therapists. The team assesses whether the nursing home continues to be in compliance with the Medicare and/or Medicaid regulations.

       *453 If the survey team finds the nursing home out of compliance with the Medicare or Medicaid regulations, it cites the facility for a deficiency, and assigns a scope and severity level to the deficiency based on the egregiousness of the offense. The scope is the number of residents affected and the severity level refers to the seriousness of the harm. The severity level includes actual harm and serious actual harm posing a risk of death (immediate jeopardy). This means that the more egregious the deficiency, the poorer the quality of the nursing home. African Americans tend to reside in poor quality nursing homes. The findings are sent to HHS for approval, but do not include racial data concerning the residents affected by the deficiencies. Once HHS approves the findings of noncompliance, it imposes sanctions, makes the findings public, and notifies the state long-term care ombudsman, the physicians and skilled nursing facility administration licensing board, and the state Medicaid fraud and abuse control units. However, HHS does not track racial inequities regarding the victims of the deficiencies to ensure that both African Americans and Whites receive equal care. In fact, there is no system by which HHS surveys and certifies that quality care is provided without regard to race, in spite of the dictates of Title VI and the intent of the Medicare and Medicaid Acts.

      With the passage of Title VI, Medicare, and Medicaid, many civil rights activists believed that the fight for equality had been won. They were sorely mistaken. The dream of equality that so many civil *454 rights activists worked for remained unfulfilled because of the government's lack of commitment to enforce the law. Without this commitment, some nursing homes have continued business as usual, discriminating and segregating by race as illustrated by two decades of empirical studies and government reports.