[p982] III. THE PROMISE OF A DREAM: GOVERNMENT INTERVENTION IN RACIAL DISCRIMINATION AND SEGREGATION IN HEALTH CARE
Throughout the 1960s, African-Americans waged national and international battles to obtain the rights of full citizenship in the United States. The civil rights movement focused on equality of rights in every area of life including the right to quality health care. The resolve of these American citizens was a catalyst for the intervention of the government to put an end to intentional de jure segregation. The government tried to eradicate racial discrimination and segregation with the passage of Title VI and the Medicare and Medicaid Acts. The language of Title VI, almost identical to the language of the CERD, requires that nursing homes in receipt of federal funding do not discriminate. The Medicare and Medicaid Programs provided extra federal funding to make Title VI compliance attractive to nursing homes. Nevertheless, the funding was not enough to induce nursing home compliance with Title VI, and the dream of equality has been denied African-Americans once again.
A. Title VI of the Civil Rights Act
Congress enacted the Civil Rights Act of 1964 banning racial discrimination in housing, employment, and health care. Before his untimely death, President Kennedy submitted the Civil Rights Act to Congress and stated:
Simple justice requires that public funds, to which all taxpayers of all races contribute, not be spent in any fashion which encourages, entrenches, subsidizes, or results in racial discrimination. Direct discrimination by Federal, State, or local governments is prohibited by the Constitution. But indirect discrimination, through the use of Federal funds, is just as invidious; and it should not be necessary to resort to the courts to prevent each individual violation. [p983] To achieve racial integration in health care, Title VI of the Civil Rights Act required the Secretary of the U.S. Department of Health and Human Services (“HHS”) to promulgate regulations prohibiting federal funding of nursing home construction activities and requiring written assurances of nondiscrimination from nursing homes. The passage of Title VI was crucial 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.” When enacted, compliance with the requirements was so important to Congress that one member noted that Title VI, “represented the moral sense of the Nation that there should be racial equality in Federal assistance programs.” Title VI provides both a private right of action and mandates of enforcement for government administrative agencies. 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, like the CERD, 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 racism. However, the United States Supreme Court has ruled that private parties are banned from bringing actions for institutional racism and disparate impact. These actions can only be challenged by OCR, the agency in charge of ensuring nursing home compliance with Title VI, under Title VI and the corresponding [p984] regulations. The mandates of enforcement for OCR 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 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.
This section requires OCR to take all necessary 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.” With the enactment of Title VI of the Civil Rights Act of 1964, the right to equal enjoyment and access to nursing home care became customarily the subject of federal government regulation. Like the CERD, section 602 of Title VI required the federal government to take all the necessary 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.”
Furthermore, the enforcement regulations of Title VI also require OCR to prevent institutional racism. The regulations specifically prohibit nursing homes 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 [p985] accomplishment of the objectives of the program as respect individuals of a particular race, color, or national origin. Thus, nursing homes are forbidden from using neutral policies that have the effect of subjecting elderly African-Americans to racial discrimination or impairing their ability to be admitted to federally funded nursing homes. To ensure that nursing homes are complying with these mandates, OCR is required to review compliance reports and “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 institutional racism, the promise of Title VI is illusory. To enforce Title VI, section 602 provides the government with the right to terminate or refuse funding to a noncompliant nursing home, but:
no 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. Congress delegated the task of eradicating racial discrimination in health care to HHS. The failure of Congress to provide remedies or [p986] sanctions for the violation of Title VI has severely restricted the regulation of nursing homes under Title VI. Moreover, requiring HHS to first seek voluntary compliance after a proven violation makes Title VI little more than a guide to what should happen, not a law that one is required to fulfill. 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 nursing homes to comply with civil rights requirements.
B. Medicare and Medicaid Acts
In 1965, Congress enacted the Medicare and Medicaid Acts increasing federal funding to nursing homes, but deliberately chose not to include language that mandated nondiscrimination as a requirement for participation. Nevertheless, the enactment of the Medicare and Medicaid Acts was Congress' last act on behalf of disenfranchised African-Americans in the attainment of equality in health care. Nursing homes were eligible for both Medicare and Medicaid funding, but before receipt of this funding nursing homes had to assure that they no longer discriminated based on race. As a tactic to make nursing homes end racial discrimination, the government coupled the requirements of Title VI with participation in Medicare and Medicaid. However, Medicare and Medicaid funding was not attractive to nursing homes and many chose to forgo participation in the programs.
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. By the 1980s, any 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 [p987] achieve racial integration of nursing homes reimbursement rates for Medicaid needed to be increased. The inability of the government to induce nursing homes to 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 to achieve nondiscrimination was no longer a focal point of the government and African-Americans have henceforth been relegated to poor quality, segregated nursing homes.
With the passage of Title VI, Medicare and Medicaid, many civil rights activists believed that the fight for equality had been won. Unfortunately, they were sorely mistaken. The dream of equality that so many civil rights activists worked for remains unfulfilled because of the government's lack of dedication to enforce the law. Without the commitment from the government to enforce Title VI, nursing homes have returned to business as usual, discriminating and segregating by race. Illustrated by a decade's worth of empirical studies, the continuation of racial discrimination and segregation violates Title VI and the CERD.
