IV. THE CONTINUATION OF RACIAL DISCRIMINATION IN NURSING HOMES
Sixteen years after the passage of Medicare and Medicaid, government studies showed that elderly African-Americans “use nursing homes 20 percent less than aged whites with the gap growing to 40 percent among those aged 85 and over.” This difference in nursing home use is a result of racial discrimination. The discrimination is institutionalized and accomplished through the denial of admission of elderly African-Americans to quality nursing homes and their relegation to substandard nursing homes.
Quality nursing homes admit a high proportion of private pay patients. Because a disproportionate amount of elderly African-Americans are Medicaid patients, African-Americans are denied admission to these quality nursing homes and admitted to nursing [p988] homes with a high proportion of Medicaid patients, which are customarily of poor or substandard quality. Nevertheless, researchers have found that even when payment status is controlled, there is a disparity in the number of African-Americans admitted to quality nursing homes compared to the number of whites admitted to the same nursing homes. Once African-Americans gain admission to these substandard nursing homes their physical condition is further compromised by the poor quality of care provided. These disparities in quality are found not only in the difference in quality of nursing homes African-Americans are admitted to but can also be found in the quality of care received when they reside in the same nursing home. The number of Medicare deficiencies was two times higher in predominately African-American nursing homes versus predominately white nursing homes. National studies show that African-American “nursing home residents are less likely to receive medically appropriate treatments, ranging from cardiovascular disease medication to pain medication to antidiabetes drugs.” The continuation of these racial disparities in the quality of nursing home care shows that the government has reneged on its promise to end racism and discrimination in the long term care system. The failure of the United States to put an end to these practices is a violation of both Title VI and the CERD.
A. The ‘Neutral’ Denial of Admission to Quality Nursing Homes
Nursing home administrators and States administering federal entitlement programs (Medicaid and Medicare) regulate the admission process of nursing homes. In order for state regulators to regulate [p989] admissions and increase racial integration, the costs of Medicaid would increase. In an attempt to reduce Medicaid costs, States grant nursing homes great discretion in their admission practices and policies. In reality, the admission decisions are left solely to the nursing home administrators. Nursing homes have used this discretion to deny admission to African-American patients through ‘neutral’ policies. Quality nursing homes use the payment status of a patient to determine whether the patient will be admitted, which is a neutral way to prevent or limit the admissions of elderly African-Americans.
Quality nursing homes use payment status to limit the admission of African-Americans in two ways. First, many nursing homes that provide good quality deny elderly African-Americans admission because they are certified as Medicaid patients. These African-Americans are then customarily admitted to nursing homes with a high proportion of Medicaid residents. These nursing homes are usually substandard. The purported reason for this denial of admission is usually that the nursing home prefers to admit private pay patients. However, even when the ‘neutral’ factor of payment status is considered, African-Americans are still disproportionately denied admission to these quality nursing homes and relegated to substandard nursing homes compared to whites. In particular, a New York study showed that the nursing homes providing quality health care were nearly all white, while half of the public nursing homes that traditionally were of poor quality had residents who were African-[p990] American or other minority groups. Although Medicaid was the main payment source for most of these low quality and substandard nursing homes, there was still a significant racial disparity in admission and quality of care. Thus, the researchers attributed this difference to “a combination of [racial] discrimination by nursing homes and steering by hospital discharge planners.”
The second way nursing homes neutrally deny elderly African-Americans admission to nursing homes is by limiting the number of beds they certify for Medicaid patients. The federal specifically limits the number of beds each nursing home may certify for Medicaid patients as a means to control costs. According to Professor Vernellia Randall, this federal policy limiting the number of Medicaid certifiable beds “encourages these facilities to move existing patients who have depleted their assets and are now newly eligible for medicaid into medicaid beds as they become available.” Because “it is mostly White women who have the assets to afford long-term care without medicaid and who live long enough to deplete those assets,” African Americans are systematically denied admission to these quality nursing homes. Additionally, most nursing homes do not certify all their allowable beds at once because the nursing home tries to admit mostly private pay patients. Therefore, as Professor Sidney Watson notes, nursing homes use Medicaid as a means to screen patients. If a nursing home chooses “to accept a white Medicaid patient, another Medicaid bed can be certified; if a home does not wish to accept an African-American Medicaid patient, the home simply may refuse to [p991] certify another bed for Medicaid payment though it has bed space available.”
Thus, this seemingly neutral factor of payment status is a ‘separate and independent barrier’ that serves as the means by which nursing homes discriminate against African-Americans through institutional racism. Barred admission from these quality nursing homes, African-Americans are admitted to predominately Medicaid nursing homes, which traditionally provide poor or substandard quality.
B. The ‘Neutral’ Racial Disparities in the Provision of Quality Care
The quality of nursing home care is defined by the health of the residents and by the nursing home's compliance with quality of care regulations under Medicare and Medicaid. When comparing the quality of care African-Americans receive in nursing homes with the quality of care whites receive in that same nursing home, the disparities are significant. Additionally, racial disparities in the quality of care provided in predominately African-American nursing homes compared to predominately white nursing homes are evidenced by a plethora of research studies over the last decade.
A study of several states, including New York, Kansas, Mississippi, and Ohio, found that when whites and African-Americans reside in the same facility, they receive a different level of care. African-Americans traditionally receive poor quality care. For example, the standardized admission resident assessment tool showed that late stage pressure sores are more common to African-Americans, while early stage pressure sores are more common to whites. The higher rate of late-stage pressure sores in African-Americans is based on the fact that they are commonly under-diagnosed. Researchers assert that the reason for this disparity is the failure for physicians and nurses to correctly diagnosis pressure in non-whites. Nevertheless, [p992] this ‘neutral’ practice has denied African-Americans necessary preventative and curative care. While whites receive treatment before the pressure sore becomes too severe, African-Americans and other minorities suffer without treatment until the pressure sore becomes irreparable.
In addition to these racial disparities in care when residing in the same facility, there are significant disparities when the races reside in different nursing homes. According to national data complied from Medicare forms, African-Americans reside in nursing homes with “lower ratings of cleanliness/maintenance and lighting.” Moreover, the number of deficiencies is greater in nursing homes that house a majority of Medicaid patients. These Medicaid-only facilities are traditionally of poor quality and predominately house African-Americans. In fact, some researchers have called Medicaid-only facilities ‘low-tiered facilities' because of their poor quality. This is because 41% of predominately African-American nursing homes have Medicaid as the primary payer. Moreover, being African-American meant that the patient was twice as likely to be admitted to a primarily Medicaid payer nursing home and increased the probability of the nursing home deficiencies by 24%.
The national data shows that nine percent of whites reside in ‘low-tiered facilities' compared to forty percent of African-Americans that reside in ‘low-tiered facilities'. The national average shows that African-Americans are three times more likely to be in ‘low-tiered facilities' than whites. The placement of a majority of African-Americans in ‘low-tiered facilities' is significant because these nursing homes have higher incidences of pressure sores, use of physical restraints, inadequate pain control, and use of antipsychotic medications. The admission of African-Americans to ‘low-tiered facilities' based on ‘neutral’ admission policies has subjected them to substandard nursing home care.
[p993] Although these findings of institutional racism have been presented to OCR, the federal agency mandated by Title VI to prevent racial discrimination and de facto segregation, nothing has been done. This has left African-Americans with no regulatory avenue to put an end to this discrimination. Notwithstanding OCR's inability to enforce Title VI, the Supreme Court barred private parties from bringing cases to eradicate racial discrimination as a result of disparate impact and delegated the task to the ineffective OCR. OCR's lack of Title VI enforcement and the Supreme Court's ruling has left elderly African-Americans in substandard nursing homes as a result of racial discrimination without any means to rectify the problem. Thus, African-Americans must seek international remedies by filing a claim against the Untied States for violating Title VI, a violation of the CERD.
