V. INACTIVITY AND INSTITUTIONAL RACISM: THE GOVERNMENT'S VIOLATION OF TITLE VI
The United States promised to eradicate racial discrimination against African-Americans in all facets of public life with the passage of the Civil Rights Act of 1964. In particular, the enactment of Title VI was significant 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.” Section 602 of Title VI requires that the United States government, federal and state, prevent institutional racism preventing African-Americans from being admitted to and provided quality care by nursing homes funded by the government. However, through inactivity and intentional actions, the United States has reneged on its promise, violating Title VI and the spirit and language of the CERD, as evidenced by the empirical data of the continuation of racial inequalities and discrimination in nursing homes. By under funding OCR, the division responsible for Title VI enforcement in health care, the government has intentionally failed to address this racial discrimination even though government funded research studies show that there are racial inequalities in the provision of nursing home care.
A 1987 report from the United States House of Representatives Committee on Government Operations showed “that OCR unnecessarily delayed case processing, allowed discrimination to [p994] continue without federal intervention, routinely conducted superficial and inadequate investigations, failed to advise regional offices on policy and procedure for resolving cases, and abdicated its responsibility to ensure that HHS policies are consistent with civil rights law, among other things.” Furthermore, the House Committee on Government Operations “criticized OCR's reluctance to sanction noncompliant recipients and recommended that OCR pursue investigations of complaints as well as compliance reviews in more systematic ways.” The failure to resolve cases ensuring that nursing homes do not continue to racially discriminate is in direct contravention of the requirements of section 602, which requires OCR to prohibit racial discrimination.
Since this report and several reports from the U.S. Commission of Civil Rights regarding the problems of OCR, OCR has not made a good faith effort to fulfill its duties. In the 1990s, when OCR received complaints from private parties, it still failed to fulfill its Title VI mandate of combating racial discrimination. OCR has made numerous findings of noncompliance by nursing homes, but every case has been resolved through voluntary commitments to cease and desist their discriminatory practices. In 1993, ten of the twenty-one complaints filed resulted in findings of noncompliance of the requirements of Title VI. Every complaint was resolved through voluntary agreements. No cases were referred to the U.S. Department of Justice nor did HHS initiate any administrative proceedings. Thus, the perpetrators of racial discrimination were given a slap on the hand, while the victims of the discrimination were left with no relief. In addition to handling complaints, OCR's internal policies to fulfill the dictates of Title VI require OCR to collect and review nursing home data such as the number of beds and racial and ethnic data on patient admissions. OCR has not fulfilled this mandate of Title VI.
[p995] In 1994, HHS decreed that it would not collect racial and ethnic data from nursing homes receiving federal funding. OCR does not review any racial data of residents from the states or collect any reports on services provided, so there is no opportunity to evaluate whether racial groups are treated disparately. Without the collection of racial and ethnic data there is no means by which OCR can evaluate whether nursing homes are discriminating against African-Americans. Now that nursing homes have implemented “facially neutral” practices that have a disparate impact on African-Americans, it is impossible for OCR to evaluate these discriminatory practices without collection or review of this data. For instance, whether a nursing home decides not to admit a patient because he or she is African-American is difficult to ascertain because the OCR does not collect the data of those who apply for admission. Thus, there are no statistics indicating who is admitted versus who is denied.
The failure of OCR to prevent racial discrimination and segregation in nursing home admissions and provision of care is a violation of Title VI. Section 602 of Title VI requires the federal government to prevent racial discrimination in access to care in government-funded entities. OCR is the federal division responsible for the enforcement of Title VI in health care. OCR has not done its job in enforcing the dictates of Title VI in the long-term care system. It does not collect or review racial data from the States to determine whether nursing homes are discriminating against African-Americans. Moreover, when OCR receives private complaints concerning the racially discriminatory practices of nursing homes, it does little more than accept the offending nursing home's promise that the violations will cease. Private parties have tried to put an end to the discrimination by filing civil cases against nursing home violators, but the courts have barred these suits claiming that the authority to rectify the problems remains with the same government agencies notorious for not enforcing Title VI.
