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Ruqaiijah Yearby

Ruqaiijah Yearby, African Americans Can't Win, Break Even, or Get out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (Spring-Summer 2010) (214 Footnotes).


I. Introduction

Ruqaiijah Yearby, African Americans Can't Win, Break Even, or Get out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (Spring-Summer 2010) (214 Footnotes).

 

Ruqaiijah YearbyBennie Saxon had dementia. Because his family could not care for him at home, he was placed at Alden Wentworth Rehabilitation and Health Care Center (“Alden Wentworth”), a predominately African American nursing home in Chicago, Illinois. On May 4, 2009, he fell four stories to his death. The Cook County Office of the Medical Examiner ruled Mr. Saxon's fall an accident, but his family alleges that his death was caused by neglect. This was not the first incident at this nursing home.

Between 2004 and 2009, thirteen civil cases were filed against Alden Wentworth, more than three times the lawsuits filed against half of the city's ninety-one nursing homes. In fact three years prior to Mr. Saxon's death, the nursing home settled a case for the death of Bernetta Hall, a disabled forty-six-year-old woman. Mrs. Hall entered Alden with a single pressure sore at the base of her spine; however, after just five weeks, “she developed sores on her heels, buttock and ear because of the poor care she received at the home,” which contributed to her death.  

Alden Wentworth, a predominately African American nursing home, is part of a chain of thirty for-profit nursing homes throughout Illinois, among which are three predominately African American nursing homes and sixteen predominately Caucasian nursing homes.   All three of the predominately African American nursing homes received the lowest quality ranking by the federal government, whereas fewer than half of the sixteen predominately Caucasian facilities received that same rating.   In fact, the two nursing homes that received the highest quality ratings were predominately *1178 Caucasian.   However, a 2009 investigation by the Chicago Reporter (“Reporter”) showed that Alden Wentworth “has the worst rating a nursing home can get--three times the number of lawsuits of half of Chicago nursing homes--and that residents get less than half the time each day with staff than residents at a predominantly white facility in Evanston operated by the same owner.”  

Empirical data show  that racial disparities in the quality of care provided by nursing homes are a common occurrence, not isolated to Illinois.   Nine years after the publication of the groundbreaking Institute of Medicine Study (“IOM study”) Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare,   which acknowledged continued racial disparities in health care and provided suggestions for the elimination of these disparities, racial disparities still remain. One chief example of the continuation of racial disparities in health care is in the provision of nursing home care.  

Decades of empirical research studies have shown that racial disparities in accessing quality nursing home care continue to exist, particularly between African Americans and Caucasians.   In the 1980s and 1990s, empirical studies showed that *1179 elderly African Americans had difficulty in obtaining access to nursing home care. Specifically, research conducted in New York and North Carolina revealed that African Americans experienced delays in transfers to nursing homes because they were denied admission to nursing homes based on their race.   Since these studies, elderly African Americans have been using nursing homes more than Caucasians; however, African Americans have been relegated to racially segregated nursing homes.  

Moreover, ten years of research show that African Americans disproportionately reside in substandard nursing homes compared to Caucasians.   For instance, empirical data from several states, including New York, North Carolina, and Illinois, show that race remains the greatest predictor of the provision of poor-quality nursing home care.   The persistence of racial disparities in the provision of quality nursing home care is significant because a considerable number of elderly African Americans will need access to quality nursing home care within the next twenty years.

*1180 It is predicted that the use of long-term care services,   such as nursing homes, will increase from eight million in 2000 to nineteen million in 2050.   Since 1995, the population of African Americans residing in nursing homes has been greater than the Caucasian population, and this usage pattern is expected to continue.   Because the increase in nursing home use will be by elderly African Americans, and African Americans disproportionately reside in poor quality nursing homes, there is great urgency in putting an end to racial disparities in the provision of quality nursing home care.

Overall, a review of the empirical data provides a dismal picture of the accessibility of quality nursing home care available to elderly African Americans. Therefore, it is important to identify the causes of the problem. Some scholars have asserted that socioeconomic status and residential segregation explain why racial disparities in nursing homes persist, while others have submitted that racial bias is the culprit.   I suggest that these reasons are inextricably intertwined.

Racial bias operates on three different levels in health care: structural, institutional, and interpersonal.   Structural bias in health care allows those with privilege, such as wealthy Caucasians, to obtain the best quality nursing home care available.   Those without privilege, such as the poor and minorities, are relegated to poor quality nursing homes. The institutional structures of nursing home regulation, such as the lack of certificate-of-need programs, allows nursing home owners to leave predominately poor and minority neighborhoods devoid of health care services to relocate to over-serviced affluent areas.   Health care providers' conscious and unconscious racial bias used to determine who is admitted to the nursing home based on race illustrates interpersonal discrimination.   Even though evidence shows that *1181 racial bias is the central reason for racial disparities in the provision of quality nursing home care, the nursing home regulatory system does not consider racial bias when regulating the quality of nursing home care.   Instead of addressing the root cause of quality problems in predominately African American nursing homes, regulators just evaluate the effects: poor quality. Furthermore, structural, institutional, and interpersonal racial bias are present in the nursing home regulatory system, leaving African Americans without protection or exacerbating the disparities in quality. One example of these problems is the federal government's nursing home quality improvement program, the Special Facility Focus Initiative (“SFF Initiative”).  

In 1998, the Centers for Medicare and Medicaid Services (“CMS”), an agency in the U.S. Department of Health and Human Services (“HHS”),   initiated the SFF Initiative, a quality improvement program for substandard nursing homes. Under the SFF Initiative, states are required to visit nursing homes designated as special focus facilities usually twice a year to ascertain the quality of care provided residents.   If the quality in the nursing homes does not improve after three visits or within 18 months, CMS may involuntarily terminate the nursing home from the Medicare and/or Medicaid programs.   Notably, most poor quality nursing homes that are predominately African American are rarely in this program,   even though evidence shows that these nursing homes tend to provide worse care than predominately Caucasian nursing homes.   The poor quality predominately African American nursing homes on the list remain on the list longer than 18 months and do not improve enough to be removed from the list.  

*1182 Using the problems with the long-term care system as a case study, this Article highlights the fact that racial disparities persist in health care because of racial bias. Section II reviews empirical data illustrating the continuation of racial disparities in accessing nursing home care to explain why African Americans cannot win. Showing why African Americans cannot break even, Section III analyzes research revealing racial disparities in the provision of quality nursing home care. Demonstrating why African Americans cannot get out of the system, Section IV discusses the increased disability of African Americans that forces them to seek medical care from nursing homes, even though the care provided is substandard. Section V discusses the causes of these racial disparities in the provision of quality nursing home care. Finally, Section VI discusses the failures of race-neutral policies to address the root causes of racial disparities.

Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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