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Ruqaiijah Yearby

Ruqaiijah Yearby, Striving for Equality, but Settling for the Status Quo in Health Care: Is Title VI More Illusory than Real?, 59 Rutgers Law Review 429 (Spring 2007) (466 Footnotes Omitted)

       Julia Morgan sought to place her 76-year-old uncle, Elmer Price, in a nursing home. Mr. Price suffered from arthritis in his arms and legs, walked with a cane, had poor eyesight, and was starting to show signs of senility. He had $15,000 in savings and a supplemental insurance policy that would assist with his nursing home payment. On March 8, 1995, Ms. Morgan visited a nursing home and asked to speak with someone in admissions. She was directed to a social worker at the nursing home. When asked about the availability of a bed, the social worker told her that there was a waiting list, but didn't know how many people were on the waiting list. She suggested that Ms. Morgan return later in the morning to talk to the executive director about the waiting list. That afternoon Ms. Morgan returned to the nursing home and asked to speak with the executive director. The executive director stated that the nursing home had rooms available, but they were reserved for patients who were in the hospital. She added that there were four people on the waiting list. Although Mr. Price was a private pay patient, the executive director advised Ms. Morgan that her uncle would have to be approved by Medicare or Medicaid, and described some of the social activities that occurred at the nursing home.

      As Ms. Morgan was leaving, she passed Janice Popowich. Ms. Popowich sought placement for her 78-year-old father-in-law, John Popowich. Mr. Popowich suffered from some memory loss, used a walker, and was hard of hearing. He had approximately $10,000 in savings and social security income of just over $500 per month. Like Ms. Morgan, Ms. Popowich was directed to the social worker for assistance with placing her father-in-law. The social worker inquired whether Mr. Popowich would qualify for Medicaid and took the time to explain Medicaid payments to Ms. Popowich. When Ms. Popowich inquired about the availability of a bed, the social worker informed her that she was uncertain about the waiting list because the administrative office handled it. When Ms. Popowich requested to speak with someone in that office, the executive director appeared within a few minutes to speak with her. Only a short time after Ms. *Morgan left, the executive director told Ms. Popowich that a bed was available immediately in the private pay section of the nursing home. The executive director said that the nursing home could admit Mr. Popowich within two to four days.

      Even though their cultural differences, payment status, manner of seeking admission, physical condition, neighborhood of residency, and educational level were the same, the nursing home only offered a bed to Mr. Popowich. The only difference in the information given to the nursing home was their race. Mr. Price is African American and Mr. Popowich is White. The nursing home submitted several reasons for this disparate treatment. First, the nursing home said that cultural differences kept them from offering the room to Mr. Price. The facility served mostly Hungarian residents who did not speak English, attended Hungarian religious services, and enjoyed Hungarian cultural services. According to the facility, Mr. Price, an African American, did not fit in. However, Mr. Popowich was neither Hungarian nor did he speak any other language than English. Second, the nursing home said that the difference in payment status was an issue because it was unclear whether Mr. Price would have qualified for Medicaid, while it was apparent that Mr. Popowich would have qualified for Medicaid. Upon admission both potential residents were private pay patients, and based on their assets they would have qualified for Medicaid at the same time. Additionally, Mr. Price had supplemental insurance that would have paid more to the facility than the Medicaid payments used by Mr. Popowich. Finally, the nursing home noted that it did not admit patients through walk-in admissions, rather it obtained residents from hospital or community referrals. Nevertheless, Mr. Popowich was a walk-in patient, who sought admission as Ms. Morgan was leaving, and was offered a bed immediately. Two decades of empirical data show that this story is a common occurrence, not simply an isolated *incident. Many legal and medical experts assert that the most likely explanation for Mr. Price's lack of equal access to quality nursing home care is racial discrimination. But how can this be the case forty-two years after the passage of Title VI?

      Title VI of the Civil Rights Act of 1964 prohibits nursing homes receiving Medicare and/or Medicaid from using race to deny admission or quality care to African Americans. Nevertheless, decades' worth of research studies show that African Americans are systematically denied equal access to quality nursing homes because of their race. This evidence has been submitted to the federal government in the form of research findings and in the form of complaints against the perpetrating nursing homes. Unfortunately, the United States government has done little to put an end to these practices even though Title VI prohibits racial discrimination. Thus, one must ask whether the governmental protections offered by Title VI are more illusory than real in the health care industry.

**This is a true story. Ms. Morgan and Ms. Popowich were government testers sent to the facility in response to complaints concerning racial discrimination in the denial of admission to the facility. The only change to the story is the omission of the name of the facility and employees. See Trial Brief of the United States at 4-6, United States v. Lorantffy Care Ctr., 999 F. Supp. 1037 (N.D. Ohio 1998) (No. 97-CV-00295). This case was filed by the federal government against a nursing home for violating the Fair Housing Act based on evidence of racial discrimination.