I. Separate and Unequal: Government Sponsored and Supported Racial Bias Within the U.S. Health Care System

 Ruqaiijah Yearby , Sick and Tired of Being Sick and Tired: Putting an End to Separate and Unequal Health Care in the United States 50 Years after the Civil Rights Act of 1964,  25 Health Matrix: Journal of Law-Medicine 1 (2015) (155 Footnotes)


At the end of the Civil War, Congress debated creating a universal health care system that would cover all U.S. citizens.  The *7 proposal was emphatically vetoed based on arguments that the system would cover newly freed blacks.  The development of private health insurance ensured the defeat of racially integrated government health insurance, and the development of private hospitals guaranteed the racial segregation of patients.  Thus, Caucasians who could afford private health insurance were provided the best health care in private hospitals, while African Americans who could afford private health insurance and pay to stay in the same health care facilities as Caucasians were treated in separate and unequal health care facilities.  The influence of racial bias in the development of the U.S. health care system was so pervasive that the federal government not only funded, but also explicitly and implicitly supported separate and unequal health care services, in contravention of the laws prohibiting racial bias.

For example, the Hospital Survey and Construction Act of 1946, better known as the Hill-Burton Act, allotted funding for the construction of hospitals and nursing homes and granted states the authority to regulate this construction. Hospitals used this funding to construct among other things, hospital buildings, nursing homes, and freestanding geriatric hospitals.  The Hill-Burton Act also provided assurances that adequate health care facilities be made available to all state residents without discrimination of color.  According to Dr. David Barton Smith's article, “The ‘Golden Rules' for Eliminating Disparities: Title VI, Medicare, and the Implementation of the Affordable Care Act,” these assurances were not worth the paper they were written on because “there was no procedure for checking on the validity of the ‘assurances,’ nor was there any authorized course of *8 action for violations.”  This nondiscrimination rule was further negated by section 622(f), which stated:

[S]uch hospital or addition to a hospital will be made available to all persons ... but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group.

Federal support and funding of separate and unequal health care facilities ensured that African Americans' tax money in at least fourteen states was used for the construction of health care facilities from which they were barred.

The passage of Title VI was supposed to put an end to federally supported and funded racial bias within the health care system. However, Dr. Smith noted that in the first year and half year after the passage of Title VI, the government had not allocated any staff to enforce the law, nor were there any investigative tools (reporting requirements, subpoena powers, etc.) or the ability to impose credible sanctions, and it was unclear what constituted noncompliance.  Things changed with the passage of the Medicare and Medicaid Acts.

By linking Title VI to Medicare and Medicaid, the federal government was able to leverage the influx of cash to hospitals and convince them to integrate almost overnight.  The government also harnessed the power of the civil rights movement by using local civil rights groups and activists, many of them health care or government workers, to conduct Title VI inspections in hospitals that refused to integrate even with the promise of cash, or those hospitals that took the cash but did not integrate.  Many, but not all hospitals' certification in Medicare and Medicaid was guaranteed by local civil rights groups and activists after finding that the hospitals were compliant with Title VI.  Unfortunately, this was the extent of the victory under Title VI.

*9 The U.S. Department of Health and Human Services (HHS), the agency responsible for enforcing Title VI, allowed hospitals to move out of predominately African American neighborhoods to predominately Caucasian neighborhoods. HHS ruled that physicians were not required to comply with Title VI,  and it permitted nursing homes to racially discriminate in admission decisions and also in the provision of quality nursing care.

Empirical evidence shows that since the passage of Title VI, racial bias remains rampant in every facet of health care. In the 1970s, some hospitals remained racially segregated by floor, room, and staff.  In the 1980s, African Americans were denied admission to nursing homes that provided excellent quality care.  In the 1990s, studies found that some health care providers believed African American patients were unintelligent, which kept providers from recommending medically necessary cardiac catheterization, curative surgery for early-stage lung cancer, and antibiotics to treat pneumonia, thereby increasing death rates for African Americans.  In the 2000s, research showed that race *10 was a significant factor in the decision to close hospitals between 1937 and 2003.  In the 2010s, physician surveys showed that some pediatricians' racial bias prevented them from prescribing pain medication for African American children following surgery.  Nothing has changed with the enactment of the ACA because it did not fix any of the problems with Title VI.  

Furthermore, although one of the main goals of the ACA is to put an end to racial disparities in health care by increasing insurance coverage, research, data collection, and quality improvement measures,  this has not been enough to put an end to racially separate and unequal hospital, nursing home, and physician care.  Dr. Smith suggests that the ACA can still be used to reduce racial disparities in health care. However, the implementation of the ACA must include “(1) rekindling the spirit of the grass roots movement that captured the Title VI enforcement process with the implementation of the Medicare program, (2) exposing adversaries through data disclosure and taking advantage of the ‘invisible army’ that supports these goals, (3) using the power of both the economic and ethical versions of the golden rule (those with the gold, rule) and (4) creating the political insulation and urgency necessary to make it possible.”  In addition to the suggestions proposed by Dr. Smith, the government must begin to dismantle the structural, institutional, and interpersonal racial biases that perpetuate the United States' separate and unequal health care system.