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Ruqaiijah Yearby

Reprinted from: Ruqaiijah Yearby, Is it Too Late for Title Vi Enforcement? - Seeking Redemption of the Unequal United States' Long Term Care System Through International Means, 9 DePaul Journal of Health Care Law 971-1004 (2005) (179 Footnotes Omitted)

      “Segregation is the adultery of an illicit intercourse between injustice and immorality.” Reverend Dr. Martin Luther King, Jr.


      Permeating every facet of life including health care, racial segregation has been a part of the history of the United States since its creation.  In fact, the history of African-Americans has been one of tragedy, laced with the hope of equality.  This tragedy is a result of three hundred years of slavery, one hundred years of the limited freedom of segregation, three years of the promise of equality granted from the civil rights struggle, and thirty-seven years of resegregation through white flight and institutional racism.  Hence, African-Americans have been fighting for the right to freedom, equality, and human dignity for the last four hundred and forty years.  Initially most racism was intentional and expressed through de jure segregation, as evidenced by federal funding of the construction of racial segregated health care facilities.   Now most racism, expressed through de facto segregation, is subtly incorporated into the daily practices of institutions causing an adverse disparate impact on African-Americans.   This institutional [p972] racism “establishes separate and independent barriers” through the neutral “denial of opportunities and equal rights to individuals and groups that results from the normal operations of the institutions in a society.” Once racism becomes institutionalized, the institution is racist whether or not the individuals maintaining those practices have racist intentions.

      For example, elderly African-Americans are disproportionately placed in substandard nursing homes.   The reason for this placement is because most high quality nursing homes accept a high proportion of private pay patients.   These facilities limit the admission of Medicaid patients, which are customarily elderly African-American patients.   Consequently, elderly African-American patients are placed in nursing homes with a high proportion of Medicaid patients, which traditionally provide substandard care.   The disparate impact of placing elderly African-Americans in substandard quality nursing homes based on their payment status is overshadowed by the institutional racism that is the underlying reason for these practices.  As some experts argue, the ‘neutral’ policies of denying elderly African-American Medicaid [p973] patients admission to quality nursing homes is not so neutral. Professor Sidney Watson notes that 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 a black Medicaid patient, the home simply may refuse to certify another bed for Medicaid payment even though it has bed space available.” Thus, the ‘neutral’ denial of admissions of elderly African-Americans to quality nursing homes based on the normal operations of the nursing home to limit the number of Medicaid patients is a ‘separate and independent barrier’ that prevents African-Americans from equal access to quality nursing homes. This is institutional racism. The International Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) prohibits institutional racism funded by the United States.

      The CERD directs member states, such as the United States, to “condemn racial discrimination and undertake to pursue by all appropriate means . . . a policy of eliminating racial discrimination in all its forms.” Member states are in violation of the CERD when they fail to implement measures to eradicate intentional and unintentional forms of racial discrimination. Private parties have the right to file a complaint concerning a member state's violation of the CERD with the Committee on the Elimination of Racial Discrimination (“the Committee”) when there is no meaningful way to address the issue domestically. Once a complaint is found to be valid, not only does the member state have to change its policies and procedures, but also there is a right to seek reparations for damages suffered. Although it took twenty-eight years for the United States to ratify the CERD, it is now in force. Nevertheless, as Professor Vernellia Randall has noted, the United States government has failed to abide by the mandates of the [p974] CERD by continuing to fund the long term care systems that use ‘neutral’ policies such as payment status in a discriminatory way. The effects of institutionalized racism on the well being of elderly African-Americans is evidenced by their failure to access quality health care regardless of their gender, education, health insurance, or income-level.

      Among the most vulnerable members of society, elderly African-Americans are less likely to receive breast cancer screening, eye examinations for patients with diabetes, beta blocker medication after a heart attack, and follow-up treatment after hospitalization for mental illness.   These disparities include not just actual care but a more general difficulty in accessing other services in nursing homes.  Traditionally, African-Americans have been denied admission to quality nursing homes and relegated to substandard nursing homes.   Some researchers have argued that these practices and racial disparities are a result of the neutral factors such as the low reimbursement rates of Medicaid, which pays for a majority of African-Americans' nursing homes stay.   However, many experts have noted that even when these [p975] factors are controlled, elderly African-Americans still suffer denial of admission to quality nursing homes and relegation to substandard nursing homes. Thus, these seemingly neutral factors are ‘separate and independent barriers' that serve as the means by which nursing homes discriminate against African-Americans through institutional racism. Unfortunately, the United States government has done little to put an end to these practices even though Title VI of the Civil Rights Act of 1964 expressly prohibits them.

      Title VI forbids nursing homes receiving Medicare and/or Medicaid from using racism to deny admission or quality care to African-Americans.   In its history of thirty-seven years, the Office of Civil Rights (“OCR”), a division of the U.S. Department of Health and Human Services (“HHS”) responsible for enforcing Title VI in health care, has never terminated a nursing home proven to have violated Title VI. Moreover, OCR does not collect racial data or admission flow data, regulate nursing home's admission practices, or survey the racial makeup of nursing homes as required by Title VI. Without collecting data or regulating admission practices, OCR cannot prevent the institutional racism in nursing homes causing a disparate impact on elderly African-Americans. Consequently, the burden of solving this problem has been left to elderly African-Americans, who have sought to rectify these discriminatory practices by suing the perpetrators for violation of Title VI. Because there are no smoking guns, most cases have centered on the theory of disparate impact and have been [p976] unsuccessful. The United States put an end to private Title VI claims asserting discrimination through disparate impact with its decision that Title VI only grants private individuals the right to sue for intentional racism. The right to rectify disparate impact cases in health care was left to OCR, which to date, has never filed a lawsuit under Title VI to protect minorities from racial discrimination in health care. Therefore, the Supreme Court's ruling that the federal government is responsible for the eradication of discrimination effectively eviscerated the protections of Title VI because OCR has failed to enforce the requirements of Title VI in the long-term care system.

      Left with no avenue to rectify this discrimination through the United States' courts or through regulatory action, the most effective means by which to address the continuation of institutional racism in the long term care system is internationally.   The failure of the United [p977] States to stop discrimination and enforce Title VI violates the CERD. To obtain the fulfillment of the promise of equality, elderly African-Americans need to submit a complaint to the Committee asserting that the United States is in violation of the CERD, and there are no means by which to address this issue under U.S. law. Due to the egregiousness of the United States' actions, the Committee should rule that the United States must change its policies and give elderly African-Americans reparations for the harms suffered. Although the resolution of the case by the Committee is nonbinding, the complaints can take the case to the International Court of Justice whose findings are binding. This is a better outcome than those available through the United States, which seeks to eradicate racism and racial segregation through voluntary observance and empty promises of compliance.

      This article examines the United States' disregard for elderly African-Americans right to equality.  Evidenced by the federal government's failure to enforce the mandates of Title VI, this disregard has resulted in the relegation of elderly African-Americans to substandard quality nursing homes.  Therefore, African-Americans need to seek redemption through international means, such as filing a claim for the violation of the CERD.  A brief discussion of the history and contents of the CERD is in Part II.  The government's solution to eradicate racial discrimination and segregation in the long-term care system is examined in Part III.  One of the government's solutions was the enactment of Title VI prohibiting racial discrimination and segregation.  Forty-one years after the enactment of Title VI, the government has neglected its duties to resolve this problem, and institutional racism is rampant.  The current problems with the long term care system caused by the United States' violation of Title VI, a violation of the CERD, is discussed in Part IV.  To stop the U.S. from continuing to ignore the racial segregation and discrimination present in the long term care system, elderly African-Americans must file a claim for the United States' violation of the CERD.  Section V discusses how [p978] the United States is in violation of Title VI and the CERD and how to solve this violation by filing a claim.