Health Care Policy
Section Author
Vernellia R. Randall

Institute on Race, Health Care and the Law

The University of Dayton School of Law

Key Findings

� US health policy is inconsistent with several provisions of the CERD including virtually all of Articles 2 and 5.

� The Government's own federal agencies have repeatedly found discrimination and bias in health care but have consistently failed to address these problems.

� Disparities and bias range from treatment and diagnosis to access, funding, training and representation of racial minorities in the health care system.

� Millions suffer and thousands lose their lives each year as a result of discrimination in health. Current trends toward "managed care" only exacerbate disparities.

Key Recommendations

� The current law has proven ineffective in eliminating racial discrimination in health care. The Government should act now to develop a health policy, practice and program infrastructure that brings it in compliance with the CERD.

� The US should define "justifiable" discrimination to exclude racial discrimination resulting from policies and practices that limit access and quality of health care received; and racial discrimination resulting from policies and practices that have a disparate impact.

� The US should require significant progress to be made in eliminating disparities in health and health care.

� The US should require a unified data collection system in government programs (e.g., Medicaid, Medicare, Child Health Insurance Program and military) which would allow easy determination of discriminatory practices.

III. Health Care Policy

Summary of CERD Compliance Issues

70. In the area of health care, the United States has failed to meet its obligation under Article 2(1)(a), Article 2(1)(c), Article 2(1)(d) and Article 5(e)(iv) of the Convention on the Elimination of All Forms of Racial Discrimination (CERD).

71. Article 2(1)(a).

The United States has failed to "ensure that all public authorities and public institutions, national and local, shall act in conformity" with its obligation under Article 2(1)a. Throughout out its 1999 report to the President and Congress, the United States Commission on Civil Rights (the US oversight agency) found significant weaknesses in the government's enforcement efforts. Specifically, the commission noted that:

72. "The deficiencies in the [government's] enforcement efforts... largely are the consequences of [a] fundamental failure to recognize the tremendous importance of its mission and to embrace fully the opportunity it has to eliminate disparities and discrimination in the health care system. Although [the government through the] Office of Civil Right (OCR) has attempted to identify noncompliance with the Nation's civil rights laws over the years, it has failed to understand that all of its efforts have been merely reactive and in no way have they remedied the pervasive problems within the [health care] system. [The government's] failure to address these deeper, systemic problems is part of a larger deficiency ...a seeming inability to assert its authority within the health care system. As a result of the myopic perspective... the [government] appears unable to systematically plan and implement the kind of...'redevelopment' policy that it so clearly needs." (1)

73. Through its 1999 study, the Commission on Civil Rights found significant weaknesses in the Office for Civil Rights' enforcement efforts. In particular, the Commission noted the government's failure to implement many of the recommendations indicated by the Commission in its report on Title VI enforcement issued in 1996:(2)

74. "Despite some focus on minorities' health generally the government has failed to enforce civil rights laws vigorously and appropriately. The failure of the government to be proactively involved in health care issues or initiatives has resulted in the continuance of policies and practices that, in many instances, are either discriminatory or have a disparate impact on minorities and women."(3)

75. Thus, there remain disparities in access to health care and in health care research, and unequal distribution of health care financing in the United States as a result of the US failure to meet its obligation under Article 2(1)(a).(4)

76. Article 2(1)(c)

Under Article 2(1)(c), the United States has failed to meet its obligation. While the United States has undertaken extensive measures to review national laws and regulation which have the effect of creating or perpetuating racial discrimination, it has failed to make necessary revisions and modification in the law as recommended by the US Commission on Civil Rights. As noted by the Commission:

77. "In the United States today, there remain tremendous racial and gender disparities in access to quality health care services and health care financing, as well as in the benefits of medical research. Many of these disparities continue to plague the Nation's health care system because the [government] ... has failed to enforce the crucial nondiscrimination provisions of the Federal civil rights laws with which it is entrusted. The ... enforcement operation is lacking in virtually every key area ... Most significantly, . . .[the government] generally has failed to undertake proactive efforts such as issuing appropriate regulations and policy guidance, allocating adequate resources for onsite systemic compliance reviews, and initiating enforcement proceedings when necessary."(5)

78. The United States, while undertaking measures to review the national effect of creating or perpetuating racial discrimination, has failed to "amend, rescind or nullify any laws and regulations" that have such effects. There has been little or no judicial activity in reviewing and shaping anti-discrimination law in health care. The government's report fails to identify this lack of oversight. The United States, despite taking five years to submit a report under its obligation, has failed to review state and local laws and regulations.

79. Article 2(1)(d)

Under Article 2(1)(d), the United States has failed to meets its obligation to "bring to an end, by all appropriate means, including legislation" racial discrimination in health care. Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunity in employment, education, and housing, it has not given health care the same status. ...Unequal access to health care is a nationwide problem that primarily affects women and people of color.(6) According to the Commission on Civil Rights:

80. "...for 35 years, [the government through] HHS and its predecessor agency, the Department of Health, Education, and Welfare (HEW), have condoned policies and practices resulting in discrimination against minorities and women in health care. In many ways, segregation, disparate treatment, and racism continue to infect the Nation's health care system. [The government] . . .has pursued a policy of excellence in health care for white Americans by investing in programs and scientific research that discriminate against women and minorities. [The government]... essentially has condoned the exclusion of women and minorities from health care services, financing, and research by implementing an inadequate civil rights program and ignoring critical recommendations concerning its civil rights enforcement program. The Commission, the HHS Office of Inspector General, and the HHS Civil Rights Review Team have offered many recommendations for improving civil rights enforcement ... However, failure to implement these recommendations has resulted in failure of the Federal Government to meet its goals of ensuring nondiscrimination and equal access to health care for minorities and women."(7)

81. Article 5(e)(iv)

Under Article 5(e)(iv), the United States has failed to "prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, [including] the right to public health, medical care, social security and social services." This failure has been noted by the US Commission on Civil Rights:

82. "Over the past 35 years the US Commission on Civil Rights has been monitoring health care access for minorities and women, focusing primarily on the important role civil rights enforcement efforts can play in providing equal access to quality health care. Although there have been some improvements in accessing health care over the last three decades, the timid and ineffectual enforcement efforts of the [government through the] Office for Civil Rights (OCR) at the US Department of Health and Human Services (HHS) have fostered, rather than combated, the discrimination that continues to infect the Nation's health care system. This is evident in the segregation, disparate treatment, and racism experienced by African Americans, Hispanic Americans, Native Americans, Asian Americans and Pacific Islanders, and members of other minority groups, as well as in the persistent barriers to quality health care that continue to confront women."(8) [emphasis added]

83. According to the US Commission on Civil Rights, there is substantial evidence that discrimination in health care delivery, financing, and research continues today. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by Federal agencies. The Commission noted that Health and Human Service's inability to enforce civil rights laws and the Office of Civil Right's isolation from the rest of the agency, as well as the civil rights community, have resulted in a failure to remove historical barriers to quality health care for minorities. This, in turn, has perpetuated these barriers.(9)

84. For nearly 20 years, from 1980 to 1999, the government has neglected its civil rights enforcement responsibilities to an almost unprecedented degree. Neglect of its civil rights enforcement responsibilities has been well documented.(10)

The consistently weak record has resulted, in part, from the lack of commitment to civil rights enforcement in the United States. (11) According to the Commission on Civil Rights, the government's steadfast refusal to address concerns about the quality of its efforts indicates a fundamentally limited view of the role of civil rights enforcement in the health care industry -- a view that is deeply ingrained within the culture of the Department of Health and Human Services (HHS).(12) "What makes this disregard of recommendations for vigorous civil rights enforcement efforts particularly shameful is that HHS provides federal assistance to medical programs and facilities that save lives every day."(13) While the activities of agencies charged with protecting the rights of equal access to education and employment are matters of tremendous importance, the failure to conduct strong civil rights enforcement in health care literally means the difference between life and death for many people of color. (14)

70. However, the responsibility for this shameful record does not lie with HHS alone. The rest of the federal Government, namely Congress and the President, has failed to offer the oversight, support, and assistance to civil rights enforcement activities that HHS so desperately needs.(15)

71. Congress has not conducted an oversight hearing on OCR's civil rights enforcement activities since 1987. Congress also has drastically reduced the agency's annual appropriation to a point where it is extremely difficult for the agency to perform its responsibilities effectively. While the [former] Administration has worked with HHS to implement minority health initiatives, none of these efforts contained a strong civil rights enforcement component or attempts to develop the key role that OCR should be playing in these efforts."(16) The commission notes that this lack of civil rights enforcement is "particularly ineffective when compared with some of the more sophisticated civil rights enforcement programs the Commission has evaluated." (17)

72. Finally, the Commission on Civil Rights notes that this lack of enforcement is of particular concern "because many new forms of discrimination against minorities have emerged as the Nation has moved from "fee-for-service" medicine to managed care. Without appropriate ... [civil rights enforcement] ...neither recipients or beneficiaries of Federal funding, nor OCR investigative staff can develop a clear understanding of what constitutes discrimination by managed care and other health care organizations"(18)

73. One such form of discrimination is embedded in the "business necessity" rationale where, under the guise of cost cutting and fiduciary risk reduction, policies and practices that are biased against racial minorities are considered "justifiable discrimination." The CERD's use of the term "unjustifiable disparate impact" indicates that the Convention also covers those practices that appear race-neutral but create statistically significant racial disparities and are unnecessary, i.e., unjustifiable.

Overview of Racial Disparity in Health Care

"Of all the forms of inequality, injustice in health is the most shocking and the most inhuman."

-- Martin Luther King, Jr.

74. Equal access to quality health care is a crucial issue facing the United States. For too long, too many Americans have been denied equal access to quality health care on the basis of race, ethnicity, and gender. Cultural incompetence of health care providers, socioeconomic inequities, disparate impact of racially neutral practices and policies, misunderstanding of civil rights laws, and intentional discrimination contribute to disparities in health status, access to health care services, participation in health research, and receipt of health care financing.(19)

75. The need to focus attention on racism inherent in the institutions and structures of health care is overwhelming. Racial minorities are sicker than white Americans; they are dying at a significantly higher rate. The many examples of disparities in health status between racial/ethnic groups and between men and women are indisputable proof.

� Infant mortality rates are 2.5 times higher for blacks and 1.5 times higher for American Indians, than for Whites.

� The death rate for heart disease for blacks is higher than for whites.

� Individuals from racial and ethnic minority groups account for more than 50 percent of all AIDS cases although they only account for 25 percent of the US population.

� The prevalence of diabetes is 70 percent higher among blacks and twice as high among Hispanics as among whites.

� Asian Americans and Pacific Islanders have the highest rate of tuberculosis of any racial/ethnic group.

� Cervical cancer is nearly five times more likely among Vietnamese American women than White women.

� Women are less likely than men to receive life-saving drugs for heart attacks and more women than men require bypass surgery or suffer a heart attack after angioplasty.(20)

70. In their seminal work, An American Dilemma: A Medical History of African Americans and the Problem of Race, Beginnings to 1900, Drs. Michael Byrd and Linda Clayton lay out the long history of racism in medicine. In this book along with numerous other studies, it is clearly shown that the problems of minority health status and minority access to health care are part of a long continuum of racism and racial discrimination dating back almost 400 years. Since colonial times, the racial dilemma that affected America also distorted medical relationships and institutions.(21) There has been active assignment of racial minorities to the underfunded, overcrowded, inferior, public health-care sector.(22) Furthermore, medical leadership helped to establish and maintain slavery, created and sustained myths of racial inferiority, built a segregated health subsystem, and maintained racial bias in the diagnosis and treatment of patients.(23) Only after 350 years of active discrimination and neglect, were efforts made to admit racial minorities into the "mainstream" health system.(24) However, these efforts were flawed as since 1975 minority health status has steadily eroded and minorities continue to experience racial discrimination in access to health care and quality of health care received.(25)

71. Current issues in health disparity are not isolated to problems in the health system. They are the cumulative result of both past and current racism throughout US culture. For instance, because of institutional racism, minorities have less education and fewer educational opportunities. Minorities are disproportionately homeless and have significantly poorer housing options; and due to discrimination and limited educational opportunities, minorities disproportionately work in low pay, high health risk occupations (e.g., migrant farm workers, fast food workers, garment industry workers). Historic and present racism in land and planning policy also plays a critical role in minority health status. Minorities are much more likely to have toxic and other unhealthy uses sited in their communities than whites regardless of income. For example, overconcentration of alcohol and tobacco outlets as well as the legal and illegal dumping of pollutants pose serious health risks to minorities. Exposure to these risks is not a matter of individual control or even individual choice. It is a direct result of discriminatory policies designed to protect whites at the expense of minority health.

Institutional Racism in US Health Care

72. Compounding the racial discrimination experienced generally is institutional racism in health care. In spite of 30 years of government efforts to reduce these disparities, the US Commission on Civil Rights finds that, "Failure to recognize and eliminate differences in health care delivery, financing, and research presents a discriminatory barrier that creates and perpetuates differences in health status.(26) Racial barriers to quality health care manifest themselves in a number of ways including:

73. Lack of economic access to health care. Over 42 million Americans are uninsured with no economic access to health care. As access to health insurance in the United States is most often tied to employment, racial stratification of the economy due to other forms of discrimination has resulted in a concentration of racial minorities in low wage jobs. These jobs are almost always without insurance benefits. As a result, disproportionate numbers of the uninsured are racial minorities.

74. The "safety net," the network of policies and public services designed to provide low-wage and no-wage workers (stay-at-home mothers, recipients and others) access to health care and other social services has been drastically reduced. Government cutbacks and other policies limiting access to translation, requiring additional applications and/or interviews, work-for-benefit rules and more have dramatically decreased minority access to healthcare benefits. One of the direct effects of welfare reform has been a reduction in the use of Medicaid by those who qualify because of unawareness of eligibility requirements which has also increased the number of uninsured. In addition, increased poverty as a result of cutbacks has resulted in a worsening of health status and an increase in the need for health care services.(27)

Case Study: Discrimination in the Idaho CHIP Program


(Adapted from "Leading with Race" by Gary Delgado in Grass Roots Innovative Policy Program, Applied Research Center 2000)

75. The Idaho Community Action Network (ICAN), a grassroots, member based organization in the state of Idaho received numerous complaints from their members about the application process for the federal Child Health Insurance Program (CHIP). ICAN took testimony from members and reviewed the evidence. Although nearly all applicants were treated poorly, there was clearly a pattern of discrimination that needed further investigation. ICAN developed a project that tested the accessibility of the program in three Idaho cities. They sent white and Latino families to apply for the CHIP and documented how people were treated. The testing program uncovered clear evidence of discrimination: lack of translators; intrusive questions by eligibility and caseworkers; requirements of proof of citizenship for Latino applicants; and unduly long processing time for all applicants that was even longer for Latino applicants. Mounting a publicity and organizing campaign, ICAN forced the state to standardize application procedures and reduce the written application form for both Medicaid and CHIP from twelve to four pages.

76. Barriers to hospitals and health care institutions. The institutional/structural racism that exists in hospitals and health care institutions manifests itself in (1) the adoption, administration, and implementation of policies that restrict admission; (2) the closure, relocation or privatization of hospitals that primarily serve racial minorities; and (3) the continued transfer of unwanted patients (known as "patient dumping") by hospitals and institutions to underfunded, over burdened public care facilities. Such practices have a disproportionate effect on racial minorities banishing them to distinctly substandard institutions or to no care at all.

77. Barriers to physicians and other providers. Areas that are heavily populated by minorities tend to be medically underserved. (28) Disproportionately few white physicians have their practices located in minority communities. Minority physicians are significantly more likely to practice in minority communities, making the education and training of minorities extremely important. Yet, due to discrimination in post-secondary education, racial biases in testing and quality of life issues affecting school performance, minorities are seriously under represented in health care professions.(29) The shortage of minority professionals affects not only access to health care but also access to the power and resources to structure the health care system leaving its control almost exclusively in white hands. The result is a system that benefits whites at the expense of racial minorities.

78. Racial disparities in medical treatment. Differences in health status reflect, to a large degree, inequities in preventive care and treatment. For instance, African Americans are more likely to require health care services than whites, but are less likely to receive them.(30) In fact, racial disparity in treatment has been well documented. Studies have shown racial disparity in both quality and availability of treatment in AIDS, cardiology, cardiac surgery, kidney disease, organ transplantation, internal medicine, obstetrics, prescription drugs, treatment for mental illness, and hospital care.There are marked differences in time spent, quality of care and quantity of doctor's office visits between whites and blacks. Whites are more likely to receive more and more thorough diagnostic work and better treatment and care than people of color -- even when controlling for income, education, and insurance. Furthermore, researchers have concluded that doctors are less aggressive when treating minority patients.(31) At least one study indicated a combined affect of race and gender resulting in significantly different health care for African American women(32)

79. Discriminatory policies and practices. Discriminatory policies and practices can take the form of "medical redlining"(excluding key medical services from predominantly minority communities and concentrating them in white communities), excessive wait times, unequal access to emergency care, deposit requirements as a prerequisite to care, and lack of continuity of care. Discriminatory practices and policies often appear racially neutral but disproportionately affect racial and ethnic minorities. For example, refusal to admit patients who do not have a physician with admitting privileges at that hospital, exclusion of Medicaid patients from facilities, and failure to provide interpreters and translations of materials, to name a few."(33)

80. One significant example, is a federal Medicaid "racially neutral" policy that limits the number of beds a nursing home can allocate to Medicaid recipients. The policy encourages these facilities to move existing patients who have spent down their assets and are now newly eligible for Medicaid into "Medicaid beds" as they become available. It is mostly white women who have the assets to afford long term care without Medicaid and live long enough to spend down those assets. The effect of this policy is that there are fewer resources spent on minority populations for nursing home care even though they represent a larger portion of the Medicaid population and have more illness. The combination of minority over-representation and government under-spending in Medicaid is yet another example of the kind of structural and institutional racial discrimination that persists in many areas of the health care system.

81. Lack of language and culturally competent care. A key challenge has been to get the Government to establish clear standards for culturally competent health care. Culturally competent care is defined as care that is "sensitive to issues related to culture, race, gender, and sexual orientation." Cultural competency involves ensuring that all health care providers can function effectively in a culturally diverse setting; it involves understanding and respecting cultural differences.(34)

82. One example of institutional barriers to culturally competent care is the prevalence of linguistic barriers -- particularly for Latinos and Asian Americans. (35) The failure to use bilingual, professionally and culturally competent and ethnically matched staff in patient/client contact positions results in lack of access, miscommunication and mistreatment for those with limited proficiency in English. This includes not providing education or information at the appropriate literacy level. Furthermore, "English only" laws -- laws that restrict access to public services to those with proficiency in English -- also have acute and racially disproportionate impact on minorities. The lack of an official government infrastructure (extending from the federal to the local level) to ensure standards of culturally competent care and equal access to services is inconsistent with Article 5 of the CERD.

83. Double impacts of race and gender. The unique experiences of women of color have been largely ignored by the health care system. These women share many of the problems experienced by minority groups, in general, and women, as a whole. However, race discrimination and sex discrimination intersect to magnify the barriers minority women face in gaining equal access to quality health care.(36) This intersection or "double impact" affects women of color with regard to provision of treatments, access to medical care and inclusion in research. This is partly the result of different expectations of medical care between men and women and of gender bias among health care providers. Furthermore, these barriers are exacerbated in the case of gender-specific illnesses such as breast cancer.(37)

84. Policies and practices that increase government surveillance and control of minority women are also a key factor in health status. Minority women are less likely to receive sympathetic intervention by law enforcement in the case of domestic violence. There are numerous cases of women who, after calling upon police for help in such cases, are victims of both domestic violence and police violence. Family planning is another area where public policy has had a negative impact on health status and life choices of minority women. Minority women do not have equal access to preventive medicine or the full range of birth control available. Barriers include lack of family planning services or facilities in their communities; lack of coverage of certain services, medications or procedures by Medicaid or other publicly funded health insurance programs; and disproportionately higher prescription of medically risky or unnecessary procedures such as contraceptive implants or forced sterilization. State and local policies are more likely to be discriminatory than federal policies. However, there are few standards for ensuring equal access and equal treatment at this level of government. With jurisdiction over this area increasingly devolving to the state and local level, there is a critical need for a clear regulatory infrastructure that provides redress for these barriers and remedies and consequences for policies and practices with discriminatory outcomes.

85. Inadequate inclusion in health care research. Despite volumes of literature suggesting the importance of race, ethnicity, and culture in health, health care, and treatment, a minute percentage of those funds are allocated to research on issues of particular importance to women and minorities (21.5 percent). Funding of research by women and minority scientists only amounts to .37 or less than one half of one percent. Although several statutory requirements have been enacted to ensure that research protocols include a diverse population,(38) more must be done to address decades of exclusion. The health condition of women and minorities will continue to suffer until they are included in all types of health research.(39)

86. Lack of data and standardized collection methods. Current Government data collection efforts are inadequate and fail to capture the diversity of racial and ethnic communities in the United States. Disaggregated information on subgroups within the five racial and ethnic categories is not collected systematically. Further, racial and ethnic classifications are often limited on surveys and other data collection instruments, and minorities often are wrongly classified on vital statistics records and other surveys and censuses. It is important to collect the most complete data on racial and ethnic minorities, and "sub-populations" to fully understand the health status of all individuals as well as to recognize the barriers they face in obtaining quality health care.(40) The lack of a uniform data collection method makes obtaining an accurate and specific description of race discrimination in health care difficult. The existing data collection does not allow for regularly collecting race data on provider and institutional behavior.

87. Rationing through managed care. The health care financing system has been steadily moving to managed care (a system where a corporation intervenes and structures the health care process after standard business principles) as a means of rationing health care. As there is no proper oversight, managed care has tended over time to place increasingly stringent fiduciary requirements on providers. The impact of these largely financial interventions includes the failure to develop more expensive but culturally appropriate treatment modalities, not allocating the necessary expenditures to develop adequate health care infrastructure for minority communities. The potential for discrimination, particularly racial/ethnic discrimination, to occur in the context of managed care is significant. Leading commentators and advocates for civil rights in health care services, financing, and treatment have recognized this risk yet little has been done to protect minorities from this form of discrimination. The federal Office of Civil Rights (OCR) made the following statement on the issue:

88. "The Office of Civil Rights (OCR) also has not sufficiently prepared its investigative staff to identify and confront instances of discrimination by managed care organizations. Despite indications of discrimination prohibited under title VI, OCR has not yet developed policy guidance specifically addressing title VI compliance in the managed care context. OCR headquarters indicate that OCR has known about the potentially discriminatory activities of managed care organizations since 1995, yet the office has been loath to encourage or support the regional investigators in identifying cases."

89. Several managed care practices have disparate effects on minorities. One of the most common ways in which managed care organizations (MCOs) discriminate against minorities is in their selection of providers. A physician or other type of provider that serves mainly poor minorities may not be included in a managed care network because the provider's patients might be labeled "too costly." Some plans target suburban areas for enrollment while ignoring inner-city areas, a process known as selective marketing. In addition, some MCOs may be limiting the access of Medicaid patients to the full array of providers by sending these patients provider lists that contain only providers that accept Medicaid resulting in "segregated" provider lists. Other methods MCOs have used to discriminate against Medicaid patients are excluding sections of urban, predominantly minority communities from the MCO's service area; applying a stricter definition of "medical necessity," the standard used to determine whether a patient will receive a particular test or treatment; and longer waiting times for new-patient or urgent-care appointments.(41)

Inadequacy of Legal Efforts

90. "It might be that civil rights laws often go unenforced; it might be that current inequities spring from past prejudice and long standing economic differences that are not entirely reachable by law; or it might be that the law sometimes fails to reflect, and consequently fails to correct, the barriers faced by people of color."

-- Derrick Bell

91. Racial inequality in health care persists in the United States despite laws against racial discrimination in large part because the laws in the United States are inadequate for addressing issues of institutional racial discrimination. The US legal system has had particular difficulty addressing issues of racial discrimination that result from individuals acting on biases and stereotypes, and institutions that implement policies and practices that have a racial impact. The legal system requires individuals to be aware that the provider or institution has discriminated against them and that the provider has intentionally injured them. As discussed in previous sections of this document, this is a real barrier to legal redress. Finally, the health care system, through managed care, has actually built in incentives that may encourage "unintentional" or automatic discrimination.

92. In the case of health care discrimination, the laws do not address the current barriers faced by minorities; and the executive branch, the legislatures and the courts are singularly reluctant to hold health care institutions and providers responsible for institutional racism.

Critique of Government Report

93. As indicated in the US Report on CERD, the Federal Government has made attempts to ensure equal access to health care through a number of statutes(42) that were enacted to fight racial discrimination. However, the report omitted federal agency findings that the Government's failure to ensure equal access to quality health care has not only been ineffective and inefficient, but also has perpetuated racial discrimination.

94. "... the Department of Health and Human Services (HHS) has faced several deficiencies, including shortage of resources and funding, which have hampered its ability to enforce civil rights laws and ensure nondiscrimination in the health care context. The result is the perpetuation of severe disparities in health status and access to health care services between minorities and nonminorities and women and men." (43)

95. Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunity in employment, education, and housing, it has not given health care the same status.(44) As a consequence, discrimination in health care is uncorrected.



96. Medicine has found cures and controls for many afflictions, improving the health of all Americans. However, the health care system has failed to extend the same magnitude of improvement in health among whites to minority populations. It has failed to eliminate the racial distribution of health care and it also perpetuates disparities among racial groups. The current law has proven ineffective in eliminating racial discrimination in health care. This is intolerable. The Government should act now to develop a health policy, practice and program infrastructure that brings it in compliance with the CERD, human rights standards and basic principles of equity and fairness.


� Define "justifiable" discrimination to exclude racial discrimination resulting from policies and practices that limit access and quality of health care received; or racial discrimination resulting from policies and practices that have a disparate impact where there is an alternative that either would not discriminate or have less of an impact.

� Require significant progress to be made in eliminating disparities in health and health care systems including but not limited to increasing the availability of facilities and training providers in communities of color; adequately funding DHH/OCR to enforce civil rights laws related to non-discrimination in health; designing specific civil right laws, regulations, and policy guidance to address health care discrimination; developing clear standards for culturally competent health care; adequately funding research by minority and women scientists; establishing funding guidelines that promote research on women and minorities; developing policy guidance specifically addressing Title VI compliance in the health care setting (i.e. managed care); and development of specific training related to the use of race and class in research and intervention development.

� Require a unified data collection system in government programs (e.g., Medicaid, Medicare and military) which would allow easy determination of facilities, providers and organizations that discriminate in the diagnosis and treatment of illness.

1. 1 Id., p. 275.

2. 2 Id., p. 275; See also, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs. A comprehensive evaluation and analysis of the US Department of Justice's performance in its leadership and coordination responsibilities for Title VI, (1996). 677 pp. No. 910-00024-2 (Includes the US Commission on Civil Rights' analysis of the Title VI enforcement efforts of 10 federal agencies and10 sub agencies. Includes recommendations).

3. 3 The Health Care Challenge I, supra. Note 1, p.190.(emphasis added)

4. 4 Id., p. 190.(emphasis added)

5. 5The Health Care Challenge II, supra. Note 1, p. 275.

6. 6 Id., p.1, Preface.

7. 7 Id. chap. 1.

8. 8 Id., p. 190.(emphasis added)

9. 9The Health Care Challenge II, supra. Note 1., p. 275-276.

10. 10The Commission on Civil Rights Agencies is not alone in its documentation of disparate enforcement. Numerous other investigative bodies have documented this problem, both internal to the Department of Health and Human Services and external to the Department, including the General Accounting Office, the House of Representatives' Committee on Government Operations, HHS' Office of Inspector General, and the Department's own Civil Rights Review Team.


11. 11 Id., p. 275-276.

12. 12 Id., p. 275-276.

13. 13 Id., p. 275-276.

14. 14 Id., p. 275-276.

15. 15 Id., p. 275-276.

16. 16 Id., p. 275-276.

17. 17 Id., p. 275-276.

18. 18 Id., p. 275-276.

19. 19 The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Volume I, The Role of Governmental and Private Health Care Programs and Initiatives. 287 pp. No. 902-00062-2. (Sept., 1999)(Hereinafter, The Health Care Challenge I); The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, Volume II, The Role of Federal Civil Rights Enforcement 438 pp. No. 902-00063-1. (Sept., 1999) (Hereinafter, The Health Care Challenge II)

20. 20 The Health Care Challenge I, supra. note 1.

21. 21 Byrd, W. Michael and Clayton, Linda A., An American Health Dilemma: A Medical History of African Americans and the Problem of Race, Beginnings to 1900 (2000)

22. 22 Byrd and Clayton, supra. note.

23. 23 Id.

24. 24 Id.

25. 25 Id.

26. 26 The Health Care Challenge I, supra. Note 1, p. 196.

27. 27 Id., p. 197.

28. 28 Id., p. 190.

29. 29 Id., p. 190.

30. 30 Id., p. 196.

31. 31 Id., p. 196.

32. 32 Id., p. 196.

33. 33 Id., p. 197.

34. 34 Id., p. 190.

35. 35 Id., p. 190.

36. 36 Id., p. 190.

37. 37 Id., p. 197.

38. 38 Id., p. 197.

39. 39 Id., p. 197.

40. 40 Id., pp. 50-52.

41. 41 Id., pp. 88-92.

42. 42The Hill Burton Act, title VI of the Civil Rights Act of 1964, and title IX of the Higher Education Amendments Act of 1972

43. 43The Health Care Challenge I, supra. Note 1, p. 189.

44. 44 Id., Preface.