When is a Change Going to Come? Separate and Unequal Treatment in Health Care Fifty Years after Title VI of the Civil Rights Act of 1964

Abstract

Enacted in memorial to President Kennedy, the passage of the Civil Rights Act of 1964 was a monumental feat. Title VI of the Civil Rights Act of 1964 was the vehicle used by Congress to put an end to racial bias in health care, education, and other areas. One member of Congress noted that Title VI “represented the moral sense of the Nation that there should be racial equality in Federal assistance programs.” In health care, Title VI prohibits health care facilities in receipt of government funding from using racial bias to determine who receives quality health care. It provides both a private right of action and mandates for government enforcement. Section 601 provides private parties with the right to sue health care facilities that use racial bias to prevent their participation or access to benefits under programs funded by federal financial assistance, such as Medicare or Medicaid payments. Section 602 requires the federal government to undertake measures to ensure that health care facilities receiving federal financial assistance do not prevent participation or access to health care benefits based on race. Unfortunately, fifty years after the passage of Title VI, health care in the United States continues to be racially separate and unequal. Thus, one must ask: when is a change going to come?

Prior to the passage of Title VI, hospitals and nursing homes funded by the federal government were racially segregated. The hospitals and nursing homes with the best quality care served Caucasians, while African Americans were treated in substandard facilities. Since the passage of Title VI, many hospitals and nursing homes that receive federal funding have continued to be racially segregated, and those that serve African Americans are still substandard. This separate and unequal health care system in the United States is caused by racial bias prohibited by Title VI. This situation can no longer be ignored. Hence, in this article I undertake a critical analysis of the failure of Title VI to put an end to racial bias in health care in the United States, discuss how racial bias causes racial disparities in African Americans’ access to quality health care and health status, and provide suggestions on how to put an end to racial bias in health care.

Using nursing homes and hospitals as case studies, Section II compares the state of health care in the United States prior to and after the passage of Title VI to show that there have been little to no gains made in eradicating racial bias. In fact, David Barton Smith’s research has shown that nursing homes have never achieved full racial integration or actively sought African American patients. The only change in nursing homes after Title VI was the removal of blatant discriminatory advertising. Nursing homes are not the only culprits. Empirical evidence shows that 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 of care. In the 1990s, studies found that some physicians believed minority patients were unintelligent, which kept physicians from recommending medically appropriate cardiac catheterization, curative surgery for early-stage lung cancer, and antibiotics to treat pneumonia, thereby increasing mortality rates of African Americans. In the 2000s, research showed that race 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 medically necessary pain medication for African American children following surgery. Thus, because racial bias persists in health care, it comes as no surprise that health care remains racially separate and unequal.

Section III discusses how each branch of the federal government has not only failed to put an end to racial bias in health care as mandated by Title VI, but also it has often further exacerbated the problem by eliminating private rights to challenge the continuation of racial bias and ignoring the existence of racial bias. The U.S. Department of Health and Human Services (HHS), the executive branch agency in charge of enforcing Title VI in health care, has failed to racially integrate and equalize the care provided by hospitals, ignored the use of racial bias in nursing home admissions, and exempted physicians from compliance with Title VI. The judicial branch has not only eviscerated the protections under Title VI by limiting private parties’ right to sue for disparate impact bias, but it has also allowed HHS to neglect its duties to enforce Title VI. Even though congressional reports and congressionally ordered reports by the U.S. Commission on Civil Rights (USCCR) and the Institute of Medicine (IOM) have noted the continuation of racial bias in health care and the government’s failure to enforce Title VI, the legislative branch did not mention racial bias or fix the problems with Title VI when it passed the Patient Protection and Affordable Care Act (ACA). With limited options to challenge racial bias in health care, African Americans continue to be denied equal access to quality health care because of racial bias.

Reviewing decades of empirical research studies, Section IV shows how the continuation of interpersonal and institutional racial bias has led to racial disparities in access to quality health care and health status. Interpersonal racial bias is the conscious (explicit) or unconscious (implicit) use of racial prejudice in interactions between individuals. Interpersonal racial bias in health care is best illustrated by physicians’ treatment decisions based on their racial prejudice that results in the unequal treatment of African Americans. This often leads to racial disparities in mortality rates compared to Caucasians. Institutional racial bias operates through organizational structures within institutions and “establish[es] separate and independent barriers” to health care services. According to Brietta Clark, institutional racial bias in health care is best demonstrated by hospital closures in African American communities, which leaves minority neighborhoods without access to medical services. Due to these biases, African Americans are prevented from accessing quality health care, which leads to African Americans’ increased disability and mortality. Unfortunately, when passing the ACA, the government ignored the significance of racial bias in causing racial disparities in access to quality health care, and by extension, health status; instead it focused on research, data collection, and quality improvement programs that do not take into account racial bias.

Section V critiques the ACA’s programs designed to address racial disparities in health care, discusses new HHS plans and programs to address racial disparities, and provides solutions to put an end to racial bias in health care and eliminate racial disparities in access to health care and health status. In response to the passage of the ACA, HHS issued an Action Plan to Reduce Racial and Ethnic Health Disparities (Action Plan), developed the National Stakeholder Strategy for Achieving Health Equity in order to ensure that racial and ethnic minorities reach their full health potential, and partnered with the National Consortium for Multicultural Education for Health Professionals to create a medical school course concerning civil rights law and health disparities. These programs are a move in the right direction; however, additional steps are needed.

In order to address interpersonal bias, the government should educate health care providers about their racial bias that affects medical treatment decisions and apply Title VI to physicians. To put an end to institutional racial bias, initiatives to put an end to racial disparities in health care need to be integrated with Title VI enforcement and Medicare and Medicaid quality regulations. For example, the collection of racial data that evidences racial disparities in health care should be shared with those prosecuting racial bias under Title VI and those who enforce Medicare and Medicaid to regulate the quality of health care provided by health care facilities. Additionally, both state and federal regulators should require all government-funded health care facilities to conduct strategic diversity planning, which includes increasing the diversity of health care providers and patients within the health care facility. Finally, regulators must require any health care entity planning to close quality health care facilities in predominately minority neighborhoods to submit a racial impact statement that assesses the harm to the minority neighborhood. Many of these solutions, such as provider education and racial impact statements, can be implemented under the current laws and regulations, while others such as applying Title VI to physicians, will require changes in the rules. Nevertheless, without these changes, racial bias in health care will continue making Title VI’s promise of equal access to health care a lie.

Keywords

health, civil rights, Title VI, Affordable Care Act, racial bias, HHS

Publication Date

2014

Document Type

Article

Place of Original Publication

SMU Law Review

Publication Information

67 SMU Law Review 287 (2014)

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COinS Ruqaiijah Yearby Faculty Bio