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Marianne Engelman Lado
excerpted from: Marianne Engelman Lado, Unfinished
Agenda: the Need for Civil Rights Litigation to Address Race
Discrimination and Inequalities in Health Care Delivery, 6 Texas Forum on
Civil Liberties and Civil Rights 1- 45 (Summer 2001)(218 Footnotes
Omitted)
III. A Historical Perspective of Legal Advocacy and Civil Rights
Enforcement in the Distribution of Health Care Services, (pp. 17-33)
Although health has never been the top priority for legal organizations
dedicated to advancing civil rights, the litigation and advocacy of a few
leading groups have galvanized others to respond to the lack of equal
opportunity resulting from disparities in quality of health care. The
NAACP Legal Defense & Educational Fund, for example, was responsible
for the landmark victory prohibiting racial segregation in health care.
During the late 1970s, and more recently in the 1990s, the National Health
Law Program; the Mental Health Law Project; local legal aid and legal
services offices; LDF; the Puerto Rican Legal Defense & Educational
Fund (PRLDF); other civil rights law firms; and a few members of the
private bar initiated litigation challenging barriers to access and
provided legal representation for national and community organizations
struggling to retain services and facilities for African Americans in
medically underserved areas. These legal organizations have put issues on
the table that are otherwise neglected. Although their efforts have been
significant and offer an indication of how great an impact concerted
activity in this area could have, it is important to recognize that today,
despite the compelling need, there is no organized civil rights health bar
to carry the ball.
A. The Historical Role of the NAACP Legal Defense And Education Fund in
Health Litigation
Over the years, litigation has played a central role in desegregating
health facilities and challenging discriminatory practices in the delivery
of health care services. Legal organizations can challenge laws, policies,
programs, or practices directly and can also provide information and
leverage to community groups attempting to wage their own campaigns. The
outline of LDF's activities that follows is offered as indicative of the
potential of litigation as a tool for challenging discriminatory barriers
to accessible care.
LDF's involvement in health care litigation became significant during
the late 1950s and early 1960s when LDF and its cooperating attorneys led
the drive to remove racial bias from the delivery of health care services,
including litigation on behalf of African American medical professionals
challenging denial of staff privileges and exclusion from professional
medical societies. In the first few years, plaintiffs suffered numerous
setbacks because the courts ruled that the denial of staff privileges and
exclusionary membership policies were not state action within the purview
of the Fourteenth Amendment.
LDF won a major victory, however, when the U.S. Supreme Court refused
to review a 1963 ruling from the Fourth Circuit that held unconstitutional
the "separate but equal" provision of the Hill-Burton Act of
1946. The Hospital Survey and Construction Act of 1946, also called the
Hill- Burton Act, provided federal assistance to state governments to
assess the need for health facilities, to develop state plans for the
construction of hospitals and other health care facilities, and,
ultimately, to modernize the facilities. The text of the original statute
contained language obliging recipient hospitals to make services available
"to all persons residing in the territorial area of the application,
without discrimination on account of race, creed, or color," but,
until 1963, made an exception "in cases where separate hospital
facilities [were] provided for separate population groups," so long
as equitable provisions were made to ensure that services were of like
quality for each such group. LDF viewed Simkins as "a major
breakthrough in the health field," noting that approximately
"2,000 hospitals and medical facilities in 11 Southern states had
received over one- half billion dollars for new construction under the
Act."
The culmination of this early phase of LDF's litigation was the passage
of Title VI of the Civil Rights Act of 1964, which prohibits the
discriminatory use of federal funds by state and private entities. Title
VI provides:
No person in the United States shall, on the ground of race, color,
or national origin, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under any program or
activity receiving federal financial assistance.
Although Title VI was ultimately interpreted as implying a cause of
action by private parties, the locus of responsibility for enforcement of
its provisions was the federal government. "Without corrective
measures by the federal government," LDF's 1964 Annual Report
commented, "it is conceivable that this effort [to overcome
inequities in the provision of medical care] will prove even more
difficult than school desegregation." At this point, LDF announced
its intention to press for federal enforcement of the new law.
In 1966, LDF Assistant Counsel Michael Meltsner complained that federal
bureaucrats were taking "an unduly restrictive view of their power
and responsibility to end racial discrimination." Given the "[a]dministrative
tolerance of legislatively proscribed discrimination," progress also
required privately initiated litigation. "Continued use of litigation
by Negroes attests to the inability of the federal government to implement
[the guarantee of nondiscrimination in federal programs] effectively . .
.," Meltsner wrote. Then in the mid 1960s, LDF gained momentum with a
series of cases on behalf of African American doctors, dentists, and
nurses, who challenged the denial of staff privileges at publicly
supported facilities or exclusion from professional societies. LDF and its
cooperating attorneys also moved forward with suits for the desegregation
of Southern health facilities and challenges to discriminatory patient
admission and treatment practices.
In addition to litigation, LDF also pursued civil rights enforcement
through administrative channels, working with groups such as the National
Medical Association and the Medical Committee on Human Rights, though with
limited success. With a tone of disappointment that would be echoed in the
years to come, a 1970 report commented on the effectiveness of the
complaint procedure established pursuant to Title VI, which authorizes
federal agencies to cut off funds from recipients of federal funds,
including hospitals, that discriminate on the basis of race: "Over
300 complaints were filed," the text reports, "[b]ut HEW [the
precursor agency to the U.S. Department of Health and Human Services] was
slow in using the new authority. Before LDF filed its complaints, HEW had
taken no steps at all to implement the provisions of Title VI." LDF
also submitted a memorandum to HEW with detailed recommendations "to
effect desegregation before token compliance or noncompliance became an
accepted pattern."
In the 1970s, LDF co-counseled a successful challenge to discriminatory
practices at six Louisiana hospitals pursuant to both Title VI and the
community service obligations of the Hill-Burton Act. LDF also brought a
series of cases to stem the tide of facilities abandoning the nation's
inner cities. In Hatcher v. Methodist Hospital, LDF challenged a Gary,
Indiana hospital's plan to build a satellite unit in a predominantly white
suburb and obtained a settlement that included a commitment by the
hospital to spend twenty million dollars to assure equality of services at
its inner-city site. The settlement also provided for the establishment of
a new Family Primary Care Center and mobile health care units to travel
into poor African American neighborhoods.
LDF also worked with local chapters of the NAACP to prevent the closure
of four municipal hospitals in New York City, bringing suit in state and
federal court with mixed success. Plaintiffs in Bryan v. Koch argued that
the City's plan violated federal due process and civil rights law, state
and local health planning laws, and provisions of the state constitution
and city charter. These claims were roundly rebuffed. The opinion by
District Court Judge Abraham Sofaer rejected plaintiffs' motion for
preliminary relief, evidencing little appreciation for the plaintiffs'
arguments:
[T]his is no ordinary case. It appears, rather, to be an effort by
plaintiffs to use the federal courts as a last resort for delaying if not
preventing the implementation by elected officials of a painful but purely
political decision. Under these circumstances, to delay the closing of
Sydenham [one of the hospitals] for any period--particularly for the
decision-making convenience of this court--would serve to undermine the
authority and governing capacity of the City's responsible officials.
Although not all hospital relocation and closure cases ended in
determinations against plaintiffs, LDF suffered its worst setbacks in this
set of cases. Despite the adverse decisions on legal claims brought under
Title VI, these actions were nonetheless important to community efforts to
retain accessible services. For example, though the plaintiffs in
Wilmington Medical Center challenged the adequacy of the resolution
reached by the Office for Civil Rights at the U.S. Department of Health
& Human Services (OCR) and the Medical Center, the agreement may have
been instrumental in the defendant's decision to retain its downtown
facility.
A decade later in 1990, LDF's health care conference and subsequent
report were elements of a conscious effort to rethink strategy and to
focus litigation more effectively. At the same time, LDF launched cases
consistent with a plan for a "multi-pronged attack." In the
words of LDF's Report to the Kaiser Family Foundation, civil rights
litigation should have a number of aims:
(a) to end racial discrimination by hospitals, nursing homes, and
health care practitioners, (b) to enforce the community service
obligation of the Hill-Burton Act, ensuring that Hill-Burton facilities
do not employ restrictive admissions practices that exclude the poorer
members of their communities; (c) to ensure that low-income African
Americans have access to appropriate emergency care; and (d) to enforce
mandates requiring that states meet their responsibilities to secure
access to services for Medicaid recipients.
LDF used these goals as guideposts in its own case selection.
(a) Litigation to address racial discrimination: Linton v. Commissioner
of Health and Environment fell in this category. Working with Legal
Services of Middle Tennessee, LDF successfully challenged Tennessee's
limited bed certification policy pursuant to Title VI and the Medicaid
Act. Under the policy, the state of Tennessee had allowed nursing homes to
decertify beds formerly available to Medicaid patients to make room for
privately insured patients, a practice that had an adverse and
disproportionate impact on African Americans.
(b) Litigation to enforce the community service obligation: LDF's
continued work on behalf of community groups fighting the closure and
relocation of health care facilities could be described as intended both
to address racially discriminatory policies and to enforce the Hill-Burton
community service obligation. In 1991, LDF, PRLDF, and the Legal Aid
Society filed a complaint with the OCR against a New York-area hospital
that was planning to relocate its inpatient maternal and child care
services away from the medically underserved areas of Central and West
Harlem. Although neither the administrative proceeding nor subsequent
litigation in federal court resulted in a finding of noncompliance, the
hospital ultimately changed course and retained a portion of the beds at
its original site.
(c) Litigation to ensure access to emergency care: In 1991, LDF and the
NOW Legal Defense and Education Fund filed a brief of amici curiae with
the U.S. Court of Appeals for the Fifth Circuit in Burditt v. Sullivan.
The case involved a woman who arrived at a hospital emergency room nine
months pregnant with extremely high blood pressure (210/130) and was sent
to another hospital located 170 miles away. The case became a vitality
test of the anti-dumping law, with lawyers for state and national medical
associations arguing that liability under the statute required proof of
the physician's motivation. The Court adopted the position of amici that
no proof of intent was necessary.
(d) Litigation to enforce statutory mandates: LDF also brought
litigation to enforce statutory mandates such as the Early and Periodic
Screening, Diagnostic and Treatment Program (EPSDT), 42 U.S.C. 1396d,
which requires that Medicaid providers administer screening tests for lead
poisoning, among other things. Similarly, with Gordon Bonnyman and others
at Legal Services, LDF brought suit against the State of Tennessee for
failing to provide Medicaid patients with access to obstetricians.
Plaintiffs withdrew the case when the state implemented Tenncare, one of
the nation's earliest statewide mandatory Medicaid managed care programs,
thereby changing the facts upon which the case was premised.
By the close of the 1990s, however, LDF's health docket went beyond the
priorities outlined in the LDF Report. LDF staff attorneys began to focus
on access to the full range of reproductive health care--from obstetric to
abortion services. And from 1995 to 1999 LDF coordinated a legal response
to New York City Mayor Rudolph Giuliani's proposal to privatize the Health
and Hospitals Corporation (HHC), a vital source for health care for
medically underserved communities of color across the city. In 1995, when
the Mayor's plan was first made public, LDF was approached by the
Community Advisory Board of Queens Hospital Center and numerous other
community groups, organizations, and advocates, who asked for legal
assistance in launching a challenge under federal civil rights laws. In
response, LDF convened a process whereby community representatives and
attorneys worked together to develop legal strategies. This collaborative
effort spawned four state court challenges. On March 30, 1999, New York's
highest court issued a decision in Campaign to Save Our Public Hospitals
and its companion case, upholding the lower court ruling that the
privatization plan was not authorized by the statute.
In sum, although LDF's involvement in the struggle for racial equity in
access to health care has been somewhat intermittent, its successes have
been significant. Simkins and other contemporaneous cases, such as Eaton
v. Grubb, Hawkins v. North Carolina Dental Society, and Cypress v. Newport
News General and Nonsectarian Hospital, helped to dismantle the formal
trappings of racial segregation at health facilities. Cook v. Ochsner
Foundation Hospital, and even cases such as Bryan v. Koch and NAACP v.
Wilmington Medical Center, which received unfavorable rulings by the
courts, helped to enhance access for African Americans and stave off the
departure of facilities from poor communities of color. More recently, the
legal effort to stop the sale of the public hospitals in New York City
demonstrated that even where traditional civil rights causes of action may
be unavailing, creative legal advocacy, together with community activism,
can make a difference.
B. Inadequate Civil Rights Enforcement and the Need for Leadership by
Legal Advocates
Although there are multiple bases for litigation, and, as suggested
above, proven strategies for addressing practices that have clear civil
rights dimensions, there is neither an organized civil rights health care
bar nor any effective agency within the federal government to monitor or
ensure compliance by health care providers.
Just as LDF has a record of previous work on the issue, so too could
histories be written of the contributions of other groups, from the
National Health Law Program to the Mental Health Law Program to the
National Medical Association. Racial justice in the financing and
provision of health care has not, however, received sufficient attention
from civil rights groups with the institutional capacity and expertise to
galvanize legal resources and partner with grassroots civil rights efforts
nationwide. To suggest the need for greater involvement of the legal
organizations dedicated to civil rights is not to negate the contributions
of the many potential allies in this struggle; indeed, a successful
campaign would draw upon the unique strengths of each.
There are also no effective means for government enforcement of civil
rights in the health sector. Despite the fact that health care spending
accounts for 14% of the United States' gross domestic product and
government subsidies to the health care industry account for hundreds of
billions of dollars in spending, discriminatory behavior is largely
unchecked. Government funds pour into this sector of the economy-- through
capital for construction, reimbursement programs such as Medicaid and
Medicare, and technological and research grants--yet the allocation of
these monies is largely at the discretion of private actors.
Ironically, government subsidization of discriminatory behavior is
precisely the problem that Title VI is intended to address. As the U.S.
Commission on Civil Rights has stated, "The purpose of Title VI is to
eradicate illegal discrimination in programs or activities funded by the
federal government." Yet, the U.S. Department of Health & Human
Services disburses more than $224 billion to 700,000 recipients, and
federal civil rights enforcement efforts are relegated to OCR, an agency
that is underfunded, inadequately staffed, and largely ineffectual.
Indeed, the level of financial assistance provided by HHS is approximately
eight times more than that distributed by the U.S. Department of Education
(DOE), and yet the budget allocated to the Office for Civil Rights at HHS
is approximately one-half that of its counterpart at DOE. The size of the
staff at the Office for Civil Rights at HHS is only about one-third as
large as DOE's.
Although, as David Barton Smith has noted, the history of
administrative action to enforce Title VI had a few bright moments,
neither the magnitude nor the organization of the federal effort has been
calculated to ensure compliance. Indeed, critiques of the government's
effort have been remarkably consistent over time. In 1966, for example,
Michael Meltsner complained that HEW permitted formal assurances of
compliance to substitute for verified changes in behavior, failed to
collect comprehensive data or conduct affirmative compliance reviews,
relied too heavily on complaints by victims of discrimination,
inadequately investigated matters brought to the Department, and failed to
sanction recipients for demonstrated violations. Meltsner wrote
disparagingly about HEW's efforts to obtain assurances of
nondiscrimination from hospitals and other health institutions:
The Department [HEW] quietly took the position . . . that execution of
a facially satisfactory assurance would be accepted as sufficient unless
victims of discrimination attacked the finding. A national survey of
hospital discrimination announced by the Department was never carried out.
Actual (as opposed to promised) compliance was converted from a
precondition to receipt of funds to a distant goal which the Department
would actively seek only if it received a complaint. The federal
government's "[c]omplaint-oriented administration," Meltsner
concluded, "is a failure."
Findings of a 1987 investigation of OCR by the House Committee on
Government Operations echo Meltsner's conclusions. The Report found that
OCR unnecessarily delayed case processing, allowed discrimination to
continue without federal intervention, routinely conducted superficial and
inadequate investigations, failed to advise regional offices on policy and
procedure for resolving cases, and abdicated its responsibility to ensure
that HHS policies are consistent with civil rights law, among other
things. The House Committee criticized OCR's reluctance to sanction
noncompliant recipients and recommended that OCR pursue investigations of
complaints as well as compliance reviews in more systematic ways.
Nearly a decade later, an investigation by the U.S. Commission on Civil
Rights revealed little improvement. As the Commission's report states,
"HHS has hardly developed its Title VI enforcement program since [the
creation of HHS as a separate department] in 1980." HHS had
promulgated no new regulations since 1980, and had published no formal
guidelines for recipients of its federally assisted programs. "When
OCR was formed," the report commented, "it lacked individual
civil rights policies, precedents, standards, and procedures necessary to
operate an effective civil rights enforcement program. Efforts to
establish such foundations have never been completed." More
specifically, the Commission made the following observations:
1. OCR's staff is small relative to the amount of federal financial
assistance distributed by HHS, and the staff is not used efficiently.
2. OCR devotes too great a proportion of its resources to, and its
enforcement relies too heavily on, the investigation of complaints
rather than other activities such as compliance reviews. OCR's
activities continue to be "complaint driven."
3. OCR fails to pursue strong remedies for recipients found to be in
violation of Title VI.
4. HHS does not systematically monitor the states' compliance with
Title VI.
5. Despite regulations that require recipients to maintain
information necessary to determine compliance, OCR has limited routine
data collection and analysis systems. "Other than the Community
Service Assurance Reporting System, OCR does not regularly or
systematically collect data from its recipients."
6. OCR "has no line authority" over the activities of HHS's
operating divisions. "To the extent that staff in the operating
divisions perform Title VI enforcement responsibilities, their
activities are not overseen or guided by OCR . . . ."
As the report states, OCR has been "overwhelmed by problems for
many years" and has initiated no major new initiatives in recent
years.
OCR's record in the 1990s provided scant basis for optimism. For
example, OCR complaint investigations continued to be "replete with
problems," including delays, the lack of staff training on
investigative procedures, and poor communication between OCR staff and
lawyers at the Office of the General Counsel. Carol G. and the St. Luke's
Community Coalition filed a complaint in In Re: St. Luke's-Roosevelt
Hospital Center alleging that the recipient's plan to reduce beds at a
location in New York City not far from Harlem and to transfer all
inpatient obstetric, neonatal intensive care, and pediatric beds from that
site to another location further downtown had the purpose and effect of
discriminating against area residents. This discrimination was based on
their payor status, in violation of the Hill-Burton Hospital Survey and
Construction Act, and its implementing regulations, 42 C.F.R. 124.601 et
seq., and on the basis of their race and ethnicity, in violation of Title
VI and its implementing regulations. Complainants submitted extensive
data, studies, and expert and lay testimony to support their claims,
including evidence of utilization patterns at both sites by payor status,
race and ethnicity, information on the health needs of the relevant
communities and likely impact of the loss of services on uptown residents,
documentation of the inability of area hospitals to absorb displaced
uptown patients, and evidence of SLRHC's intent to change the
characteristics of its patient population.
In March of 1995, more than three years after OCR accepted the
complaint for investigation, regional OCR officials informed complainants
that their staff lacked clarity on the claim that the reduction and
transfer of services discriminated against Medicaid beneficiaries in
violation of the Hill-Burton community service obligation. The officials
expressed the opinion that they could not apply the non-discrimination
provision to the hospital relocation context without guidance from
Washington. Complainants sought and ultimately received a letter of
clarification, but by this time much of the investigation had already been
performed. OCR finally completed its investigation in March of 1998,
nearly seven years after the filing of the complaint, and concluded that
despite OCR concern "as to the possible impact of the actions of
SLRHC [the recipient] on the ability of minority and Medicaid patients to
access services through SLRHC," the evidence was "insufficient
to support finding that SLRHC [the recipient] is in violation of Title VI
or the Hill-Burton regulations."
As of the date of this publication and despite strong leadership by Tom
Perez, the director of OCR during the last years of the Clinton
Administration, OCR has not made significant progress on data collection,
the development of an affirmative program of compliance reviews, or the
development of a monitoring system to review and evaluate the performance
of HHS's operating divisions with regard to civil rights concerns. There
was as of the date of this publication still no systematic means for
collecting racial and ethnic health care utilization data nationwide, and
OCR continues to play an extremely limited role in ensuring that HHS
policies are consistent with Title VI. For example, at a July 18, 1995
meeting for Medicaid advocacy groups hosted by the Health Care Financing
Administration (HCFA), an agency at HHS, the leader of the HCFA team
developing a model managed care encounter data system for the states to
implement was asked whether the model would call for the collection of
racial and ethnic data as means to assess the racial or ethnic impact of
the implementation of Medicaid managed care. The HCFA representative
replied that, no, there were no plans to do so. Instead, encounter data
could potentially be matched with eligibility data, which could contain
race and ethnicity. The follow up question was, to paraphrase, does the
eligibility data system capture race and will such cross-matching be done?
The answer: No. In response to a final question inquiring how HCFA planned
to monitor whether the implementation of mandatory Medicaid managed care
has a disproportionate impact on the basis of race or ethnicity, the
official answered that she did not know. Civil rights enforcement by OCR
is simply inadequate.
Introduction
Racial Disparities and Civil Rights
Historical Perspectives and Civil Rights Enforcement
Litigation and Advocacy
Conclusion
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