Race, Health Care and the Law 
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Human Rights Violations in Health Care

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

Article 2(1)(a).

Under 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.. Throught out its 1999 report to the President and Congress, the United States Commission on Civil Rights found significant weaknesses in the government’s enforcement efforts. Specifically, the commission noted that:

"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.

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.

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.

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).

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 recommend by the US Commission on Civil Rights. As noted by the Commission:

"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.

The United States while undertaking extensive measures to review national effect of creating or perpetuating racial discrimination, have 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 fail to identify this lack of oversight. The United States despite taking five years to submit a report under its obligation have failed to review state and local laws and regulations.

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. According to the Commission on Civil Rights, the US oversight agency:

. . .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."

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." Such failure has been noted by the U.S. Commission on Civil Rights:

"Over the past 35 years the U.S. 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 U.S. 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 women continue to confront."

According to US Commission on Civil Rights, there is substantial evidence that discrimination in health care delivery, financing, and research continues to exist. Such evidence suggests that Federal laws designed to address inequality in health care have not been adequately enforced by Federal agencies . Specifically, 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 the historical barriers to access to quality health care for minorities, which, in turn, has perpetuated these barriers.

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. The consistently weak record has resulted, in part, from the lack of commitment to civil rights enforcement in the United States. 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 civil rights enforcement can and should play in the health care industry, a view that is deeply ingrained within the culture of the Department of Health and Human Services (HHS). "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." While the activities of agencies charged with protecting the rights to equality of opportunity in education and employment are matters of tremendous importance, the failure to conduct strong civil rights enforcement in health care literally can mean the difference between life and death.

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.

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 President has worked with HHS to implement minority health initiatives, none of these efforts contains a strong civil rights enforcement component or attempts to develop the key role that OCR should be playing in these efforts." 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."

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"

"Business Necessity" is being read as justifiable discrimination. " The Committee's use of the term "unjustifiable disparate impact" indicates its view that the Convention reaches only those race-neutral practices that both create statistically significant racial disparities and are unnecessary, i.e., unjustifiable".

Critique of US Representation

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 which were enacted to fight racial discrimination. However, the report fails to admit that the effort of the United States in ensuring equal access to quality health care has not only been ineffective and inefficent, but also has perpeuated racial discrimination.

. . . 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"

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. As a consequence, discrimination in health care is uncorrected.

 
Related Pages:
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Professor Vernellia R. Randall
Institute on Race, Health Care and the Law
The University of Dayton School of Law
300 College Park 
Dayton, OH 45469-2772
Email: randall@udayton.edu

 

Last Updated:
 03/10/2010

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