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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. |
