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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.

Racial Disparities and Civil Rights
Historical Perspectives and Civil Rights Enforcement
Litigation and Advocacy

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Professor Vernellia R. Randall
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The University of Dayton School of Law
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Email: randall@udayton.edu


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