US Violations of ICERD

Vernellia R. Randall
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 Vernellia R. Randall

I. VIOLATIONS OF THE INTERNATIONAL CONVENTION ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION

Racial Discrimination in Health Care in the United States as a Violation Of the International Convention on the Elimination of All Forms of Racial Discrimination, [a1] 14 University of Florida Journal of Law and Public Policy 45-91 (Fall, 2002)

As indicated in the U.S. Report on CERD, the Federal Government has laws that make it illegal to discriminate based on race (Title VI of the Civil Rights Act of 1964).⁽¹⁶¹⁾ 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 inefficient, but has also perpetuated racial discrimination. Astonishingly, the United States fails to even mention its own assessment of civil rights enforcement in health care conducted by the U.S. Commission on Civil Rights.⁽¹⁶²⁾ In a two-volume critical analysis, the *68 Commission accused the government of perpetuating disparities in health status and access:

[The government] has failed to enforce civil rights laws vigorously and appropriately. The failure [of the government] to be proactively involved in [civil rights] health care issues or initiatives has resulted in continuance of policies and practices that, in many instances are either discriminatory or have a disparate impact on minorities .... Thus, there remain disparities in access to health care and in health care research and unequal distribution of health care financing.⁽¹⁶³⁾

Although Congress has enacted civil rights laws designed to address specific rights, such as equal opportunities in employment, education, and housing, it has not given health care the same status.⁽¹⁶⁴⁾ As a consequence, discrimination in health care is uncorrected, which has the consequence of perpetuating differences in health status.⁽¹⁶⁵⁾ Thus, in the area of health care, the United States has failed to meet its obligation under 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).

A. Article 2(1)(a)

Under Article 2(1)(a), "Each State Party undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation."⁽¹⁶⁶⁾ Specifically, 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).⁽¹⁶⁷⁾ Throughout its 1999 report to the President and Congress, the U.S. Commission on Civil Rights found significant weaknesses in the governmental enforcement efforts. Specifically, the Commission noted:

The deficiencies in the [governmental] enforcement efforts ... largely are the consequences of [a] fundamental failure to recognize *69 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 Rights (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.⁽¹⁶⁸⁾

Further, the Commission found significant weaknesses in the enforcement efforts of the Office for Civil Rights. In particular, the Commission noted the governmental failure to implement many of the recommendations indicated by the Commission in its 1996 report on Title VI enforcement.⁽¹⁶⁹⁾

Despite some focus on the health of minorities, the government has generally 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.⁽¹⁷⁰⁾

Thus, there remain disparities in access to care, treatment, research, and financing in the United States as a result of the U.S. failure to meet its obligation under Article 2(1)(a).⁽¹⁷¹⁾

B. Article 2(1)(c)

Under Article 2(1)(c), "Each State Party shall take effective measures to review governmental, national and local policies, and to amend, rescind or nullify any laws and regulations which have the effect of creating or *70 perpetuating racial discrimination wherever it exists."⁽¹⁷²⁾ The United States has failed to meet its obligation. While the United States has undertaken extensive measures to review national laws and regulations which have the effect of creating or perpetuating racial discrimination, it has failed to make necessary revisions and modifications in the law as recommended by the U.S. 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.⁽¹⁷³⁾

The United States, while undertaking extensive measures to review the national effects of creating or perpetuating racial discrimination, has failed to "amend, rescind or nullify any laws and regulations" that have such effects.⁽¹⁷⁴⁾ There has been little judicial activity in reviewing and shaping antidiscrimination law in health care.⁽¹⁷⁵⁾ Despite taking five years to submit a report under its obligation, the government's report failed to identify this lack of oversight. Furthermore, the United States failed to review state and local laws and regulations.

C. Article 2(1)(d)

Under Article 2(1)(d), "Each State Party shall prohibit and bring to an end, by all appropriate means, including legislation as required by circumstances, racial discrimination by any persons, group or organization."⁽¹⁷⁶⁾ The United States has failed to meets its obligation to "bring to an end, by all appropriate means, including legislation," racial *71 discrimination in health care.⁽¹⁷⁷⁾ For instance, the U.S. Congress has not enacted civil- rights laws relating to health care, even though it has enacted specific antidiscrimination laws in the areas of employment, education, and housing. ⁽¹⁷⁸⁾Unequal access to health care is a nationwide problem that primarily affects women and people of color.⁽¹⁷⁹⁾ According to the U.S. Commission on Civil Rights:

For 35 years, [the government through the Department of Health and Human Services (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."⁽¹⁸⁰⁾

D. Article 5(e)(iv)

Under Article 5(e)(iv),

In compliance with the fundamental obligations laid down in article 2 of this Convention, States Parties undertake 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 *72 or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: ... e) Economic, social and cultural rights, in particular: ... (iv) The right to public health, medical care, social security and social services.⁽¹⁸¹⁾

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] [t]he right to public health, medical care, social security and social services."⁽¹⁸²⁾ 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.⁽¹⁸³⁾

As outlined above, discrimination in health care delivery, financing, and research does exist. This is due, in significant part, to the failure to enforce federal laws designed to address inequality in health care. Specifically, the Commission noted that the government's failure to remove the historical barriers to access to quality health care perpetuated discrimination.⁽¹⁸⁴⁾

*73 From 1980 to 1999, the government has also neglected its civil-rights enforcement responsibilities.⁽¹⁸⁵⁾ This neglect is well documented.⁽¹⁸⁶⁾ According to the U.S. 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 [for many people of color].⁽¹⁸⁷⁾

It is important to remember that all the major actors in the government have failed to fulfill their responsibilities to act to eliminate discrimination. The President "failed to offer the oversight, support, and assistance to civil rights enforcement."⁽¹⁸⁸⁾ Congress not only failed to provide oversight, it drastically reduced appropriations.⁽¹⁸⁹⁾ While the President and HHS implemented a number of 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".⁽¹⁹⁰⁾ The U.S. Commission on Civil Rights 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."⁽¹⁹¹⁾

Finally, the Commission notes that this lack of enforcement is of particular concern:

*74 [b]ecause 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.⁽¹⁹²⁾

One such form of discrimination is embedded in the business necessity rationale where, under the guise of cost cutting and fiduciary risk reduction, policies and practices that are biased against racial minorities are considered justifiable discrimination. The CERD term "unjustifiable disparate impact" indicates that the Convention also covers those practices that appear race- neutral but create statistically significant racial disparities and are unnecessary, i.e., unjustifiable.⁽¹⁹³⁾  

193. [FN193]. Definition of discrimination (art. 1, par. 1): 22/03/93. CERD General recommendation. 14 (General Comments) (in considering the criteria that may have been employed, the Committee will acknowledge that particular actions may have varied purposes. In seeking to determine whether an action has an effect contrary to the Convention, it will look to see whether that action has an unjustifiable disparate impact upon a group distinguished by race, colour, descent, or national or ethnic origin.).

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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