Hostname: page-component-cd9895bd7-jkksz Total loading time: 0 Render date: 2024-12-27T08:35:30.691Z Has data issue: false hasContentIssue false
  • English
  • Français

The Historical Trajectory of Civil Rights Enforcement in Health Care

Published online by Cambridge University Press:  27 April 2009

Christopher Bonastia
Christopher Bonastia
Affiliation:
Lehman College, City University of New York
Get access Rights & Permissions [Opens in a new window]

Extract

Since the late 1960s, federal civil rights enforcement initiatives in health have been half-hearted and ineffective. The historical failure of the federal government to address the possible role of racial discrimination has taken place despite considerable evidence that, for a number of services, racial and ethnic minorities continue to receive inferior treatment to that accorded to whites. In many cases, these treatment differences remain even after controlling for socioeconomic and insurance statuses, and standard covariates such as patient age, health status, and gender.

Type
Articles
Information
Journal of Policy History , Volume 18 , Issue 3 , July 2006 , pp. 362 - 386
Copyright
Copyright © The Pennsylvania State University, University Park, PA. 2006

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Notes

1. See Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare (Washington, D.C., 2002)Google Scholar.

2. Kaiser Family Foundation, “Trends and Indicators in the Changing Health Care Marketplace,” accessed on 19 09 2005 at http://www.kff.org/insurance/7031/index.cfmGoogle Scholar. See also Smith, Cynthia et al. , “Health Spending Growth Slows in 2003,” Health Affairs (01–02 2005)Google Scholar.

3. See Miles, Rufus E., The Department of Health, Education, and Welfare (New York, 1974)Google Scholar; Smith, David Barton, Health Care Divided: Race and Healing a Nation (Ann Arbor, 1999)Google Scholar; Quadagno, Jill S., “Promoting Civil Rights Through the Welfare State: How Medicare Integrated Southern Hospitals,” Social Problems 47 (02 2000): 68–89Google Scholar; and U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs (Washington, D.C., 1996)Google Scholar.

4. Perot, Ruth T. and Youdelman, Mara, “Racial, Ethnic, and Primary Language Data Collection in the Health Care System: An Assessment of Federal Policies and Practices” (2001)Google Scholar. Commonwealth Fund (www.cmwf.org).

5. This article draws on primary documents that include: a microfilm collection of official HEW documents; the Jimmy Carter Presidential Materials (Carter Presidential Library, Atlanta, Georgia); the papers of former OCR chief Patricia Roberts Harris, stored at the Library of Congress (Washington, D.C.); and the papers of several civil rights groups (also at the Library of Congress). In addition, I incorporate congressional testimony, judicial decisions, and secondary sources. Last, with the aid of a research assistant, I interviewed present and former federal civil rights officials, as well as a number of staffers for advocacy groups; some of these interviews were conducted for background purposes, while others were for attribution.

6. Thomas Perez, “The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status,” in Institute of Medicine, Unequal Treatment.

7. Rosenbaum, Sara, Markus, Anne, and Darnell, Julie, “U.S. Civil Rights Policy and Access to Health Care by Minority Americans: Implications for a Changing Health Care System,” Medical Care Research and Review 57, supplement 1 (2000): 241CrossRefGoogle ScholarPubMed.

8. Ibid.; Gornick, Marian, Vulnerable Populations and Medicare Services: Why Do Disparities Exist? (New York, 2000)Google Scholar.

9. One of the best-known civil rights cases in health is NAACP v. Medical Center, Inc. (1981), in which the plaintiffs challenged the hospital's plan to move a number of its services from the largely African American, inner-city of Wilmington, Delaware, to a predominantly white suburb. At the district court's behest, HEW undertook a civil rights investigation, concluding that the proposed plan would violate Title VI of the 1964 Civil Rights Act and Section 504 of the Rehabilitation Act of 1973. HEW negotiated a settlement with the Wilmington Medical Center in which the hospital agreed to provide free shuttle-bus transportation between the two centers and to make investments in the Wilmington plant. See also Bryan v. Koch (1980). A 1990 Circuit Court decision, Women's Equity Action League v. Cavazoz, concluded that the procedures used by HHS to enforce the law are the agency's exclusive discretion and are not reviewable by the courts (Smith, Health Care Divided).

10. Rosenbaum et al., “U.S. Civil Rights Policy and Access to Health Care by Minority Americans.”

11. Smith, Health Care Divided, 162.

12. Smith, David Barton, “Racial and Ethnic Health Disparities and the Unfinished Civil Rights Agenda,” Health Affairs, 03–04 2005Google Scholar. Smith contends that one major consequence of this exemption was the federal failure to collect data on discriminatory medical treatment, despite the regulatory authority to do so.

13. Rosenbaum, Sara and Teitelbaum, Joel, “Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval,” Yale Journal of Health Policy, Law and, Ethics 3 (Summer, 2003), 215Google Scholar.

14. Smith et al., “Health Spending Growth Slows in 2003.”

15. The agreement took shape before the EEOC got its enforcement powers. See DeWitt, Karen E., “Labor Report/Strengthened EEOC Accelerates Action Against Business, Labor Employee Discrimination,” National Journal, 23 06 1973, 913–921Google Scholar; Equal Employment Opportunity Commission, “Milestones in the History of the U.S. Equal Employment Opportunity Commission,” http://www.eeoc.gov/abouteeoc/35th/milestones.

16. DeWitt, “Labor Report,” 913. Many firms were particularly concerned about findings of sex discrimination, which was a relatively new area of scrutiny.

17. Ibid., 920.

18. Eleanor Holmes Norton speech to Washington Press Club, 1 December 1977, part 1, box 100, Folder: EEOC News Releases and Publication, Leadership Conference on Civil Rights Papers (hereafter LCCR), Library of Congress Manuscript Division (hereafter LoC).

19. See Smith, Health Care Divided; Miles, The Department of Health, Education, and Welfare; and Quadagno, “Promoting Civil Rights Through the Welfare State.”

20. Quoted in “The Civil Rights Enforcement Program in the Health and Social Service Programs of the U.S. Department of Health, Education, and Welfare: Policy Paper for a New Direction and Approach,” box I:143, Folder: Health Task Force, p. 9, LCCR, LoC.

21. House Judiciary/Civil Rights and Constitutional Rights Subcommittee, “Title VI Enforcement in Medicare and Medicaid Programs,” 12, 17, 24 September and 1 October 1973 (hereafter HJC 1973), 24.

22. Testimony of Robert E. Iffert Jr., HJC 1973, p. 23. See also Wing, Kenneth, “Title VI and Health Facilities: Forms without Substance,” Hastings Law Journal 30 (1978): 137–190Google Scholar.

23. U.S. Commission on Civil Rights, HEW and Title VI (Washington, D.C., 1970)Google Scholar.

24. For earlier data, see Wing, “Title VI and Health Facilities.” For data from the 1980s and 1990s, see U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs.

25. Smith, “Racial and Ethnic Health Disparities and the Unfinished Civil Rights Agenda.”

26. Wing, “Title VI and Health Facilities,” 144.

27. Smith, Health Care Divided, 102. For historical background on this case, see ibid; Smith, Health Care Divided; and Reynolds, Preston P., “Hospitals and Civil Rights, 1945–1963: The Case of Simkins v. Moses H. Cone Memorial Hospital,” Annals of Internal Medicine 126 (1997): 898–906CrossRefGoogle Scholar.

28. Wing, “Title VI and Health Facilities,” 146.

29. “OCR Historical Records, Title VI Implementation,” Reel 1, part 2, chap. 3, p. 47, Department of Health Education and Welfare (1963–69): Official History and Documents (microfilm) (Frederick, Md.: 1983). Hereafter HEW.

30. Memorandum, James M. Quigley to staff of OS and agencies, 8 February 1965, Reel 2, part 1, chap. 3, p. 51, HEW.

31. Between September 1965 and October 1968, HEW's Office of the General Counsel initiated 550 proceedings involving elementary and secondary school districts, 51 involving hospitals and 7 involving institutions of higher education (Reel 1, part 1, “Office of the General Counsel,” p. 22, HEW).

32. Reel 2, part 1, chap. 4, p. 28, HEW.

33. Miles, The Department of Health, Education, and Welfare, 252. See also U.S. Commission on Civil Rights, Title VI … One Year After: A Survey of Desegregation of Health and Welfare Services in the South (Washington, D.C., 1966)Google Scholar.

34. With this new arrangement, direct Title VI appropriations were made by Congress. Under the prior approach, no separate Title VI funds were allocated to the various agencies within HEW. See “OCR Title VI Report,” Reel 2, part 1, chap. 5, p. 2, HEW.

35. Reel 2, part 1, chap. 5, p. 3–4, HEW.

36. The other major enforcement agency in employment, the Office for Federal Contract Compliance, monitors the civil rights compliance of federal contractors. Though not a stand-alone agency, the OFCC had the power to cut off funding to federal contractors that did not comply with antidiscrimination requirements and the support of the Department of Labor (in which it was situated) to use this authority. See Graham, Hugh Davis, “The Politics of Clientele Capture: Civil Rights Policy and the Reagan Administration,” 103–119, in Redefining Equality, ed. Devins, Neal and Douglas, Davison M. (New York, 1998)Google Scholar.

37. U.S. Commission on Civil Rights, HEW and Title VI, vi.

38. “The Department of Health, Education, and Welfare During the Administration of President Lyndon B. Johnson,” Reel 1, part 1, pp. 1–2, HEW.

39. Miles, The Department of Health, Education, and Welfare, 247.

40. General Accounting Office, “Compliance with Antidiscrimination Provision of Civil Rights Act by Hospitals and Other Facilities Under Medicare and Medicaid” (Washington, D.C., 1973), 14Google Scholar.

41. HJC 1973, 166.

42. Leadership Conference on Civil Rights Task Force, “The Civil Rights Enforcement Program in the Health and Social Services Programs of the U.S. Dept. of Health, Education, and Welfare: Policy Paper for a New Direction and Approach,” circa 1977, box I:143, Folder: Health Task Force, LCCR, LoC.

43. Letter, Law Offices of Rauh, Silard and Lichtman to Patricia Roberts Harris, 10 August 1979, Box 53, Folder: OCR 1979, Patricia Roberts Harris Papers, LoC.

44. “OCR Review,” box 298, Folder: OCR Review 5/16/80, Harris Papers.

45. Graham, “Civil Rights Policy in the Carter Presidency.”

46. “OCR Review,” box 298, Folder: OCR Review 5/16/80, p. I-1, Harris Papers.

47. Donnelly, Harrison, “Equality for the Handicapped: Can the Nation Afford It?” Congressional Quarterly (31 05 1980): 1505–1509Google Scholar.

48. Letter, Martin H. Gerry to HEW Under Secretary, 19 November 1976, Domestic Policy Staff Files: Gutierrez, box 29, OCR-HEW Legislative Proposals, Jimmy Carter Presidential Materials (hereafter CPM).

49. “Memorandum for the Heads of Executive Departments and Agencies,” 20 July 1977, box 4, Civil Rights Act of 1964 Title VI, Martha (Bunny) Mitchell Papers, CPM. The memo also notes that “administrative proceedings leading to fund terminations are the preferred method of enforcing Title VI, and this sanction must be utilized in appropriate cases. … The effective use of the sanctions provided by Title VI is an essential element of this Administration's effort to guarantee that Federal funds do not flow to discriminatory programs.”

50. “Department of Education: What's It All About–Some Questions and Answers (May 1979),” box 285, Folder: Education, Department of Proposal 8/22/79, Harris Papers.

51. Author telephone interview with David Tatel, former OCR Director, 28 January 2003.

52. “OCR Review,” Folder: OCR Review 5/16/80, p. II-2, Harris Papers.

53. The AFL-CIO also opposed creation of a separate Education Department, arguing that “a coordinated health, welfare, and education approach” was best suited to tackle the problems of “poverty, equal educational opportunity, welfare, youth unemployment and health security. Labor has been instrumental in building coalitions around these issues. A fragmentation of their administration will only encourage narrow thinking and a fragmentation of the political voice that now speaks for all of them.” Statement on “Separate Department of Education” adopted by the Twelfth Constitutional Convention,” AFL-CIO, December 1977; reprinted in House Government Operations/ Legislation and National Security Subcommittee, “Establishing a Department of Education” (17, 20, and 21 July 1978, 1 and 2 August 1978), 321.

54. OCR Review,” box 298, Folder: OCR Review 5/16/80, p. 1, Harris Papers.

55. Author telephone interview with Peter Jacobson, former OCR director of Divisional Analysis, 11 November 2002.

56. See, for example, Pierson, , Dismantling the Welfare State? (New York, 1994)Google Scholar; and Shull, Steven A., The President and Civil Rights Policy: Leadership and Change (New York, 1989)Google Scholar.

57. See, for example, Pierson, Dismantling the Welfare State?; Skocpol, , Protecting Soldiers and Mothers (Cambridge, Mass., 1992)Google Scholar; and Weir, Margaret, Politics and Jobs (Princeton, 1992)Google Scholar.

58. For an overview of historical institutionalism, see Thelen, Kathleen and Steinmo, Sven, “Historical Institutionalism in Comparative Politics,” in Structuring Politics: Historical Institutionalism in Comparative Analysis, ed. Steinmo, Sven, Thelen, Kathleen, and Longstreth, Frank (New York, 1992), 1–32Google Scholar. On civil rights policies, see, for example, Skrentny, John D., The Minority Rights Revolution (Cambridge, Mass., 2002)Google Scholar, and Bonastia, Christopher, Knocking on the Door: The Federal Government's Attempt to Desegregate the Suburbs (Princeton, 2006)Google Scholar. On policy legacies, see Theda Skocpol, Protecting Soldiers and Mothers; Pierson, Dismantling the Welfare State? and Weir, Politics and Jobs.

59. Stanfield, Rochelle L., “Reagan Courting Women, Minorities, But It May Be Too Late to Win Them,” National Journal, 28 05 1983), 1118–1123Google Scholar.

60. House Government Operations/Intergovernmental Relations and Human Resources Subcommittee, “Oversight of the Office for Civil Rights at the Department of Health and Human Services” (6 and 7 August 1978), 84.

61. DeLew, Nancy and Weinick, Robin M., “An Overview: Eliminating Racial, Ethnic, and SES Disparities in Health Care,” Health Care Financing Review 21, no. 4Google Scholar.

62. HHS, “Healthy People 2010: Understanding and Improving Health,” (Washington, D.C., 2003)Google ScholarPubMed.

63. HHS Title VI Regulation, 45 CFR 80.6.

64. Perez, “The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status,” 651. It was not until 1974 that OCR tried to gather data systematically from hospitals to monitor compliance with Title VI–and then only in response to a consent decree from a case regarding segregation in New Orleans hospitals. The findings from this initiative, finally released in 1977, represented “the only systematic effort ever conducted to evaluate the impact of the Civil Rights Act and the enforcement of Title VI in the Medicare program on racial segregation in hospital care in a metropolitan area” (Smith, Health Care Divided, 174).

65. Perot and Youdelman, “Racial, Ethnic, and Primary Language Data Collection in the Health Care System,” 25.

66. van Ryn, Michelle and Burke, Jane, “The Effect of Patient Race and Socio-Economic Status on Physicians' Perceptions of Patients,” Social Science and Medicine 50 (2000): 813–828CrossRefGoogle ScholarPubMed. Van Ryn and Burke analyzed data from 618 post-angiogram physician-patient encounters in New York State, finding that the race of patients is associated with physicians' assessment of patient intelligence, feelings of affiliation toward the patient, expectations of noncompliance, and beliefs about patients' likelihood of high-risk behaviors. These differences persisted after adjusting for socioeconomic status and standard covariates, including patient age, sex, and health-risk status, and physician age, race, sex, and specialty.

67. See Luft, Harold, “Why Are Physicians So Upset about Managed Care?” Journal of Health Politics, Policy and Law 24, no. 5: (1999) 957–966Google Scholar; and Quadagno, Jill S., “Why the United States Has No National Health Insurance: Stakeholder Mobilization Against the Welfare State, 1945–1996,” Journal of Health and Social Behavior 45: (2004) 25–44Google Scholar. On the public-sector side, since 2000 OCR has considered Medicare payments to physicians to be a form of federal financial assistance, suggesting that doctors now fall under Title VI regulations. See Rosenbaum and Teitelbaum, “Civil Rights Enforcement in the Modern Healthcare System.”

68. “AMA announces new program to tackle health care disparities,” 11 December 2002, accessed 3 April 2003 at www.ama-assn.org/ama. At the same site, see also “Perception vs. Reality” and “AMA collaborates with others in new health disparities initiative,” 17 February 2003.

69. See Kaiser Family Foundation, “Racial/Ethnic Differences in Cardiac Care: The Weight of the Evidence (Summary Report)” (Menlo Park, Calif., 2002)Google Scholar. While racial differences in cardiac care appear to be the best documented, there is good reason to believe that unequal treatment occurs across many categories of treatment. In one of the two main reviews of the literature on disparate treatment, Geiger finds that “the preponderance of the evidence strongly suggests that among the multiple causes of racial and ethnic disparities in American health care, provider and institutional bias are significant contributors–a possibility raised repeatedly, if reluctantly, by many researchers.” As he observes, compared to (important) efforts to target “differences in the social, physical and biological environments–incomes, education, occupation, housing and nutrition–which are themselves determined in part by persistent racism … provider and institutional bias are far more directly (though not easily) remediable, and represent an opportunity for more rapid change.” Geiger, H. Jack, “Racial and Ethnic Disparities in Diagnosis and Treatment: A Review of the Evidence and a Consideration of Causes,” Papers in Institute of Medicine, Unequal Treatment: Confronting Racial and Ethnic Disparities in Healthcare (Washington, D.C., 2002)Google Scholar. The same argument is made in David Smith, Barton, “Eliminate the Disparities in Treatment: The Link to Healing a Nation,” Journal of Healthcare Management 47, no. 3: 156–160Google Scholar. The other primary literature review in this area, by Mayberry et al., finds that the evidence for racial disparities in treatment varies according to disease category and service type. They find the evidence for disparate treatment to be relatively strong in the area of heart disease and stroke, and somewhat less conclusive in areas such as cancer, HIV/AIDS, diabetes, and mental health. Mayberry and his colleagues urge further research into the causes of racial health disparities, which remain “poorly understood.” See Mayberry, Robert M., Mili, Fatimi, and Ofili, Elizabeth, “Racial and Ethnic Differences in Access to Medical Care,” Medical Care Research and Review 57, supplement 1 (2000): 131Google Scholar.

70. On civil rights staffs and budgets, see U.S. Commission on Civil Rights, Federal Title VI Enforcement to Ensure Nondiscrimination in Federally Assisted Programs. On reductions in OCR staffing, see Perez, “The Civil Rights Dimension of Racial and Ethnic Disparities in Health Status.” On the poor use of resources, see U.S. Commission on Civil Rights, The Health Care Challenge: Acknowledging Disparity, Confronting Discrimination, and Ensuring Equality, vol. 2 (Washington, D.C., 1999)Google Scholar.

71. Rosenbaum and Teitelbaum, “Civil Rights Enforcement in the Modern Healthcare System.”

72. Remarks by Pratt, Sara K., National Fair Housing Research and Policy Forum, Washington, D.C., 13 03 2004Google Scholar.

73. Leadership Conference on Civil Rights, “Position Paper on Administration of Civil Rights Programs,” box 164, Civil Rights/Liberties–Minorities (General), Domestic Policy Staff Files: Eizenstat, CPM.

74. Memo, Albert A. Applegate to George Romney, box 41, George Romney Papers, Bentley Historical Library, Ann Arbor.

75. Such an office also might be responsible for assuring compliance with existing health-quality standards. See Rosenbaum and Teitelbaum, “Civil Rights Enforcement in the Modern Healthcare System.”