Racial Disparities In Nursing Homes: Building On A Corrupted Foundation Of Inequality

1. Racial Disparities In Nursing Homes: Building On A Corrupted Foundation Of Inequality Ruqaiijah Yearby, J.D., M.P.H. Assistant Professor, Institute for Health Law Loyola University Chicago School of Law

2. Introduction Permeating every facet of life including health care, racial tensions and discord have been a part of the history of the United States since its creation. The United States long-term care system has not only been plagued by racial segregation, but also with significant failures in providing quality care to minority populations. In the 1960s, the federal government unsuccessfully tried to address racial segregation in nursing homes in three specific ways: intervening in the Simpkins v. Moses H. Cone Memorial Hospital case, passing the Civil Rights Act of 1964, and passing the Medicare and Medicaid Acts. However, the failure of the federal government to consistently and systematically enforce the laws prohibiting racial segregation has culminated in the continued de facto segregation of elderly African Americans to racially segregated, poor performing nursing homes. In the 1960s, the federal government unsuccessfully tried to address racial segregation in nursing homes in three specific ways: intervening in the Simpkins v. Moses H. Cone Memorial Hospital case, passing the Civil Rights Act of 1964, and passing the Medicare and Medicaid Acts. However, the failure of the federal government to consistently and systematically enforce the laws prohibiting racial segregation has culminated in the continued de facto segregation of elderly African Americans to racially segregated, poor performing nursing homes.

3. Road Map History of Nursing Home & Racial Disparities in Health Care Govt. Intervention in Racial Segregation in Health Care Continuation of Racial Segregation and Disparities in Nursing Homes

4. History of Nursing Home & Racial Disparities in Health Care: 1930s 1930 Public inst. Serve AA, Private Inst. Serve whites AA uninsurable bc race an uninsurable condition = no health insurance 1935 Social Security Act passed Only funded private inst. Est. NH so fostered segregation in nursing homes 1938 Voluntary health Insurance (BCBS) created defense against racial integration and national health care

5. History of Nursing Home & Racial Disparities in Health Care: 1940s 1946 Hill Burton Act Granted federal funding for construction of hospitals No racial discrimination � 622(f) = Except in cases where separate hospital facilities are provided for separate populations groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each such group The only time that federal legislation explicitly permitted the use of federal funds to provide a racially exclusionary services. The only time that federal legislation explicitly permitted the use of federal funds to provide a racially exclusionary services.

6. History of Nursing Home & Racial Disparities in Health Care: 1950s 1954 Amendment to Hill Burton Act provided funding to charitable and public organizations constructing nursing homes Seemingly would equalize care of AA, but � 622(f) allowed nursing homes to stay separate

7. Government Intervention in Racial Segregation in Health Care Simpkins Case Title VI Medicare & Medicaid

8. Simpkins Case AA challenged Const. of � 622(f) which promoted segregation U.S. Attorney General intervened on behalf of AA U.S. Court of Appeals for the Fourth Circuit ruled � 622(f) unconstitutional In 1962 African American physicians, dentists, and patients filed a lawsuit against three hospitals in North Carolina for race discrimination as state actors based on their receipt of Hill Burton funding. In 1963, the U.S. Court of Appeals for the Fourth Circuit ruled that the language in the Hill-Burton Act allowing segregation was unconstitutional. In 1962 African American physicians, dentists, and patients filed a lawsuit against three hospitals in North Carolina for race discrimination as state actors based on their receipt of Hill Burton funding. In 1963, the U.S. Court of Appeals for the Fourth Circuit ruled that the language in the Hill-Burton Act allowing segregation was unconstitutional.

9. Civil Rights Act of 1964, Title VI Prohibited racial discrimination in health care Required the Secretary of (DHEW) to promulgate rules: prohibiting federal funding of nursing home construction activities, and requiring written assurances of nondiscrimination from nursing homes 42 U.S.C �� 2000d Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin 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. 42 U.S.C �� 2000d Prohibition against exclusion from participation in, denial of benefits of, and discrimination under federally assisted programs on ground of race, color, or national origin 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.

10. Medicare/Medicaid Act & Title VI Change in industry form mom and pop to private business Lapse of time btw passage and cash flow 6mo. behind hospital Because of the protections against discrimination granted in Title VI, President Johnson and Congress consciously decided not to include any requirements prohibiting racial segregation in the Medicare and Medicaid Acts of 1965. Instead, Congress decided to regulate integration and quality by increasing federal funding to nursing homes and imposing certain health and safety standards. Because of the protections against discrimination granted in Title VI, President Johnson and Congress consciously decided not to include any requirements prohibiting racial segregation in the Medicare and Medicaid Acts of 1965. Instead, Congress decided to regulate integration and quality by increasing federal funding to nursing homes and imposing certain health and safety standards.

11. Continuation of Racial Segregation and Disparities Unfulfilled Promise: Racial Integration

12. Medicare & Medicaid Certified Nursing Homes No incentive to integrate Influx of cash not enough to bribe NH No Monitoring of Racial Integration by DHEW Segregated substandard nursing homes President Johnson decided to rely only on paper assurance for NH. So as long as discrimination was not blatant, there was not any need to change. Most NH receive Medicaid which barely equals the cost of care so no incentive to integrate To date, HHS OCR has not collected racial or ethnicity data as part of its Title VU enforcement effortsPresident Johnson decided to rely only on paper assurance for NH. So as long as discrimination was not blatant, there was not any need to change. Most NH receive Medicaid which barely equals the cost of care so no incentive to integrate To date, HHS OCR has not collected racial or ethnicity data as part of its Title VU enforcement efforts

13. Unfulfilled Promise: Racial Integration Percentage of Minorities in neighborhood v. Percentage of Minorities in Nursing Homes Percentage of minorities in individual neighborhood does not mirror the percentage of minorities in nursing homes in that neighborhood. IL is in the second tier of states that have the most racially segregated in nursing homes. Nationally, 40% of AA are in poor performing facilities compared to 9% of whites. Milbank Study Kentucky is the only state where the number of blacks and whites in poor performing facilities is equal Percentage of minorities in individual neighborhood does not mirror the percentage of minorities in nursing homes in that neighborhood. IL is in the second tier of states that have the most racially segregated in nursing homes. Nationally, 40% of AA are in poor performing facilities compared to 9% of whites. Milbank Study Kentucky is the only state where the number of blacks and whites in poor performing facilities is equal

14. Solutions: Enforce Title VI Promulgate regulations concerning racial integration Require Surveyors to monitor racial integration Impose sanctions and terminate nursing homes for racial segregation

15. Conclusion Minorities have been relegated to segregated substandard nursing homes because of the government�s conscious disregard of the problem. To rectified this problem, HHS must aggressively enforce Title VI for all Medicare and Medicaid providers.