Health Care in a Context of Civil Rights (1981) / Chapter Skim
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LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT
LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT
Pages 140-160
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From page 140... ...
Federal agencies have been authorized, and in some cases mandated, to collect data, identify relevant issues, and establish and enforce policies regarding discrimination in the delivery of health services. However, neither the enforcement program for Title VI, the major vehicle for civil rights enforcement in health care, nor the activities carried out under the federal health planning program have provided a basic description of relevant problems.
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From page 141... ...
A variety of legislatively and administratively established prohibitions apply to the delivery of health care by both public and private providers and include legislation enacted by Congress and some states in the last decade prohibiting discrimination on the basis of sex, age, or handicap. TITLE VI OF THE CIVIL RIGHTS ACT OF 1964 The Civil Rights Act of 19641 established the authority for a variety of federal governmental initiatives to end discrimination in voting, public accommodations, education, and nearly all other activities under federal jurisdiction.
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From page 142... ...
More recently, the OCR drafted compliance guidelines for other recipients of health-related funds (for example, state Medicaid agencies, health planning agencies, mental health centers) , but these have never received clearance by all parts of the department and been made final.
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From page 143... ...
Even before the division into the two departments, however, OCR was showing increased concern with civil rights issues in health and welfare, in part as a result of pressure from private advocacy groups that successfully brought suit to force increased enforcement activities with regard to health care providers. The increased activity is evident, for example, in a projection by the Director of OCR of Title VI activities for fiscal year 1981, which included investigation of all civil rights complaints against health facilities plus more than 250 compliance reviews of hospitals, nursing homes, and state health-related agencies.12 In addition, OCR undertook a large Title VI compliance survey of hospitals in late 1980.
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From page 144... ...
.16 Health facilities are required to execute non-discrimination assurances as part of initial certification, and the policies of most nursing homes are reviewed as part of the recertification review for Medicare and Medicaid eligibilty, but no monitoring of actual services rendered has been done on either a sample or across-the-board basis. In a related activity, for the past 10 years OCR has attempted to secure assurances from state agencies that they are not discriminating in the federal health and welfare programs they administer and that they are assessing the compliance of recipient institutions, including health care providers.^ Although many regional OCR offices devote substantial time and effort to state agency compliance review, apparently little useful data collection or monitoring of health care providers has resulted.
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From page 145... ...
However, for several reasons, which may include the limited authority and resources of planning agencies and the lack of consistent federal guidance regarding how civil rights concerns might appropriately be addressed by health planning agencies, the planning program has given only limited explicit attention to civil rights issues.18 In carrying out their responsibilities, health planning agencies are to consider civil rights as one factor in making decisions such as approving new services, facilities, and other capital expenditures, and reviewing the appropriateness of existing facilities. How that is to be done and how civil rights considerations are to be weighted relative to other social goals are not clear.
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From page 146... ...
has provided little procedural or substantive guidance about the requirements of Title VI compliance for state and local planning agencies funded through the planning program. The potential impact of applying Title VI to health planning agencies and their decisions has been emphasized by recent controversies in New Orleans, Louisiana (Appendix E)
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From page 147... ...
By agreeing to make revisions in Plan Omega that would bring it into compliance with Title VI, OCR and WMC apparently agreed that the Title VI regulations applied to this type of decision. The Wilmington case suggests that an effective linkage of institutional planning, areawide health planning, and Title VI would require integration of civil rights considerations into the health planning process at an early stage.
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From page 148... ...
The Hill-Burton "Community Service" Obligation Another program through which certain civil rights issues may be addressed is the Hill-Burton program and its successor legislation for facility construction in the National Health Planning and Resource Development Act of 1974. The assurances given by facilities that received funding under Hill-Burton provide a legal basis for addressing some of the problems described in Chapter 2, particularly those pertaining to refusals to accept Medicaid patients, a population that, in many areas of the country, contains disproportionate numbers of persons from racial and ethnic minorities.
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From page 149... ...
Even when the program was effectively terminated in 1974 by the National Health Planning and Resources Development Act, the successor federal program attached similar conditions to receipt of funds under the facility construction program authorized by the new legislation.3 The 1974 legislation, while essentially replacing the Hill-Burton program, explicitly required DHEW to monitor and enforce the uncompensated service and community service obligations of recipients of funds under the Hill-Burton programs and the new program.33 Further, institutions that had benefited from Hill-Burton continued to carry the obligation. Until the early 1970s when several consumer-initiated lawsuits forced DHEW to give more than pro forma recognition to the matter, the statutory obligations were given no further specification in program regulations or guidelines and, as was later documented in hearings, the obligations were generally ignored by both recipient facilities, DHEW, and state Hill-Burton agencies.34 To date, the obligation to provide a specific volume of uncompensated service has been the object of more attention than the community service obligation, although this may change in the future.
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From page 150... ...
Ironically, the first meaningful interpretation of the "community service" obligation came from a federal court decision that invalidated a portion of the statutory language that created the charity care obligations. Relying on the Hill-Burton language that allowed a "separate but equal" exception to the prohibition of racial discrimination, the Public Health Service (and later DHEW)
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From page 151... ...
there will be made available in the facility or portion thereof to be constructed or modernized a reasonable volume of services to persons unable to pay therefore, but an exception shall be made if such a requirement is not feasible from a financial viewpoint. The federal program regulations issued in 1964 following the statutory amendment required that recipient facilities comply with the community service obligation and gave a general interpretation of its meaning, but they gave little indication that DHEW was committed to its enforcement.41 The regulations did, however, indicate that in order to comply with the statute, funded facilities both must not discriminate on the basis of race, creed, color, or national origin and must furnish a "community service" -- the first use of that particular term to specify the obligation of Hill-Burton facilities.42 "Community service," as defined by the 1964 regulations, meant that (1)
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From page 152... ...
After the May 1979 regulations were issued, DHEW held workshops for consumers and providers to explain DHEW enforcement plans. The materials produced for these workshops indicated that a plan of enforcement would not be implemented immediately and would emphasize compliance with the uncompensated service, rather than the community service obligation.5^ The regulations' relevance to civil rights concerns, however, is reinforced by the increased involvement of the OCR in their enforcement.
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From page 153... ...
Interest in civil rights in health care has grown in recent years, and the creation of the DHHS brought about a significant increase in resources available for civil rights enforcement in health. However, an examination of recent enforcement efforts and testimony before the committee forcefully demonstrates that there is no consensus on a conceptual framework for evaluating "compliance" by health care providers, and, until further specifications can be made of what constitutes civil rights noncompliance by providers, monitoring efforts will be unfocused.
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From page 154... ...
• The scope and nature of responsibilities of health providers and health planning agencies under Section 504 of the Rehabilitation Act. The ambiguities in the definitions of discrimination in health cannot, however, be completely "solved" by administrative remedies.
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From page 155... ...
Similarly, closer cooperation between OCR and the Health Care Financing Administration can lead to development of measures and indicators that will help focus compliance review activities. OCR should also consider the possible usefulness for civil rights activities of data collected by other agencies in DHHS and recommend changes needed to facilitate enforcement procedures.
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From page 156... ...
Besides civil rights enforcement per se, the enforcement of the community service and equal access obligations of Hill-Burton facilities could have an important impact on alleviating some circumstances that have led to the unequal treatment of minorities by institutional health care providers. The juncture of civil rights and health planning, which involves different agencies within DHHS, raises the need for coordination so that policies will be coherent and consistent.
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From page 157... ...
. The Title VI directive to federal agencies regarding enforcement of the policy set forth in Title VI is as follows: Each federal department and agency which is empowered to extend federal financial assistance to any program of activity, by way of grant, loan, or contract other than a contract of insurance of guaranty, is authorized and directed to effectuate the provisions of section 2000d of this title with respect to such program activity by issuing rules, regulations, or orders of general applicability which shall be consistent with achievement of the objectives of the statute authorizing the financial assistance in connection with which the action is taken.
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From page 158... ...
See S Newman, "Equal Access to Health Care: Health Planning Agencies' Obligations," 5 Health Law Project .Library Bulletin 1 (July 1980)
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From page 159... ...
Tatel, Director, Office for Civil Rights, letter to Ronald F Falgout, Chief Administrative Officer, Louisiana State Health Planning and Development Agency, August 22, 1978.
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