National Academies Press: OpenBook

Health Care in a Context of Civil Rights (1981)

Chapter: LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT

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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Suggested Citation:"LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT." Institute of Medicine. 1981. Health Care in a Context of Civil Rights. Washington, DC: The National Academies Press. doi: 10.17226/18680.
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Below is the uncorrected machine-read text of this chapter, intended to provide our own search engines and external engines with highly rich, chapter-representative searchable text of each book. Because it is UNCORRECTED material, please consider the following text as a useful but insufficient proxy for the authoritative book pages.

5 LEGAL MECHANISMS FOR CIVIL RIGHTS ENFORCEMENT There is a general lack of awareness of civil rights issues in health care, but a framework of laws exists within which disparities that may be due to discrimination can be addressed. This chapter describes three legal bases for actions against racial/ethnic discrimination in health care delivery—Title VI of the Civil Rights Act, the health planning legislation, and the Hill-Burton Act for facilities construction. This chapter also briefly reviews the enforcement of existing civil rights legislation. The review suggests that, while existing law has limitations, the lack of effective enforcement of existing laws has been a major impediment to defining more clearly the scope and nature of civil rights in health care. 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. Available enforcement mechanisms have received only limited use and development, and their potential influence has just begun to be felt. The first serious attempts to apply civil rights law to the delivery of health services are still under way, and their consequences are uncertain. The specific legal meaning of discrimination in the health care context will grow out of such cases as are described in this chapter. It should be emphasized that civil rights as a concept is not "set"; the law is an evolving process. Legal cases both reflect and determine societal concensus as to what is discrimination. Legal issues and cases are presented in this chapter not only to show the present status of civil rights activities in health care but also to stimulate wider debate that may help clarify many issues and questions. This chapter does not attempt to summarize or catalog all relevant laws or the manner in which they are or could be enforced, and it does not specifically extend the analysis of the previous chapter regarding handicapped persons. It describes the laws that are likely to be the major bases for legal challenges to discrimination, 140

141 particularly on the basis of race or ethnicity, in the forseeable future. OVERVIEW OF CIVIL RIGHTS LAWS Since the civil rights litigation of the 1950s and 1960s and the Supreme Court's abandonment of the "separate but equal" interpretation of the Equal Protection Clause of the Fourteenth Amendment, it has been established that the federal constitution prohibits discrimination by the government on the basis of race. This constitutional prohibition has been supplemented and extended through federal and state legislative and administrative enactments prohibiting racial discrimination by recipients of federal funds, by government contractors, by most private and public employers, in public accommodations, and in many other activities. Although wholly private activities are exempt from the proscription of the federal constitution, Congress or state legislatures under various jurisdictional bases can prohibit racial discrimination in many private activities. 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. Title VI of that act prohibited racial discrimination by recipients of federal financial assistance: 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. Title VI also required federal agencies to implement this policy in their programs by issuing regulations and terminating federal assistance in the event of failure to comply with Title VI.2 In 1965 the Department of Health, Education, and Welfare (DHEW) issued its first set of interpretative regulations that gave substance to the Title VI prohibition on discrimination by recipients of departmental funds. These were amended in 1973 and have not been revised again. (See Appendix B for the full text of the substantive portion of the regulations.)

142 Although activities in the health sector largely took a back seat to questions of discrimination in education, the potential implications of civil rights activities in health care are broad. The regulations interpret Title VI to prohibit not only the denial of services or benefits on the basis of race, color, or national origin, but also to prohibit any form of differential or segregated treatment. They further prohibit discrimination in a variety of related contexts (such as site location and selection of membership for boards) and make it clear that the jurisdictional reach of Title VI goes beyond overt acts of discrimination: A recipient . . . may not, directly or through contractual or other agreements, utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination.4 However, because the regulations were generalized for all of DHEW, they give little indication of how they would apply to the specific circumstances of health care delivery. They include no specific reference to the obligations of health care providers. Specific "guidelines" for compliance by hospitals and nursing homes were issued in 1969 in the form of letters executed by the Director of the Office for Civil Rights (OCR).5 The guidelines (Appendix C) provide the major specific federal interpretation of the Title VI responsibilities of health care providers. They cover such matters as the meaning of the Title VI prohibition on discrimination in admission procedures, room assignments, referral arrangements, and staff privileges in hospitals and nursing homes. In addition, the hospital and nursing home guidelines indicate that underutilization by minorities is itself a source of concern. As stated in the hospital guidelines: Where there is a significant variation between the racial composition of the patient census and available population census data for the service area or potential service area, the hospital has a responsibility to determine the reason for such variation and to take whatever action may be necessary to correct any discrimination.* This guideline does not define discrimination. Nor does it recognize that defining service areas raises a variety of methodological and political problems. For example, the extent of statistical under- representation may be heavily influenced by where the boundaries of service areas are drawn, as well as by what data and methods of estimation are used. 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. Thus, the 1969 guidelines are the only available official interpretation of Title VI in the health care context.

143 This lack of policy specification and clarification has hampered enforcement efforts. For example, the Title VI responsibilities of state and local planning agencies have never been clear. Nor has OCR formally determined whether private physicians who participate in Medicare or Medicaid have responsibilities under Title VI. Even with regard to hospitals and nursing homes, the guidelines do not specify the data to be used to monitor compliance, the procedures to be used for monitoring and enforcement activities, or the remedies that will be sought when discrimination is identified. The size and organization of OCR also has limited Title VI enforcement. Since 1968 the primary responsibility for enforcement of civil rights laws within DHEW (and later DHHS) has rested with a separate OCR in the Office of the Secretary. As of January 1980 (prior to the creation of the Department of Education from the old DHEW), OCR was budgeted for a staff of 1,700, 450 in Washington and the remainder in the 12 regional offices, to cover all aspects of civil rights monitoring and enforcement in DHEW programs.8 But the investigative staff numbered only about 600 in the regional offices. However, OCR attorneys have been assisted by attorneys from the DHEW Office of General Counsel and by Justice Department attorneys when disputes required formal adjudication. OCR can also occasionally "borrow" personnel from other programs and hire outside consultants as the budget permits. OCR has no direct supervisory or mandatory control over any program activities or program staff within the department. OCR activities and decisions affecting individual programs are negotiated by OCR staff with personnel from the various programs, and the resolution of conflicts between OCR and program staff requires intervention by the Office of the Secretary.9 As has been stated, most of the work of OCR heretofore has been on issues in education; prior to 1980, as little as 10 percent of OCR's staff and resources were committed to health or welfare issues. However, in April 1980, following the creation of the new Department of Education and the consolidation of the remaining DHEW programs into the DHHS, only about two-thirds of the OCR staff moved to the new department.^ The one-third of the previous OCR staff forming the OCR in DHHS represents a substantial increase in the resources available for civil rights activities in health and welfare. 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. These activities prescribe an ambitious agenda for OCR, particularly in light of its limited experience in health issues.

144 Although OCR's plans include a large number of compliance reviews (that is, on-site evaluations of the compliance of an agency or facility with the requirements of Title VI) of hospitals, nursing homes, and other recipients of health-related DHHS funds, few have been undertaken in the past, and no substantive guidelines or procedures for compliance assessment of any of these institutions exist in other than draft form. Historically, OCR has relied heavily on individual complaints to direct its enforcement efforts. Until very recently, however, there have been few Title VI complaints filed against health care providers or other health-related institutions. Consequently, OCR has conducted few individual investigations of health care providers.^ However, the number of complaints alleging discrimination in health services has markedly increased in the past three or four years. Virtually all of the recent health-related investigations of OCR have been the product of privately initiated lawsuits or individual complaints. The New Orleans lawsuit, Cook v. Ochsner Foundation Hospital (summarized in Appendix E) is an example. OCR has also been responsible for monitoring the Title VI compliance of all recipients of departmental funds. In the past, however, the compliance of health care providers has not been monitored on a comprehensive or periodic basis; the monitoring activities have been confined to the requirement that providers receiving federal funds execute (and periodically re-execute) assurances of non-discrimination.15 No data on health services have regularly been collected for civil rights enforcement purposes, and data collected by statistical agencies (such as the National Center for Health Statistics) or for program monitoring have been of limited usefulness for identifying possible civil rights problems. Occasional studies of certain providers in localized geographic regions have been conducted under OCR auspices, and a one-day hospital inpatient census was conducted in 1969 and again in 1973 (with inconclusive results).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. OTHER APPROACHES TO CIVIL RIGHTS ENFORCEMENT Although direct application of Title VI is the primary vehicle for federal enforcement of civil rights in health care, some of the same

145 objectives may also be pursued through other administrative activities, including the health planning and Hill-Burton programs. The Health Planning Program The 1974 National Health Planning Resources Development Act was not developed specifically as a response to issues arising in the health care of racial and ethnic minority groups. Nevertheless, the mandate of the planning agencies established by the act addresses several issues relevant to civil rights concerns. Planning agencies are responsible for developing plans that, among other things, assure that health services are available and accessible to all residents of the area. Thus, they must confront problems of unequal access to health care, the needs of medically underserved populations, and disparities in health status. These are issues that, in many parts of the country, pertain to disproportionate numbers of minority groups. 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. Whether planning agencies are required under Title VI to modify or defer decisions where Title VI violations are alleged has been a matter of some controversy, as is shown by the New Orleans case described in Appendix E. The statutory scheme implies that services to minorities be considered along with a variety of other factors in health planning decisions. This implication can be seen in the statutory requirement for the development of federal guidelines that would "reflect the unique circumstances and needs of medically underserved populations," and for state health planning agencies to consider "the extent to which such proposed services will be accessible to all the residents of the area to be served by such services" in making certificate-of-need decisions.* *In addition to the statutory language, the regulations recently proposed for planning agencies in administering state certificate of need programs would require specific consideration of the unmet needs of minorities.^ If adopted, these regulations would require planning agencies, in making certificate of need decisions, to make written findings about the impact of the proposed service on minorities, including the extent to which racial minorities (and other underserved groups) are likely to have access to the proposed services and the past performance of the applicant in complying with Title VI and other civil rights laws.

146 Although there is little evidence that state and federal health planning agencies have brought civil rights considerations into planning activities, as a result of recent litigation and a developing interest within the agency, DHHS has recently begun to address the problems of racial minorities in the administration of health planning programs. First, the proposed regulations for the planning activites established by the planning act and Section 1122 of the Social Security Act explicitly require consideration of the health needs of minorities by state and local health planning agencies.20 Second, DHHS has considered an interpretation of Title VI that would specifically require health care facilities and health planning agencies to provide and plan for services in a non-discriminatory manner. The discussion to this point has concerned the authority of health planning agencies under their authorizing legislation. In addition, health planning agencies may also be required to address issues of access for minorities under the Civil Rights Act. Congress clearly intended Title VI of the Civil Rights Act of 1964 to prohibit discrimination in all federally funded programs. Although Title VI mandates all federal agencies to establish an administrative program to ensure that the prohibition incorporated into Title VI is enforced,21 DHEW (and DHHS) 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), and Wilmington, Delaware. These cases also illustrate the intractability of some of the problems that may arise. In March 1976 the Wilmington Medical Center (WMC), claiming serious financial distress, proposed a major relocation of its facilities and services from a site in the heavily minority, inner city of Wilmington to a suburban site.22 Since WMC participates in the Medicare and Medicaid programs, it sought "Sec. 1122 approval" for capital expenditures related to WMC's relocation plan (Plan Omega). Apparently without taking specific consideration of the impact on the minority population, the local and state health planning agencies reviewed the application and made favorable recommendations. DHEW gave final approval soon thereafter. In September 1976, minority residents of Wilmington and several groups representing minorities filed suit in federal court charging that the removal of beds and services contemplated by the plan would deny them access to health care services which would be in violation of Title VI and its implementing regulations. DHEW and the local and state planning agencies, by virtue of the approval each had given the relocation plan under Section 1122, were charged with violating their obligations to enforce and comply with Title VI. The federal district court ordered DHEW's OCR to conduct an investigation.2^ OCR determined that implementation of Plan Omega would violate Title VI. However, after negotiations with WMC, OCR concluded that the potential violations could be eliminated by modifying the plan according to 12

147 remedial conditions, such as provision of transportation for residents of the inner city to the the new suburban site. WMC accepted the conditions and amended the original plan. The plaintiffs, however, were not satisfied with the settlement, and a series of new legal actions and appeals ensued.24 The matter is still under appeal. A legacy of the litigation is the original judicial recognition that a facility that closes or relocates services may violate Title VI and that private individuals have a right of action against both the facility and the government. The case is also important as the first recognition of the applicability to a health facility of the Title VI site relocation regulation (see Appendix B)—a regulation presumably written in contemplation of the relocation of educational facilities. Significant also was DHEW's position that the original relocation plan would violate Title VI if it had a "disparate effect" on minorities, even without a finding of intent to discriminate by the facility. By finding that Plan Omega, as originally proposed, could violate Title VI, OCR established a link between Title VI and health facilities' ability to make such decisions, as well as a link between the planning/regulatory apparatus and civil rights concerns. Both links raised new and important legal and ethical questions in the organization of health services and health planning. OCR effectively held that Section 1122 reviews were inadequate if they failed to consider the site relocation regulation or other provisions of Title VI. 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. This would cover both the establishment of specific standards for determining compliance with Title VI and procedures for ensuring that those standards are adequately considered. Recent events in New Orleans demonstrate other complexities of integrating Title VI considerations with institutional decision-making and health planning reviews at state and local levels. In the aftermath of Title VI litigation in New Orleans (see Appendix E), OCR attempted to require the Louisiana State Health Planning and Development Agency (LSHPDA) to deny or defer approval of Section 1122 applications from hospitals that had previously been found in non-compliance with Title VI.25 However, the LSHPDA did not comply with OCR's deferral request,26 arguing that DHEW's proper remedy was to take action terminating federal funds to hospitals that were not in compliance with Title VI. Subsequently, the Health Resources Administration (HRA) within DHEW granted final approval to the application. This placed DHEW in the position of having one of its agencies approving new federal funding to a hospital while another of its agencies was claiming that the approval must be deferred because of civil rights violations. To date, no steps have been taken to resolve this inconsistency. No clear and simple answer can be found in the authorizing statutes that will resolve the awkward departmental position of having two offices publicly taking contrary positions on an important social issue.

148 The controversies in Wilmington and New Orleans show a growing recognition of the possible application of civil rights to health planning. Regulations proposed in March 1980 could be a first step toward more explicit consideration of the needs of minorities in health planning decisions, although they do not specifically mention Title VI or establish an applicant facility's compliance with Title VI as a criterion of planning agency approval. 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. The initial 1946 Hill-Burton program of federal grants for hospital construction represented more than financial assistance for hospitals and other health facilities.27 It brought an unprecedented investment of federal funds into facility construction and an expansion of federal regulation into health care.2° It also introduced planning on a nationwide basis. Participating states had to survey the need for health facilities and develop a state plan for health facility construction, establish programs for maintaining the quality and safety of funded projects, and meet a variety of other federal requirements in the administration of their survey and planning activities.29 Similarly, funded projects had to meet relatively extensive federal requirements relating to construction standards, financial viability, and maintenance and operation of the funded facility and conform to the priorities established by their state plans. The original legislation imposed on both the state agencies administering the program and the recipient facilities specific obligations to provide services to people who were unable to pay or were otherwise denied access to health facilities. These obligations have become the basis of legal challenges to hospital policies, such as refusal to accept Medicaid, that may establish significant barriers to many members of minority groups. The 1946 law required the development of state plans that, among other things would: provide for adequate hospital facilities for the people residing in a State, without discrimination on account of race, creed, or color, and for adequate hospital facilities for persons unable to pay therefore. Such regulation may require that before approval of any application for a hospital or addition to a hospital is recommended by a State agency, assurance shall be received

149 by the State from the applicant that (1) such hospital or addition to a hospital will be made available to all persons residing in the territorial area of the applicant, without discrimination on account of race, creed, or color, but an exception shall be made in cases where separate hospital facilities are provided for separate population groups, if the plan makes equitable provision on the basis of need for facilities and services of like quality for each group; and (2) there will be made available in each such hospital or addition to a hospital a reasonable volume of hospital services to persons unable to pay therefore, but an exception shall be made if such a requirement is not feasible from a financial standpoint.30 These "charity care" obligations, as the requirements of this provision have been frequently labeled, ostensibly imposed two distinct obligations on recipient facilities: (1) to provide a reasonable volume of "uncompensated services" and (2) to be available to all residents without discrimination, generally referred to as the "community service" obligation. These obligations were an integral part of the original legislative scheme reflected in the declaration of purposes and throughout the other provisions of the original legislation. The language of the original "charity care" obligations was specifically added to the legislation as part of a political compromise to ensure the support of congressional liberals. -^ As the Hill-Burton legislation was amended to include new funding mechanisms and additional categories of funding recipients, Congress continued to re-enact these obligations as preconditions to funding. 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. In 1972, under pressure from the courts, DHEW issued the first set of interpretive regulations specifying the meaning of the uncompensated service obligation and outlining a program that relied

150 heavily on the state Hill-Burton agencies for monitoring compliance by Hill-Burton facilities.35 Subsequent litigation by private consumer groups again attacked the adequacy of these efforts, and resulted in further amendments to the uncompensated services regulations in 1975.36 After 1974 health planning legislation effectively mandated increased federal enforcement efforts, extensive federal hearings were held in 1978, and additional federal regulations interpreting the charity care obligations were issued in 1979.37 Among other things, these new regulations committed DHEW to more rigorous enforcement of the uncompensated service obligation and defined more specifically the meaning of uncompensated service. However, because of a variety of problems surrounding the concept of uncompensated services, this aspect of the Hill-Burton obligations is a continuing source of controversy. The second Hill-Burton obligation—that recipient facilities be available to all—has, until recently, received less attention than the uncompensated services provisions, even from the consumer advocacy groups responsible for the Hill-Burton "charity care" lawsuits. To be sure, the original legislatively mandated obligation is only a general policy statement, and even as a policy statement it is subject to two very different interpretations. Narrowly interpreted, it bans discrimination on the basis of race, creed, or color. On the other hand, the mandate to "provide hospital facilities for the people residing in a State, without discrimination on account of race, creed, or color," can be read to require open access to all people who need (and presumably who can pay) for the services of the facility. The implications of such a statement of policy can be far-reaching. 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) had, during the first two decades of the program, given Hill-Burton grants to a number of facilities that had open and official policies of racial discrimination.38 In 1963 the Court of Appeals in Simkins v. Moses H. Cone Memorial Hospital ruled that the relevant portions of the federal statute and related regulations permitting this discriminatory practice were unconstitutional.3^ As a result of this decision, when Congress recodified and expanded the Hill-Burton program in 1964, the provision establishing the "charity care" obligation was amended, modifying the "community service" language and omitting the "separate but equal" exception: (f) That the State plan shall provide for adequate hospitals, and other facilities for which aid under this part is available, for all persons residing in the State, and adequate hospitals (and such other facilities) to furnish needed services for persons unable to pay therefore. Such regulations may also require that before approval of an application for a project is recommended by

151 a State agency to the Surgeon General for approval under this part, assurance shall be received by the State from the applicant that (1) the facility or portion thereof to be constructed or modernized will be made available to all persons residing in the territorial area of the applicant; and (2) 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) the services furnished are available to the general public or (2) admission is limited only on the basis of age, medical indigency, or type or kind of mental or medical disability." Thus, DHEW's view was that the statutory amendment had left the essential obligation unchanged, except for the elimination of the separate-but-equal exception. As with earlier "charity care" regulations, however, the 1964 regulations included no reference to monitoring or enforcement of the obligations. In 1974, under court order, DHEW issued regulations further interpreting "community service" to require recipients to participate in Medicare and Medicaid and to "take such steps as necessary" to ensure that Medicare and Medicaid patients were admitted without discrimination.43 But while the regulations clarified the meaning of the statutory term "available to all" and the term "community service" as used in the 1964 regulations, the 1974 regulations did not impose explicit standards for assessing compliance with the requirements. State Hill-Burton agencies were given almost total discretion to develop methods for evaluating and enforcing the obligations. In 1979, DHEW issued new charity care regulations (Appendix D) for both Hill-Burton facilities and facilities funded under the newer health facility construction program authorized by the 1974 legislation. In these regulations the community service obligation was made much more specific.44 The essential mandate of these regulations was to specify that the community service assurance required Hill-Burton facilities to be open to all residents of a facility's service area who are (1) able to pay and (2) in need of the services provided by the facility.45 Furthermore, the regulations require recipient facilities to provide emergency services to all residents, regardless of ability to pay, and to discharge or transfer

152 a person after rendering emergency services only after making a determination that doing so would not result in a substantial risk to the individual.46 The regulations also explicitly require the recipient to accept Medicaid and Medicare patients and implicitly require the facility to accept all third-party payment. In addition to these substantive requirements, the regulations also define certain practices as presumptively in violation of the community service obligation and explicitly list certain practices that may have to be modified if they result in patients being excluded from receiving care. For example, a policy of admitting only persons who have a physician on the facility's medical staff may have the effect of preventing a facility from meeting its obligation to be generally available to the community.4^ These regulations have important implications for minorities and others who traditionally have had problems gaining access to health care. The community service obligation is imposed in perpetuity, unlike the uncompensated service obligation, which expires 20 years after the receipt of Hill-Burton funds.48 Furthermore, the community service obligation requires participation in Medicaid, not as a remedial requirement, but as a substantive requirement imposed on all Hill-Burton facilities. The regulations define such particiption not just as being certified as an eligible Medicaid provider, but as providing service to a representative portion of the Medicaid population. Thus, whether discrimination against minorities is an intended or unintended consequence of discrimination against Medicaid and other governmental program recipients, these regulations provide a legal device by which the problem can be addressed. These regulations may also indirectly impose obligations on private physicians who are members of the medical staff of a Hill-Burton hospital, at least to the extent that a physician's activities can be causally linked to the compliance of the facility.49 This might arise, for example, in a situation in which hospitals admit only patients of staff physicians and staff physicians refuse to accept Medicaid patients. Thus, the community service regulations may provide a basis for eliminating some practices that have a disparate effect on minorities in situations where the application of Title VI may not be clearly defined. The validity and enforcement of the new Hill-Burton regulations has already been challenged by health providers.50 Thus far, the courts have upheld their validity, but it will be many years before the regulations will have been fully applied and tested before the courts. How DHHS will enforce the community service regulations remains to be seen. 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. In January 1980 the OCR entered into

153 an agreement with the Public Health Service to assume some departmental responsibility for enforcement of the community service obligation. In August 1980 the Secretary of DHHS decided to give full responsibility to OCR, although that decision was not immediately implemented. CONCLUSIONS This review of selected civil rights legal issues in health care leads the committee to conclude that there have been serious limitations in enforcement and monitoring. In particular, there has been little effective monitoring of civil rights compliance, in part because the concept of compliance has been ill-defined and, thus, appropriate measures of compliance have not been determined. Existing regulations are vague when applied to health services and institutions. There is also a lack of clarity in the definition of the role of planning agencies in implementing Title VI. 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. Although the hospital and nursing home guidelines issued by OCR in 1969 have shortcomings, their usefulness has been repeatedly noted by agency staff and representatives of civil rights groups. There is a clear need, however, for further clarification and specification of the requirements of Title VI and Section 504 in health care. OCR's recent investigations have been made on an ad. hoc, e£ post facto basis. Data needs were defined in the course of the investigation, and no criteria were available against which compliance could be judged. More stable civil rights enforcement efforts require codification of assumptions and procedures. Several policies have emerged out of civil rights enforcement efforts in recent years that should be more widely debated and, perhaps, codified in regulations or guidelines. Examples include the conclusions incident to the recent hospital relocation investigation in Wilmington, Delaware, regarding physical access to health services, the availability of transportation, and the problems inherent in duplication of services—particularly as these affect members of minority and handicapped groups; the remedial requirements developed in the New Orleans investigation (Appendix E) for hospitals found in noncompliance with Title VI; and the OCR positions (implied by the 1969 guidelines) on apparent underutilization of health services by minorities and on the issue of whether a showing of intent to discriminate is a necessary requisite of a finding that discrimination is, in fact, occurring.

154 In addition, the committee has noted a number of circumstances in which existing policies are confusing or ambiguous and that warrant specific interpretation and clarification: • The Title VI responsibilities of health planning agencies, including any requirements that civil rights be built into the plans and decisions of state and local planning agencies, and the extent of their discretionary authority to give priority to providers that engage in affirmative action. • The responsibities of hospitals and other facilities serving substantial numbers of non-English speaking people (such as requirements for interpreters or translations of basic documents such as patient consent forms). • The scope and nature of Title VI responsibilities of health facilities that plan to close or convert their services. • 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. In the future, as in the past, the impact of OCR enforcement efforts under Title VI and Section 504 will depend, in large part, on the judicial interpretation of whether a discriminatory effect, without a showing of discriminatory intent, constitutes a legal violation. If the legal promise of non-discrimination is to be defined and enforced in practical terms in the health area, it is essential to decide whether or not the "effects" approach—that is, concern about policies or practices that have racially disparate effects, whatever their intent—of the existing guidelines is to be taken seriously or, indeed, whether it will even be retained. The guidelines issued by OCR in 1969 delineate standards on which initial judgments can be made as to whether there is a cause for concern about racially disparate effects, and they set out the nature of the justification that may constitute acceptable explanations for these effects. The committee recommends that 1969 guidelines be proposed as formal regulations for DHHS, either in their present form or in a revised version that retains the essential "effects" approach to defining violations of Title VI. While the 1969 guidelines are hardly the final word on defining discrimination in health care, they provide a useful place to begin the process of debate, consensus, definition, and enforcement of civil rights in the health arena. Formal proposal in the Federal Register would not only make an important statement about the commitment of DHHS to the enforcement of civil rights, but would also provide the occasion for public comment by all concerned parties that would itself prompt further refinement of basic principles. Certain existing de facto policies should also be reconsidered. For example, OCR has historically distinguished between access and quality, claiming that, under Title VI, evaluations can be made of admissions to available services but not of the adequacy of the

155 service rendered. This notion, which follows civil rights approaches in education, has consequences for the data collected and procedures followed in compliance reviews. While quality of medical care in its strictest sense may be impossible to assess in the context of Title VI reviews, some surrogate measures of quality, such as length of stay or readmission rates, might be useful indicators of problem areas that need more focused investigation. Quality assurance efforts of many types are being undertaken throughout the country, in many cases by federally funded professional standards review organizations (PSROs). However, the potential usefulness of these efforts for identifying inappropriate racial and ethnic differences in health care has been largely untapped. The most widely used measures of civil rights compliance are aggregate measures of admissions to institutional providers itemized by racial/ethnic categories. Measures of services to those with handicaps are even more rudimentary, because few basic data are available on medical needs and use of services by handicapped persons. The committee found that there are serious shortcomings in data both for assessing compliance by health care providers and for assessing more generally overall problems in the health services provided to and/or needed by minorities and the handicapped. Such data are prerequisites to enforcement activities under present legal obligations and to the continuing process of definition as to what disparities are to be regarded as unreasonable or illegitimate in terms of civil rights laws. The committee regards as essential the development within OCR of greater technical expertise in health-related data analysis. OCR should work with existing data-collection agencies, such as the National Center for Health Statistics, to specify and obtain data needed for pursuit of OCR's responsibilities. 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. The committee suggests that the OCR inventory available indicators and measures of civil rights compliance, including available and potential sources of data. Much of the information contained in this report pertains to such an inventory. However, data collection is a hollow exercise, unless further specification can be made of what constitutes civil rights noncompliance by health care providers. Data collection and analysis are useless as compliance vehicles unless they are guided by informed judgments about possible explanations for disparities in the provision of services. This report suggests some of the complexities that must be faced in reaching such judgments and suggests some materials on which they might be made. In addition, decisions must be made about allocation of effort among various kinds of enforcement activities. OCR has announced its intention to undertake several hundred compliance reviews of health

156 care institutions each year. Because of limited OCR resources, this may result in less attention to individual complaints. Furthermore, given the present state of knowledge about the reasons for racial/ethnic disparities in health status and use of services, an emphasis on compliance reviews suggests unwarranted certainty that specific elements of discrimination can be identified and measured. On the other hand, while an emphasis on complaint investigation might lead to testing and refinement of what constitutes unlawful discrimination in health care activities, it may also dissipate energies as many complaints are found to lack merit. The implications of these different approaches deserve careful consideration in establishing policies for the OCR. Another issue concerns the proper scope of compliance reviews, which may focus on either individual institutions or geographic areas. Some striking racial/ethnic patterns become evident only when an investigation goes beyond a particular institution and considers the use of services in, for example, an entire metropolitan area. However, recent civil rights investigations in New Orleans and Wilmington show that broad compliance reviews require a major commitment of OCR resources. Although it may be possible to husband resources by limiting the issues to be assessed in a compliance review and by relying wherever possible on data collected for other purposes (for example, by PSROs), OCR's present staffing appears to be inadequate to conduct major compliance reviews of a large number of institutions. 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. For example, clarification is needed regarding OCR's authority to direct planning agencies to defer approval of proposals pending completion of a fund termination hearing. The kinds of enforcement activities now being contemplated, such as compliance reviews of major institutions, require more internal specification within DHHS of lines of authority and operating procedures, in addition to the delineation of substantive policy. Finally, because access to health facilities is often dependent upon access to, and the behavior of, private physicians, the committee recommends that OCR reconsider the informal policy under which private practitioners have been exempted from Title VI and related compliance requirements, even if they receive payments under Part B of Medicare. Existing civil rights concerns are largely encapsulated in OCR and administered in a way that allow other DHEW/DHHS programs to hold OCR, and its concerns, at arms length. Yet virtually all monitoring and enforcement activities eventually rely on some degree of cooperation between OCR and other DHHS programs, from health planning to Medicare. If effective efforts are to be made to pursue civil

157 rights in health services—and the committee strongly believes that such efforts should be made—a clear commitment to do so is needed from agency leadership. This commitment is particularly important because the difficulties of definition, the ambiguities in policies, and the differences of opinion that must be taken into account in approaching questions of disparities in the current health system, over and above overt discrimination on the basis of handicap or race. Without such commitment, the enforcement of civil rights laws in the context of health care delivery may well continue to be haunted by administrative inconsistencies that are apparent to the courts, reviewing bodies, and the recipients themselves. The committee urges the Secretary of DHHS to resolve the present administrative ambiguities about civil rights within the agency, to make plain the commitment to the enforcement of the law's guarantees of non-discrimination, and to require all components of DHHS to cooperate with OCR in making these ideals a reality. REFERENCES 1. Pub. L. No. 88-352, 78 Stat. 240 (1964). 2. Pub. L. No. 88-352, Title VI, $601-602, 78 Stat. 252-3 (1964), codified at 42 U.S.C. $2000d-2000d-l (1978 Supp.). 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. No such rule, regulation, or order shall become effective unless and until approved by the President. Compliance with any requirement adopted pursuant to this section may be effected (1) by the termination of or refusal to grant or to continue assistance under such program or activity to any recipient as to whom there has been an express finding on the record, after opportunity for hearing, of a failure to comply with such requirement, but such termination or refusal shall be limited to the particular political entity, or part thereof, or other recipient as to whom such a finding has been made and, shall be limited in its effect to the particular program, or part thereof, in which such noncompliance has been so found, or (2) by any other measure authorized by law. Provided, however, that

158 no such action shall be taken until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means. In the case of any action terminating, or refusing to grant or continue, assistance because of failure to comply with a requirement imposed pursuant to this section, the head of the federal department or agency shall file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action. No such action shall become effective until thirty days have elapsed after the filing of such report. 3. 30 Federal Register 35 (1965), establishing 45 C.F.R. $80 et seq. 4. 45 C.F.R. $80.3(b)(2) (1979). 5. OCR, DREW, Guidelines for Compliance of Nursing Homes and Similar Facilities With Title VI of the Civil Rights Act of 1964; Guidelines for Compliance of Hospitals With Title VI of the Civil Rights Act of 1964; (issued in revised form November 1969). 6. Guidelines for Compliance of Hospitals, p. 2. 7. Kenneth Wing, "Title VI and Health Facilities: Forms Without Substance," 30 Hastings Law Journal 137 (1978). 8. OCR, DHEW Annual Operating Plan for Fiscal Year 1980, 44 Federal Register 76864 (1979). 9. For example, see the conflict that developed between OCR and the Public Health Service as described later in this chapter. 10. OCR, DHEW, "Final Background Paper on Health Care and Civil Rights," (presented to the U.S. Civil Rights Commission April 1980). 11. See discussion in 44 Federal Register 45255 (1979). 12. OCR, DHEW Final Background Paper . . ., p. 8. 13. Wing, pp. 172-3. 14. 44 Federal Register 76864, 76865 (1979). 15. Wing, pp. 161-5. 16. Ibid., p. 175. 17. Ibid., p. 168. 18. For a broad assessment of health planning program, see Institute of Medicine, Health Planning in the United States: Issues in Guideline Development, (Washington, D.C.: National Academy of Sciences, 1980), and Harry P. Cain and Helen N. Darling, "Health Planning in the United States: Where We Stand Today," Health Policy and Education 1 (1979) pp. 5-25. 19. See S. Newman, "Equal Access to Health Care: Health Planning Agencies' Obligations," 5 Health Law Project .Library Bulletin 1 (July 1980). 20. 45 Federal Register 20026 (1980). 21. 42 U.S.C. $2000d-l (1979). 22. For background of this proposal and the ensuing litigation, see National Association for the Advancement of Colored People et al. v. The Wilmington Medical Center, Inc. et al., Civ. Action No. 83-1893 (3d Cir. 1980).

159 23. 426 F. Supp. 919 (D. Del. 1977). 24. 453 F. Supp. 280 (D. Del. 1978). The decision was appealed to the Third Circuit Court of Appeals, 599 F.2d 124 (3d Cir. 1979), which ordered a new trial in which the district court again ruled that the plan did not violate Title VI. Judgment and order of the District Court for the District of Delaware dated May 13, 1980. 25. David S. Tatel, Director, Office for Civil Rights, letter to Hamilton V. Reid, Executive Director, Southern Baptist Hospital, May 24, 1978. 26. David S. Tatel, Director, Office for Civil Rights, letter to Ronald F. Falgout, Chief Administrative Officer, Louisiana State Health Planning and Development Agency, August 22, 1978. 27. Pub. L. No. 79-725, 60 Stat. 1041 (1946). 28. Wing and Craige, "Health Care Regulation: The Dilemma of a Partially Developed Public Policy," 57 North Carolina Law Review 1165, 1187 (1979). 29. See generally Public Health Service Act $612, 622, and 623, as amended by Pub. L. No. 79-725, $2, 60 Stat. 1041 (1946). cf. 42 U.S.C. $291(c)-(d) (1974). 30. Public Health Service Act $622(f) as amended by Pub. L. No. 79-725, $2, 60 Stat. 1041 (1946). 31. M. Rose, "Federal Regulation or Services to the Poor Under the Hill-Burton Act: Realities and Pitfalls," 70 Northwestern University Law Review 168 (1975). 32. Public Health Service Act $1602(5), as amended by Pub. L. No. 93-641, $4, 88 Stat. 2259 (1975), adding 42 U.S.C. $300-1(5) (1974-78 Supp.). 33. Public Health Service Act $1602(6) as amended by Pub. L. No. 93-641, $4, 88 Stat. 2259 (1975), adding 42 U.S.C. $3000-1(6) (1974-78 Supp.). 34. Rose, p. 169. 35. 37 Federal Register 14719, amending 42 C.F.R. $53.111-113 (1972). 36. 40 Federal Register 46203 (1975). 37. 44 Federal Register 29372 (1979). 38. Wing, pp. 144-5. 39. 323 F.2d 959 (4th Cir. 1963), cert, denied, 376 U.S. 793 (1964). 40. Public Health Service Act $603(e), as amended by Pub. L. No. 88-443, $3, 78 Stat. 451 (1964). 41. Rose, p. 169. 42. 29 Federal Register 16298, amending 42 C.F.R. $111-113 (1964). 43. 39 Federal Register 31767 (1974). 44. 44 Federal Register 29372 (1979), adding a new 42 C.F.R. part 124. 45. 42 C.F.R. $124.603(a) (1979). 46. 42 C.F.R. $124.603(b) (1979). 47. 42 C.F.R. $124.603(C) (1979). 48. 42 C.F.R. $124.603(d)(1) (1979). 49. cf. 42 C.F.R. $124.601 (1979) with 42 C.F.R. $501 (1979). 50. American Hospital Association v. Harris, Civ. Action No. 79c 2669 (N.D. 111. 1980). 51. PHS, DHEW, Uncompensated Care and Community Service Obligations Compliance Standards Manual for Facility Personnel, (Washington, D.C.: Government Printing Office, 1980).

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