Striving for equality, but settling for the status quo in health care: Is title VI more illusory than real?

Rutgers Law Review

Volumn 59, Issue 3, 2007, Pages 429-496

  Yearby, Ruqaiijah ^a  

^a LOYOLA UNIVERSITY CHICAGO   (United States)

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EID: 38049174892     PISSN: 00360465     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (521)

1. This is a true story. Ms. Morgan and Ms. Popowich were government testers sent to the facility in response to complaints concerning racial discrimination in the denial of admission to the facility. The only change to the story is the omission of the name of the facility and employees. See Trial Brief of the United States at 4-6, United States v. Lorantffy Care Ctr., 999 F. Supp. 1037 (N.D. Ohio 1998) (No. 97-CV-00295). This case was filed by the federal government against a nursing home for violating the Fair Housing Act based on evidence of racial discrimination.
2. See Trial Brief of Lorantffy Care Center at 4-6, 9, 12, Lorantffy, 999 F. Supp. 1037 (No. 97-CV-00295). The nursing home also argued that it had admitted three African Americans since opening its doors in 1971. It is unclear about the circumstances of those residents, but one of the former residents served as one of the government's witnesses and presented evidence of being racially discriminated against.
3. Several research studies show that even when payment status is controlled there are still significant inequities in access and quality of nursing home care that are only explained based on a difference in the patient's race. Vincent Mor et al., Driven to Tiers: Socioeconomic and Racial Disparities in the Quality of Nursing Home Care, 82 MILBANK Q. 227, 237 (2004);
4. David C. Grabowski, The Admission of Blacks to High-Deficiency Nursing Homes, 42 MED. CARE 456, 458 (2004);
5. see Vernellia R. Randall, Racial Discrimination in Health Care in the United States as a Violation of the International Convention on the Elimination of All Forms of Racial Discrimination, 14 U. FLA. J.L. & PUB. POL'Y 45, 47-65 (2002);
6. Mary L. Fennell et al., Facility Effects on Racial Differences in Nursing Home Quality of Care, 15 AM. J. MED. QUALITY 174, 174-76 (2000);
7. David Falcone & Robert Broyles, Access to Long-term Care: Race as a Barrier, 19 J. HEALTH POL. POL'Y & L. 583, 588-92 (1994);
8. David Barton Smith, The Racial Integration of Health Facilities, 18 J. HEALTH POL. POL'Y & L. 851, 862-63 (1993);
9. William G. Weissert & Cynthia Matthews Cready, Determinants of Hospital-to-Nursing Home Placement Delays: A Pilot Study, 23 HEALTH SERVS. RES. 619, 632, 642 (1988).
10. Based on the empirical data, researchers have argued that the actions of the nursing homes are blatantly and intentionally discriminatory. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 583; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 619. Furthermore, Professor Sidney Watson also notes the lack of any other reasonable explanation for the continued racial segregation and inequities in care at nursing homes is evidence of intentional racial discrimination. Sidney D. Watson, Health Care in the Inner City: Asking the Right Question, 71 N.C. L. REV. 1647, 1668 n.103 (1993).
11. See Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-1 (2000).
12. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 860-61; Steven P. Wallace, The Political Economy of Health Care for Elderly Blacks, 20 INT'L J. HEALTH SERVS. 665, 677 (1990);
13. N.Y. STATE ADVISORY COMM. TO THE U.S. COMM'N ON CIVIL RIGHTS, MINORITY ELDERLY ACCESS TO HEALTH CARE AND NURSING HOMES (1992) (presentation of Arthur O. Eve, New York State Assembly Deputy Speaker) [hereinafter N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS]; Weissert & Cready, supra note 3, at 642, 645.
14. Mor et al., supra note 3; Grabowski, supra note 3; Daniel L. Howard et al., Distribution of African Americans in Residential Care/Assisted Living and Nursing Homes: More Evidence of Racial Disparity?, 92 AM. J. PUB. HEALTH 1272, 1275 (2002);
15. Robert S. Levine et al., Black-White Inequalities in Mortality and Life Expectancy, 1933-1999: Implications for Healthy People 2010, 116 PUB. HEALTH REP. 474, 475, 480-482 (2001);
16. Jim Mitchell et al., Difference by Race in Long-Term Care Plans, 19 J. APPLIED GERONTOLOGY 424, 425 (2000);
17. Marian E. Gornick et al., Effects of Race and Income on Mortality and Use of Services Among Medicare Beneficiaries, 335 NEW ENG. J. MED. 791, 791-92 (1996). See generally Fennell et al., supra note 3; Wallace, supra note 6.
18. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT TO ENSURE NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS 230-31 (1996) [hereinafter U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996)].
19. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6.
20. See Hospital Survey and Construction Act, 42 U.S.C. § 291(e) (1946).
21. Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959 (4th Cir. 1963).
22. See Civil Rights Act of 1964, 42 U.S.C. §§ 2000d to 2000d-1 (2000).
23. Id.
24. Ronald Sullivan, Study Charges Bias in Admission to Nursing Homes, N.Y. TIMES, Jan. 28, 1984, at 127 [hereinafter Sullivan. Study Charges Bias]:
25. Ronald Sullivan, New Rules Sought on Nursing Homes, N.Y. TIMES, May 5, 1985, at 146 [hereinafter Sullivan, New Rules Sought].
26. See NATIONAL RESEARCH COUNCIL OF THE NATIONAL ACADEMIES, CRITICAL PERSPECTIVES ON RACIAL AND ETHNIC DIFFERENCES IN HEALTH IN LATE LIFE 3 (Norman B. Anderson et al., eds., 2004).
27. Id.
28. Robert M. Weinick et al., Racial and Ethnic Differences in Access to and Use of Health Care Services, 1997 to 1996, 57 MED. CARE RES. & REV. 37, 37 (2000).
29. Gornick, supra note 7, at 791-93.
30. Activities of daily living ("ADL") are "basic activities that support survival, including eating, bathing, toileting, dressing, and transferring out of a bed or a chair." WAN HE ET AL., U.S. CENSUS BUREAU, P23-209, CURRENT POPULATION REPORTS: 65+ IN THE UNITED STATES: 2005, at 233 (2005) [hereinafter CURRENT POPULATION REPORTS].
31. Steven P. Wallace et al., The Persistence of Race and Ethnicity in the Use of Long-term Care, 53 J. GERONTOLOGY: PSYCH. SCI. & SOC. SCI. S104, S104-S107 (1998).
32. Mor et al., supra note 3, at 237-40.
33. Falcone & Broyles, supra note 3, at 583; Weissert & Cready, supra note 3, at 619. See also Smith, supra note 3, at 852; Sullivan, Study Charges Bias, supra note 14, at 127; Sullivan, New Rules Sought, supra note 14, at 146. The denial of admission of elderly African Americans to quality was the basis of two lawsuits: Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990), a case filed on behalf of nursing home residents challenging the poor quality of care provided African Americans in Philadelphia nursing homes; and United States v. Lorantffy Care Ctr., 999 F. Supp. 1037 (N.D. Ohio 1998). In each instance, the case provided less than a favorable outcome for those discriminated against, which will be discussed in more detail in Section VI.
34. Mor et al., supra note 3, at 237; Grabowski, supra note 3, at 456; Fennell et al., supra note 3, at 174.
35. Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 860-61; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6; Weissert & Cready, supra note 3, at 642, 645.
36. Falcone & Broyles, supra note 3, at 588-92; Weissert & Cready, supra note 3, at 632, 642.
37. See generally David Barton Smith, Addressing Racial Inequities in Health Care: Civil Rights Monitoring and Report Cards, 23 J. HEALTH POL., POL'Y & L. 75, 75-76 (1998); Falcone & Broyles, supra note 3, at 591-93.
38. Fennell et al., supra note 3, at 174.
39. Scholars question the neutrality of geographic racial segregation and socioeconomic status. See Jacqueline L. Angel & and Ronald J. Angel, Minority Group Status and Healthful Aging: Social Structure Still Matters, 96 AM. J. PUB. HEALTH 1152, 1154 (2006);
40. David R. Williams, Racial Residential Segregation: A Fundamental Cause of Racial Disparities in Health, 116 PUB. HEALTH REP. 404, 404-07 (2001) [hereinafter Williams, Racial Residential Segregation];
41. David R. Williams, Race, Socioeconomic Status, and Health: The Added Effects of Racism and Discrimination, 896 ANN. N.Y. ACAD. SCI. 173, 177-80 (1999) [hereinafter Williams, Race, Socioeconomic Status, and Health]; Wallace, supra note 6, at 674.
42. See Wallace, supra note 20, at 677.
43. Id.
44. Mor et al., supra note 3, at 235-38; Grabowski, supra note 3, at 460-62; Nadereh Pourat et al., Postadmission Disparities in Nursing Home Stays of Whites and Minority Elderly, 12 J. HEALTH CARE FOR THE POOR & UNDERSERVED 352, 352-53. 362-63 (2001); Mitchell et al., supra note 7, at 425.
45. Weinick et al., supra note 17, at 36-37.
46. See Fennell et al., supra note 3, at 174; Smith, supra note 3, at 862-64, 866; Falcone & Broyles, supra note 3, at 588-92; Weissert & Cready, supra note 3, at 632, 642.
47. The U.S. Department of Health, Education, and Welfare was renamed the U.S. Department of Health and Human Services ("HHS") in 1980. See Department of Education Organization Act of 1979, Pub. L. No. 96-88. § 509(e), 93 Stat. 695 (1979) (codified as 20 U.S.C. § 3508 (2000)) [hereinafter HHS].
48. Mor et al., supra note 3; Grabowski, supra note 3;Daniel L. Howard et al., Distribution of African Americans in Residential Care/Assisted Living and Nursing Homes: More Evidence of Racial Disparity?, 92 AM. J. PUB. HEALTH 1272, 1275 (2002): Robert S. Levine et al., supra note 7, at 475, 480-482; Fennell et al., supra note 3; Jim Mitchell et al., supra note 7, at 425, 435-38; Marian E. Gornick, et al., supra note 7, at 791-92, 797-98; Wallace, supra note 6, at 677-78.
49. U.S. COMM'N ON CIVIL RIGHTS, FUNDING FEDERAL CIVIL RIGHTS ENFORCEMENT 5 (1995);
50. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 229-31.
51. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6.
52. 45 C.F.R. § 80.1 (2005); see also U.S. COMM'N ON CIVIL RIGHTS, FUNDING FEDERAL CIVIL RIGHTS ENFORCEMENT, supra note 36, at 14.
53. Numerous nursing homes have been found out of compliance with Title VI, but instead of initiating legal or administrative action, OCR has only required statements of commitment to stop discriminating against African Americans. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230-31. These commitments have been illusionary at best, as African Americans continue to reside in substandard quality nursing homes while Whites reside in higher quality nursing homes. Mor et al., supra note 3, at 237.
54. Mor et al., supra note 3, at 227-28; see also 28 C.F.R. § 42.406 (2006), 45 C.F.R. § 80.6 (2005).
55. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 228-32.
56. All of the Title VI cases have been brought by those affected, including African Americans. These cases have varied from challenging the relocation of hospitals from predominately minority areas to the substandard level of care in health care facilities whose patients are predominately minority. See Mussington v. St. Luke's-Roosevelt Hosp. Ctr., 824 F. Supp. 427 (S.D.N.Y. 1993) (basing decision on procedural deficiencies, court opts to dismiss class action lawsuit challenging the relocation of infant health-related services out of the Harlem area as proof of racial discrimination through disparate impact); NAACP v. Med. Ctr., Inc., 657 F.2d 1322 (3d Cir. 1981) (basing decision on lack of evidence, court dismisses a racial discrimination case challenging the relocation of health services from a predominately African American neighborhood to a predominately White neighborhood); Jackson v. Conway, 620 F.2d 680 (8th Cir. 1980) (basing decision on procedural deficiencies, court dismisses class action suit challenging a hospital closure in Missouri as proof of racial discrimination through disparate impact).
57. See Taylor v. White, 132 F.R.D. 636, 639 (E.D. Pa. 1990); Linton ex rel. Arnold v. Comm'r of Health & Env't, 779 F. Supp. 925 (M.D. Tenn. 1990) (challenging racial discrimination committed by the state of Tennessee through its policy of limiting the number of Medicaid beds in nursing homes).
58. Alexander v. Sandoval, 532 U.S. 275 (2001). The case was based on a challenge to English-only driver's license applications under Title VI. Id. Although the Supreme Court did not discuss the regulation of health care entities under Title VI, the Court's decision applied to the application of sections 601 and 602 that are used as the basis for cases regarding racial discrimination by federally-funded health care facilities. Id. at 278-93: see generally Sara Rosenbaum & Joel Teitelbaum, Civil Rights Enforcement in the Modern Healthcare System: Reinvigorating the Role of the Federal Government in the Aftermath of Alexander v. Sandoval, 3 YALE J. HEALTH POL'Y L. & ETHICS 215, 243-45 (2003).
59. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8. at 230-31
60. Id.
61. See, e.g., Madison-Hughes v. Shalala, 80 F.3d 1121 (6th Cir. 1996).
62. See Joel Teitelbaum & Sara Rosenbaum, Medical Care as a Public Accommodation: Moving the Discussion to Race, 29 AM. J. L. & MED. 381, 381 (2003) (recommending extension of public accommodation definition to include private health providers as under the ADA); Smith, supra note 3, at 862-63 (recommending that OCR collect racial data and use it to bring administrative actions against health care entities under Title VI).
63. For further discussion, see Dayna Bowen Matthew, Disastrous Disasters: Restoring Civil Rights Protections for Victims of the State in Natural Disasters, 2 J. HEALTH & BIOMED. L. 213, 234 (2006) [hereinafter Matthew, Disatrous Disasters];
64. Dayna Bowen Matthew, A New Strategy To Combat Racial Inequality In American Health Care Delivery, 9 DEPAUL J. HEALTH CARE L. 793 (2005) [hereinafter Matthew, A New Strategy To Combat Racial Inequality].
65. There are two types of suits that can be brought under Medicaid: bias and poor quality. In the 1970s and 1980s, elderly African Americans brought lawsuits in Tennessee and Pennsylvania against the government regarding nursing homes' use of Medicaid to racially discriminate against African Americans. See, e.g., Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990); Linton ex rel. Arnold v. Comm'r of Health & Env't, 779 F. Supp. 925 (M.D. Tenn. 1990). The lawsuits asserted that the state Medicaid bed certification policies allowed nursing homes to deny African American Medicaid patients admission because the nursing home did not have any Medicaid beds, but if a White Medicaid patient sought admission then another Medicaid bed would be certified. Thus, nursing homes used Medicaid as a proxy to deny African Americans admission, based on neutral policies, in violation of Title VI. Private parties' legal rights to bring disparate impact claims under Title VI were eviscerated by the Supreme Court in Alexander v. Sandoval. Because in the past Medicaid bias claims used the theory of disparate impact to racial discrimination, it is unclear whether private parties can file Medicaid bias claims against the government to address racial discrimination in health care. Therefore, this article will only discuss the government's failure to provide quality health care as required under the Medicaid Act.
66. See United States v. Lorantffy Care Ctr., 999 F. Supp. 1037, 1040 (N.D. Ohio 1998).
67. See Ruqaiijah Yearby, Is It Too Late for Title VI Enforcement? - Seeking Redemption of the Unequal United States' Long Term Care System Through International Means, 9 DEPAUL J. HEALTH CARE L. 971, 973 (2005), for a detailed discussion of the application of CERD to racial discrimination in nursing homes.
68. See Matthew, Disastrous Disasters, supra note 49;
69. Matthew, A New Strategy To Combat Racial Inequality, supra note 49, at 793; see Teitelbaum & Rosenbaum. supra note 48, at 381 (recommending extension of public accommodation definition to include private health providers as under ADA).
70. See Vernellia Randall, Slavery, Segregation and Racism: Trusting the Health Care System Ain't Always Easy! An African American Perspective on Bioethics, 15 ST. LOUIS U. PUB. L. REV. 191, 196-98 (1996).
71. According to Professor David Smith, private health insurance developed in the United States as a mechanism to prevent racially integrated single payer health insurance. DAVID BARTON SMITH, HEALTH CARE DIVIDED: RACE AND HEALING A NATION 29 (1999).
72. Id.
73. Randall, supra note 54, at 196-98.
74. SMITH, supra note 55, at 29.
75. Id. at 29-30.
76. See Hospital Survey and Construction Act, 42 U.S.C. § 291e(f) (2000).
77. SMITH, supra note 55, at 239-40.
78. Id.
79. INSTITUTE OF MEDICINE, IMPROVING THE QUALITY OF CARE IN NURSING HOMES, 238, app. A (1986) [hereinafter IOM REPORT].
80. See id. This prohibition was repealed in 1950 as part of the amendments to the SSA. Id.
81. See id.
82. SMITH, supra note 55, at 242. Only a small number of wealthy African Americans gained access to nursing homes by being housed in private facilities. Id.
83. David Barton Smith, Population Ecology and the Racial Integration of Hospitals and Nursing Homes in the United States, 68 MILBANK Q. 561, 577 (1990).
84. See SMITH, supra note 55, at 241.
85. See Hospital Survey and Construction Act, 42 U.S.C. § 291e(f) (2000).
86. SMITH, supra note 55, at 241.
87. See Hospital Survey and Construction Act § 291e(f).
88. Id. (emphasis added). This further supported the "separate but equal" paradigm accepted at the time, but this was rejected by the Supreme Court in the landmark case of Brown v. Board of Education, 349 U.S. 294 (1955).
89. Simkins v. Moses H. Cone Mem'l Hosp., 323 F.2d 959, 968 (4th Cir. 1963).
90. U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS 130 (1963).
91. Id. When a separate but equal plan was in place, the hospital's application indicated how the hospital planned to separate the races. Id. at 130-31.
92. Id. at 130-32. The states were Alabama, Florida, Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina, Oklahoma, South Carolina, Tennessee, Virginia, and West Virginia. Id. at 130.
93. See id. at 132.
94. 323 F.2d 959 (1963).
95. See generally Derrick Bell, Jr., Brown v. Board of Education and the Interest-Convergence Dilemma, 93 HARV. L. REV. 518 (1980).
96. See generally SMITH, supra note 55.
97. Simkins, 323 F.2d at 960-61.
98. SMITH, supra note 55, at 115-16.
99. 349 U.S. 294 (1955) (holding racial segregation of schools was unconstitutional).
100. Simkins, 323 F.2d at 959.
101. U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS 132 (1963). From 1954 to 1960, there were thirty-one racially segregated hospitals in North Carolina that received Hill-Burton funding. Id. Four of the thirty-one facilities were designated as African American only. Id. Two additional grants were made by North Carolina in 1961 and 1962 for construction of two more White-only facilities. Id. at 133.
102. Simkins, 323 F.2d at 960. The two hospitals sued were Moses H. Cone Memorial Hospital and Wesley Long Community Hospital. Id.
103. Id. at 963.
104. Id. at 967-69. Each of the North Carolina hospitals' applications for Hill-Burton funds were based on a "separate but equal" plan and stated, "[C]ertain persons in the area will be denied admission to the proposed facilities as patients because of race, creed or color." Id. at 962. Based on this record, it was clear that the hospitals discriminated based on race. Hence, the central issue in the case was whether the hospitals' receipt of federal funding and subjugation to "elaborate and intricate pattern of governmental regulation, both state and federal" made the hospitals state actors. Id. at 964. Being classified as a state actor meant that the hospitals were prohibited from discriminating against African Americans under the Equal Protection Clause. Id. at 965-66.
105. Id. at 963. By the time the case was commenced, Moses H. Cone Memorial Hospital had received $1.27 million and Wesley Long Community Hospital had received $1.95 million. Id. These appropriations supporting racial discrimination were made, for the most part, after the Supreme Court's decision in Brown v. Board of Education. Id.
106. Id. at 967.
107. Id. at 969. The court ruled that the language violated the 5th and 14th Amendments of the U.S. Constitution. Id. at 969-70.
108. See id. at 968-69.
109. Id. at 969.
110. SMITH, supra note 55, at 100-02.
111. Id. at 236-75.
112. See generally id.
113. S. Rep. No. 88-872 (1964), reprinted in 1964 U.S.C.C.A.N. 2355, 2363 (emphasis added).
114. SMITH, supra note 55, at 100.
115. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 24.
116. Id. at 25.
117. See Cannon v. Univ. of Chicago, 441 U.S. 677, 694 (1979) (holding that there was a private right of action under Title IX of the Educational Amendment of 1972). Because Title IX was patterned after Title VI of the Civil Rights Act, the Court "embraced the existence of a private right under Title VI." Alexander v. Sandoval, 532 U.S. 275, 280 (2001).
118. See Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000).
119. Physicians receiving payments under Medicare Part B are exempted from compliance with Title VI because these payments are not defined as federal financial assistance. SMITH, supra note 55, at 164. Thus, physicians can continue to discriminate based on race. Id. Although not discussed in this Article, government funding of physicians that racially discriminate is a violation of domestic and international law. See generally Randall, supra note 3, for a detailed discussion.
120. Alexander v. Choate, 469 U.S. 287 (1985).
121. Civil Rights Act of 1964, 42 U.S.C. § 2000d-1 (2000).
122. See id.
123. However, HHS has not revised the regulations to include changes made by the Civil Rights Restoration Act of 1987 and has not addressed block grant programs. Therefore, states regulate all Title VI compliance by Medicaid certified facilities. See U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 224. HHS issued a proposed rule on nondiscrimination requirements for block grants in 1986, but never issued a final rule. Id. Nevertheless, HHS has failed to monitor state regulation of Title VI compliance under Medicaid. Id. at 232.
124. See Title VI Regulations, 29 Fed. Reg. 16.298 (Dec. 4, 1964). These regulations were amended in 1973. See 38 Fed. Reg. 17,979 (July 5, 1973). In 1965, the task of enforcing these regulations was granted to HHS's Office of Equal Health Opportunity ("OEHO"). SMITH, supra note 55, at 128. OEHO was instrumental in the racial desegregation of hospitals, id. at 141, but was disbanded two years later before desegregating nursing homes. Id. at 159-61.
125. Smith, supra note 26, at 86.
126. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 219.
127. Id.
128. Id.
129. 45 C.F.R. § 80.3(b)(vii)(2) (2005) (noting discrimination is prohibited) (emphasis added).
130. 45 C.F.R. § 80.6(b) (2005) (detailing compliance information).
131. Civil Rights Act of 1964, 42 § 2000d-1 (2000) (emphasis added). Additionally, the regulations state that OCR must "to the fullest extent practicable seek the cooperation of recipients in obtaining compliance with this part and shall provide assistance and guidance to recipients to help them comply voluntarily with this part." 45 C.F.R. § 80.6(a) (2005) (detailing compliance information).
132. When termination from the Medicare and Medicaid program is the only government option, the trend has been for the government to try to avoid imposing termination by allowing nursing homes to voluntarily comply with the applicable regulations. Under Title VI, the only remedy available to the government is termination, and thus the government tries to obtain cooperation through voluntary compliance. This same trend was seen in the government's survey and certification of nursing homes until 1986, when the government implemented new remedies such as civil money penalties. See Skilled Nursing Facilities, 39 Fed. Reg. 2238-2257 (Jan. 17, 1974); 42 C.F.R. § 442.118 (1986). Now the government actively regulates nursing homes and rarely gives them an opportunity to correct violations through voluntary compliance. See 42 C.F.R. § 498.60 (2005).
133. SMITH, supra note 55, at 236.
134. See Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000).
135. See SMITH, supra note 55, at 159-61.
136. Medicare is a federal entitlement program to pay for health insurance for the elderly and disabled. See Social Security Act, 42 U.S.C. § 1395 (2000).
137. Medicaid is a state- and federally-funded program to pay for medical assistance for the poor. The states administer this program. See id. § 1396.
138. See generally id. §§ 1395c to 1395w-28.
139. See id. § 1395x(i).
140. Id. § 1395d(a)(2)(A). However, Part A does not cover any nursing home services if the patient who requires skilled nursing or skilled rehabilitation services can receive these services on an outpatient basis. See id. § 1395k.
141. See id. § 1396a.
142. For a detailed discussion concerning qualifying for Medicaid, see KAISER COMM'N ON MEDICAID AND THE UNINSURED, PAYING FOR NURSING HOME CARE: ASSETS TRANSFER AND QUALIFYING FOR MEDICAID 1-2 (2006), http://www.kff.org/medicaid/upload/7452.pdf.
143. SMITH, supra note 55, at 143-59.
144. Id. at 159-63, 236-52.
145. Smith, supra note 67, at 576.
146. Currently, three main parties fund nursing homes: Medicare, Medicaid, and private parties. Even though nursing homes still prefer private pay patients, Medicaid pays for the majority of care. Of the payments received by nursing homes in 2001, Medicare accounted for 11.7%, Medicaid for 47.5%, and private payors (including out-of-pocket, private health insurance, and other private funds) were responsible for 38.5%. See Ctrs. for Medicare & Medicaid Servs., Nat'l Health Expenditure Projections: 2006-2013, tbl. 13 (Nursing Home Care Expenditures; Aggregate and per Capita Amounts, Percent Distribution and Annual Percent Change by Source of Funds: Selected Calendar Years 2001-2016) http://www.cms.hhs.gov/National/HealthExpendData/downloads/proj/2006.pdf (last visited Jan. 27, 2006). Medicare spending on nursing home care totaled $9.5 billion in 2000 and $11.6 billion in 2001. Id.
147. SMITH, supra note 55, at 159-63, 236-52.
148. Id.
149. Id. at 160.
150. Id. at 159-60.
151. See id. at 236.
152. See SMITH, supra note 67, at 576-77.
153. Id.
154. A substandard nursing home is one that has violated one of the Medicare or Medicaid regulations regarding resident behavior and facility practices, quality of life, or quality of care that caused actual harm or serious actual harm to one or more nursing home residents. 42 C.F.R. § 488.301 (2005) (defining substandard quality of care).
155. See SMITH, supra note 55, at 239-41.
156. 42 C.F.R. § 488.308(a)-(b) (2005) (discussing survey frequency).
157. 42 C.F.R. §§ 488.300-.335 (2005) (Subpart E - Survey & Certification of Long-Term Care Facilities).
158. This survey is called an annual standard survey. There are three other types of surveys: complaint, revisit, and extended standard survey. See 42 C.F.R. §§ 488.308.310 (2005) (discussing survey frequency, extended survey).
159. 42 C.F.R. § 488.314 (2005) (discussing survey teams).
160. See Social Security Act, 42 U.S.C. § 1395i-3(g)(2)(A) (2000). The majority of nursing homes are also certified to participate in the Medicaid program. See 42 C.F.R. § 488.300 (2005). Thus, the survey team usually cites the nursing home for both Medicare and Medicaid violations. 42 C.F.R. § 488.330(a)(1)(i), (b) (2005).
161. 42 C.F.R. § 488.301 (2005). A deficiency or citation is a violation of the Medicare or Medicaid participation requirements found in the program regulations. Id. There are a total of 190 possible Medicare deficiencies, divided into seventeen different categories, for which HHS can cite a nursing home. See DEP'T HEALTH HUMAN SERVS., OEI-02-01-00600, NURSING HOME DEFICIENCY TRENDS AND SURVEY AND CERTIFICATION PROCESS CONSISTENCY 1 (2003), http://oig.hhs.gov/oei/reports/oei-02-01-00600. pdf. Most deficiencies are categorized into three main areas: quality of care, 42 C.F.R. § 483.25 (2005); quality of life, 42 C.F.R. § 483.15 (2005); and resident behavior and facility practice, 42 C.F.R. § 483.13 (2005). Medicaid regulations are based exclusively on the Medicare regulations, but differ slightly on specific deficiency number designations.
162. 42 C.F.R. § 488.404(a) (2005).
163. 42 C.F.R. § 488.404(b) (2005). The scope of the deficiency means whether the deficiency was isolated, constituted a pattern of behavior, or was widespread. 42 C.F.R. § 488.404(b)(2) (2005). The severity of the deficiency depends on whether a facility's deficiencies caused: "(i) No actual harm with a potential for minimal harm; (ii) [N]o actual harm with a potential for more than minimal harm, but not immediate jeopardy; (iii) [A]ctual harm that is not immediate jeopardy; or (iv) [I]mmediate jeopardy to a resident's health or safety." 42 C.F.R. § 488.404(b)(1) (2005).
164. 42 C.F.R. §488.404(b).
165. Grabowski, supra note 3, at 456.
166. 42 C.F.R. §§ 488.330(d) (2005).
167. See Social Security Act, 42 U.S.C. § 1395i-3(g)(5) (2000).
168. Encyclopedia of American Industries, SIC 8051 Skilled Nursing Care Facilities, http://www.referencefor/business.com/industries/Service/Skilled- Nursing-Care-Facilities.html (last visited Feb. 23, 2006). Medicare spending on nursing home care totaled $9.5 billion in 2000 and $11.6 billion in 2001. Ctrs. for Medicare & Medicaid Servs., supra note 130, at tbl. 13.
169. Howard et al., supra note 7, at 1275.
170. Id.; see Fennell et al., supra note 3, at 175; Wallace, supra note 6, at 672-76.
171. Weinick et al., supra note 17. at 51.
172. Id. At least one-half to three-quarters of the racial inequities of care are not explained by income and health insurance. Id.
173. Arline T. Geronimus et al., "Weathering" and Age Patterns of Allostatic Load Scores Among Blacks and Whites in the United States, 96 AM. J. PUBLIC HEALTH 826, 826 (2006);
174. Williams, Race, Socioeconomic Status and Health, supra note 28, at 184; See Wallace, supra note 20, at S104-S105;
175. See Gornick, supra note 6, at 791; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter).
176. Eric C. Schneider et al., Racial Disparities in the Quality of Care for Enrollees in Medicare Managed Care, 287 J. AM. MED. ASS'N 1288, 1290 (2002).
177. See Wallace, supra note 20, at S104-S106.
178. See Gornick, supra note 7, at 798.
179. See Williams, Race, Socioeconomic Status and Health, supra note 28, at 184.
180. See Gornick, supra note 7, at 791-92.
181. See Wallace, supra note 6, at 677. Empirical data show that this disparity in care is not attributable to African American desire for family care compared to Whites. See Mitchell et al., supra note 7, at 435-36.
182. Wallace, supra note 6, at 667.
183. Id.
184. Mor et al., supra note 3, at 237-38; Grabowski, supra note 3, at 460-62; Pourat et al., supra note 31, at 352-53, 362-63; Mitchell et al., supra note 7, at 425.
185. Based on the empirical data, researchers have argued that the actions of the nursing homes are blatantly and intentionally discriminatory. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 583; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 619; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 19; U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230-31.
186. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 583-92; Smith, supra note 3, at 862-63, 866; Weissert & Cready, supra note 3, at 632-42.
187. Joseph Angelleli et al., Effect of Educational Level and Minority Status on Nursing Home Choice After Hospital Discharge, 96 AM. J. PUB. HEALTH 1249, 1249 (2006); SMITH, supra note 55, at 240-42; Smith, supra note 3, at 862-63, 866.
188. Weissert & Cready, supra note 3, at 619-20.
189. Wallace, supra note 6, at 677.
190. Sullivan, Study Charges Bias, supra note 14, at 127;
191. Sullivan, New Rules Sought, supra note 14, at 146; Smith, supra note 3, at 852-67; Falcone & Broyles, supra note 3, at 585-92; Weissert & Cready, supra note 3, at 645.
192. Wallace, supra note 6, at 677.
193. Grabowski, supra note 3, at 456.
194. Fennell et al., supra note 3, at 174.
195. National statistics show "[a]bout 32 percent entered from a private residence, 45 percent were admitted from a hospital, and about 12 percent were admitted from another nursing home." CURRENT POPULATION REPORTS, supra note 19, at 68.
196. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 19.
197. See Falcone & Broyles, supra note 3, at 583.
198. Id. at 588-92; Weissert & Cready, supra note 3, at 642, 645; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 19.
199. Falcone & Broyles, supra note 3, at 584.
200. Empirical studies conducted in North Carolina and New York show that African Americans experience delays in transfer to quality nursing homes because they are denied admission to quality nursing homes based on their race. See Falcone & Broyles, supra note 3, at 588-92; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 19; Sullivan, Study Charges Bias, supra note 14;
201. Sullivan, New Rules Sought, supra note 14.
202. Falcone & Broyles, supra note 3, at 585 (noting delay averaged 10.7 days); see Smith, supra note 3, at 857-61; David Falcone & Robert Broyles, What Types of Hospital; Patients Wait for Alternative Placement, 5 AGING & SOC. POL'Y 77 (1993) (noting delay averaged eleven days);
203. S.L. Ettner. Do Elderly Medicaid Patients Experience Reduced Access to Nursing Home Care?, 121 J. HEALTH ECON. 259 (1993):
204. David Falcone et al., Waiting for Placement: An Explanatory Analysis of Determinants of Delayed Hospital Discharge of Elderly Patients, 26 HEALTH SERVS. RES. 339, 340 (1991).
205. Falcone & Broyles, supra note 3, at 584.
206. Id. at 583.
207. See N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 19.
208. Falcone & Broyles, supra note 3, at 591-93.
209. Wallace, supra note 6, at 676-77.
210. Falcone & Broyles, supra note 3, at 591-93.
211. See Smith, supra note 3, at 854.
212. Grabowski, supra note 3, at 462.
213. States regulate the admission process by restricting the number of Medicaid certified nursing home beds. Id.
214. See id.
215. Weissert & Cready, supra note 3, at 642, 645.
216. Id.
217. Id.
218. See Sullivan, Study Charges Bias, supra note 14, at 127;
219. Sullivan, New Rules Sought, supra note 14, at 146.
220. See Wallace, supra note 6, at 677.
221. Id.
222. See generally N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6.
223. Id. at 5.
224. Id. at 37-38 (citing Jeffrey Amber, Executive Director of Friends and Relatives of the Institutionalized Aging).
225. Id.
226. See Grabowski, supra note 3, at 456.
227. Wallace, supra note 6, at 677.
228. 42 C.F.R. § 483.25 (2005) (defining quality of care).
229. Fennell et al., supra note 3, at 174.
230. See Grabowski, supra note 3, at 456; Smith, supra note 3, at 861; Mor et al., supra note 3, at 237.
231. Fennell et al., supra note 3, at 174.
232. Id.
233. 42 C.F.R. § 483.20 (2005) (discussing resident assessment).
234. Fennell et al., supra note 3, at 176.
235. Id.
236. Id.
237. Grabowski, supra note 3, at 456.
238. Id.
239. See generally Mor et al., supra note 3.
240. See id. at 237.
241. See id.
242. Grabowski, supra note 3, at 460. This study also reviewed socioeconomic status and found that Medicaid and Medicare patients were admitted to poor quality facilities. Id.
243. See Mor et al., supra note 3, at 245.
244. Id. at 246 fig.2. This ratio varies by state from zero to nine, and the only state where the ratio is zero is Kentucky. Id.
245. Id. at 246.
246. Id. at 242-44 fig.2.
247. See generally id.
248. Wallace, supra note 20, at S104-S106.
249. Id.
250. See generally Mor et al., supra note 3; see also Grabowski, supra note 3, at 460-62; Pourat et al., supra note 31, at 352-53, 362-63; Mitchell et al., supra note 7, at 425; Williams, Racial Residential Segregation, supra note 28, at 404;
251. Williams, Race, Socioeconomic Status and Health, supra note 28, at 174-75; Wallace, supra note 20, at S104-S106; Wallace, supra note 6, at 672-76.
252. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 588-92; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 642, 645.
253. Levine et al., supra note 7, at 475, 480-82; Weinick et al., supra note 17, at 36; Robert Blendon et al., Access to Medical Care for Black and White Americans - A Matter of Continuing Concern, 261 J. AM. MED. ASS'N 278, 278-79 (1989).
254. Wallace, supra note 20, at S104-S106.
255. Id.
256. Mitchell et al., supra note 7, at 425; INSTITUTE OF MEDICINE, HEALTH CARE IN A CONTEXT OF CIVIL RIGHTS 100 (Nat'l Acad. Press 1981).
257. Falcone & Broyles, supra note 3, at 588-92; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 632, 642.
258. Falcone & Broyles, supra note 3, at 588-92
259. See Trial Brief of Lorantffy Care Center, supra note 2, at 4-5, 9-10. The plaintiff also submitted other arguments, such as the potential in payment differences of the testers. The problems with the nursing homes' arguments will be reviewed in Section VI and in a future article by the author discussing the use of the Fair Housing Act to put an end to the use of racial discrimination in nursing home admission.
260. See id.; Trial Brief of United States, supra note 1, at 4-14.
261. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter);
262. Sullivan, Study Charges Bias, supra note 14, at 127; Sullivan, New Rules Sought, supra note 14, at 146.
263. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6. 239. See Smith, supra note 3, at 862.
264. Wallace, supra note 6, at 674-76; see generally Williams, Racial Residential Segregation, supra note 28, at 404;
265. Williams, Race, Socioeconomic Status and Health, supra note 28, at 174-75.
266. Wallace, supra note 6, at 672-76.
267. Fennell et al., supra note 3, at 174.
268. Id. at 179-80. Kansas was the only state that did not show these inequities. Id.
269. Angel & Angel, supra note 28, at 1154; Williams, Racial Residential Segregation, supra note 28, at 404-07;
270. Williams, Race, Socioeconomic Status, and Health, supra note 28, at 177-80; Wallace, supra note 6, at 674.
271. Williams, Race, Socioeconomic Status, and Health, supra note 28, at 178.
272. See also CLEAR AND CONVINCING EVIDENCE: MEASUREMENT OF DISCRIMINATION IN AMERICA (Michael Fix & Raymond J. Struyk eds., Urban Inst. Press 1993) (outlining empirical study cited by the Supreme Court in Gratz v. Bollinger, 539 U.S. 244 (2003), and Adarand Constr., Inc. v. Pena, 515 U.S. 200 (1995), to show the continuation of racial discrimination in the United States);
273. Douglas S. Massey & Nancy A. Denton, AMERICAN APARTHEID: SEGREGATION AND THE MAKING OF THE UNDERCLASS (Harvard University Press 1993) (providing evidence from an earlier published study that demonstrates the continuation of racial discrimination in housing),
274. noted in JOHN ICELAND ET AL., U.S. CENSUS BUREAU, CENSR-3, RACIAL AND ETHNIC RESIDENTIAL SEGREGATION IN THE UNITED STATES: 1980-2000 (2002); Wallace, supra note 6, at 674.
275. See generally Leland Ware, The Demographics of Desegregation: Residential Segregation Remains High 40 Years After The Civil Rights Act of 1964, 49 ST. LOUIS U. L.J. 1155 (2005);
276. Leland Ware, Race and Urban Space: Hypersegregated Housing Patterns and the Failure of School Desegregation, 9 WIDENER L. SYMP. J. 55 (2003);
277. Leland B. Ware, New Weapons for an Old Battle: The Enforcement Provisions of the 1988 Amendments to the Fair Housing Act, 7 ADMIN. L.J. AM. U. 59. (1993);
278. David Delaney, RACE, PLACE, & THE LAW: 1836-1948 145, 144-47 (1998).
279. Williams, Race, Socioeconomic Status, and Health, supra note 28, at 178.
280. Innumerable scholars, such as Steven Wallace and David Williams, believe that the theories of geographic racial segregation and socioeconomic status are two sides of the same coin. See Williams, Racial Residential Segregation, supra note 28, at 404-07; Wallace, supra note 6, at 672-78. The lack of economic opportunities available to African Americans perpetuates geographic racial segregation and racial inequities in health care.
281. See Williams, Racial Residential Segregation, supra note 28, at 404-07; Wallace, supra note 6, at 672-78.
282. See, e.g., Williams, Racial Residential Segregation, supra note 28, at 404-07 (discussing the supposition that socioeconomic status is more predictive than racial differences);
283. see also Williams, Race, Socioeconomic Status, and Health, supra note 28, at 178; Blendon et al., supra note 229, at 278-79 (regarding the supposition that racial status is more predictive than socioeconomic differences);
284. S.M. Miller, Race in the Health of America, 65 MILBANK Q. 500, 523 (1987).
285. Williams, Race, Socioeconomic Status, and Health, supra note 28, at 174-78.
286. Wallace, supra note 6, at 678.
287. Mor et al., supra note 3, at 238; Grabowski, supra note 3, at 460-62; Pourat et al., supra note 31, at 352-53, 362-63; Mitchell et al., supra note 7, at 425; Williams, Racial Residential Segregation, supra note 28, at 404;
288. see generally Williams, Race, Socioeconomic Status and Health, supra note 28, at 174-75; Wallace et al., supra note 20, at S104-S106; Wallace, supra note 6, at 672-78.
289. Weissert & Cready, supra note 3, at 632, 642.
290. Id.
291. Id.
292. See Smith, supra note 3, at 860-63.
293. See Wallace, supra note 6, at 672-78.
294. See generally Sullivan, Study Charges Bias, supra note 14, at 127.
295. Id.; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter);
296. see Sullivan, New Rules Sought, supra note 14, at 146.
297. See Linton ex rel. Arnold v. Comm'r of Health & Env't, 779 F. Supp. 925, 927 (M.D. Tenn. 1990).
298. See id. at 932, 935.
299. See Wallace, supra note 6, at 677-78; Smith, supra note 3, at 860-63; Fennell et al., supra note 3, at 175, 178; Falcone & Broyles, supra note 3, at 588-92.
300. See generally Wallace, supra note 20.
301. See generally id.
302. See generally Mor et al., supra note 3; Grabowski, supra note 3; Williams, Race, Socioeconomic Status, and Health, supra note 28; Wallace, supra note 20; see Pourat et al., supra note 31, at 352-53, 362-63; Mitchell et al., supra note 7, at 425;
303. Williams, Racial Residential Segregation, supra note 28, at 404; Wallace, supra note 6, at 672-78.
304. Based on the empirical data, researchers have argued that the actions of the nursing homes are blatantly and intentionally discriminatory. See Fennell et al., supra note 3, at 174; see also Falcone & Broyles, supra note 3, at 588-92; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 642, 645.
305. See Falcone & Broyles, supra note 3, at 591-92; Weissert & Cready, supra note 3, at 642, 645.
306. See Fennell et al., supra note 3, at 174; Smith, supra note 26, at 85-88.
307. Falcone & Broyles, supra note 3, at 585-87; Weissert & Cready, supra note 3, at 632-42 (1988).
308. Taylor v. White, 132 F.R.D. 636, 647 (E.D. Pa. 1990).
309. See N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter); Sullivan. Study Charges Bias, supra note 14, at 127; Sullivan, New Rules Sought, supra note 14, at 146.
310. Since the passage of the Civil Rights Act, racial discrimination has changed from blatant measures to more refined decisions that include race but are couched in subtle terms. The author is currently working on a piece discussing what constitutes disparate treatment in health care. The distinction is important because if a private party wants to file an action for racial discrimination under Title VI the only claim is for disparate treatment. Alexander v. Sandoval, 532 U.S. 275 (2001). For a detailed discussion regarding filing private claims under Title VI and case precedent, see Matthew. Disastrous Disasters, supra note 49:
311. Matthew, A New Strategy To Combat Racial Inequality, supra note 49, at 796.
312. See Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000).
313. Falcone & Broyles, supra note 3, at 585-92; Weissert & Cready, supra, note 3, at 632, 642.
314. See Weissert & Cready, supra note 3, at 632, 642.
315. See id.
316. Mor et al., supra note 3, at 237-38.
317. Falcone & Broyles, supra note 3, at 591-93.
318. Id.
319. Id. at 592.
320. Id.
321. Id.
322. Id.
323. Id.
324. See generally Mor et al., supra note 3; Grabowski, supra note 3; Howard et al., supra note 7; Levine et al., supra note 7; Fennell et al., supra note 3; Mitchell et al., supra note 7; Gornick et al., supra note 7; Wallace, supra note 6.
325. Sullivan, Study Charges Bias, supra note 14, at 127;
326. Sullivan, New Rules Sought, supra note 14, at 146.
327. See N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter).
328. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 1-2.
329. Alexander v. Sandoval, 532 U.S. 275 (2001).
330. 42 U.S.C. § 1481 (2000).
331. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 24.
332. Id. at 1.
333. 42 U.S.C. § 2000d.
334. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 3.
335. Id.
336. See SMITH, supra note 55, at 159-64, 236-52.
337. See Grabowski, supra note 3, at 456; Mor et al., supra note 3, at 237; Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 860-61; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6; Wallace, supra note 6, at 677; Weissert & Cready, supra note 3, at 619, 642, 645.
338. Alexander v. Sandoval, 532 U.S. 275, 295 (2001) (Stevens, J., dissenting).
339. Marianne Engelman Lado. Unfinished Agenda: The Need for Civil Rights Litigation to Address Race Discrimination and Inequalities in Health Care Delivery, 6 TEX. F. ON C.L. & C.R. 28 (2001)
340. (citing Michael Meltsner, Equality and Health, 115 U. PA. L. REV. 22, 22 (1966)).
341. Both Congress and HHS are responsible for granting funding to OCR. The literature tends to show that when provided with ample funding HHS still cut back on OCR's funding. See SMITH, supra note 55, at 100-02.
342. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 218.
343. Id.
344. Id. at 222.
345. Smith, supra note 26, at 87; see U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 223.
346. Smith, supra note 26, at 86. Most divisions of HHS regulating operating programs thought of OCR as a nuisance. Id. at 87.
347. In 1977, the Centers for Medicare & Medicaid Services ("CMS"), formerly known as the Health Care Financing Administration ("HCFA"), was created to administer and regulate Medicare. See Pub. L. No. 95-135, 91 Stat. 1166 (1977); 66 Fed. Reg. 35, 437-503 (July 5, 2001). To prevent any confusion, this article solely refers to the agency as CMS.
348. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 220.
349. Id. at 226. OCR has no authority to review health care facilities seeking participation in Medicaid pre or post award. Id. at 221. States handle the pre- and postaward review of Medicaid certified nursing homes. Id. at 226.
350. Id. at 227.
351. Id. at 220-21.
352. Id. at 226-27.
353. Id. at 220-21.
354. Smith, supra note 26, at 87.
355. Id.
356. See U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 232.
357. See id.
358. See id.
359. Lado, supra note 298, at 29-30 (citing House Comm. on Gov't Operations, Investigation of the Office for Civil Rights in the Dep't of Health and Human Servs., H.R. Rep. No. 100-56. at 14, 22-25 (1987)).
360. Id. at 29.
361. Id. at 29-30.
362. See Civil Rights Act of 1964, 42 U.S.C. § 2000d-1 (2000).
363. Lado, supra note 298, at 29-30 (citing House Comm. on Gov't Operations. Investigation of the Office for Civil Rights in the Dep't of Health and Human Servs., H.R. Rep. No. 100-56, at 14, 22-25).
364. Id. at 31-33; see also U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230.
365. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230-31.
366. See id.; see also U.S. COMM'N ON CIVIL RIGHTS, FUNDING FEDERAL CIVIL RIGHTS ENFORCEMENT, supra note 36, at 22.
367. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 231.
368. Id. at 226-28.
369. See id. at 227-28.
370. Id. at 233-34; Smith, supra note 26, at 92.
371. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 233.
372. Id. at 234.
373. Id. You can also attribute the statement to plaintiffs' argument in a complaint against HHS, that the agency could not effectively enforce Title VI because it failed to publish measures of the racial integration of health care providers, produce routine reports on the ethnic distribution of recipients by health care providers, require uniform race or ethnic data collection or reporting from health care providers. See Madison-Hughes v. Shalala, 80 F.3d 1121, 1123 (6th Cir. 1996)
374. See U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 234.
375. See id. at 233-34.
376. Smith, supra note 26, at 87.
377. See OCR Press Releases 1997-2003, http://www.hhs.gov/ocr/newspg. html (last visited Jan. 18, 2007);
378. see also OCR What's New Items 2000-2006, http://www.hhs.gov/ocr/ whatsnew.html (last visited Jan. 18, 2007). Interviews with Region V OCR employees (Apr. 13, 2001, Mar. 5, 2005 & Aug. 24, 2006).
379. See Civil Rights Act of 1964, 42 U.S.C. § 2000d-1 (2000).
380. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 233-34.
381. See id.
382. Id. at 230-31. In 1996, OCR's goal was to implement "'uniformly strong remedies' to civil rights violations 'to make injured parties whole, lessen the chance of future violations, and set a clear precedent for other parties."' Id. at 231. To date none of this has occurred.
383. See Alexander v. Sandoval, 532 U.S. 275, 286 (2001).
384. See generally id.
385. Mor et al., supra note 3, at 237; Grabowski, supra note 3, at 456; Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 860, 861; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 3-4; Wallace, supra note 6, at 677; Weissert & Cready, supra note 3, at 642, 645.
386. Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990); Linton ex rel. Arnold v. Comm'r of Health & Env't, 779 F. Supp. 925 (M.D. Tenn. 1990).
387. 779 F. Supp. 925 (M.D. Tenn. 1989).
388. 132 F.R.D. 636 (E.D. Pa. 1990).
389. Id. at 639; Linton, 779 F. Supp. at 927-29.
390. Linton, 779 F. Supp. at 928-29.
391. Id. at 928-29, 932.
392. 532 U.S. 275 (2001).
393. Id. at 279.
394. Id.
395. Id. at 278.
396. See id. at 279.
397. Id. at 278-79. The argument that making English the official language of the state was not intentional racism is a weak argument. There are no reasons other than discrimination to sustain the enactment of an English-only law.
398. Id. at 279.
399. Id. at 285.
400. Id. at 284-85.
401. See, e.g., 45 C.F.R. § 80 (noting statutory authority arises from section 602 of Title VI); 45 C.F.R. § 80.3(b)(2) (2005).
402. Sandoval, 532 U.S. at 285-88.
403. This is one of Justice Stevens's major points in his dissent. Id. at 313-17 (Stevens, J., dissenting). The distinction was made in a civil rights case involving Title VII and applied to all civil rights litigation. See Smith, supra note 26, at 90 (citing Griggs v. Duke Power Co., 401 U.S. 424 (1971)).
404. Smith, supra note 26, at 90.
405. See Guardians Ass'n v. Civil Serv. Comm'n of New York, 463 U.S. 582 (1983); Cannon v. Univ. of Chicago, 441 U.S. 677 (1979); Lau v. Nichols, 414 U.S. 563 (1974).
406. See Sandoval, 532 U.S. at 294 (Stevens, J., dissenting).
407. See id. at 294-95.
408. Id. at 278 (majority opinion); Rosenbaum & Teitelbaum, supra note 44, at 241.
409. SMITH, supra note 55, at 100-02.
410. See id.
411. Id.
412. 532 U.S. 275 (2001).
413. See id. at 278-79.
414. Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 588-92; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 642, 645.
415. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 1-5;
416. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT TO ENSURE NONDISCRIMINATION IN FEDERALLY ASSISTED PROGRAMS 15 (1995) [hereinafter U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1995)];
417. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at ii-iii (transmittal letter);
418. N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 37-38 (citing Jeffrey Amber, Executive Director of Friends and Relatives of the Institutionalized Aging);
419. U.S. COMM'N ON CIVIL RIGHTS, THE FEDERAL CIVIL RIGHTS ENFORCEMENT EFFORT SEVEN MONTHS LATER 3-5 (1971) [hereinafter U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS ENFORCEMENT EFFORT].
420. See generally Mor et al., supra note 3; Grabowski, supra note 3; Howard et al., supra note 7; Levine et al., supra note 7; Fennell et al., supra note 3; Mitchell et al., supra note 7; Gornick, supra note 7; Wallace, supra note 6.
421. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 3-5;
422. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1995), supra note 372, at 15;
423. U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS ENFORCEMENT EFFORT, supra note 372, at 1-5.
424. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 1-5;
425. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1995), supra note 372, at 15;
426. U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS ENFORCEMENT EFFORT, supra note 372, at 3-7.
427. 80 F.3d 1121 (6th Cir. 1996).
428. Id. at 1123. Ironically, HHS, the federal agency charged with enforcing Title VI in health care, argued that it had no legal duty to collect this information, but provides thousands of dollars in grants to researchers to collect the same data, which it does nothing with other than publish it in medical journals. See id. at 1130-31.
429. Id. at 1125.
430. Id.
431. Id. at 1127-28.
432. Id. at 1128.
433. See Lado, supra note 298, at 26-33 (citing House Comm. on Gov't Operations, Investigation of the Office for Civil Rights in the Department of Health and Human Services, H.R. Rep. No. 100-56 at 14, 22-25 (1987)). See also U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230;
434. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1995), supra note 372, at 22.
435. The author is currently working on an article further discussing the effectiveness of this state-based solution, including an empirical study that strongly suggests the unrestricted continuation of racial discrimination in nursing homes in Illinois.
436. Estate of Smith v. Heckler, 747 F.2d 583, 585 (10th Cir. 1984).
437. For further discussion, see Vernellia Randall, Eliminating Racial Discrimination in Health Care: A Call for State Health Care Anti-Discrimination Law, in DYING WHILE BLACK 93 (2006).
438. See Yearby, supra note 52, at 973, for a detailed discussion of the application of CERD to racial discrimination in nursing homes. See generally, Vernellia R. Randall, Racial Discrimination in Health Care in the United States as a Violation of the International Convention on the Elimination of All Forms of Racial Discrimination, 14 U. FLA. J.L. & PUB. POL'Y 45, 47-65 (2002).
439. There are two types of suits that can be brought under Medicaid: bias and poor quality. In the 1970s and 1980s, elderly African Americans brought lawsuits in Tennessee and Pennsylvania against the government regarding nursing homes' use of Medicaid to racially discriminate against African Americans. See Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990). The lawsuits asserted that the states' Medicaid bed certification policy allowed nursing homes to deny African American Medicaid patients admission because the nursing home did not have any Medicaid beds, but if a White Medicaid patient sought admission then another Medicaid bed would be certified. Thus, nursing homes used Medicaid as a proxy to deny African Americans admission based on neutral policies in violation of Title VI. Private parties' legal rights to bring disparate impact claims under Title VI was eviscerated by the Supreme Court in Alexander v. Sandoval, 532 U.S. 275 (2001). Because in the past Medicaid bias claims used the theory of disparate impact to racial discrimination, it is unclear whether private parties can file Medicaid bias claims against the government to address racial discrimination in health care. Therefore, this article will only discuss the government's failure to provide quality health care as required under the Medicaid Act.
440. See Social Security Act, 42 U.S.C. § 1395b(g)(3) (2000).
441. See Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 588-92; Smith, supra note 3, at 852; Weissert & Cready, supra note 3, at 642, 645.
442. 747 F.2d 583, 591 (10th Cir. 1984).
443. Id. The plaintiffs brought this action under 42 U.S.C. § 1983, seeking remedies for alleged violations of their constitutional right to receive quality care in nursing homes certified to participate in the Medicaid program. Estate of Smith v. O'Halloran, 557 F. Supp. 289, 290 (D. Colo. 1983). The plaintiffs lost in district court, but prevailed on appeal. Id. at 299. The case was originally filed in the United States District Court for the District of Colorado on May 16, 1975, but did not go to trial until May 17, 1982. Id. at 292. The defendants in the suit included the Secretary, all nursing home owners and administrators of Medicaid certified nursing homes in Colorado, and the officers of the Colorado Department of Social Services and the Colorado Department of Health. Id. at 290. The state officials were dropped from the suit in exchange for their stipulation that the State would file a complaint against the Secretary seeking a revision of the Medicaid nursing home enforcement system. Id. at 290-91. Pursuant to the stipulation of dismissal, the Colorado Attorney General filed a suit against the Secretary seeking declaratory and injunctive relief for the Secretary's alleged failure to fulfill the mandate of the Social Security Act of 1935 by not effectively regulating Medicaid nursing homes. Id. at 291.
444. Although the States administer the Medicaid program, the Plaintiffs argued that the Secretary had a duty to regulate Colorado's Medicaid plan based on the powers Congress granted the Secretary under Medicaid. Id. at 295.
445. Id. at 291-92.
446. Id. at 295.
447. See Harris v. McRae, 448 U.S. 297, 308-09 (1980).
448. See Social Security Act, 42 U.S.C. §§ 1395x(j), 1396a(a)(22), 1396a(a)(28) (2000).
449. See id. § 1396a(b). This "look behind" provision was passed as part of the Omnibus Reconciliation Act of 1980, the same bill that created alternative sanctions to the termination of long-term care facilities. See Pub. L. No. 96-499, § 916, 94 Stat. 2599 (1980).
450. See Social Security Act, § 1396b(g)(1).
451. See Heckler, 747 F.2d at 591.
452. Id.
453. Id. at 590 (alteration in original) (quoting H.R. Rep. No. 96-1167, at 57 (1980), reprinted in 1980 U.S.C.C.A.N. 5526, 5570-71).
454. Id. See also H.R. Rep. No. 96-1479, at 140-41 (1980) (Conf. Rep.), reprinted in 1980 U.S.C.C.A.N. 5903, 5931-32.
455. H.R. Rep. No. 96-1479, at 141 (1980) (Conf. Rep.), reprinted in 1980 U.S.C.C.A.N. 5903, 5932.
456. Heckler, 747 F.2d at 591-92. On June 10, 1985, the United States District Court for the District of Colorado ordered the Secretary to promulgate new regulations consistent with the Court of Appeals mandate. See HHS Plan of Compliance with Court Order at *1, Smith v. Heckler, No. 75-M-539 (D. Colo. June 10, 1985), 1985 WL 56558. Nevertheless, the Secretary failed to meet all the objectives of the order and was ordered to revise its regulations and finally found in contempt of the order in 1987. See generally Estate of Smith v. Bowen, 656 F. Supp. 1093 (D. Colo. 1987); see also Estate of Smith v. Bowen, 675 F. Supp. 586 (D. Colo. 1987). In 1988, the Secretary submitted the passage of the Nursing Home Reform Act as means of compliance, but the court ruled that, "[t]he passage of the OBRA [of 1987] in no way modifies or preempts the Tenth Circuit's decision." Smith v. Bowen, No. 75-M-539, 1988 WL 235574, at *1 (D. Colo. Feb. 18, 1988). In June, the Secretary finally enacted regulations in compliance with the court's order, amending both the Medicaid and Medicare regulations. See 53 Fed. Reg. 22850-01 (June 17, 1988).
457. See Estate of Smith v. Heckler, 747 F.2d 583 (10th Cir. 1984).
458. See Social Security Act, 42 U.S.C. § 1396a(a)(9)(A) (2000).
459. IOM REPORT, supra note 63, at 15-16.
460. See generally Fennell et al., supra note 3.
461. Id. at 174.
462. Id. at 178-79.
463. See generally Grabowski, supra note 3; Mor et al., supra note 3.
464. Grabowski, supra note 3, at 456.
465. 747 F.2d 583 (10th Cir. 1984).
466. 779 F. Supp. 925 (M.D. Tenn. 1989).
467. 132 F.R.D. 636 (E.D. Pa. 1990).
468. See Fair Housing Act, 42 U.S.C. § 3604(a), (c), (d) (2000).
469. See SMITH, supra note 55, at 159-63, 236-52.
470. See id. at 236-38.
471. See id. at 159-60.
472. This solution will be discussed in greater detail in a forthcoming article by the author. The article will address the issue of whether the nursing home is acting as a private party, and thus not subject to the regulation of the Fair Housing Act, as well as whether parties can bring both a Title VI and Title VIII claim.
473. See Fair Housing Act, § 3604(a), (c), (d).
474. See Trifficante v. Metro. Life Ins. Co., 409 U.S. 205, 207-08 (1972).
475. See Trial Brief of United States, supra note 1, at 15 (citing Asbury v. Brougham, 866 F.2d 1276, 1280-81 (10th Cir. 1989)).
476. Selden Apartments v. U.S. Dep't of Hous. & Urban Dev., 785 F.2d 152, 159 (6th Cir. 1986).
477. See generally Fair Housing Act, § 3612. Elderly African Americans denied admission to nursing homes because of race can also use section 3604(a) of the Fair Housing Act to initiate private actions against the perpetrating nursing homes. See id. § 3613. Elderly African Americans could successfully bring a claim under the Fair Housing Act if they could show that Whites were admitted after they were denied. This should be easy as the data discussed in Section IV shows that some nursing homes deny African Americans and then admit Whites. Specifically, data shows that some nursing homes use avoidance techniques to deny elderly African Americans admission to quality nursing homes. In two different studies of North Carolina nursing homes, researchers showed that elderly African Americans were delayed in accessing medically necessary services because of their race. Falcone & Broyles, supra note 3, at 588-92; Weissert & Cready, supra note 3, at 632, 642. In both studies, the researchers found that the nursing homes denied admission to African Americans based on the racially discriminatory preferences of their current patients and prospective patients. Id. African Americans who have been denied access to nursing homes remain in the hospital and incur unnecessary costs. The strength of using housing claims to address racial discrimination in health care is that aggrieved parties could obtain actual and punitive damages. It would also be a way to re-create a private right of action to sue for disparate impact under the Fair Housing Act that was lost under Title VI. Some weaknesses of this solution include the failure to address quality of care problems. These actions will not address the poor quality of care provided by nursing homes where African Americans are currently relegated; only a Medicaid or Title VI action would address this issue. Furthermore, housing discrimination suits tend to be costly, unsuccessful campaigns to change the behavior of landlords. However, these suits offer elderly African Americans another weapon against the offense of racial discrimination.
478. See Fair Housing Act, § 3608(c).
479. See id. § 3612(g)(3)(A)-(C).
480. OIG External Audit Reports - by State, in Date Sequence, http://www.hud.gov/offices/oig/reports/oigstate.cfm (last visited Nov. 13, 2006).
481. United States v. Lorantffy Care Ctr., 999 F. Supp. 1037 (N.D. Ohio 1998). A Westlaw search of the Fair Housing Act and nursing homes showed that nine other cases were reported, but those cases dealt with issues concerning discrimination against the disabled.
482. Id. at 1040.
483. Id. at 1041; see also Order of Judge Sam Bell, United States v. Lorantffy Care Ctr., 999 F. Supp. 1037 (N.D. Ohio 1998) (No. 97-CV-00295).
484. See Trial Brief of United States, supra note 1, at 15-18.
485. Id. at 3-11.
486. Id.
487. Id. at 3.
488. Id. at 14, 16.
489. See Trial Brief of Lorantffy Care Center, supra note 2, at 8-13. The nursing home presented a host of defenses such as questioning the veracity of the government's witnesses and the fact that they had admitted three African Americans in their twenty-four year history. Id. at 5. Because a jury decided the case, it is unclear what evidence or defense was relevant in its decision. The Author has chosen to present the most relevant defenses to the presentation of the tester evidence. A full discussion of this case will be addressed in another article reviewing the use of the Fair Housing Act to rectify housing discrimination in health care.
490. See id. at 3-4.
491. See id. at 4-5.
492. See id. at 5.
493. Id. at 11-12.
494. See id. at 12.
495. See Order of Judge Sam Bell, supra note 431.
496. See Williams, Racial Residential Segregation, supra note 28, at 404-07;
497. Williams, Race, Socioeconomic Status, and Health, supra note 28, at 177-78. Furthermore, general studies of Professors Frances Fox Piven and Richard Cloward "explained high rates of poverty among African Americans as the result of institutional racism, which refers to the systematic differential allocation of rewards based on race." Angel & Angel, supra note 28, at 1154 (citing Frances Fox Piven & Richard Cloward, THE NEW CLASS WAR (Pantheon Books 1985)). Professors Jacqueline Angel and Ronald Angel further noted that, "[H]istorically, African Americans and Hispanics have been disproportionately confined to the low-wage service sector or to causal and informal jobs, where payment is made in cash and where their ability to accumulate wealth is impaired." Id. This "[i]nstitutional racism and discrimination perpetuate poverty and its resultant individual-level health damage through unsafe and unhealthful environments, low educational levels, inadequate medical care, and feelings of helplessness and hopelessness."
498. Id. (citing David Williams, Racism and Health: A Research Agenda, 6 ETHNICITY AND DISEASE 1, 3 (1996)).
499. Derrick Bell, Brown v. Board of Education: Reliving and Learning from Our Racial History, 66 U. PITT. L. REV. 21, 25 (2004).
500. International Convention on the Elimination of All Forms of Racial Discrimination art. 4(b), opened for signature Dec. 21, 1965, 660 U.N.T.S. 195 (entered into force Jan. 4. 1969) [hereinafter Convention on Elimination of Racial Discrimination].
501. Id. at art. 2(1).
502. Id. at art. 2(1)(c).
503. Id. at art. 14(1) (noting private parties can complain directly to the Committee if their state has recognized the competence of the Committee to hear such communications).
504. Id. at art. 6.
505. 140 CONG. REC. S7634-02 (1994). By signing the CERD, the United States indicated its intention to be bound by the CERD and creating an obligation to refrain in good faith from acts that would defeat the object and purpose of the treaty. Although the CERD is not self-executing, and thus arguably cannot be used in U.S. courts, this does not limit its use by the Committee or International Court of Justice. See U.N. High Comm'n for Human Rights, supra note 446, at art. 14.
506. See Convention on Elimination of Racial Discrimination, supra note 446, art. 2. In ratifying the CERD, the United States Senate noted that "the Constitution and laws of the United States establish extensive protections against discrimination, reaching significant areas of non-governmental conduct," but this authority did not extend to private conduct. 140 CONG. REC. S7634-02 (1994). Thus, the United States authority over "public institutions" to prevent discrimination was limited to the regulation "of public conduct that is customarily the subject of government regulation." Id.
507. See Convention on Elimination of Racial Discrimination, supra note 446, art. 5(e)(iv).
508. See Civil Rights Act of 1964, 42 U.S.C. § 2000(d) (2000).
509. See id.; see also Convention on Elimination of Racial Discrimination, supra note 446, art. 5.
510. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 1-5;
511. U.S. COMM'N ON CIVIL RIGHTS, CIVIL RIGHTS ENFORCEMENT EFFORT, supra note 372, at 3-7.
512. Weinick et al., supra note 17, at 36-37.
513. Mor et al., supra note 3, at 228; Grabowski, supra note 3, at 456; Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 862-63; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 2; Wallace, supra note 6, at 677; Weissert & Cready, supra note 3, at 642, 645.
514. Mor et al., supra note 3, at 228; Grabowski, supra note 3, at 456; Fennell et al., supra note 3, at 174; Falcone & Broyles, supra note 3, at 591-93; Smith, supra note 3, at 857, 862-63; N.Y. STATE ADVISORY COMM., MINORITY ELDERLY ACCESS, supra note 6, at 2; Wallace, supra note 6, at 677; Weissert & Cready, supra note 3, at 642, 645.
515. U.S. COMM'N ON CIVIL RIGHTS, FEDERAL TITLE VI ENFORCEMENT (1996), supra note 8, at 230-31.
516. See generally id.
517. See Taylor v. White, 132 F.R.D. 636 (E.D. Pa. 1990); Linton ex rel. Arnold v. Comm'r of Health & Env't, 779 F. Supp. 925 (M.D. Tenn. 1990).
518. 532 U.S. 275 (2001).
519. Id. at 293.
520. Linton, 779 F. Supp. at 936.
521. Falcone & Broyles, supra note 3, at 592-93.