- The Historical Trajectory of Civil Rights Enforcement in Health Care
Since the late 1960s, federal civil rights enforcement initiatives in health have been half-hearted and ineffective. The historical failure of the federal government to address the possible role of racial discrimination has taken place despite considerable evidence that, for a number of services, racial and ethnic minorities continue to receive inferior treatment to that accorded to whites. In many cases, these treatment differences remain even after controlling for socioeconomic and insurance statuses, and standard covariates such as patient age, health status, and gender.1
Health care consumed 15.3 percent of GDP in 2003. Public funds covered 43.8 percent of health expenditures in 2003, with Medicare and Medicaid accounting for 36.4 percent of all health outlays.2 This is significant in a civil rights context because enforcement is typically most effective when the government has the financial leverage to secure compliance. Early forays into civil rights enforcement in health were quite successful. In the six months prior to the launch of the Medicare program, the federal government undertook a massive effort to ensure that hospitals did not receive funds if they practiced racial discrimination. When the Medicare program began in July 1966, all but ten percent of the nation's hospitals were in compliance with Title VI of the 1964 Civil Rights Act, which prohibits the provision of federal funds to entities that discriminate. Two years later, only two percent of hospital and health [End Page 362] facilities that had applied for Medicare payments were deemed noncompliant. Compared to other areas of civil rights, hospital desegregation was smooth and effective.3 Moreover, the data required to monitor racial discrimination should be relatively easy to collect, given that hospitals and managed care organizations gather all sorts of information about their patients. The Department of Health and Human Services (HHS) has the clear legal authority to mandate racial data collection from its funding recipients.4
Why, then, has the federal government done so little in this area? In seeking to answer this question, I center my attention on administrative efforts by the federal government. I ask specifically why the Office for Civil Rights (OCR)—first in the Department of Health, Education and Welfare (HEW), and then, after 1980, in the Department of HHS—has accomplished so little in the fight against racial discrimination. One key factor is that the mission of fighting racial discrimination in health has, for historically shifting reasons, never been a central priority for any single government agency. The reasons for the low priority of civil rights enforcement in health were sometimes accidental and sometimes the result of conscious choices by political actors. While priority of mission is not the sole condition required for success—which I define as the production of outcomes that are consistent with a stated agency mission—effective agency activism does require knowledgeable and committed actors operating within a favorable institutional context. I limit the scope of this article to issues of differential treatment (whether intentional or unintentional) of patients by providers on the basis of race, ethnicity, or primary language. I do not discuss efforts by the federal government to ensure a diverse group of patients in clinical trials, or to encourage training of more physicians of color. The former, in my view, is primarily a matter of sound scientific practice, and the latter falls more squarely within the category of outreach than of antidiscrimination policy.5
Examining Administrative Enforcement
Focusing attention on OCR is important for several reasons. Most fundamentally, the federal government is required to correct discriminatory practices in areas of the health-care system receiving federal funds. Title VI of the Civil Rights Act of 1964 prohibits intentional discrimination in federally funded programs and activities, while federal Title VI regulations also incorporate an "effects" standard. These regulations proscribe recipients of federal aid from "utiliz[ing] criteria or methods of administration which [End Page 363] have the effect of subjecting individuals to discrimination because of their race, color, or national origin, or have the effect of defeating or substantially impairing accomplishment of the objectives of the program as respect individuals of a particular race, color, or...