Provider Sovereignty and Civil Rights
Provider Sovereignty and Civil Rights
Abstract and Keywords
This chapter explains how the radical politics of the South were enacted within the health care system. It shows how the performance of Medicare gave federal officials the resources to enforce racial integration on southern hospitals. The chapter notes that racial discrimination was widespread in the health care system, and that the legal basis for racial segregation was derived from the Plessy v. Ferguson case. It introduces the Hill-Burton, which was aimed at rural and poor communities that did not have access to health care, discusses the civil rights challenge, and also shows how Medicare was implemented.
As the battle for health insurance for older Americans was waged in Washington, another social revolution of greater magnitude surged up from the South.1 Beginning with the bus boycotts of the 1950s, civil rights activists engaged in an escalating wave of protests, mass marches, lunch counter sit-ins, and freedom rides. Courageously facing arrests, brutal beatings, and even murder, they demanded an end to segregated schools, restaurants, stores, and public facilities, and insisted on equal opportunity for good jobs.
The legal basis of racial segregation derived from Plessy v. Ferguson, the 1896 Supreme Court ruling that “separate but equal” facilities were constitutional. Writing the majority opinion, Justice Henry Brown rationalized:
Legislation is powerless to eradicate racial instincts or to abolish distinctions based on physical differences, and the attempt to do so can only result in accentuating the difficulties of the present situation.…If one race be inferior to the other socially, then the Constitution of the United States cannot put them on the same plane.2
At the state level, the “separate but equal” principle was protected by harsh racial codes mandating racial segregation; at the national level, southern congressmen insisted on the primacy of states' rights and used their control over key congressional committees to block any measures that might allow federal authorities to intervene in local racial practices.3
Racial discrimination was as rampant in the health care system as in other southern institutions. Some southern hospitals refused to admit any black patients. Others maintained separate “white” and “colored” entrances, water coolers, and bathrooms and reserved certain wards (p.78) and rooms for black patients only. Segregation also extended to hospital personnel practices, as black physicians were excluded from local medical societies and denied hospital staff privileges.
The sole health care measure of Truman's Fair Deal to be enacted was the Hill-Burton Hospital Survey and Construction Act of 1946. Hill-Burton was a response to a vigorous lobbying campaign by the American Hospital Association for aid for hospital construction, a need that had been deferred by more than a decade of depression and war. To win the votes of southern congressmen, Alabama senator Lister Hill inserted a statute that allowed hospitals to practice racial segregation but still receive federal funds. The statute was justified on the grounds that hospitals were private entities whose operations could be regulated only by the states, not by federal authorities. As Hill testified on the Senate floor:
Who shall practice in the hospitals, and the other matters pertaining to the conduct of hospitals, we have sought in the bill to leave to the authority and determination of the States, and not have the federal government, through this bill, invade the realm of the operation and maintenance of the hospitals.4
Senator Hill's statute also appeased physicians and hospital administrators, who might otherwise have rejected the hospital construction program for fear it would “open the door to federal influence.”5 As Ig Falk explained, the Truman administration accepted segregation as “the price we had to pay for getting this legislation through.”6 Despite the concession, AMA officers were chagrined when Congress designated the Public Health Service, one of the numerous agencies within the Department of Health, Education, and Welfare, to administer Hill-Burton. In their paranoid view of the world, the Public Health Service was an agency controlled by left-wingers and Negro sympathizers, a view that could hardly be further from the truth.7 To placate physicians, Surgeon General Thomas Parran promised that the federal role would be “largely that of guidance,” with day-to-day administrative decisions left to local Public Health Service offices.8
Hill-Burton did require hospitals to sign a nondiscrimination assurance, agreeing to provide care to people who were unable to pay and to offer care to all persons regardless of race, creed, or color. However, (p.79) Section 622 allowed Hill-Burton funds to be used to construct separate facilities for different “population groups” as long as these facilities were of “equal quality.” It also allowed racial segregation within a hospital as long as no patient was denied admission if beds allotted to the “other population group” were available. Furthermore, hospitals could deny staff privileges based on race, because these were issues of “internal” hospital policy outside the jurisdiction of the federal government.9 As long as hospitals were legally defined as private organizations, the federal government would have no authority to intervene in “internal” hospital affairs. That prohibition included administration, personnel, maintenance, and hospital operations.10
Hill-Burton and Racial Segregation
Hill-Burton was especially aimed at poor and rural communities that lacked access to health care.11 Between 1947 and 1974, the Hill-Burton program spread hospital-based care to the rural South. Half of all southern hospitals were constructed in the program's first decade. Some Hill-Burton hospitals admitted black patients but maintained racially segregated wards, even separate nurseries for newborns.12 Others were entirely segregated, built either solely for whites or solely for blacks. For example, Alabama used Hill-Burton funds to construct racially segregated or separate facilities in all but 2 of its 67 counties.13 North Carolina built 2 all-white hospitals, 2 all-black hospitals, and 54 hospitals that were segregated by ward.14 While a few hospitals, such as those in Ahoskie and Greenville, North Carolina, granted admitting rights to black physicians from the beginning, most white hospitals regularly denied staff privileges to black physicians.15
In 1954 the Supreme Court overturned the doctrine of “separate but equal,” ruling in Brown v. Board of Education that segregation deprived minorities of the equal protection of the laws as guaranteed by the Fourteenth Amendment: “Does segregation of children in public schools solely on the basis of race, even though the physical facilities and other 'tangible' factors may be equal, deprive the children of the minority group of equal education opportunities? We believe it does.”16
The Brown decision raised the question whether the “separate but equal” provisions of the Hill-Burton program were constitutional. The (p.80) Court had indicated that its decision applied to areas other than education, including public housing, public golf courses, and public auditoriums. Could federal funds be used to finance hospital construction projects of doubtful constitutionality? Within the Public Health Service, attorneys debated how the Brown decision would affect agency policy. They concluded that the Public Health Service could continue funding segregated hospitals as long as the separate facilities were “of like quality”17 But Public Health Service officials refused to evaluate whether segregated hospitals were actually providing a similar quality of care to all patients. As one official explained, “We are not intending to suggest at this time that we are required to be concerned with relative quality of segregated services.”18 Public Health Service attorneys also decided that the federal government had no jurisdiction over internal hospital policies such as admission practices or room assignments, which fell under the category of hospital “operation.”19 Until it was “definitely established that segregation on the basis of race in public hospitals is unconstitutional, the Surgeon General is certainly under no statutory mandate to anticipate the outcome of court tests of that issue.” Hospital administrators who inquired were informed that “the propriety of separate hospital facilities for separate racial groups is not directly affected by court decisions to date.”20 The school desegregation decision did not relieve the Public Health Service of its responsibility to carry out the Hill-Burton statute as written, even if that meant allowing segregated facilities to continue current practices.21
The Civil Rights Challenge to “Separate but Equal”
In the wake of Brown v. Board of Education, civil rights advocates organized protests and demonstrations against hospitals and picketed the headquarters of white medical societies that refused to admit black physicians. Since most hospitals made membership in the local medical society a prerequisite for staff privileges, this form of discrimination exacted a double penalty. Not only did it mean that black physicians couldn't admit patients to the local hospital, it also meant that they were cut off from patient referral networks. When the NAACP joined with the National Medical Association, an organization of black physicians, (p.81) to request admitting rights at Hill-Burton hospitals, some hospitals, embarrassed by the demonstrations, agreed to revise their policies. Greenville's new Pitt County Memorial Hospital, a 120-bed Hill-Burton facility with a 30-bed Negro wing, offered admitting privileges to two black doctors.22 But many hospitals remained adamantly committed to preserving segregation.23
In the face of this resistance, civil rights advocates directed a stream of complaints at the Public Health Service, Congress, and White House officials. The complaints originated from regions where the movement had extensive grassroots mobilization and well-organized networks of activists.24 For example, Catherine Patterson, from the Gadsden Freedom Movement, objected that the new Baptist Memorial Hospital in Gadsden, Alabama, had separate “white” and “colored” entrances and reserved just 25 beds for Negro adults.25 Horace Reed, president of the Volusia County, Florida, branch of the NAACP, complained that Halifax Hospital maintained racially separate wards, that “even the most insignificant equipment [was] labeled 'Negro' and 'white,' and that Negro employees were required to occupy a segregated area in the cafeteria.”26 In James A. Walker Memorial Hospital in Wilmington, North Carolina, black patients were segregated in “old sections” of the hospital in a ward that had two toilets for 25 black patients: “The ward was in a building separated from the main hospital so that to reach the operating room, the delivery room, or x-ray facilities, patients were exposed to the elements as they were wheeled across ninety feet of an open yard to the main hospital.”27 In Charlotte, North Carolina, there was “a tacit agreement between the hospital, city police and ambulance operators that black patients be sent to the inferior all-Negro Good Samaritan Hospital.”28 One outrageous incident highlighted the injustice of segregated care. It began when Hughie David, a 34-year-old black man, complained of a severe headache. His white physician, Dr. Richard James, sent him to the emergency room at Charlotte Memorial, the white hospital. When Dr. James examined his patient, he concluded that Mr. David needed immediate hospitalization for a subarachnoid hemorrhage. But since all the “Negro” beds was taken, Mr. David was sent to Good Samaritan Hospital, where there was no neurosurgeon on staff and no facilities where an angiogram could be performed. Mr. David died the following morning for lack of treatment.
(p.82) In 1963 the civil rights leader Martin Luther King Jr. was arrested for defying a court order to desist from organizing nonviolent protests and sit-ins in Birmingham, Alabama, the most segregated city in the country. During his incarceration, King wrote his famous “Letter from Birmingham Jail,” explaining why African Americans had lost patience with southerners' resistance to integration. Following his release from jail, a series of demonstrations by black children was met with brute force by the mayor of Birmingham. As the public witnessed peaceful demonstrators on national television being beaten by police, attacked by dogs, and blasted with high-pressure fire hoses, public opinion turned against white southerners. When Alabama governor George Wallace defiantly blocked the doorway of the University of Alabama as two black students attempted to register, declaring, “Segregation now, segregation tomorrow, segregation forever,” President Kennedy determined that new federal legislation was needed.29
Hospitals presented a powerful barrier to civil rights objectives because they were still legally defined as private organizations and thus insulated from the legal prohibitions that applied to public entities, including the equal protection provision of the Fourteenth Amendment.30 Ending segregation required challenging hospitals' immunity from federal oversight. In 1956 the NAACP filed the first of a dozen lawsuits against hospitals, asking the courts to declare the “separate but equal” provision of the Hill-Burton program unconstitutional and to force hospitals to integrate patient care facilities and student training and grant staff privileges to black physicians.
Some suits were dismissed. Others resulted in incremental change as hospitals made minor concessions to ward off more drastic measures. A1959 suit against the city of Lakeland, Florida, charged that Lakeland General Hospital had received Hill-Burton funds to construct an addition to an existing hospital that had a wing reserved for black patients.31 When the new wing became overcrowded, the hospital administrator moved all Negro patients to the old building.32 Although the district court dismissed the case for lack of evidence, the hospital renovated the old building and began admitting patients of both races. The psychiatric and nursery facilities in the new building were also opened to both white and black patients.33 A 1962 suit against Grady Hospital in Atlanta charged the hospital with racial discrimination in staffing practices, patient admissions, and nursing school admissions.34 The plaintiffs (p.83) asked the Court to declare the “separate but equal” provision of the Hill-Burton Act unconstitutional and to issue an injunction against the continued operation of facilities on a segregated basis. In response to the suit, the hospital opened a psychiatric ward for black patients, improved the black maternity ward, and made plans to open a black orthopedic ward. The Fulton County Medical Society admitted to active membership two black physicians who were recent additions to Grady's visiting staff.35 Another suit, against Lynchburg General Hospital, alleged that even though the hospital had a private board, its practices fell within the scope of civil rights statutes because it was “almost a wholly tax supported institution with tax money coming from the city of Lynchburg and the state of Virginia.”36 In response, the Lynchburg hospital's board moved to transfer the hospital's assets into a private corporation.37
Until 1963, court decisions continued to uphold the principle that the equal protection clause of the Fourteenth Amendment did not apply to private institutions. These claims were finally overturned in the case of Simkins v. Moses H. Cone Memorial Hospital. The Simkins case was initiated by Dr. George Simkins Jr., a black dentist who had spearheaded a drive to integrate Greensboro, North Carolina's public golf course. When Moses Cone Hospital denied admission to his patient, a man with an abscessed third molar, Simkins called a lawyer who had worked on other integration cases. On further digging, they learned that Moses Cone had received $1,269,950 in federal Hill-Burton funds. Simkins and the NAACP filed a lawsuit against Moses Cone and the other segregated Greensboro hospital, Wesley Long, charging unequal treatment under the law.
For the first time the Department of Justice intervened on behalf of the plaintiffs, arguing that the government had an obligation to protect citizens from unconstitutional action made possible by operation of a federal statute. In 1962 the U.S. District Court, Fourth Circuit, dismissed the complaint on the grounds that the hospital was private in character and therefore beyond the reach of the Fourteenth Amendment. Participation in the Hill-Burton program “in no way transformed hospitals into public agencies subject to federal constitutional inhibitions against discrimination.” Simkins appealed the decision, and on March 2,1963, the Fourth Circuit Court of Appeals ruled that the statute that provided the legal basis for the “separate but equal” clause of Hill-Burton was (p.84) unconstitutional.38 Because the hospital received federal funds, it was not a private entity but an “arm of the state” and thus subject to the Fourteenth Amendment. The Simkins decision prohibited internal segregation in any facility on the basis of race, creed, or color, banned hospitals and other health care facilities from denying staff privileges on the basis of race, and asserted that all benefits associated with staff privileges had to be available without discrimination.39 It thus not only challenged the constitutional basis of the practices and procedures that had guided Public Health Service funding decisions for 17 years but also directly contradicted the key premise that had protected hospitals and physicians' sovereign control of the health care system.
The Public Health Service first responded to the Simkins ruling by issuing new Hill-Burton regulations that expanded the definition of nondiscrimination. Under the new definition any institution applying for Hill-Burton funds had to prove that it did not discriminate in admissions, room assignments, or staff privileges. The problem was that the Public Health Service had little authority to force hospitals to comply, because the regulations only applied to pending applications.40 Although projects approved on the “separate but equal” basis were unconstitutional, HEW could take action only against a hospital that sought further federal assistance.41 Hospitals that had violated their nondiscrimination assurances in the past could not be asked to repay federal funds that had been improperly used.42 The Public Health Service also did not respond forcefully because staff in its local offices had deeply embedded ties to local political structures and were satisfied to leave the resolution of conflicts to local officials.43
A June 1964 HEW survey found that all 11 Deep South states still had statutes—enforced through fines or imprisonment—mandating segregation by race.44 Even though these statutes often violated hospitals' nondiscrimination assurances, Public Health Service officials decided they could not intervene unless a court ruled “the applicable portion of the statute invalid or inoperative.” If no court decision existed, the Public Health Service would rely on the opinion of the state attorney general. While these statutes likely would eventually be judged unconstitutional, the Public Health Service could “have little effect on an applicant who may be subject to local enforcement efforts.”45
By 1964 HEW's cautious approach had created pressures from without and within. As civil rights had moved to the forefront of the national (p.85) political agenda, members of Congress became openly contemptuous of Public Health Service policies. Senator Harrison Williams (D-N.J.) complained to a Public Health Service official:
Your description is…of an agency following a narrow interpretation of the letter of the law and wholly ignoring the intent of the law. By stating that Hill-Burton does not specifically outlaw segregation once the patient has been admitted into the hospital, you are, in effect, adopting the principle of separate but equal facilities. Considering that the United States Supreme Court, in a unanimous decision, declared this doctrine unconstitutional, I find it hard to accept your position. I cannot think that a Federal agency must continue to operate, some eight years after the Court's decision, in a manner that perpetuates this principle.46
Within the Department of Health, Education, and Welfare, new staff members appointed by the Kennedy administration also pushed for change. Lisle Carter, HEW deputy assistant secretary, angrily asked whether segregated facilities could ever be nondiscriminatory.47 HEW assistant secretary James Quigley argued that it was imperative that the Public Health Service reconsider its position in regard to the Hill-Burton program: “whatever justification there may have been for the original interpretation at the time it was made in the late 1940s, which permitted internal segregation, no such justification exists in 1963.” Quigley feared that “if we do not act in this area quickly and effectively, we are going to have pickets outside our door one of these mornings.”48
The first bill prohibiting any institution that practiced segregation from receiving federal funding had been proposed in the House in 1957 by Representative Adam Clayton Powell (D-N.Y), a black civil rights activist.49 The measure was defeated by a vote of 123 to 70, as were bills introduced in succeeding years. The Simkins ruling lent the legitimacy of the courts (and by implication the Constitution) to the issue. When Congress enacted the Civil Rights Act of 1964, the watershed racial legislation of the century, the Powell amendment became Title VI. Title VI stated that “no person in the United States shall, on the grounds of race, color or national origin, be excluded from participation in, be denied the benefits of, or be subject to discrimination under any program receiving federal assistance.”50 No longer would racial discrimination by any private organization that received federal funds be tolerated.
(p.86) Title VI applied to more than 400 federal programs administered by 33 agencies. Next to the courts, HEW became the foremost government agent for changing the nation's racial patterns. HEW had the largest Title VI enforcement office in the federal government. It was responsible for coordinating all compliance investigations in all its programs. Each regional agency in turn was responsible for carrying out day-today enforcement activities.51 This arrangement meant that regional managers and field staff who for decades had complied with local practices that promoted racial segregation now became Title VI compliance investigators.
HEW's task was complicated by loopholes inserted into Title VI by southern congressmen.52 One provision prohibited federal officials from applying sanctions until they demonstrated that compliance could not be secured voluntarily. Others specified that any regulations adopted had to be approved by the president, that funds could not be terminated to a recipient who ignored the regulations unless the proper congressional committee gave consent, and that the termination applied only to the program that was not in compliance. Title VI also excluded employment practices, which were covered by other titles of the Civil Rights Act and thus administered by other federal agencies.53
Within HEW the Public Health Service was given responsibility for desegregating 20,000 hospitals, 2,000 nursing homes, and over 1,000 home health agencies through a newly created Office of Equal Health Opportunities (OEHO). OEHO was headed by Robert Nash, a career civil service employee, who viewed Title VI as an opportunity to use the threat of withholding funds to demand compliance.54 The problem was that OEHO had only 31 full-time office staff and a field staff of 72. Although Nash could investigate complaints and try to speed up integration, he had no real leverage.55 A year after the Civil Rights Act was enacted, virtually no progress had been made in hospital desegregation.
The leverage to enforce Title VI came from a different quarter—the implementation of Medicare. During debates in Congress over Medicare, reformers in the Social Security Administration (SSA) had purposely avoided any mention of civil rights. Robert Ball, who was now (p.87) SSA commissioner and an expert long-range strategist, recalled, “We didn't want it brought up legislatively. It would have been a big barrier to passage in the Senate, particularly if it had been clear that this was going to be applied. I think everyone knew it, but they didn't want to have to go on record about it.”56 The SSA had just begun planning the process of certifying hospitals and nursing homes for Medicare eligibility on the basis of quality, and now Medicare was swept into the Title VI compliance efforts. To become eligible for federal funds, hospitals applying for Medicare certification also had to prove they were not discriminating.
In fall 1965, representatives from the SSA met with Public Health Service officials to plan the compliance effort. They agreed that the SSA would contribute staff and help formulate rules and procedures to determine whether hospitals would be eligible for Medicare funds. The Public Health Service would take responsibility for large city hospitals and university hospitals, while the SSA would evaluate smaller hospitals, nursing homes, and home health agencies.57 The SSA regional offices would then review all the compliance reports to see if they were complete and acceptable. About 6,900 small hospitals were immediately cleared on civil rights compliance, leaving 5,500 requiring further follow-up. A hastily assembled staff of nearly 1,000 people, 500 from the SSA and 500 from the Public Health Service, plus medical students on summer internships and outside consultants, was given a three-week crash training program in civil rights and sent south to inspect hospitals and decide if they were complying with the law.
In many respects, the SSA was the ideal government agency to implement Title VI. It had field and regional offices already operating to administer Social Security as well as a large staff of managers and field representatives. It had just issued 19 million Medicare cards, opened 100 district offices, and hired thousands of people to implement Medicare. The SSA was also the only federal agency that was relatively free from both national and local political pressures, because benefits were not provided through local relief authorities but went directly to beneficiaries.58 The SSA also had a policy legacy that was compatible with civil rights objectives. Its historical agenda was to protect the vulnerable; its clients were the elderly, the widowed, and the disabled. As Robert Ball explained:
(p.88) From the very foundation of the social security program, our objective has been to provide courteous, efficient service and equal treatment under the law to all claimants. Our training activities have always stressed this. Our legislative proposals…have always been prepared with this in mind…. The whole process of certifying the eligibility of providers of services, including their compliance with Title VI of the Civil Rights Act, is merely an extension of these principles to a new group of beneficiaries.59
The same could not be said of the Public Health Service. Its state agencies, which had been involved in the certification of segregated hospitals for Hill-Burton for decades, now had to confront these same hospitals and demand they change their practices. Said one Public Health Service physician involved in the effort, “I am not sure they were 100 percent enthusiastic about the task. They lived in those communities.”60
Yet SSA officials had struggled for Medicare for more than a decade. Ending racial segregation while trying to implement a new program that had been resisted by physicians every step of the way seemed a daunting task to Robert Ball:
It seems to me that one of the greatest threats to the successful administration of this pioneering program of health insurance is the fear that hospitals and the medical profession have of federal interference. If our first contact with them, even before the first agreement is signed or the first benefit is paid, is for the Social Security Administration to inspect the hospitals for Title VI compliance, we will be putting an unnecessary barrier in the way of getting…off to a good start.…I do not believe that we can be asked to do more than what is inherent in the social security responsibility without serious risk.61
Using Medicare certification to determine Title VI compliance might damage delicate public relations surrounding the new program. As Ball explained:
The first hard news coming out of implementation of the hospital insurance program would be controversy over whether certain providers of service [discriminate]…. Not only would these controversies be aired in the public press long before benefits [were (p.89) paid], they would be aired at the very time we are making every effort to quiet the fears of doctors and others about the Federal Government's involvement in the areas of hospital and medical insurance.62
To counter these fears, early in 1966 the SSA embarked on an aggressive public information campaign. Booklets explaining Title VI requirements were distributed to hospitals, nursing homes, and home health agencies. Talks were presented to labor groups, the insurance industry, religious groups, fraternal organizations, senior citizens' groups, and organizations of hospitals and physicians. The help of the AHA and the AMA was enlisted to prepare hospitals to comply with Title VI.63 Carlton Spitzer, director of the HEW Office of Public Information, set up interviews with hospital administrators to explain SSA's objectives and allay their concerns, often encountering resistance and suspicion. He also attempted to meet with local newspaper editors to get them to run oped pieces on the integration effort. Many refused even to see him, such as the beefy editor who ushered him out of his office after a two-minute conversation, his hand on Spitzer's elbow, almost pushing him down a flight of stairs.64
To initiate the process, the surgeon general mailed all hospital administrators a letter informing them that no hospital could discriminate on the basis of race or deny staff privileges to qualified physicians who had been rejected by local medical societies because of race.65 Satisfying these conditions placed hospital administrators on a collision course with physicians who viewed decisions about where to treat patients as their exclusive purview. As one SSA staffer fretted:
When, because of Medicare, pressures brought on hospitals' boards for them in turn, to bring pressure on physicians to send Negro patients to what have been predominantly “white hospitals” and white patients to what have been predominantly “Negro hospitals,” this can be construed as an interference with the practice of medicine. And having persuaded physicians to use hospitals without regard to race, can we maintain that they should not respect the wishes of patients who prefer to share rooms with only persons of their own race? This would seem to be interference with the practice of medicine.66
(p.90) According to Morton Lebow, public information officer for the OEHO, physicians from the Mobile Infirmary in Alabama continued referring black and white patients to separate hospitals. When that practice was challenged, an alarmed hospital administrator declared, “You don't mean to tell me that you expect us to tell our doctors where they can send their patients?”67 Despite their misgivings about federal intervention in the practice of medicine, most doctors willingly complied because with Medicare they would be guaranteed payment for treating the elderly, a service they had often performed free.68
By May 30, 1966, the SSA had a list of all institutions that were in compliance with Title VI. The next step was to develop an “action list” of hospitals not yet cleared.69 Ball declared, “I would like to keep the Public Health Service going during the next week in moving into every area where there is a significant problem and pressing quickly for solutions. Or, if we can no longer expect voluntary compliance, to immediately sue.”70 On July 1, 1966, Medicare was put into operation. Still fighting federal intervention, AMA president James Appel suggested that hospitals in communities that opposed integration be allowed to participate in Medicare by “switching the burden of bigotry to the patients.…A patient who refused to accept the hospital room offered could be placed in a segregated facility, but he would then lose his Medicare payment.”71 Appel's suggestion fell on deaf ears.
Most hospitals were eager to be approved so that they could begin receiving federal funds.72 Although they “wanted no part of being watched over by the federal government,” they “wanted in because of the financial rewards offered.”73 By July 21, 1966, only 320 hospitals were not certified for Medicare. Some southern hospitals avoided complying with Title VI by doing the “HEW shuffle” during on-site inspections, moving white and black patients into new beds in “integrated” rooms and wards for the study team's visit.74 In Alabama a local man bragged to an investigator “that they had moved some comatose white patients into rooms with black patients” to fool the investigator.75 Those who were best at revealing these practices were the local Public Health Service examiners. As the Public Health Service physician quoted earlier explained, “The most feared investigators were white southerners. They knew what they were looking for. We were dealing with deceit at all levels. They sniffed it out.”76
(p.91) Establishing compliance in these pockets of resistance was hindered by the difficulty of measuring of racial integration. What constituted an acceptable percentage of black or white patients? In Lynchburg, Virginia, hospital administrators were informed that 13 percent of the patients had to be black before the hospital could win approval. Hospital administrators complained that the quota was too large, given the low percentage of minorities in the service area.77
The most controversial issue was biracial room occupancy.78 In Alabama, several hospitals refused to assign patients to rooms with people of a different race. In Mississippi, the only threats of violence were triggered by this issue.79 The hospital administrator in Canton was visited by four local Klansmen, who threatened to bomb the hospital if patients were placed in integrated rooms. At another Mississippi hospital, FBI agents investigated allegations of civil rights violations. When the local Public Health Service manager entered the hospital in Meridian, Mississippi (a town where three civil rights workers were murdered), for a minor operation, he shared a room with the head of the local NAACP, a symbolic act that was widely criticized by the community. But after his release the hospital made other biracial room assignments.
The regional assistant commissioner of the SSA in Atlanta, James Murray, suggested ignoring room assignments initially and granting hospitals otherwise in compliance “provisional certification.” Not only would this avoid dealing with the stickiest racial issue, it would ward off complaints that the government was interfering in physicians' medical decisions. This compromise was unacceptable to OEHO head Robert Nash, who insisted that “requiring hospitals to assign patients to rooms on a nondiscriminatory basis cannot in any way be considered interference with the practice of medicine.”
Tearing down racial barriers did not necessarily lead to integration. Some black patients refused to go to white hospitals, fearing they would not receive proper care.80 For example, in one Arkansas town, patients continued to go to racially separate hospitals even though both hospitals were officially desegregated. Local administrators begged Public Health Service officials, “Tell us what we are doing wrong and we will make it right…Give us some guidelines…give us time…don't shut off our hospital beds.”81 This situation created a conundrum for SSA officials, for refusing approval of a hospital could mean denying care to (p.92) Medicare beneficiaries. In Mount Bayou, Mississippi, for example, the black hospital could not meet the quality standards for Medicare approval, while the white hospital was having Title VI difficulty.82 As a result, Medicare beneficiaries had to travel long distances to hospitals in other counties. Further, many insurance companies had canceled hospital coverage for people 65 and older the day Medicare began operating. That meant that Social Security beneficiaries who lived in counties without an approved Medicare hospital would have no insurance coverage at all. This dilemma deprived “the most needy citizens of all—the lowest income, least educated, least resourceful…Negro and white alike—of the benefits the law was designed to provide.”83 It also created a public relations nightmare for the SSA. As one staff member explained:
For a long time the people of this area have been fed a steady diet of anti-government propaganda heightened of course by their deep fears of the civil rights program, but until now they have not largely tended to associate social security…with all this. Now I believe there is a very strong feeling that social security has gone over to the enemy84
Despite these problems, significant advances were made.85 Many hospitals admitted their first black patients, made room assignments without regard to race, removed barriers in waiting rooms, operating rooms, and cafeterias, and offered staff privileges to black physicians for the first time.86 By October, only 12 hospitals still were not certified.87 A few holdouts avoided complying with Title VI but received reimbursement from Medicare by billing the government under an “emergency treatment” provision. This provision allowed Medicare patients to receive care from a noncomplying hospital in the event of a life-threatening situation. Instead of using the provision on an emergency basis, these hospitals used it routinely to furnish segregated care. After Mai Schechter, the Washington editor of the journal Hospital Practice, publicized the fact that 86 percent of the 21,000 emergency Medicare claims filed in 1967 came from the South (more than half from Alabama and Mississippi), this flexibility was eliminated. Within 18 months nearly every large southern hospital was receiving Medicare funds on a regular basis.88
For two-thirds of a century, southern politicians had resisted national health insurance for fear that federal financing of health care services would lead to federal monitoring of racial practices. Their agenda was compatible with the desires of physicians, who had their own reasons for opposing government intervention in the health care system. Medicare realized these fears by requiring hospitals to provide health care services without regard to race. As federal officials began certifying hospitals for Medicare eligibility on the basis of quality, they also forced the hospitals to prove that they were not discriminating. In investigating charges of discrimination, however, federal officials delved into every aspect of hospital operations, from patient room assignments to physician referral networks. Thus the dismantling of racial segregation also allowed federal officials to monitor internal hospital affairs, penetrating the barrier between providers and the federal government and undermining provider sovereignty in the pursuit of racial justice.
(1.) Hugh Davis Graham, The Civil Rights Era: Origins and Development of'National Policy (New York: Oxford University Press, 1990), pp. 3–5.
(2.) Quoted in Howard Schuman, Charlotte Steeh, Lawrence Bobo, and Maria Krysan, Racial Attitudes in America (Cambridge, Mass.: Harvard University Press, 1997), p. 10.
(3.) David R. James, “The Transformation of the Southern Racial State: Class and Race Determinants of Local-State Structures,” American Sociological Review 53 (1988): 193.
(4.) Memo from Alanson Willcox to the Secretary, March 4, 1964, National Archives, College Park, Maryland, MRG 235, Box 7: Hospital Construction, File: Segregation and Discrimination.
(5.) Isidore Falk Oral History, Columbia University Oral History Collection, p. 279.
(7.) Rufus Miles Jr., The Department of Health, Education and Welfare (New York: Praeger, 1974), p. 112.
(8.) Karen Kruse Thomas, “The Blueprint of Segregation: The Influence of Southern State Health Policy on the Federal Hill-Burton Hospital Construction Program, 1939–54,” paper presented to the Southern Historical Association, Baltimore, November 9, 2002, p. 10.
(9.) Memo from Harrison to Siegel, January 18, 1954, note 45, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(10.) Letter from Dr. Hubert Eaton to Dr. Boisfeuillet Jones, October 13, 1962; letter from Boisfeuillet Jones, Special Assistant to the Secretary, to Dr. Hubert Eaton, November 13, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(11.) Thomas, “The Blueprint of Segregation,” p. 2; Memo from Alanson Willcox to the Secretary, March 4, 1964, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(12.) Malvin Schechter, “Segregated Blood: A Backlash Backfires,” Hospital Practice, July 1969, p. 21.
(p.231) (13.) David Barton Smith, “Addressing Racial Inequities In Health Care: Civil Rights Monitoring and Report Cards,” Journal of Health Politics, Policy and Law 23, 1 (1998): 75–105.
(14.) Thomas, “The Blueprint of Segregation,” p. 9.
(16.) Quoted in Schuman, Steeh, Bobo, and Krysan, Racial Attitudes in America, p. 20.
(17.) Memo from Darrell Lane to Parke Banta, June 10, 1954; memo: Hospital Survey and Construction—Nondiscrimination Requirements Under Present Statute, January 31, 1956, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(18.) Memo from Edward Rourke, October 11, 1961, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(19.) Hospital Construction Program—Nondiscrimination—Constitutional Question, November 16, 1956, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(20.) Memo from Gladys Harrison to Parke Banta, January 31, 1956, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(21.) Memo from Alanson Willcox to Jack Haldeman, February 12, 1963, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(22.) Karen Kruse Thomas, “The Wound of My People: Segregation and the Modernization of Health Care in North Carolina, 1935–1975,” doctoral dissertation, University of North Carolina, 1999, p. 10.
(23.) Augustus K. Jones Jr., Law, Bureaucracy, and Politics: The Implementation of Title VI of the Civil Rights Act of 1964 (Washington, D.C.: University Press of America, 1982).
(24.) Aldon D. Morris, The Origins of the Civil Rights Movement: The Implementation of Title VI of the Civil Rights Act of 1964 (New York: Free Press, 1986).
(25.) Correspondence Between Catherine Patterson, Burke Marshall, and Alanson Willcox, October 4, October 23, October 25, 1963, National Archives, College Park, Maryland, RG 235, Box 1, File: Alabama.
(26.) Letter from Horace Reed to T Fletcher Little, May 2, 1962, National Archives, College Park, Maryland, RG 235, HEW, Box 7, Hospital construction, File: Segregation and Discrimination.
(27.) David Barton Smith, Health Care Divided: Race and Healing a Nation (Ann Arbor: University of Michigan Press, 1999), pp. 75–76.
(28.) Letter from Reginald Hawkins to Alanson Willcox, July 27, 1963, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(29.) Schuman, Steeh, Bobo, and Krysan, Racial Attitudes in America, pp. 25–26.
(30.) Smith, “Addressing Racial Inequities in Health Care,” p. 81.
(31.) Memo from Office of General Counsel to Carl Harper, Regional Attorney, December 31, 1959, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(32.) Memo from Carl Harper to Edward Rourke, Assistant General Counsel, Office of General Counsel, May 4, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(p.232) (33.) Letter from James S. Carr, Deputy Regional Attorney to Edward Burke, Assistant General Counsel to HEW, October 16, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(34.) “Negroes' Suit Demands Full Grady Hospital Integration,” Atlanta Constitution, September 25, 1962, p. 1, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(35.) Letter from James S. Carr, Deputy Regional Attorney to Edward Burke, Assistant General Counsel to HEW, October 16, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(36.) Memo from General Counsel to Marion E. Gardner, Wood v. Hogan, Lynchburg General Hospital, June 25, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(37.) Letter from Virgil A. Wood to Robert F. Kennedy, June 8, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(38.) Adam Clayton Powell, “Hospital Integration and Job Opportunity: Equality Goals for 1963,” Journal of the National Medical Association, July 1963, pp. 338–41.
(39.) Memo from Edward Rourke to Luther Terry, April 6, 1964, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(40.) Kenneth Wing, “Title VI and Health Facilities: Forms Without Substance,” Hastings Law Journal 30 (1978): 138.
(41.) Letter from Alanson Willcox to Reginald Hawkins, August 20, 1964, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(42.) Memo from Alanson Willcox to Wilbur Cohen, August 14, 1963, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(43.) Conduct Required Under State Statutes Which Is Inconsistent with the Nondiscrimination Assurances in the Hill-Burton, Mental Retardation Facilities and Community Mental Health Centers Construction Programs, June 26, 1964, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(44.) Memo from Gladys Harrison to Parke Banta, January 31, 1956, Appendix I, State Statutes, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(45.) Conduct Required Under State Statutes Which Is Inconsistent with the Nondiscrimination Assurances in the Hill-Burton, Mental Retardation Facilities and Community Mental Health Centers Construction Programs, June 26, 1964, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(46.) Letter from Senator Harrison Williams to Jack Haldeman, February 4, 1963, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(47.) Memo from Lisle Carter to Alanson Wilcox, June 18, 1962, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(p.233) (48.) Memo from James Quigley to Alanson Wilcox, July 10, 1963, National Archives, College Park, Maryland, RG 235, Box 7, File: Segregation and Discrimination.
(49.) Congressional Record, April 3, 1957, pp. 4480–82.
(50.) Smith, “The Racial Integration of Health Facilities,” p. 858.
(51.) Title VI of the Civil Rights Act, December 14, 1965, National Archives, College Park, Maryland, RG 47, Box 300. File: PA 16 Title VI Compliance.
(52.) Jeremy Rabkin, “Office for Civil Rights,” in The Politics of Regulation, edited by James Q. Wilson (New York: Basic Books, 1980), p. 310.
(53.) Jones, Law, Bureaucracy, and Politics, p. 122.
(54.) Memo from Robert Nash to James Murray, Medicare and Civil Rights, March 19, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16 Title VI Compliance.
(55.) Miles, The Department of Health, Education, and Welfare, p. 64.
(56.) M. G. Gluck and Virginia Reno, eds., Reflections on Implementing Medicare: Implementation Aspects of National Health Care Reform (Washington, D.C.: National Academy of Social Insurance, 2001), p. 7.
(57.) Title VI of Civil Rights Act of 1965, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance, p. 1.
(58.) Robert C. Lieberman, Shifting the Color Line: Race and the American Welfare State (Cambridge, Mass.: Harvard University Press, 1998), p. 71.
(59.) Commissioner's Bulletin, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(60.) Telephone interview with Dr. Richard Smith, career service officer in the Public Health Service and Special Projects officer, February 17, 1999.
(61.) Letter from Robert Ball to the Secretary, Nov. 1, 1965, National Archives, College Park, Maryland, RG 47, Box 330, File: PA Title VI Compliance.
(62.) Memo from Robert Ball to the Under Secretary, October 13, 1965, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(63.) Memo from Robert Ball to the Secretary, March 14, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(64.) Telephone interview with Carlton Spitzer, April 11, 2003; Carlton E. Spitzer, “A Crusader for Civil Rights and Racial Equality,” Special to the Star-Democrat. Spitzer Files, manuscript sent to author.
(65.) Hospital Application for Participation; Guidelines for Compliance with Title VI, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(66.) Letter from James Murray to Robert Ball, February 15, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File PA 16, Title VI Compliance.
(67.) Memoirs of Morton Lebow, Public Information Office, Office of Equal Health Opportunity, prepared for the author, p. 2.
(68.) Letter from Roy Swift to Robert Ball, undated, National Archives, College Park, Maryland, RG 47, Box 298, File: PA Title VI Compliance.
(69.) Memo from Louis Zawatzky to Jack Futterman, January 18, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(70.) Note from Robert Ball to Irv Wolkstein, July 2, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(p.234) (71.) “AMA Head Urges Doctors Not to Thwart Medicare Program That Starts Friday,” Wall Street Journal, June 27, 1966, Anderson Papers, Library of Congress, Box 702, File: Finance Committee, Medicare—General.
(72.) Edward Berkowitz, Mr. Social Security: The Life of Wilbur}. Cohen (Lawrence: University Press of Kansas, 1995).
(73.) Lebow Memoirs, p. 1; memo from Roy Swift, Corrected Number of Southern Counties with No Medicare Hospitals, July 25, 1966, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report; Title VI Compliance Problems, RG 47, Box 298, File: PA 16 Hospital Compliance Report.
(74.) Robert Nash, “Compliance of Hospitals and Health Agencies with Title VI of the Civil Rights Act,” American Journal of Public Health 58 (1968): 246–51.
(75.) Lebow Memoirs.
(76.) Telephone interview with Dr. Richard Smith, career service officer in the Public Health Service and Special Projects officer, February 17, 1999.
(77.) Memo from Roy Swift to Robert Ball, May 27, 1966, Observations on Title VI Compliance Efforts, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report.
(78.) Letter from Robert Nash to James Murray, March 10, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: Title VI Compliance.
(79.) Memo from James Murray to Robert Ball, Medicare and civil rights, February 15, 1966, National Archives, College Park, Maryland, RG 47, Box 300, File: PA 16, Title VI Compliance.
(80.) Telephone interview with Dr. Richard Smith, career service officer in the Public Health Service and Special Projects officer, February 17, 1999.
(81.) “Federal Compliance Complaint Is Puzzle for Officials of Two Hospitals in Lincoln,” Elk Valley Times, June 29, 1966, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report.
(82.) Taborian Hospital, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report.
(83.) Report of Title VI Issues, Natchez, Mississippi, July 15, 1966, National Archives, College Park, Maryland, RG 47, Box 298, File: PA Title VI Compliance.
(84.) Letter from Roy Swift to Robert Ball, undated, National Archives, College Park, Maryland, RG 47, Box 298, File: PA Title VI Compliance.
(85.) Berkowitz, Mr. Social Security.
(86.) Malvin Schechter, “Medicare and Desegregation,” Hospital Practice, January 1967, p. 14.
(87.) Determination of Inability to Secure Compliance by Voluntary Means, December 30, 1966, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report.
(88.) Malvin Schechter, “Emergency Medicare and Desegregation: A Special Report,” Hospital Practice, July 1968, pp. 14–15; Malvin Schechter, “Emergency Medicare and Desegregation: Subterfuge Ends,” Hospital Practice, January 1970, p. 17; memo from Peter Libassi to Robert Ball, July 25, 1966, National Archives, College Park, Maryland, RG 47, Box 298, File: PA 16 Hospital Compliance Report; Interview with Robert Ball, October 24, 1997.