Academic journal article American Journal of Law & Medicine

Medical Care as a Public Accommodation: Moving the Discussion to Race

Academic journal article American Journal of Law & Medicine

Medical Care as a Public Accommodation: Moving the Discussion to Race

Article excerpt

I. INTRODUCTION

This Article explores the concept of public accommodation in a civil rights context and presents an argument for revising the Civil Rights Act of 1964 (Act)1 to extend public accommodation obligations to private healthcare providers and the healthcare industry as a whole, regardless of their participation in federally assisted programs. To the extent that the Act currently reaches healthcare conduct within a relatively narrow definition of "federal assistance," this view has been eclipsed by the evolution of social attitudes toward the community-wide obligation of healthcare providers, U.S. civil rights policy at both the federal and state levels, the enormity of the federal investment in the U.S. health system and changing concepts of basic health quality. This analysis begins with a brief overview of the current structure of U.S. civil rights law in the context of racial and ethnic minority groups' access to healthcare. This Article then considers the evolution of federal public accommodation law and policy in two settings-discrimination on the basis of race or national origin and discrimination on the basis of disability. It focuses not only on the concept of public accommodation from a racial vantage point, but also from the vantage of the Americans with Disabilities Act (ADA),2 which classifies private physicians' offices and other healthcare establishments as places of public accommodation irrespective of whether the provider or entity receives federal funding.4 This Article concludes with an assessment of the reasons why the Act should be modernized to extend to race the same legal protections against segregation and exclusion in the private healthcare sector that are now a hallmark of federal policy for persons with disabilities.

II. THE CIVIL RIGHTS ACT OF 1964 AND HEALTHCARE ACCESS

The Civil Rights Act of 1964 represents a watershed moment in U.S. civil rights policy. Addressing discrimination in such areas as employment, housing, federally assisted programs and public accommodation, the Act was intended to remedy discrimination in a broad array of settings. The term "place of public accommodation" under the Act5 essentially reaches enterprises that sell their services to the general public and whose activities affect commerce. Specifically, the Act reaches inns, hotels and motels, restaurants and food establishments and places of exhibition or entertainment, such as theaters and arenas.6 The definition found in the Act parallels common law concepts of public accommodation as understood at the time.

The definition of a place of public accommodation under the Act did not, and does not today, include medical care providers and facilities. Where medical care services are concerned, the Act applies only if there is evidence of the receipt of "federal financial assistance" within the meaning of the Act.7 Furthermore, the concept of federal financial assistance has tended to focus on direct payments to institutional healthcare providers such as hospitals and nursing homes. Indeed, the history of Title VI indicates the lengths to which policy makers went to narrowly construe the reach of the law concerning private physicians. In his excellent history of Title VI, David Barton Smith describes the extent to which the potential reach of Title VI into directly federally assisted medical practices nearly caused the defeat of Medicare by Southern senators. Smith's book also chronicles the promises that the Johnson Administration made not to classify Medicare physician payments as a form of assistance.8 Despite the fact that physicians plied their trade to the paying public, courts viewed physicians in private practice as outside the realm of a place of public accommodation;9 the "kid gloves" treatment that was the hallmark of legal rulings carried over into the broader reaches of U.S. civil rights policy as well.

As much of a landmark as it was generally in the areas of both public accommodation and healthcare practice, the Civil Rights Act of 1964 tread lightly where privately operating medical care providers were concerned. …

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