U.S. Commission on Civil Rights

Funding Federal Civil Rights Enforcement: 2000 and Beyond

Chapter 5

Office for Civil Rights, U.S. Department of Health and Human Services

On March 12, 1953, President Eisenhower transmitted to the Congress Reorganization Plan No. 1, creating the Department of Health, Education, and Welfare (HEW).[1] In 1979, enactment of the Department of Education Organization Act[2] divested HEW of most functions relating to education, including civil rights enforcement authority. Congress renamed HEW the Department of Health and Human Services (HHS), leaving with it the enforcement of antidiscrimination provisions applicable to all programs and activities relating to health and human services. The Office for Civil Rights (OCR) administers numerous statutes that prohibit discrimination by providers of health care and social services.

ENFORCEMENT AUTHORITY

OCR enforces Title VI of the Civil Rights Act of 1964,[3] Title IX of the Education Amendments of 1972,[4] Section 504 of the Rehabilitation Act of 1973,[5] and the Age Discrimination Act of 1975.[6] Together, these laws prohibit discrimination by recipients of federal financial assistance based on race, color, national origin, sex, age, and disability. In 1978, Congress extended Section 504 to programs and activities conducted by the United States government itself.[7] Further expansion of OCR's enforcement responsibility with respect to the protection of persons with disabilities occurred in 1990 with passage of the Americans with Disabilities Act (ADA).[8] Under the implementing regulations for Title II of the ADA, HHS is to ensure compliance in the following areas:

All programs, services, and regulatory activities relating to the provision of health care and social services, including schools of medicine, dentistry, nursing, and other health related schools, the operation of health care and social service providers and institutions, including grass roots and community services organizations and programs, and preschool and daycare programs.[9]

OCR also has enforcement authority under the Public Health Service Act, which prohibits discrimination on the basis of sex in admission to health‑related training programs funded under the act,[10] and requires facilities assisted by the Hill‑Burton Act to provide health care services to all persons residing in the service area in a nondiscriminatory manner.[11] OCR also enforces provisions of the Omnibus Reconciliation Act of 1981,[12] which requires nondiscrimination on the basis of race, color, national origin, disability, age, sex, and/or religion in health care and other block grant programs. In addition, two initiatives dealing with minority health disparities based on ethnicity are the responsibility of HHS as a result of an executive order in June 1999.[13]

OCR estimates that approximately 230,000 group and institutional providers of federally assisted services are subject to the nondiscrimination laws it enforces. Recipients of HHS funds include hospitals, extended care facilities, mental health centers, alcohol and drug treatment programs, family and children programs (including Head Start), public assistance agencies, adoption and foster care programs, and senior citizens programs.[14]

ENFORCEMENT PROCEDURES

OCR's enforcement activities include investigating complaints, conducting compliance reviews, monitoring corrective action plans, and conducting voluntary compliance and outreach activities. OCR attempts to resolve all instances of noncompliance through the negotiation of voluntary agreements. However, if the matter involving noncompliance cannot be resolved voluntarily to the satisfaction of all parties, OCR may suspend or terminate federal financial assistance.[15] OCR also may refer cases to the Attorney General for enforcement proceedings, pursue HHS administrative enforcement proceedings, or invoke any applicable proceeding under State or local law. [16]

BUDGET ANALYSIS

Budgets

In actual dollars, OCR's budget has remained relatively stable since FY 1994. However, in terms of real spending power, both the budget requests and appropriations for OCR have fallen during the past six fiscal years (see figure 5.1). From FY 1996 to FY 2000, the budget requests for the Office for Civil Rights, in actual dollars, have consistently remained lower than the FY 1994 request (see table 5.1). Correspondingly, the real spending power of the FY 2000 budget request for OCR was almost 11 percent below the FY 1994 figure (see table 5.2). In addition, Congressional appropriations from FY 1995 to FY 1999 have been consistently lower in actual dollars than the FY 1994 appropriation (see table 5.1).

When looking at the past two decades and accounting for inflation, the FY 2000 budget is over 60 percent below the real spending power of the FY 1981 budget.[17] The Commission noted in 1999:

OCR operates under severe budgetary constraints. . . . OCR s responsibilities and workload have increased over the past several years, yet its funding and staffing have decreased. OCR's budget had fluctuated around $20 million since 1981, and has not kept up with inflation.[18]

The Commission further stated:

That civil rights enforcement is such a small part of the overall HHS budget highlights its low priority in the agency. Without proper enforcement of civil rights staututes and regulations, programs cannot operate effectively, as evidenced by the historical record of HHS. As a result, the health status of the nation as a whole is endangered.[19]

The Commission's 1999 report noted that OCR's limited budget placed severe constraints on the agency's ability to conduct integral civil rights enforcement strategies, such as on-site complaint investigations, compliance reviews, and local community outreach and education.[20]

In both FY 1996 and FY 1997, Congressional appropriations were below the funding levels necessary to cover OCR's basic salaries and benefits. As a result of these inadequate funding levels, the Secretary of HHS, under her one percent transfer authority, transferred money from other HHS appropriated funds to cover OCR's basic needs. In June 1999, the Supreme Court decision in Olmstead v. L.C.[21] added to the responsibilities of OCR, yet this increase in duties occurred after the FY 2000 budget was submitted to the Congress. The Secretary authorized a net transfer of $495,000 to OCR in order to support this expansion in disability programmatic activity.

FIGURE 5.1
HHS Funding History (in constant 1994 dollars)

Note: Estimates based on data in table 5.1.

Staffing and Workload

The pattern of funding for OCR has severely reduced the agency's staffing levels (see table 5.3). The number of FTEs decreased by 26 percent between FY 1994 and FY 1999 (see figure 5.2). Further, the FY 2001 FTE request is 12 percent below the actual staff level for FY 1994.

Since FY 1994, the number of staff assigned to conduct compliance reviews has fluctuated, but decreased overall.[22] Between FY 1994 and FY 1995, the compliance review staff was reduced from 74 to 54 FTEs. In FY 1997, 89 FTEs were assigned to conduct compliance reviews, but by FY 1999 the number of staff performing compliance reviews was only 71.[23]

Meanwhile, OCR must periodically conduct post-grant reviews that appraise the policies and practices of program recipients to evaluate compliance. In addition, OCR must investigate a review, report, or complaint with information that suggests noncompliance with antidiscrimination requirements. Post-grant reviews and investigations are more effective prevention efforts than can be accomplished through handling of issues raised by complainants alone. [24] However, as funding and staffing have decreased since FY 1994, the number of post-grant reviews and investigations conducted has increased (see table 5.4). The pending inventories of reviews and investigations have increased nearly threefold during this period, and, as a result, the total workload of post-grant reviews and investigations has increased by 76 percent (see table 5.4).

The number of complaints that OCR received peaked in FY 1992 shortly after OCR implemented responsibilities resulting from the Americans with Disabilities Act. Complaints received by OCR decreased between FY 1994 and FY 1998, from 2,222 to 1,548 (see table 5.6). Although this is a 30 percent decrease in incoming workload, reductions in staff have not been proportional. The number of staff responsible for complaint processing decreased 48 percent between FY 1994 and FY 1998 (see table 5.5).

In FY 1999, the number of complaints received by OCR significantly increased to 1,950, which is a 26 percent increase over the number of complaints received in FY 1998 (see table 5.6), yet the FTE level increased by only five FTEs (see table 5.5). In addition, OCR projects a continued steady rise in the number of complaints received for both FY 2000 and FY 2001. Thus, the FY 2001 budget request includes 95 FTEs to handle complaint processing, a figure that is still 33 percent below the FTE level in FY 1994.

FIGURE 5.2 
HHS Staffing History

Source: HHS/OCR, fax USCCR, Aug. 31, 2000, p. 2.

Summary

In 1995, the Commission noted that OCR's budget had decreased 34 percent in real terms from FY 1981 to FY 1995.[25] This unfortunate trend has continued through to the present day. The requested staff level for FY 2001 is 20 percent below the requested FTE level in FY 1994. For the first time in six years, the FY 2001 request, in actual dollars, is above the FY 1994 request.