I don't think there is intention to apply it only to a particular section of the country.

Senator KENNEDY of Massachusetts. Mr. Attorney General, wouldn't you say that the area of civil rights has been selected by the passage of 1983 as an area which will be protected?

As you have so well stated, it is a suggestion which would apply to Chicago, Massachusetts, or any place. That is, if it were determined from the evidence that under color of law there has been a series of abuses by local authority, then the best way to remedy this situation is to provide for joint liability. I think that certainly we want to make this protection of civil rights applicable wherever there is injustice in Boston, in my own State, and in every other part of the country. And I think that this area of civil rights has been identified in 1983, and it was the suggestion that this amendment be considered to be an amendment to that section, which would be applicable to the 50 States.

Attorney General KATZENBACH. It would find a deeper pocketbook. Senator ERVIN. Mr. Attorney General, changing the subject to another phase, in my State there have been threats to deny medicare benefits in hospitals.

Now I propose to offer an amendment to this bill providing that:

No hospital, nursing home, or other health care facility shall, for purposes of this title, be regarded as receiving Federal financial assistance for any program or activity by reason of the fact that such hospital, nursing home, or other facility participates in any program, which is administered by an agency or instrumentality of the United States or which receives Federal financial assistance, if such program is designed to assist individuals who are the beneficiaries thereof in obtaining or in meeting the costs of health care services, and if the participation in such program by such hospital, nursing home, or other facility consists (in toto or in principal part) of an undertaking by such hospital, nursing home, or other institution to provide, for a consideration paid by or under such program, health care services to such individuals.

That is what a layman might call some legal gobbledygook but it was drawn at my request by the legislative counsel of the Senate for the purpose of establishing the principle that the medicare program, insofar as it rests upon social security, is an insurance program and to establish the principle that a man has an absolute right to receive the benefits of the medicare program insofar as it is based upon the social security system, without interference on the part of the Federal Government.

I would like to ask you your opinion-I realize that this is something on the spur of the moment and you may want to answer the question later by a letter, but do you think that the medicare program, insofar as it rests upon social security can be properly classified as a Federal financial program or activity, rather than an insurance program?

Attorney General KATZENBACH. Yes, sir.
Senator ERVIN. You say it can?

Attorney General KATZENBACH. Yes, sir.

Senator ERVIN. And that is the position of the administration? Attorney General KATZENBACH. Yes. I think it is covered by title VI as it now exists. I take it the purpose of your legislation would be to remove it from the coverage of title VI. I would be

opposed to that.

Senator ERVIN. Doesn't title VI expressly exempt insurance pro

grams from its operation?

Attorney General KATZENBACH. Title VI? It speaks about "other than a contract of insurance or guarantee." It talks about a contract of insurance or guarantee. I don't think the medicare program is a contract of insurance or guarantee.

Senator ERVIN. It is called old age and survivors insurance isn't it and a man pays a premium for it, does he not?

Attorney General KATZENBACH. He pays for it and there is a contribution by the Government at the same time.

Senator ERVIN. Do you think that a man who is suffering and who has paid social security upon the assurance of the Government that he has an old age and survivors insurance, to which he is entitled asa matter of right, should be denied the right to go to a hospital in his community simply because that hospital doesn't satisfy the notions of the Department of Health, Education, and Welfare as to what it should do in racial matters?

Attorney General KATZENBACH. I think so; yes, Senator. I think the objective here in the medicare program is to get adequate medical facilities for everyone. I think you would agree with me there ought to be adequate medical facilities irrespective of race or color. I think the only way that that really can be achieved is by hospitals participating in this, if they are presently discriminating, to stop discriminating. It is the hospital that does it.

Let me just turn your case around and let's make it apply to a Negro who is then prevented, although joining this program, prevented from getting into these medical facilities by the actions of the hospital. I think the argument that you make cuts equally the way I would support it and the way you do.

Senator ERVIN. In other words, because the hospital may discriminate against a colored man, it should allow me to remain out and die.

Attorney General KATZENBACH. They may be allowing that colored man to remain out and die. That is my point.

Senator ERVIN. I know. I am talking about

Attorney General KATZENBACH. That is my point.

Senator ERVIN. I am talking about the individual. I don't know any hospital in my State that doesn't receive patients of all races. Attorney General KATZENBACH. It may be that

Senator ERVIN. I was told by one hospital in North Carolina that they were instructed by the representative of the Department of Health, Education, and Welfare that in assigning patients to roomsand wards, they should ignore the wishes of the patients and assign them to rooms and wards in such a manner as to produce the maximum racial integration. Otherwise, they would be denied Federal funds. Attorney General KATZENBACH. One of the difficulties of this whole business, Senator, is that somebody says that somebody said something to him in that regard. Now that is not the policy of HEW. The policy of HEW in this regard is simply that patients coming into a hospital, irrespective of color, should be given the same facilities assigned in the same manner, that other patients are assigned, and that manner should not be a manner which says, Negro patients go to this ward, white patients go to this ward. They should all be treated alike in that regard.

Now I can't say that out of some 2,000 people in HEW that are trying to work this out with hospitals, I can't obviously say that

no representative of HEW didn't say something that he shouldn't have said. He may have said that.

It has also been my experience in this that sometimes the remarks of the Federal representative in this regard are occasionally overstated or exaggerated for purposes of showing how horrible the program is and how unreasonable the Federal Government is. There has been a good deal of misunderstanding of HEW's "guidelines" in schools. There has been a good deal of misunderstanding with respect to the hospital program. But the fact is that in most areas the hospitals are coming in, are participating in that program, and are willing to treat everybody alike.

So I don't think the amendment that you suggest here would be a step forward in this regard. I think it would prevent, deter the purposes of medicare, the great purposes of medicare to provide older people with adequate medical attention and medical facilities, clearly irrespective of their race, religion, color, sex.

(At this point Senator Javits entered the hearing room.)

Senator ERVIN. The trouble is, Mr. Attorney General, the in-. formation I receive comes from the most highly reputable people in North Carolina, and it is that the Department of Health, Education, and Welfare sends out representatives to these hospitals who make oral statements, and when you write HEW about these things, after about 3 months, if you are lucky, you get an answer in which they disclaim it. But I have been told this by highly reputable people who said they heard the conversation.

Now to me, any person who has paid his social security tax in equity and good conscience should have an absolute right to receive the hospital, the medical, and the nursing home benefits that the law says he is entitled to. That individual ought not to be penalized and ought not to be denied the necessary care and treatment because of a disagreement between the officials of the hospital and HEW as to. certain racial policies.

It just means that the administration apparently would rather a man to die than to be cured in a segregated ward, even though he. has paid for treatment and is entitled to treatment under the law. And even though he has nothing whatever to do with any discrimination.

Senator JAVITS. Would the Chair yield on that?

Senator ERVIN. Yes.

Senator JAVITS. Mr. Chairman, I recall that in the debate on title VI, that is exactly what was argued, and it was frankly faced that the greatest good of the United States required that this policy be pursued. We couldn't tolerate Federal funds being used to aid and abet racial segregation in hospitals, and we would rather run the risk that this might conceivably result in someone not getting treatment who urgently needed and desired it, because the greater good to the greatest number of those in the United States requires that at long last we come abreast of this policy of not using Federal funds in violation of the Constitution.

My understanding of the vote was that it was taken in contempla-. tion of those arguments, and my judgment is that the guilt is on the head of the hospital which segregates and not on the United States. which refuses to aid it, because the hospital violates the laws and the Constitution.

Senator ERVIN. The guilt is on the Federal Government. If the Federal Government, like the priest and the Levite, passed by and walked on leaving the man lying stricken there and denied him necessary medical care simply because of the policy of a hospital he has no control over, I say the guilt is on the head of the Federal Government. I don't think that it is more important to integrate than to alleviate and cure human suffering.

Senator JAVITS. I think there is untold human suffering caused by discrimination and segregation for a century and it is time we got over

it.

Senator ERVIN. These are not Federal funds at all but they are funds that the man has paid for health insurance and he is to be denied necessary hospitalization simply because of a disagreement between the Federal Government and the policymakers of the hospital concerned with which this man has no connection and no control.

Attorney General KATZENBACH. Don't you think that whether he is white or Negro he is entitled to the same treatment? I don't see why we should leave the Negro out.

Senator ERVIN. I agree.

Attorney General KATZENBACH. In order to save the white man. Senator JAVITS. This is exactly the point.

Senator ERVIN. I agree with you absolutely but I think it is more important to cure the white man or the Negro than it is to see to it that they both have to sleep in adjoining beds. I think the fundamental purpose of a hospital is to alleviate or cure human suffering, and not to integrate the races. Under the policy of the Department of Health, Education, and Welfare as it is apparently being administered, integration is put ahead of alleviation or cure.

Attorney General KATZENBACH. They simply say, let's treat every person in the same way.

Senator JAVITS. But if the Chair would yield, there are cases of untold numbers of Negroes who have died and who have been ill and who have not been treated because they have not been admitted to hospitals which had a "white only" policy. And what about them? I thoroughly agree with the Attorney General on that.

Senator ERVIN. I would like to put in the record at this point a statement made by the Attorney General on December 2, 1963, in response to a request of Chairman Celler of the House Judiciary Committee about the meaning of title VI. I am not going to take the trouble to read it at this time but I would say that although medicare had not yet been passed I construe that letter to say that it would not apply to a program of that kind, because that is something a man has paid for himself and it is not from Federal funds. (The statement referred to follows:)

U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., December 2, 1963.

Congressman EMANUEL CELler,

Chairman, Committee on the Judiciary,
House of Representatives,

Washington, D.C.

DEAR MR. CELLER: This is in response to your request for a list of programs and activities which involve Federal financial assistance within the scope of title VI of the proposed civil rights bill, H.R. 7152.

For the reasons outlined below, it has been found to be impossible to compile any list which is accurately responsive to your request or satisfactorily

representative of the amounts of Federal financial assistance which potentially could be affected by the provisions of title VI. The list attached should not, therefore, be taken at face value or used without an understanding of its limitations.

Title VI, as set forth in Committee Print No. 2, dated October 30, 1963, provides in part:

SEC. 601. Notwithstanding any inconsistent provision of any other law, no person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance."

"SEC. 602. Each Federal department and agency which is empowered to extend Federal financial assistance to any program or activity by way of grant, contract, or loan, shall take action to effectuate the provisions of section 601 with respect to such program or activity. ***"'

Title VI would apply to programs and activities which receive Federal financial assistance, by way of grant, contract, or loan. I attach a list of appropriations, revolving funds, and trust funds, part or all of which may involve such Federal financial assistance. The list is keyed to line items in the 1964 budget, and is based on financial data furnished by the Bureau of the Budget. The following, however, were omitted: (1) New programs which, although listed in the budget, are not yet authorized and are the subject of proposed legislation and (2) programs which were in liquidation after fiscal year 1962. A program description for each item can be found in the appendix to the 1964 budget on the page indicated after the program title on the attached list.

The dollar figures in the table are the preliminary actual expenditures for the fiscal year 1963 as reported by the Treasury Department. In the case of revolving and trust funds, the expenditures shown are on a net basis except in the case of two trust funds indicated by footnotes in the attached table, which are shown on a gross expenditure basis in the Budget and Treasury reports. Minus figures indicate net revenues.

The following comments and observations are applicable to the attached table. 1. Activities wholly carried out by the United States with Federal funds, such as river and harbor improvements and other public works, defense installations, veterans' hospitals, mail service, etc. are not included in the list. Such activities, being wholly owned by, and operated by or for, the United States, cannot fairly be described as receiving Federal "assistance." While they may result in general economic benefit to neighboring communities, such benefit is not considered to be financial assistance to a program or activity within the meaning of title VI.1

For similar reasons, ordinary Government procurement is not considered to be subject to title VI. All such direct activities of the Federal Government are, of course, subject to the constitutional requirement of nondiscrimination embodied in the fifth amendment; in addition, contracting related to them is subject to the nondiscrimination requirements of Executive Order 10925 and would be subject to the authority conferred by section 711(b) of H. R. 7152.

2. A number of programs administered by Federal agencies involve direct payments to individuals possessing a certain status. Some such programs may involve compensation for services rendered, or for injuries sustained, such as military retirement pay and veterans' compensation for service-connected disability, and perhaps should not be described as assistance programs; others, such as veterans' pensions and old-age, survivors and disability benefits under title II of the Social Security Act, might be considered to involve financial assistance by way of grant. But to the extent that there is financial assistance in either type of program, the assistance is to an individual and not to a "program or activity" as required by title VI. In any event, title VI would not substantially affect such benefits, since these payments are presently made on a nondiscriminatory basis, and since discrimination in connection with them is precluded by the fifth amendment to the Constitution, even in the relatively few instances in which they are not wholly federally administered. Accordingly, such programs are omitted from the list. For similar reasons, programs involving direct Federal furnishing of services; such as medical care at federally owned hospitals, are omitted.

3. Programs of assistance to foreign countries, to persons abroad, and to unincorporated territories and possessions of the United States, are omitted, since

Reclamation projects have, however, been included because they may include construction under contract of some facilities which will be operated and ultimately owned by non-Federal entities, and may to that extent be considered to involve a form of financial assistance to such entities.

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