Motion to Withdraw Motion to Dismiss Or In The Alternative For Summary Judgment,

     [||6c708261-06ed-4cf9-bd14-66d09e19969c||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

  

BERNICE TERRY, et al., 

  

  

  

  

Plaintiffs, 

Vv. Civil No. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

/ 

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv. Civil No. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

/ 

MCTION TO WITHDRAW MOTION TO DISMISS 

OR IN TEZ ALTERNATIVE FOR SUMMARY JUDGMENT 

Defendant, Josepn A. Califano, Secretary of the 

Department of Health, Education and Welfare, by his 

undersigned attorneys, hereby moves this Court to withdraw 

defendant Califano's Motion to Dismiss or in the Alterna- 

tive for Summary Judgment filed April 1, 1977. The 

ground for this motion is that the Secretary has recon- 

sidered his position and determined not to press the 

exhaustion of remedies argument in light of his deter- 

mination that a Title VI and Section 504 review will 

be made of all hospitals in Lake County, Indiana. 

In support of this Motion, the Court is respect- 

fully referred to the Memorandum of Points and Authori- 

ties filed herewith. 

 



  ah a a a 

  

Respectfully submitted, 

alae PNlee Breall 
BARBARA ALLEN BABCOCK 
Assistant Attorney General 

  

  

RICHARD L. KEISER 

United States Attorney 

  
FRED W. GRADY 

Assistant United States Attorney 

0. 
OF COUNSEL: ends G6. Nod Lal 

DENNIS G. LINDER 1 
  

JEFFREY CHANPAGNE 

U.S. Department of 
Health, Education 
and Welfare 

) 7) 

(PL eo Ct A A 1/nc<   § a 

MARVIN G. GARVIN REBECCA L. ROSS 

Regional Attorney 

Attorneys for Defendants 
EDWARD IL. KOVEN Attorneys, Department of Justice 
Assistant Regional Washington, D.C. 20530 

Zitornsy Telephone: 739-2230 
Department Of Health, 

Education and Welfare 
300 South Wacker Drive 
18th Ficor 
Chicago, Illinois 

 



  

  

IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

  

  

  

/ 

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Vv, Civil No. R 77-154 

METHODIST HOSPITAL OF GARY, INC. , 

ef al., 

Defendants. 
/ 

/ 

| 

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT 
.---QF.- MOTION TO WITHDRAW MOTION TO DISMISS 
OR IN TZZ ALTERNATIVE FOR SUMMARY JUDGMENT 

Cn April 1, 1977, defendant Joseph A. Califano, 

Secretary Of the Department of Health, Education, and 

Welfare submitted a Motion to Dismiss, or in the 

Alternative for Summary Judgment based primarily on the 

fact that plaintiffs had not exhausted their administra- 

tive remedies. 

Based on discussions with all counsel and an inde- 

pendent evaluation of the situation in and around Gary, 

the Office for Civil Rights has determined that a review 

will be made of all hospitals in Lake County, Indiana to 

determine if Title VI of the Civil Rights Act, 42 U.S.C. 

§2000d, et seq, or section 504 of the Rehabilitation Act, 

29 U.S.C. § 794 have been violated. On August 12. 1977, 

letters were sent to all hospitals in Lake County informing 

 



  A RSI   : 

them of that decision. A representative letter is attached. 

  

{Exhibit 1). 

The Department of Health, Education and Welfare (HEW) 

further determined that, in light of its decision to con- 

duct this review, and in light of the fact that an attempt 

is being made to settle this case, that it did not wish 

to press the exhaustion of administrative remedies argument 

at this time. HEW feels that a hearing on this issue 

at this time would be a waste of the Court's and all par- 

ties' time. 

Plaintiffs' counsel has been informed of HEW's deci- 

sion and does not oppose this motion. Defendant Califano 

therefore respectfully requests that his Motion to 

Dismiss or in the Alternative for Summary judgment be 

withdrawn. 

Respectfully submitted, 

QA QUO, Baleecke [il 
BARBARA ALLEN BABCOCK 

Assistant Attorney General 

  

  

RICHARD IL. KEISER 

United States Attorney 

  

FRED W. GRADY 

Assistant United States Attorney 

3 OF COUNSEL: Naoio ik Lordi. {ale 
| DENNIS G. LINDER 
| JEFFREY CHANPAGNE 

  

U.S. Department of 
Health, Education 

| and Welfare ; (3, SX | yecen o SY 
MARVIN G. GARVIN REBECCA L. ROSS 

Regional Attorney 

  

Attorneys for Defendants 
EDWARD L. KOVEN Attorneys, Department of Justice 
Assistant Regional Washington, D.C. 20530 

Attorney Telephone: 739-2230 
Department of Health, 

Education and Welfare 
300 South Wacker Drive 

18th Floor 

Chicago, Illinois 

  
 



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. 
' 

. 

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE 

OFFICE OF THE SECRETARY 

"le WASHINGTON, D.C. 20201 

i &/oassr 

  

Lawrence T. Filosa, Executive Director 
St. Anthony Medical Center 
Main & Franciscan Road 
Crown Point, Indiana 46307 

Dear Mr. Filosa: 

As you may know, there is serious concern in your community regarding the 

shift of health care resources away from the urban center. This concern 

has come to our attention in the form of complaints filed with the Office 

for Civil Richts alleging that hospitals and planning agencies have taken 

actions which violated civil rights laws. In addition, the Secretary of 

Health, Educa2tion and VYelfare is a party defendant in the cases of 

  

  
  

  
  

Wesson, Terrv. et al. v. Methodist Hospital of Gary, Inc,, ef al. and 

Hatcher, st 31. v. Pathodisy -ospitaj of Garv, Inc. These cases involve 
a challence tc the plans of tne Methodist Hospital of Gary, Inc. for 

i additioral faciiities at Broadway Methodist Hospital in Merrillville, 

Indiana. The cases also allsge that the Department has failed properly 

to enforce Titie VI of the Civil Rights Act of 1964 and Section 504 of 
the Rehabilitation Act of 1373 with respect to the provision of health 
services in Late County. Specifically, it has been alleged that con- 
struction of Zroadway Methodist Hospital has aggravated racial segregation 
among hospitals in and around Gary, Indiana and also resulted in a lowering 
of the scope znd quality of care available to the (predominantly minority) 
residents of Gary. », 

As a result of the pro oceedings in these cases and the independent investi- 
gation and review of the entire situation which has thus far been conducted 
by the Office for Civil Rights (HEW), we have determined that the present 
patterns of hospital usage in Lake County raise questions of Title VI 
and Section 504 compliance which can only be resolved by a thorough review 
of all hospital operations. Accordingly, we are hereby notifying you 
(and, simultane ously, all other hospital facilities in Lake County which 
receive Federal funds or participate in Federally funded programs) of 
our intention to initiate and conduct such a review, 

/ 4 

 



  

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Page 2 

In order to preserve the status quo while the investigation and review is being conducted, the Office for Civil Rights shall also take the 
following actions: 

  

1. OCR will not give civil rights clearance or approval 
to any proposal or request for Federal funds or funding 
guarantees sought by any hospital in Lake County to 
construct additional facilities (especially where 
additional beds are planned in suburban locations). 

2. OCR will request the Health Resources Administration, 
HEW to take similar action with respect to any request for Federal assistance for such purposes which does 
not require OCR clearance. 

3. OCR will request the Health Re<ources Administration to 
communicate with the Indiana State Board of Health to 
request that any further hospital construction in Lake County be postponed until completion of this review, 

  

regaraiess of actions taken thus far by the local Health 
Sysiems Agency. 

4. Should hospital construction by an entity which receives | Federal funds or participates in Federally funded programs D2 pianned without direct Federal contribution, or without prior approve: being sought through the HSA network, OCR may requast ine Department of Justice to seek injunctive relief against that construction in the Wesson or Hatcher Titigation until such time as the Title VI review is 
comp iated 

These actions, which we are announcing so that all Lake County hospitals Will be on notice of the Department's intention, will not be applied so as to prevent necessary emergency construction or renovation. Nor will the Department seek to halt completion of the 96-bed addition to St. Anthony's Hospital at Crown Point, since we are informed that the structural framework has been completed already. Should this construction ultimately be determined to have been planned and implemented in violation of Title VI of the Civil] Rights Act of 1964 or Section 504 of the : Rehabilitation Act of 1973, however, the Department will require approp- riate remedial action. 

 



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Page 3 

OCR intends to complete this review as expeditiously and efficiently 
as possible within the limits of its available resources. As with any 
civil rights investigation, our staff will need the cooperation and 
assistance of the recipient institution in the collection and production 
of data, as is required by 45 C.F.R. Section 80.6. We shall be sending 
you shortly a description of the manner in which the investigation will proceed and the necessary information which can be identified at this 
time. We shall then contact you in order to arrange an initial meeting 
with you and your staff to explain in greater detail the conduct of the review and to answer any questions you may have. 

The Office for Civil Rights is concerned that health care facilities not be located or operated so as to drain off resources from urban areas or otherwise impact disproportionately on identifiable racial or other minority groups or the handicapped in violation of applicable civil rights legislation. OCR also supports the Departmental goal of prudent health planning. It is our feeling that these goals can be equitably and effectively realized by considering the network of health care delivery facilities in a service area, rather than focusing on one hospital or clinic at a time. 

Please understand also th 
closely with the Health Reso 
Service, in order to ensu 

rces Administration of the Public Health 

t the Office for Civil Rights intends to work 

> that HEW communicates with a single voice. 

p= 
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} fo rn Al sm AT od : 4 Me. STA Te | We look forward to working with you. 

4 

Sincerely, 

David S. Tatel 
Director 
Office for Civil Rights 

 



  

  

CERTIFICATE OF SERVICE 
  

I certify that copies of Motion to Withdraw Motion to 

Dismiss or in the Alternative for Summary Judgment and 

Memorandum of Points and Authorities in Support of Motion to 

Withdraw Motion to Dismiss have been served this iS Hh 
  

day of August, 1977 by mailing postage prepaid to: 

/ 

Ms. Beth Lief 
Mr. Jack Greenberg 
Mr. Melvyn 
Leventhal 10 Columbus Circle 
New York, New York 10019 

Mr. Julian Allen 
2009 Broadway 
Gary, Indiana 46407 

Ms. Marilyn G. Rose 
Ms. Christine B. Hickman 
1757 ® street, N.W. 
Washington, D.C. 20036 

Mr. Bruce E. Sayers 
Hodges, Davis, Greenberg, Compton 

& Sayers 
5525 Broadway 
Gary, Indiana 46401 

Kipton Xa 
Executive Director, Northern Indiana 

Comprehensive Health Services 
Agency, Inc. 

900 East Colfax Avenue 
South Bend, Indiana 46617 

Michael Schaefer 
Assistant Attorney General 

of Indiana 
219 State House 

Indianapolis, Indiana 46204 

Calera J (Noss 
  

REBECCA L. ROSS [||6c708261-06ed-4cf9-bd14-66d09e19969c||]