Burditt v Sullivan Brief as Amici Curiae in Support of Respondent

    IN THE

UNITED STATES COURT OF APPEALS

For The Fifth Circuit g g

No. 90-4611 C-42-Dec. No. 1167

MICHAEL L. BURDITj; M.D. Petitioner

LOUIS SULLIVAN, M.D., Secretary
of the United States Department
of Health and Human Services Respondent

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On Appeal From a Final Decision 
by the Departmental Appeals Board of the 

United States Department of Health and Human Services

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BRIEF FOR THE ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND. 
THE NAACP LEGAL DEFENSE AND EDUCATIONAL FUND, INC.,

THE NATIONAL MEDICAL ASSOCIATION,
THE NOW LEGAL DEFENSE AND EDUCATION FUND, AND 

THE PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND 
AS AMICI CURIAE IN SUPPORT OF RESPONDENT

MARTHA F. DAVIS 
ALISON C. WETHERFIELD 
NOW LEGAL DEFENSE AND 

EDUCATION FUND 
99 Hudson Street 
12th Floor
New York, NY 10013 
(212) 925-6635

JULIUS LEVONNE CHAMBERS 
RONALD L. ELLIS*
MARIANNE ENGELMAN LADO 

99 Hudson Street 
16th Floor
New York. NY 10013 
(212) 219-1900

Counsel for Amici Curiae

January 9, 1991
Counsel of Record



IN THE UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 90-4611 C-42-Dec. No. 1167

MICHAEL L. BURDITT, M.D., Petitioner

LOUIS SULLIVAN, M.D., SECRETARY OF THE UNITED STATES 
DEPARTMENT OF HEALTH AND HUMAN SERVICES, Respondent

CERTIFICATE OF INTERESTED PERSONS

The undersigned, counsel for Amici Curiae, certify that the following listed persons have 
an interest in the outcome of this case. These representations are made in order that the Judges 
of this Court may evaluate possible disqualification or recusal.

I. Petitioner

Michael L. Burditt, M.D.

II. Respondent

Louis M. Sullivan, M.D.
Secretary of the
U.S. DEPARTMENT OF HEALTH 
AND HUMAN SERVICES

III. Attorneys for Petitioner

William DeWitt Alsup 
ALSUP & ALSUP

Edward J. Ganem 
GANEM & VASQUEZ

Donald P. Wilcox 
Hugh M. Barton
TEXAS MEDICAL ASSOCIATION

IV.Attornevs for Respondent

Leslie Shaw
John Meyer
Michael J. Astrue
U.S. DEPARTMENT OF
HEALTH AND HUMAN
SERVICES



V. Amici Curiae for Petitioner

Catherine I. Hanson 
Kimberly S. Davenport 
THE CALIFORNIA MEDICAL 

ASSOCIATION

Carter G. Phillips 
Mark E. Haddad 
SIDLEY & AUSTIN

Charles W. Bailey 
Michael A. Pearle 
THE TEXAS HOSPITAL 

ASSOCIATION

Kirk B. Johnson 
Edward E. Haddad 
AMERICAN MEDICAL 

ASSOCIATION

VI. Amici Curiae for Respondent

Julius L. Chambers 
Ronald L. Ellis 
Marianne Engelman Lado 
NAACP LEGAL DEFENSE &

EDUCATIONAL FUND, IN

ASIAN AMERICAN LEGAL DEFENSE AND EDUCATION FUND 
NATIONAL MEDICAL ASSOCIATION
PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND

Martha F. Davis 
Alison C. Wetherfield 
NOW LEGAL DEFENSE & 

EDUCATION FUND

It is our understanding that the following organizations and individuals will also file briefs of amici 
curiae in support of Respondent:

LAMDA LEGAL DEFENSE AND 
EDUCATIONAL FUND 

PUBLIC CITIZEN, INC.
AMERICAN PUBLIC HEALTH ASSOCIATION 
MEXICAN AMERICAN LEGAL DEFENSE AND 

EDUCATIONAL FUND
PHYSICIANS FOR REPRODUCTIVE HEALTH 
MACON REGIONAL CLIENTS COUNCIL 
TENNESSEE HEALTH CARE CAMPAIGN 
PARKLAND HOSPITAL

DORIS SPENCER 
LINDY GOOCH 
REBECCA OWENS 
LACRETA MERGUSON 
DELLA SIMMONS 
PENNSYLVANIA CONSUMER

SUBCOMMITTEE OF THE 
MEDICAL ASSISTANCE 
ADVISORY COMMITTEE

Ronald L. Ellis 
Counsel of Record for 
Amici Curiae

2



TABLE OF CONTENTS

TABLE OF CONTENTS ..........................................................................................................  i

TABLE OF AUTHORITIES ...................................................................................................  ii

INTERESTS OF AMICI CURIAE ..........................................................................................  1

SUMMARY OF ARGUMENT.................................................................................................  3

ARGUM ENT.............................................................................................................................. 4

I. ON ITS FACE, SECTION 1867 DOES NOT REQUIRE PROOF OF AN
ECONOMIC OR DISCRIMINATORY MOTIVE FOR DUMPING TO 
ESTABLISH A VIOLATION........................................................................................ 4

A. The Plain Words Of The Statute Prohibit Denials Of Emergency Care And
Inappropriate Transfers, Without Regard To The Motivation Of The 
Responsible Physician ........................................................................................ 4

1. The Balance Of Authority Weighs Against Requiring Proof Of
Economic Motivation ............................................................................  5

2. The Text Of Section 1867, Including The Terms "Appropriate" And
"Stabilize," Does Not Support A Requirement That Claimants Prove 
Economic Motivation ............................................................................  7

B. Congress Was Aware Of Analogous Federal And State Laws That Explicitly 
Require ProoEOfTmproper Intent And Deliberately Chose Not To Enact
Such A Requirement In Section 1867 .............................................................. 9

II. IMPOSITION OF A REQUIREMENT THAT THE GOVERNMENT PROVE
THE MOTIVATION OF THE PROVIDER WOULD SUBSTANTIALLY 
WEAKEN SECTION 1867, CONTRAVENING CONGRESS’ INTENT TO 
PROVIDE AN EFFECTIVE MEANS OF ENFORCEMENT .................................  12

A. The Burden Of Proving The Motivation Of The Provider Would Be
Prohibitively High And Would Undermine Effective Enforcement Of The 
S tatute.................................................................................................................. 13

B. The Added Burden Of Proof Would Endanger The Lives Of Those In Need
Of Emergency C a re ............................................................................................  14

CONCLUSION...........................................................................................................................  18

APPENDIX A ......................................................................................................................... A-l

APPENDIX B ......................................................................................................................... B-l

APPENDIX C ......................................................................................................................... C-l

i



TABLE OF CASES

CASES

Bryan v. Koch.
627 F.2d 612 (2d Cir. 1980) ............................................................................................  1

Cleland v. Bronson Health Care Group,
917 F.2d 266 (6th Cir. 1990) ..........................................................................................  5, 6, 8

Deberry v. Sherman Hospital Association
741 F.Supp. 1302 (N.D. 111. 1990) ................................................................................. 5, 6, 13

Evitt v. University Heights Hospital,
727 F. Supp. 495 (S.D. Ind. 1989) ................................................................................  6

H.J. Inc, v. Northwestern Bell Telephone Co..
492 U .S.__ , 109 S. Ct. 2893 (1989) ............................................................................  5

Hope v. Perales.
No. 21073/90, (S.Ct. N.Y. Co. filed Sept. 21, 1990) ....................................................  2

INS v. Cardoza-Fonseca.
480 U.S. 421 (1986) ......................................................................................................  6

In re James Archer Smith Hospital,
(Homestead, Fla.; HHS/OCR No. 04813063, decided April 30, 1984) ........................ 10

In re Margaret R. Pardee Memorial Hospital,
(Hendersonville, N.C.; HHS/OCR No. 04803173, decided Sept. 4, 1981) ................. 2, 10

Metropolitan Housing Development Corp.,
558 F.2d 1283 (7th Cir. 1977), cert, denied. 434 U.S. 1025 (1978) ............................. 13, 14

Nichols v. Estabrook,
741 F. Supp. 325 (D.N.H. 1989) ...................................................................................  6

People v. Flushing Hospital,
122 Misc. 2d 260, 471 N.Y.S.2d 745 (Queens Co. Crim. Ct. 1983) ............................. 12

Reid v. Indianapolis Osteopathic Medical Hospital,
709 F. Supp. 853 (S.D.Ind. 1989) ................................................................................. 13

Rust v. Sullivan,
889 F.2d 401 (2d Cir. 1989), cert, granted, 110 S. Ct. 2324
(No. 89-1391, 89-1392) .................................................................................................  2

Simkins v. Moses H. Cone Memorial Hospital,
323 F.2d 959 (4th Cir. 1963), cert. denied, 376 U.S. 938 (1964) ...............................  1

Stewart v. Mvrick,
731 F. Supp. 433 (D. Kan. 1990) ...................................................................................  6

In re Wadlev Hospital II,
(Texarkana, Texas; HHS/OCR No. 06813057) .............................................................. 10

11



STATUTES AND REGULATIONS

Consolidated Omnibus Reconciliation Act of 1986 (COBRA),
Pub. L. No. 99-272 , § 9121(b), 100 Stat. 164-67 (1986) ........................................... 3

Hill-Burton Act,
42 U.S.C. §§ 291, etseSi ............................................................................................... 9

Omnibus Reconciliation Act of 1989,
Cong. Rep., H.R. 3299 .................................................................................................  9

Section 1867 of the Social Security Act,
42 U.S.C. § 1395dd ........................................................................................................  passim

Cal. Health and Safety Code §§ 1317, 17409, 1978 .........................................................  9

Colo. Rev. Stat. §§ 26-15-101-110 .....................................................................................  9

Fla. Stat. Ann. §§ 395.0143, 401.45(1) ............................................................................  9, 11

Ga. Code Ann. §§ 31-8-42, 31-8-43, 31-8-46 ..................................................................  9, 10

Hawaii Rev. Stat. § 321-232(b) ........................................................................................ 9, 11

111. Ann. Stat. eh. I l l  1/2, § 86 ........................................................................................  9

Ky. Rev. Stat. Ann. §§ 216B.400(1), 216B.990(3) ...........................................................  9

La. Rev. Stat. Ann. §§ 2113.4(2)-2113.4(b) .......................................................................  9

Mass. Gen. Laws Ann. § 70E(m)(e) ................................................................................. 9

Mich. Stat. Ann. §§ 14.15(20715), 14.15(20704(4), 14.15(20703) .................................... 9

Mo. Ann. Stat. § 205.989(1) ............................................................................................... 9

N.J. Admin. Code tit. 8, § 8.43-B1 ...................................................................................  10

N.Y. Public Health Law §§ 2805-b, 2806(1) .....................................................................  10, 12

Oregon Admin. Reg. ch. 333, § 23(15) ............................................................................  10

Pa. Admin. Reg. § 117.1(a), (b) ........................................................................................ 10

R. I. Gen. Laws § 23-17-26(a) .........................................................................................  10

S. C. Admin. Reg. 61-16 § 309 ..........................................................................................  10

Tenn. Code Ann. §§ 68-69-301, 68-39-302, 68-39-511(12) .............................................  10

Tex. Health & Safety Code Ann. § 4438 .......................................................................... 10, 11

Utah Code Ann. §§ 26-8-8(1), 26-8-2(12) .......................................................................... 10

i i i



Wis. Stat. Ann. § 146.301 ...................................................................................................  10

Wyo. Stat. Ann. § 35-2-115(a) ..........................................................................................  10

42 C.F.R. § 124.603(b)(1), (2) ..........................................................................................  10, 11
r

MISCELLANEOUS

Ansell, Schiff, Patient Dumping: Status, Implications, and
Policy Recommendations. 257 J. Amer. Med. Assn. 150 (1987) .................................  17

Bureau of the Census, U.S. Department of Commerce,
Statistical Abstract of the United States 1989 ...........................................................  14, 16

Cypen, Access to Health Care Services for the Poor:
Existing Programs and Limitations.
31 Univ. of Miami L. Rev. 127 (1976) .........................................................................  11

Equal Access to Health Care: Patient Dumping: Hearing
Before the Human Resources & Intergovernmental Relations 
Subcomm. of the House Comm, on Government Operations,
100th Cong., 1st Sess. 40 (1987) ...................................................................................  5

Friedman, Problems Plaguing Public Hospitals: Uninsured 
Patient Transfers. Tight Funds, Mismanagement, and
Misperception, 257 J. Amer. Med. Assn. 1850 (1987) ................................................ 16

H.R. Rep. No. 99-241, Part-V 99th Cong., 1st Sess. 5 (1985) ........................................  5, 12

H.R. Rep. No. 99-241, Part 3, 99th Cong., 1st Sess. 27 (1985) ......................................  5, 7, 12

Himmelstein, Woodhandler, Harnly, et al.,
Patient Transfers: Medical Practice as Social Triage,
74 Am. J. Public Health 494 (1984) ..............................................................................  15

House Committee on Governmental Operations,
Equal Access to Health Care: Patient Dumping,
H.R. Rep. 531, 100th Cong., 2d Sess., 14 (1988) ........................................... 13, 14, 16

National Health Law Program, Patient Dumping:
A Crisis in Medical Care for the Indigent,
19 Clearinghouse Rev. 1413 (1986) ............................................................................  11

National Health Law Program, Putting Flesh on the Bones of 
the Hill-Burton Community Service Regulations.
19 Clearinghouse Rev. 13 (May 1985) .......................................................................... 10

National Health Law Program, Summary of State Emergency
Care Statutes and Case Law. 18 Clearinghouse Rev. 494 (1985) ...............................  11

Note, Preventing Patient Dumping: Sharpening the COBRA’s
Fangs. 61 N.Y.U. L. Rev. 1186 (1986) .......................................................................... 10

S. Rep. No. 1285, 93rd Cong., 2d Sess. 61 .......................................................................  10

IV



Schiff, Ansell, Schlosser, Idris, Morrison, Whitman,
Transfers to a Public Hospital.
314 New Eng. J. Med. 552 (1986) ................................................................................  14

Sutherland, Statutory Construction §§ 47.16, 49.12 .........................................................  7, 9

73 Am. Jur. 2d Statutes § 151 (1974) ................................................................................  6

v



INTERESTS OF AMICI CURIAE

The ASIAN AMERICAN LEGAL DEFENSE & EDUCATION FUND (AALDEF), 

founded in 1974, is a national civil rights organization that addresses critical issues facing Asian 

Americans through community education, advocacy, and litigation. AALDEF’s program priorities 

include the elimination of anti-Asian violence, immigrants’ rights, voting rights, employment and 

labor rights, and redress for Japanese Americans who were incarcerated in camps within the 

United States during World War II. AALDEF is concerned with the policy and practice of 

hospitals that deny treatment to patients in need of emergency care by transferring them to other 

hospitals in disregard of the health risks to the patients and their statutory obligations. This 

patient "dumping" directly impacts upon the indigent, many of whom are recent immigrants and 

their families. For these reasons, AALDEF urges this Court to enforce the plain meaning of this 

statute requiring hospital emergency rooms to accept and treat any individual seeking emergency 

medical care.

The NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. (LDF) is a national 

non-profit corporation formed to assist African Americans in the vindication of their constitutional 

and civil rights. For many years LDF has pursued litigation to secure the basic civil and economic 

rights of low-income black families and individuals. Litigation to ensure the non-discriminatory 

delivery of health care and hospital services to African Americans has been a long-standing LDF 

priority. See, e.g., Simkins v. Moses H. Cone Memorial Hosp., 323 F.2d 959 (4th Cir. 1963), cert. 

denied. 376 U.S. 938 (1964) (prohibiting racial segregation in publicly supported health care 

facilities); Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980) (challenge to the closure of a public hospital 

in Harlem under Title VI of the Civil Rights Act of 1964). Intentional and unintentional practices 

that discriminate against African Americans have been a primary LDF concern.

Through its Poverty & Justice Program, LDF is challenging barriers to economic 

advancement to help improve the economic status and living conditions of the many in poverty. 

LDF has also worked on behalf of African Americans struggling with the burdens of poor health

1



and discriminatory and inadequate health care services. This case implicates the full panoply of 

these important LDF concerns and, for this reason, LDF has filed this brief amicus curiae in 

support of respondent.

The NATIONAL MEDICAL ASSOCIATION (NMA), founded in 1895, represents 16,000 

African-American physicians in the United States, including Puerto Rico and the Virgin Islands. 

The NMA seeks to foster the enactment of just medical laws and to educate the public concerning 

all matters affecting public health, especially matters affecting the socio-economically 

disadvantaged and the health care of women.

The NOW LEGAL DEFENSE AND EDUCATION FUND (NOW LDEF), founded in 

1970 by leaders of the National Organization for Women, is a nonprofit civil rights organization 

that performs a broad range of legal and educational services nationally in support of women’s 

efforts to secure equal rights. One of NOW LDEF’s priorities is the protection of the health of 

all women, particularly low-income women and women of color, and NOW LDEF has participated 

in numerous cases designed to effectuate that goal. See, e.g., Hope v. Perales, No. 21073/90, (S.Ct. 

N.Y. Co. filed Sept. 21, 1990) (challenging Medicaid restrictions on abortion funding under state 

constitution); Rust v. Sullivan, 889 F.2d 401 (2d Cir. 1989), cert, granted, 110 S.Ct. 2324 (No. 89- 

1391, 89-1392) (challenging restrictions on federal funding of family planning clinics). The instant 

case directly implicates the access of poor pregnant women to adequate health care, as well as the 

access to health care and appropriate treatment of poor, uninsured women with other emergency 

conditions. For these reasons, NOW LDEF has filed this brief amicus curiae in support of 

respondent.

The PUERTO RICAN LEGAL DEFENSE AND EDUCATION FUND is a national 

organization founded in 1972 to protect civil rights and to ensure equal protection of the laws for 

Puerto Ricans and other Latinos. The Fund has participated in lawsuits and has served as an 

advocate to ensure that Latinos have access to full and adequate health care. The Fund

2



recognizes that restrictions or limitations on the provision of health services deny Latinos the 

access necessary to fully exercise their rights, and place Latinos at an even greater risk of 

inadequate treatment.

SUMMARY OF ARGUMENT

Section 1867 of the Consolidated Omnibus Reconciliation Act of 1986, Pub. L. No. 99- 

272 (codified as amended at 42 U.S.C. § 1395dd) (hereinafter "Section 1867") requires hospitals 

receiving Medicaid funds to provide a medical screening and, where appropriate, to provide 

emergency care and stabilization to "any individual" or woman in active labor who requests such 

services. A hospital or responsible physician who knowingly or negligently fails to comply with the 

requirements of Section 1867 is liable for civil monetary penalties.

One of Congress’ primary aims in enacting Section 1867 was to deter hospitals and doctors 

from refusing to provide care to the poor and the uninsured. In drafting the statute, however, 

Congress expanded upon the scope of prior federal and state statutes and enhanced Section 1867’s 

deterrent effect by prohibiting all refusals of emergency care and all inappropriate transfers that 

are not medically supported. Section 1867 does not require proof that the refusal of care was 

economically motivated.

Requiring proof of economic motivation would both contravene the plain words of the 

statute and undermine Congress’ purpose in enacting Section 1867. Congress responded to dire 

reports of patients who were inappropriately turned away from emergency rooms -  i.e. examples 

of "dumping," practices that have particularly harsh consequences for African-Americans, Latinos 

and pregnant women -  by stripping claimants’ burden of proof to the essential element: denial 

of emergency care. Imposing a higher standard of proof would frustrate enforcement efforts by 

the Secretary of Health and Human Services (HHS), thwart Congress’ purpose in enacting Section 

1867 and, inevitably, lead to another litany of tragic stories, as doctors and hospitals continue to 

deny services to individuals in need of emergency health care.

3



ARGUMENT

I. ON ITS FACE, SECTION 1867 DOES NOT REQUIRE PROOF OF AN 
ECONOMIC OR DISCRIMINATORY MOTIVE FOR DUMPING TO 
ESTABLISH A VIOLATION

A. The Plain Words Of The Statute Prohibit Denials Of Emergency Care And 
Inappropriate Transfers, Without Regard To The Motivation Of The Responsible 
Physician

Amici in support of Petitioner contend that, in order to prove a violation of Section 1867,1 

HHS must prove that Dr. Burditt transferred Ms. Rivera because she was uninsured. They 

contend that because Congress enacted Section 1867 to address the pervasive problem of 

"dumping" of indigent patients by hospitals and doctors, this Court should interpret Section 1867 

to sanction denials of emergency care and inappropriate transfers only when a claimant can prove 

that a denial was motivated by the indigence of a patient.

As set out in the Secretary’s brief, this position flies in the face of the plain meaning 

of the statute and its legislative history. Appellee Br. at 37-48. There is no ambiguity in the 

words of Section 1867: the plain words of the statute do not require proof of economic motive to

1 Section 1867 provides, in pertinent part, that

[i]f any individual (whether or not eligible for benefits under this 
subchapter) comes to the emergency department and a request is 
made on the individual’s behalf for examination or treatment for a 
medical condition, the hospital must provide for an appropriate 
medical screening examination within the capability of the hospital’s 
emergency department to determine whether or not an emergency 
medical condition ... exists or to determine if the individual is within 
active labor.

Section 1867 (a). In addition, if "any individual" is determined to have an emergency condition 
or to be in active labor, the hospital must either provide further treatment to stabilize the medical 
condition or an "appropriate transfer," as defined in Section 1867, which meets the "interest of the 
health and safety of the patients transferred." Section 1867(b), (c). Willful or negligent failure 
to comply with these requirements exposes the hospital and the responsible physician to civil 
penalties. Section 1867(d).

4



establish a violation.2 * * See, e.g.. Deberry v. Sherman Hospital Ass’n. 741 F. Supp. 1302, 1305 (N.D. 

111. 1990) ("plain language" of the statute does not require "dumping" to establish violation). See 

also Cleland v. Bronson Health Care Group. 917 F.2d 266, 270 (6th Cir. 1990) (Section 1867 

"plainly has no such limitation on its coverage"). In fact, the statute specifically negates any 

speculation that proof of economic motive is necessary to establish a violation by indicating that 

appropriate emergency services must be provided "whether or not" the patient is eligible for 

Medicare benefits. Section 1867(a), (b)(1).

1. The Balance of Authority Weighs Against Requiring Proof of 
Economic Motivation

The plain words of Section 1867 lend no support to a requirement of either indigence, for 

standing, or economic motive, as an element of a statutory violation. See discussion supra. While 

the impetus for Section 1867 came from the much publicized patient dumping cases in which 

victims were poor or uninsured, Congress created a federal private right of action against hospitals 

and did not limit it to the indigent: "any individual who suffers personal harm as a direct result 

of a participating hospital’s violation" may recover damages against the hospital. 42 U.S.C. § 

1395dd(d)(3)(A). In creating this private right of action for "any individual," Congress was fully 

aware that many of the victims of inappropriate emergency treatment were neither indigent nor 

uninsured. See Equal Access to Health Care: Patient Dumping: Hearing Before the Human 

Resources & Intergovernmental Relations Subcomm. of the House Comm, on Government 

Operations. 100th Cong., 1st Sess. 40 (1987) (statement of Judith Waxman, managing attorney, the 

National Health Law Program, noting that while 37 million Americans have no health insurance 

coverage, an additional 50 million have inadequate coverage) (hereinafter "Subcomm. Hearing").

The U.S. Court of Appeals for the Sixth Circuit, the only appellate court that has ruled on 

the question whether economic motivation is a requisite to a violation of Section 1867, agreed in 

Cleland v. Bronson that, on its face, Section 1867 mandates appropriate screening for all 

individuals who seek emergency treatment, and stabilization and treatment for ah such individuals

2 Earlier versions of the statute were similarly worded to apply to all individuals who request
emergency screening. See H.R. Rep. No. 241, 99th Cong., 1st Sess., pt. 1, at 27 (1985), reprinted
in 1986 U.S. Code Cong. & Admin. News 579, 605.

5



who are determined to have emergency medical conditions or to be in active labor, regardless of 

indigence. 917 F.2d at 270. See also Deberrv. 741 F. Supp. at 1305.

The handful of federal district court opinions that have read a requirement of economic 

motive into the statute are, as set out in Deberrv and Cleland. unpersuasive.3 Rather than analyze 

the text of Section 1867, these cases, Stewart v. Mvrick. 731 F. Supp. 433 (D. Kan. 1990), Evitt v. 

University Heights Hosp., 727 F. Supp. 495 (S.D. Ind. 1989), and Nichols v. Estabrook, 741 F. 

Supp. 325 (D.N.H. 1989), ignore the statute’s plain language and, without authority, rush to a 

restrictive interpretation of its legislative history. As noted in Deberrv. this approach is 

inappropriate: "[I]t is not this court’s place to rewrite the language enacted by our duly elected 

officials" through a "clandestine use of the legislative history."4 741 F. Supp. at 1307. See INS v. 

Cardoza-Fonseca. 480 U.S. 421, 432 n.12 (1986) ("[Wjhere no ambiguity appears, it has been 

presumed conclusively that the clear and explicit terms of a statute express the legislative 

intention"); Cleland, 917 F.2d at 270 (1990); 73 Am. Jur. 2d Statutes § 151 (1974) ("the legislative 

history of a statute may not compel a construction at variance with its plain words").5

3 This is an issue of first impression in the Fifth Circuit.

4 The United States Supreme Court most recently rejected such a blatant attempt to rewrite
a statute in HJ. Inc, v. Northwestern Bell Telephone Co., 492 U.S. __ , 109 S.Ct. 2893 (1989),
concerning the Racketeer Influenced and Corrupt Organizations Act (RICO). The Court 
acknowledged that organized crime was Congress’ "major target" in enacting RICO, yet it found 
that the plain words of the statute do not require an organized crime nexus. The Court concluded 
that while "[tjhe occasion for Congress’ action was the perceived need to combat organized crime 
... Congress tor cogent reasons chose to enact a more general statute." Id. at 2903-04.

5 Moreover, although these three district courts dismissed Section 1867 claims where 
plaintiffs did not allege that their financial condition or lack of health insurance contributed to 
defendant’s conduct, it is not clear whether the courts were concerned with standing or the merits 
of plaintiffs’ claims. See, e.g„ Stewart. 731 F. Supp. at 435 ("Indigent persons denied emergency 
medical care possess a federal cause of action under the Act") (emphasis added); but see, e.g., 
Evitt. 727 F. Supp. at 498 (noting, without further explanation, that plaintiffs were "unable to 
present evidence which could prove that [the patient] was turned away ... for economic reasons").

6



2. The Text Of Section 1867, Including The Terms "Appropriate" And 
"Stabilize," Does Not Support A Requirement That Claimants Prove 
Economic Motivation

Amici in support of Petitioner also argue that proof of economic motivation is required by 

the use of the terms "appropriate" and "stabilize" in Section 1867. The text of the statute, 

however, provides no basis whatsoever for this construction, and, instead, makes clear that each 

of these terms should be assessed in accordance with medical criteria.

For example, Section 1867 requires that "the hospital must provide for an appropriate 

medical screening examination ... to determine whether or not an emergency medical condition ... 

exists or to determine if the individual is in active labor." Section 1867(a) (emphasis added). In 

this context, the term "appropriate" clearly relates to the purpose of the examination -  i.e. that 

the examination must be appropriate to the determination of whether the patient has an 

emergency medical condition.

The term "appropriate" also appears in several other places in the statute. For example, 

Section 1867(c)(2)(B) requires that the transferring hospital provide the receiving facility with 

"appropriate" medical records, and Section 1867(c)(2)(C) requires that "appropriate" life support 

measures be used if a transfer is effected. Most tellingly, the statute provides a detailed definition 

of "appropriate transfer," which makes no mention whatsoever of any anti-discrimination 

component of the phrase. Section 1867(c)(2). Instead, the phrase is defined in terms of the 

"interest[s] of the health and safety of patients transferred," focusing on the medical propriety of 

the transfer rather than the requirement of an improper animus conjured up by Amici. As like 

words should be interpreted alike within a single statute, see Sutherland, Statutory Construction 

§ 47.16, the use of the term "appropriate" should not be construed to give rise to a requirement 

that the Secretary or a private plaintiff show improper animus in order to prove a violation of 

Section 1867.3 5

5 An earlier version of Section 1867 also adopted a medical definition of "appropriate," with 
no mention of any requirement of improper animus. That provision, which was not ultimately 
enacted, would have made a doctor criminally liable for failure to conduct an "appropriate" medical 
screening examination if that failure constituted a gross deviation from the "prevailing local 
standards of medical practice." H.R. Rep. 241, 99th Cong., 1st Sess., pt. 3, at 8, reprinted m 1986 
U.S. Code Cong. & Admin. News 726, 729.

7



The statute is equally clear with respect to the term "stabilize." "[T]o stabilize" is defined

in the statute as follows:

with respect to a medical condition, to provide such medical 
treatment of the condition as may be necessary to assure that no 
material deterioration of the condition is likely to result from the 
transfer of the individual from a facility.

Section 1867(e)(4)(A). Similarly, "stabilized" means

with respect to a medical condition, that no material deterioration 
of the condition is likely to result from the transfer of the individual 
from a facility.

Section 1867(e)(4)(B). Thus, Section 1867 squarely indicates on its face that the "stability" of a 

patient is to be assessed in accordance with medical standards, without an inquiry into the motives 

of defendants.

Nevertheless, ignoring the text of the statute, Amici cite the Cleland opinion in support of

their claim that proof that a defendant failed to conduct an "appropriate" examination or failed

to "stabilize" a patient requires evidence that the defendant was motivated by, among other things,

prejudice against the race, sex or ethnic group of the patient; 
distaste for the patient’s condition (e.g., AIDS patients); personal 
dislike or antagonism between medical personnel and the patient; 
disapproval of the patient’s occupation; or political or cultural 
disapproval.

Cleland, 917 F.2d at 272.

While the Cleland court concluded, on the one hand, that a patient’s economic status is 

irrelevant to an assertion of rights under Section 1867, the court also suggested, erroneously, that 

the terms "appropriate" and "stabilize" create the need to prove improper motive. Id. at 270-74. 

The court’s back-door effort to read a motive requirement into the statute is misguided: in

interpreting these terms, the court blatantly ignored the primary tools of statutory construction - 

- the text of Section 1867 and its legislative history. There is no Committee Report or speech on 

the Senate floor or any other legislative source for the groundless assertion that "appropriate" or 

"stabilize" mean "nondiscriminatory." In fact, during the 1987 hearings on implementation of the 

statute, several witnesses and legislators specifically contrasted Section 1867’s broad protection, of 

"all beneficiaries of hospital services," with prior federal laws that protected only victims of

8



discrimination or individuals who were able to prove that their dumping was motivated by 

economic factors. Subcomm. Hearing at 2 (statement of Richard Kusserow, HHS Inspector 

General).7

Thus, a fair reading of the Cleland court’s opinion demonstrates that it pulled out of thin 

air a new, onerous requirement -- a requirement that Congress had never debated, discussed, or 

delineated, and had not included in the text of the statute. The construction of the terms 

"appropriate" and "stabilize" urged by Amici for Petitioners was simply not Congress’ intent and, 

with no ambiguity in the statute itself and no support in the legislative history, should not be 

adopted after-the-fact.

In sum, the argument that a Section 1867 violation requires proof that defendants who 

have examined potential emergency patients or effected inappropriate transfers were motivated by 

indigence or other improper animus is not supported by the plain words of the statute nor by its 

legislative history. Moreover, as discussed more fully below, it is clear that Congress could have 

written a statute requiring proof of motivation — dozens of other statutes enacted by Congress 

explicitly require such proof — and it deliberately chose not to.

B. Congress Was Aware Of Analogous Federal And State Laws That Explicitly 
Require Proof Of Improper Intent And Deliberately Chose Not To Enact Such A 
Requirement In Section 1867

Prior to the enactment of Section 1867, hospital emergency services were regulated both 

by the Hill-Burton Act, 42 U.S.C. §§ 291, et seq., and by state laws.8 Congress was aware of both

7 Following these hearings, Congress amended Section 1867 without modifying its application 
to all patients, regardless of indigence, see Omnibus Reconciliation Act of 1989, Cong. Rep., H.R. 
3299, at 834-39, a fact that strongly suggests that Congress intended to enact such a broad 
protection for emergency patients. See Sutherland, Statutory Construction § 49.10 ("[w]here . . . 
contemporaneous interpretation has been called to the legislature’s attention, there is [] reason to 
regard the failure of the legislature to change the interpretation as presumptive evidence of its 
correctness").

8 At the time that Congress enacted Section 1867, twenty-two states had statutes or regulations 
governing the provision of emergency services. See Cal. Health and Safety Code §§ 1317, 17409, 
1978; Colo. Rev. Stat. §§ 26-15-101-110; Fla. Stat. Ann. §§ 395.0143, 401.45(1); Ga. Code Ann. 
§§ 31-8-42, 31-8-43, 31-8-46; Hawaii Rev. Stat. § 321-232(b); 111. Ann. Stat. ch. I l l  1/2, § 86; Ky. 
Rev. Stat. Ann. §§ 216B.400(1), 216B.990(3); La. Rev. Stat. Ann. §§ 2113.4(2)-2113.4(b); Mass. 
Gen. Laws Ann. § 70E(m)(e); Mich. Stat. Ann. §§ 14.15(20715), 14.15(20704(4)), 14.15(20703); Mo.

9



of these sources of law as it drafted and later amended Section 1867. See, e.g., Subcomm. Hearing 

at 2 (Statement of Representative Weiss, noting that Hill-Burton Act requires that hospitals 

receiving funds "must provide emergency care to certain individuals regardless of ability to pay"); 

Note, Preventing Patient Dumping: Sharpening the COBRA’s Fangs, 61 N.Y.U. L. Rev. 1186, 1202 

n.112 (1986) (Congress referred to Texas statute in drafting Section 1867). In fact, Congress 

enacted Section 1867, in part, because the Hill-Burton Act had proven to be ineffective in 

deterring patient dumping. See S. Rep. No. 1285, 93rd Cong., 2d Sess. 61, reprinted in 1974 U.S. 

Code Cong. & Admin. News 7842, 7900 (implementation of Hill-Burton by HEW and state 

agencies has been a "sorry performance").

Enacted in 1946, the Hill-Burton Act imposes certain community service requirements on 

all hospitals receiving Hill-Burton funds. The regulations implementing the Hill-Burton Act 

specifically provide that "[a] facility may not deny emergency services to any person who resides 

... in the facility's service area on the ground that the person is unable to pay for those services." 

42 C.F.R. § 124.603(b)(1).8 See generally National Health Law Program, Putting Flesh on the 

Bones of the Hill-Burton Community Service Regulations, 19 Clearinghouse Rev. 13 (1985). The 

HHS Office of Civil Rights has construed these regulations to require, as a prerequisite to 

establishing a violation, proof that the hospital’s decision to deny emergency services was motivated 

by the patient’s inability to pay or by some other improper factor. See, e.g.. In re Margaret R. 

Pardee Memorial Hospital, (Hendersonville, N.C.; HHS/OCR No. 04803173, decided Sept. 4,1981) 

(no evidence supported the complainant’s allegations that emergency services had been denied 

because he was unable to pay) (annexed as Appendix A hereto); In re Wadley Hospital II, 

(Texarkana, Texas; HHS/OCR No. 06813057) (no evidence that Medicaid was the reason why

Ann. Stat. § 205.989(1); N.J. Admin. Code tit. 8, § 8.43-B1; N.Y. Public Health Law §§ 2805-b, 
2806(1); Oregon Admin. Reg. ch. 333, § 23(15); Pa. Admin. Reg. § 117.1(a), (b); R.I. Gen. Laws 
§ 23-17-26(a); S.C. Admin. Reg. 61-16 § 309; Tenn. Code Ann. §§ 68-69-301, 68-39-302, 68-39- 
511(12); Tex. Health & Safety Code Ann. § 4438; Utah Code Ann. §§ 26-8-8(1), 26-8-2(12); Wis. 
Stat. Ann § 146.301; Wyo. Stat. Ann. § 35-2-115(a).

8 In contrast to the provision concerning denial of emergency services, there is no explicit 
provision in the Hill-Burton regulations that suggests that inappropriate transfers are those 
motivated by economic status. 42 C.F.R. § 124.603(b)(2).

10



reason why emergency services had been denied) (annexed as Appendix B hereto).9 Not 

surprisingly, given Congress’ dissatisfaction with Hill-Burton, in enacting Section 1867, Congress 

deliberately chose not to adopt the restrictive language of the Hill-Burton regulation and, instead, 

enacted a statute that does not require proof of the defendant’s motive for denying emergency 

services.

Congress was also aware of laws in twenty-two states that regulate the provision of 

emergency care when it enacted Section 1867. H.R. Rep. 241, 99th Cong., 1st Sess., pt. 3, at 5, 

reprinted in 1986 U.S. Code Cong. & Admin. News 726, 726-27 (noting ineffectiveness of state 

laws and need for additional federal sanctions). See generally National Health Law Program, 

Patient Dumping: A Crisis in Medical Care for the Indigent, 19 Clearinghouse Rev. 1413, 1415 

(1986); National Health Law Program, Summary of State Emergency Care Statutes and Case Law, 

18 Clearinghouse Rev. 494 (1985). These statutes vary widely. Some state laws explicitly provide 

that a defendant violates the law only if he or she was motivated to deny proper care by the 

patient's indigence; other state laws explicitly prohibit denial of emergency care based upon a 

variety of improper factors, including indigence; still other state laws, like Section 1867, contain 

no such limitations and instead require that emergency services be provided to all who need 

emergency care. See, e.g., Hawaii Rev. Stat. § 321-232(b) (emergency medical services shall not 

be denied "on the basis of the ability of the person to pay therefore or because of lack of prepaid 

health care coverage or proof of such ability to pay for coverage"); Tex. Health & Safety Code 

Ann. § 4438a (emergency services shall not be denied "because the person is unable to establish 

his ability to pay for the services or because of race, religion, or national ancestry"); Fla. Stat. Ann. 

§§ 395.0143, 401.45(1) (no hospital shall deny treatment "for any emergency medical condition 

which will deteriorate from failure to provide such treatment"); Cypen, Access to Health Care 

Services for the Poor: Existing Programs and Limitations, 31 Univ. of Miami L. Rev. 127, 150-

9 In fact, despite the explicit reference in the Hill-Burton Act to ability to pay, it is not clear 
that proof of economic motive is required in order to sustain a violation of the Act. See e.g.. In 
re James Archer Smith Hospital, (Homestead, Fla.; HHS/OCR No. 04813063, decided April 30, 
1984), at 3 (annexed as Appendix C hereto). Amici for Petitioners’ argument that Section 1867, 
which has no such statutory language, nevertheless requires proof of economic motive, is 
preposterous.

11



51 (1976) (Florida deliberately adopted broad statute mandating emergency care for all patients); 

Ga. Code Ann. §§ 31-8-42 (hospitals with emergency services must provide care to any pregnant 

women in active labor); N.Y. Pub. Health L. § 2805-b ("hospital shall admit any person who is 

in need of immediate hospitalization with all convenient speed"); People v. Rushing Hosp.. 122 

Misc. 2d 260, 471 N.Y.S.2d. 745 (Queens Co. Crim. Ct. 1983) (statute creates "strict liability" for 

refusal to provide emergency treatment).

Presented with these various models for Section 1867, Congress quite clearly chose to 

strengthen federal anti-dumping laws by declining to adopt the requirement that plaintiffs prove 

that indigence or some other improper animus motivated defendants’ denial of care. This choice 

comports with Congress’ expressed concern that "[ajlthough at least 22 states have enacted statutes 

or issued regulations requiring the provision of limited medical services whenever an emergency 

medical situation exists ... the problem needs to be addressed by federal sanctions." H.R. Rep. 

241, 99th Cong., 1st Sess., pt. 3, at 5, reprinted in 1986 U.S. Code Cong. & Admin. News 726, 726- 

27. This express legislative concern, along with the plain text of the statute and Congress’ 

recognition that the Hill-Burton and state law models had failed, mandates that Section 1867 be 

interpreted to apply to al] patients who are denied emergency care, not only those who can prove 

a discriminatory or economic motivation for the denial.

II. IMPOSITION OF A REQUIREMENT THAT THE GOVERNMENT PROVE 
THE MOTIVATION OF THE PROVIDER WOULD SUBSTANTIALLY 
WEAKEN SECTION 1867, CONTRAVENING CONGRESS’ INTENT TO 
PROVIDE AN EFFECTIVE MEANS OF ENFORCEMENT

The concern underlying the Consolidated Omnibus Reconciliation Act of 1985 was

elucidated in the House Ways and Means Committee Report on the bill:

The Committee is most concerned that medically unstable patients 
are not being treated appropriately. There have been reports of 
situations where treatment was simply not provided. In numerous 
other instances, patients in an unstable condition have been 
transferred improperly, sometimes without the consent of the 
receiving hospital.

H.R. Rep. No. 241, 99th Cong., 1st Sess., pt. 1, at 27 (1985), reprinted in 1986 U.S. Code Cong. 

& Admin. News 579, 605.

12



violation of the statute, the government must show that (1) the patient went to the health care 

provider's emergency room (2) with an emergency medical condition, and that (3) the provider did 

not adequately screen him to determine whether he had such a condition, or (4) discharged or 

transferred him before the emergency condition had been stabilized. See Deberry. 741 F. Supp. 

at 1305. The statute, thus, established criteria for the treatment of all emergency room patients - 

- and, if hospitals and emergency room physicians do not act in accordance with the criteria, they 

stand in violation of Section 1867. See Reid v. Indianapolis Osteopathic Medical Hosp., 709 F. 

Supp. 853, 854-55 (S.D.Ind. 1989) (Section 1867 establishes a federal standard of care based on 

strict liability).

In 1989, Congress reaffirmed its commitment to providing an effective method to address 

the inappropriate treatment of individuals in need of emergency care with the passage of the 

Omnibus Reconciliation Act of 1989, amending Section 1867. The amendments were Congress’ 

response to the critical need to let it be known that the transfer of medically unstable patients can 

only be carried out if it is in the best interest of the patient. House Committee on Governmental 

Operations, Equal Access to Health Care: Patient Dumping. H.R. Rep. 531, 100th Cong., 2d 

Sess., 14 (1988) (hereinafter "Equal Access Rep.").

A. The Burden Of Proving The Motivation Of The Provider Would Be Prohibitively
High And Would Undermine Effective Enforcement Of The Statute

If imposed, the burden of proving discriminatory intent would deter aggrieved individuals 

from bringing their claims to court and would reduce the likelihood of success for any who might 

proceed. "[A] requirement that the plaintiff prove discriminatory intent ... is often a burden that 

is impossible to satisfy. ’[Ijntent, motive, and purpose are elusive subjective concepts.’" 

Metropolitan Housing Development Corp., 558 F.2d 1283, 1290 (7th Cir. 1977) (quoting Hawkins 

v. Town of Shaw. 461 F.2d 1171, 1172 (5th Cir. 1972) (en banc) (per curiam)), cert, denied. 434 

U.S. 1025 (1978). Imposition of this onerous evidentiary burden in Section 1867 cases would 

thwart the purpose of the statute -- i.e., the congressional aim of ensuring access to emergency 

care for those in need of emergency services and for women in labor.

13



care for those in need of emergency services and for women in labor.

Amici in support of Petitioner suggest that rather than producing evidence to determine 

whether an individual in fact had an emergency medical condition, received an appropriate medical 

screening, was stabilized, and/or was appropriately transferred, the government and private 

plaintiffs should be forced to engage in the onerous and subjective process of determining, and 

then proving in court, that health care providers intended to deny or to inappropriately serve 

individuals because of their economic status. Of necessity, the focus of administrative efforts to 

enforce Section 1867 would then be on the state of mind of providers, rather than upon the 

identification of inappropriate practices and corrective measures. The practice of patient dumping 

would continue to go unpunished. See Metropolitan Housing Development Corp., 558 F.2d at 

1290 (a strict focus on intent permits discrimination to go unpunished in the absence of overt 

bigotry, evidence of which is difficult to find).

A requirement that the government prove Dr. Burditt’s intent to discriminate would be 

burdensome, would impede enforcement efforts, contravening Congressional intent, and should not 

be adopted.

B. The Added Burden Of Proof Would Endanger The Lives Of Those In Need Of
Emergency Care

The imposition of an intent requirement would not only undermine the strength of the 

statute but would endanger the lives of those in need of emergency care. By encumbering 

patients, be they poor or working class, with an additional burden of proof, this requirement would 

dilute the deterrent effect of the statute, as hospitals and doctors become secure in the knowledge 

that their motivation will be difficult for patients to prove.

As the House Committee on Government Operations recognized, "Patient dumping has 

serious medical implications and can result in denial of necessary emergency care and even death." 

Equal Access Rep. at 5. Patients who are inappropriately transferred risk delays in emergency 

treatment, life threatening complications, and a higher mortality rate. Id., at 6. See also 

Subcomm. Hearing at 157 (testimony of David A. Ansell, M.D., regarding the results of a study 

of transfers in Cook County, Illinois); Schiff, Ansell, Schlosser, Idris, Morrison, Whitman,

14



Transfers to a Public Hospital, 314 New Eng. J. Med. 552, 555-56 (1986); Himmelstein, 

Woodhandler, Harnly, et al„ Patient Transfers: Medical Practice as Social Triage. 74 Am. J.

Public Health 494 (1984).

Testimony before Congress in 1988 included striking examples of the harms caused by 

patient dumping: (1) An indigent woman in Florida suffered from severe interruption of blood 

supply to her right arm and sought emergency treatment at a hospital emergency room. The 

facility told her not to return to the emergency room until she had the money to pay for treatment 

or "until her arm and hand turned black." Subcomm. Hearing at 42-43 (testimony of Judith 

Waxman); (2) A Virginia woman was six and one-half months pregnant and was experiencing labor 

pains and passing blood clots. She was turned away from her local hospital and told by a nurse 

that because she did not have a private doctor, nothing could be done for her. That afternoon, 

her premature baby was born, and died a few minutes after birth. The doctor on duty at the 

second hospital told her that had a doctor treated her earlier, he could have arrested the 

premature delivery. Id., at 43; and, (3) "For unknown reasons," a patient with a femur fracture was 

transferred after more than ten hours without treatment. The patient developed severe 

complications, including shock lung, and, one month later, he died from these complications. 

Early treatment to stabilize femur fractures has been shown to minimize the risk of disability or 

death. Subcomm. Hearing at 283 (testimony of Lois Salisbury). The dangers of dumping are 

also illustrated in the case presently before this court. A woman nine months pregnant with her 

sixth child arrived with the highest blood pressure the physicians on duty had ever seen, 210/130. 

The doctor did not want to take care of the patient and transferred her to a hospital located 170 

miles away. "Final Decision on Review of Administrative Law Judge Decision" (Dec. No. 1167) 

1-2.

The impact will be felt most severely by the poor and the uninsured, those most at risk of 

being turned away from emergency rooms. This number includes the more than 30 million 

Americans who have no health insurance coverage. Bureau of the Census, U.S. Dept, of 

Commerce, Statistical Abstract of the United States 1989, Table 146.

In addition, the problem of patient dumping will continue to disproportionately affect

15



minorities. See Subcomm. Hearing at 157 (testimony of David A. Ansell, M.D., reporting that the 

practice of dumping disproportionately affects Blacks and Hispanics). More than 33 percent of 

African Americans and 28 percent of Hispanics live below the poverty level. Bureau of the 

Census, U.S. Dept, of Commerce, Statistical Abstract of the United States 1989, at Table 734. 

Nearly one-half of African American children age sixteen and under, and more than 40 percent 

of Hispanic children live in poverty. Id , at Table 736.

Continued denials of access to emergency health care for poor women who are in labor 

threatens to exacerbate the already tragic levels of neonatal and maternal mortality among African 

Americans. In 1986, the neonatal death rate for black infants was 11.7, compared to 5.8 for white 

infants. The maternal mortality rate for black women was 18.8, compared to 4.9 for white women. 

Id., at Table 113.

The dangers inherent in the practice of patient dumping are great — and not limited to the 

poor. In its 1988 Report on patient dumping, the House Committee on Governmental Operations 

estimated that 250,000 patients in need of emergency care annually are transferred for economic 

reasons. In addition, the report noted,

Concerns have been expressed that patient dumping will soon 
increasingly affect other patient populations.... Patient dumping by 
unprofitable diagnosis related groups has been predicted and 
dumping of Medicaid patients and a patient with the acquired 
immunodeficiency syndrome has been reported.

Equal Access Rep. at 5. Indeed, the dumping of individuals with particular diseases or conditions 

would not be without precedent. As far back as the early 1800’s, "when voluntary hospitals were 

first established, they had the ability to define which patients they did not want to treat: the 

chronic and incurable, the ’morally unworthy,’ alcoholics, patients with venereal disease." 

Friedman, Problems Plaguing Public Hospitals: Uninsured Patient Transfers, Tight Funds.

Mismanagement, and Misperception, 257 J. Amer. Med. Assn. 1850, 1850 (1987) (quoting Charles 

Rosenberg, University of Pennsylvania historian). In addition, some hospitals would not take 

children or pregnant women seeking hospital rather than home care. Id. More recently, in 1987,

16



an article published in the Journal of the American Medical Association suggested that patients 

with ’undesirable’ conditions, such as intoxication or overdose conditions, may be the victims of 

patient dumping. Ansell, Schiff, Patient Dumping: Status. Implications, and Policy

Recommendations, 257 J. Amer. Med. Assn. 1500, 1500 (1987).

No matter what the cause or motivation, the denial of emergency treatment and the 

inappropriate transfer of patients represent serious barriers to health care access. With the 

passage of COBRA and the 1989 Amendments, Congress took forceful steps to address these 

barriers. The imposition of an intent requirement would substantially weaken the statutory 

scheme established by Congress and would place the lives of those in need of emergency care at 

greater risk.

17



CONCLUSION

For the foregoing reasons, the decision of the Department of Health and Human Services 

Departmental Appeals Board should be affirmed.

Respectfully Submitted,

January 9, 1990

JULIUS LEVONNE CHAMBERS 
RONALD L. ELLIS*
MARIANNE ENGELMAN LADO 

99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

MARTHA F. DAVIS 
ALISON C. WETHERFIELD 
NOW LEGAL DEFENSE AND 

EDUCATION FUND 
99 Hudson Street 
16th Floor
New York, NY 10013 
(212) 219-1900

Counsel for Amici Curiae 
*Counsel of Record

18



APPENDIX A

In re Margaret R. Pardee Memorial Hospital.
(Hendersonville, N.C.; HHS/OCR No. 04803173).

A



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*." Greyer t t e  evt!»ority o f  T i t l e s  Yl fcnd'WI o f  t ’*  Public Service Act
with icple-ac-ntirg reg u la tio n  fo r  co^^unity service assurance a t. A2 CFP., 
R a t io n s  3?< .<G 3(a)U )(?)Ib) end 124,6M and ru rsusn t touche January 28, . 
2«!>6 Furor ancon of Under e ta  rdirvg betvoer the Office fo r  C ivi* F igh ts  and 
the Public Health S e rv ice , the  Office for C iv il Rights {CCP.) conducted an 
In v es tig a tio n  o f  the oocpieJnt f i le d  Scpterc-er ?, If'CS by th e  -;; _

- . - * ... or. behalf o f '  ■•. ' ■.  a g a in s t  .
Karcarfrt f i /P a rd e e  Manorial H osp ita l .  Tho complaint a l le g e d  th a t  .1 '  ;> 

ves emergency se rv ice s  on Jhne 7*: l? ? f  because he v?s
unable to  pay fo r  c e rv ic e s .  _ . r: ' -  ' ~ *-

Ths Office fo r C iv il  R ig h ts ' in v es tig a t io n  included an o n - c i t c  v i s i t ,  
c o l le c t io n  o f  re lev an t docic 'cnts, ferd interviews u l th  the corg^aiA3r.t» 
h o s p i ta l  personnel, end o th e r  ind iv idua ls  v i th  knowledge re le v a n t  to t. i s  

" cAso. TMs l e t t e r  Is  to  n o t i f y  you of the  re su l ts  o f our ln v e s t ic a t io n .

On June ?C» 15PP# . vent to  Fcrc^o Respite!, fincoopar.iec L̂y Vs
■ Theresa G^ttlton, /cd  dlscuc.ce<3 poss ib le  flrvanclrl e ss is ta n e n  for

V ' - t i c ? tr-ent o f  eh in ju red , f in g e r  v i t h J io t p i t a l  r tp rc sn n tn t iv e s ,  *^s. Pat 
K5\Twsrrt a rd  Ks. ‘tu la  Hudgins. After hi m is s io n  vJth the rep re sen ta t iv e s  

-., . ^  l e f t  the  h o sp i ta l  w ithout receiv ing  treatment for h is  f in g e r .  «
! i;' s t a te d  th a t  he vas denied emergency roccs treatment he v rs  toiC ny
Ti- K&. ft-cuirv? t-js t Jtag t r e a te d  for the fincer. once and th a t  the \

h  ‘1 ' h  b o r r j t c l  could.TK>t jraS'C. fiou-nciel arrangement? v i th  £ n in o r .  bospi-
% -% - f t 3 l \ n e r i o s  i h s c  • " . ^ c 'T c f u s e - }  cr-trgnnry fe.rvic^s si_nce hs did ^

r ln  tn^rce-cy rooa or. .*one 7?,, .

A—1



Mr. V (illia in  2 .  J
M argaret R. Pardee Memorial H o sp ita l  
H en d erso n v ille , ??orth C aro lin a '

< Page .

Phe le g a l  s ta r d ^ d  g o v e rn in g 'th e  charges o f  d is c :  irrvlnation ra ised  ir, th is  
i a s e  i s  s ta te d  a t  42 Cf^v ~ S e c tio n  1 2 4 .6 0 3 ( a ) {1). and ( b ) (1) vh ich  reads as 

' fo llo w s ;

{a) G eneral* _ . _
( ! )  In 'ord er  t o  'comply w ith  i t s  ccanum ity •._. 

s e r v ic e  assurance", a  f a c i l i t y  s h a l l  waVe th e  s e r ­
v ic e s  provided in  the. f a c i l i t y  or p o r tio n  th e r e o f  
c o n s tr u c te d , E t e r n i s e d  or converted  w ith  F ed era l 
a s s is ta n c e  under'-? i t i e  VI or XVI o f  the A ct a v a i l ­
a b le  to  a i l  person s r e s id in g ..(a n d , in  th e  case, o f  
f a c i l i t i e s  a s s is t e d  order T i t l e  XVI o f  the A ct, _  
employed) in  th e  f a c i l i t y ’ s  s e r v ic e  area w ith ou t  

'd isc r im in a tio n  on th e ground o f  ra ce , c o lo r ,  z~i. 
r a t io n a l o r ig in ,  c r e e d , or any other ground, urr 
r e la te d  to  an in d iv id u a l's  need for the s e r v ic e  ■ 
or th e  ‘a v a i la b i l i t y  o f  the^ needed s e r v ic e  in  th e  
f a c i l i t y .

6hd

Cb) Errergency s e r v ic e s ;

(1} A f a c i l i t y  m ay,rot deny emergency s e r ­
v ic e s  to  any person w h o .re s id es  (o r . In th e c a se  ; 
o f f a c i l i t i e s  a s s is t e d  under T itle -X V I o f  the A ct, 
i s  c-rrpioved) in  the f a c i l i t y ' s  s e r v ic e  area  on th e  
ground th at the person is  unable to  pay for th ose  •
serv ices.®

A n a ly s is  o f the ev id en ce  shoved chat ;'*r- 
& ervices In the emergency room on dune 20 
grounds o f  I n a b il i ty  to  pay.' E vidence ga 
w r itte n  emergency room procedures do ro t

_ fa i lu r e  to  r ece iv e  
, 1980 was not based on the . 
t ie r e d  shov-ed th a t Pardee'a  
Involve o b ta in in g  any f in a n c ia l

i r.forratIce. from, o a t ie n t s ,

- ,j.u core  1 us. io n , ,  the. O ff ic e  for G i v i i ^ i c h t s  . has. determ ined th a t t h e r e . i s - 
t n s u f f l c l e n t ” ev id en ce  to  show M argaret R. Pardoe ?~y~m-or I a l  . lo s o ita l  v io ­
la te d  i t s  ccnraunitv s e r v ic e  assu ran ce o b l i c s t i c n s  a s . s e t ' f o r t h  in  T i t l e s  
Vp and x v j.c 'f  the. P u b lic  H ealth  S erv ice  A ct _i.n i t s  a c t io n s  on Gene ?0, .•

A-2



.* * %\  >*». •

Order "the J^eedcta of Information Act, the Office fox Civil RightB U  ^
required to release rthii .letter-w d related .arterial* in th is c a s e *$>_>* -V&' 
'request by onj ac-^bet-of the !pc4)Hci‘\  t t .O e  event the Office for Ci v l l  -•

r i^ foM  Aiirh ‘i:  rAoi»*t; W w ill J»ke e-ver? effort' to p r o t e c t *.A

Vt***!? v>e ere cn th is date advising the ccc^ls! rent by letter of our firologs,
__ ____ ___ Af If we aav be of assistanee *.

. . . . . .  .   ------------ • - .  . • - -  » i > s  v « ' J r * ? . ; - .0CVflHD:?t?Bellorny:vp:2/73/81>' 
OCR/flaOiMTBellaroy: vp: 2 /24 /81-cor ractions  
OCP/flflJD: KDSell&rov: vp:3/26/81-tevislons

A-3



APPENDIX B

In re Wadlev Hospital II.
(Texarkana, TX; HHS/OCR No. 06803108).

B



- tfp r
( -  • • 3 i : f -

DEFARTMENT OF HEALTH AND HUMAN SERVICES p ; < j ~  j  g

S A<sr|-.*K 
( , Ret. - • * - / ' /

1 4 Ref: 06803108

Mr. James Hughes, Manager 
East Texas Legal Services 
p . 0 .  Box 170 
Texarkana, Texas 75501

Dear Hr. Hughes: ’

The Office fo r  Civil Rights has completed I t s  In v es t ig a tio n  o f th e  
m raolalnt by East Ter>s l.*a»i Services f i l e d  on behalf of

P and a lleg ing  th a t  Wadley Hospital of Texarkana,
Tex'S v io la ted  T it le s  YI and XYI of the  Public Health Serv ice  Act as 
amended 1n 1979 by denying 'as- n i  emergency trea tm en t,  and 1n 
requ ir ing  ,* to  pay for serv ices which should have been provided
t 0  him under the Hill-Burton uncompensated care program. S p e c i f i c a l ly ,  
th e  complaint charges the  hospital with the  following: (1 ; cen ia l of.
emergency services based on In a b i l i ty  to  pay, (2) f a i lu r e  to  cake 
arrangements with th ird -p a r ty  payors. (3) an exclusionary admissions 
policy  (A) fa i lu re  to  post the  S ec re ta ry 's  no tice  1n a l l  app rop ria te  a r e a s ,  
of the  h o sp i ta l ,  and (5) f a i lu re  to  communicate the  con ten t of th e  posted . 
n o t ic e  to  persons the hosp ita l  has reason to  believe cannot read the
n o t ic e .  '

T i t l e s  VI and XVI of the  Public Health Service Act as attended In 1979 are  
Implemented by Part 124 of T i t le  42 of the  Code of Federal Regulations (42 
CFR 124). Violations a lleged  1n the complaint r e la te  to  Subpart F, 
“Reasonable Volume of Uncompensated Services to  Persons Unable to  Pay", and 
Suboart G, "Community S erv ice" . The a l le g a t io n s  r e la t in g  t o  Subpart F a re  
Inves tiga ted  by the Public Health Service A dm inistra tion . Our In v e s t i ­
gation  did not adoress those a l le g a t io n s .

Pursuant to  the S ec re ta ry 's  delegation of Hill-Burton coo*un1ty se rv ice  
enforcement au thority  of December 8, 1980 (45 Federal R eg is te r  82721 
(12 /16 /80)), the Office fo r  Civil Rights has re s p o n s ib i l i ty  fo r  assu ring  
th a t  rec ip ien ts  of f in an c ia l  assis tance  from the Department of Health and 
Human Services comply with T i t l e s  VI and XVI of the Public  Health Serv ice  
Act (HUl-Burton). Hadley Hospital receives f inancia l a s s i s ta n c e  from th e  
Department of Health and Human Services. ■

* .  . *  ■ *

By our l e t t e r  dated December 23, 1981, you were provided w ith  a surraary o f  
th e  evidence we had obtained and were given an opportunity  to  provide 
add itiona l Information or evidence to  support your com plaint. Although you 
wrote to  us on January 25, 1982, objecting to  our f in d in g s ,  you did not 
provide any additional evidence which would a l t e r  our f in d in g s .

n
o m e t .SURNAME T omez I PAT* I o rrxa  | a g x _

! o c x  * 9 ^ - „ .......... 1_________________

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D E P A R T M E N T  OP” HEALTH A N D HUMAN S E R V I C E S  3  I ^

Page 2T-  Ms. Marilyn Rauch

Based on the ana lys is -o f  the information obtained during our In v e s t ig a t i o n ,  
we concluded th a t  only one of the  a l l e g a t io n s  s ta ted  above was v a l i d .  We 
found the  h o s p i t a l ’s pol icy and the s igns postdd 1n the emergency room 
regarding preadmission or preservice depos i ts  to  be exclusionary 1n t h a t  no 
exceptions were allowed for  circumstances 1n which the a p p l ica n t  could be 
expected to  pay h1s b i l l  but was unable t o  make a d ep o s i t ,  as requ i red  by 
42 CFR 124.603(d)(3).

The hospi tal  was asked to  take act ions t h a t  would c o rrec t  these  
v io la t io n s .  On December 7, 1982, the  hosp i ta l  sent to  OCR documentation o f  
amendments to  I t s  admission policy and procedures which provide fo r  
a l t e r n a t iv e s  to  deposits  for  persons who can be expected t o  pay t h e i r  b i l l s  
but who do not have cash for  a deposit  a t  th e  time se rv ices  are  reques ted .  
The hospital  also assured OCR th a t  the  s igns  1n the emergency roon which 
v io la ted  the  regulation had been removed several  months p rev io u s ly .

In view of the correc t ive  action taken to  overcome the v io la t io n  of 42 
C.F.R. §124.603(d)(3), OCR now finds the  hospi ta l  to  be 1n compliance with 
the*law and regulation c i t ed  with regard t o  a l l  Issues o f  the  complaint .
This determination of compliance applies  only to  the  i s sues  of th e  . . .  
a l l eg a t io n s  c i t ed  above. For your r e fe ren ce ,  the  p e r t in en t  f a c t s  which *'• 
fo ra  the basis  for  our conclusion are  summarized In the  attachment t o  t h i s
l e t t e r .  •*

Under the  Freedom of Information Act, 1t  nay be necessary to  re lease  t h i s  
l e t t e r  and re la ted  material 1n response to  an appropriate  request*.

We apprecia te  the  courtesy you extended to  our rep re sen ta t lv e s  during t h e i r  
v i s i t s .  I f  you have any questions regarding these m a t te r s ,  do not h e s i t a t e  
to  contact  us .

S incere ly ,

Davis A. Sanders 
Regional Director

Enclosure

o m a fUXNAME DATE

& + 2 -

o m a  i SUXKAMZ DAZE oma nrrxAMM



c

A T T A C H M E N T  

WADLEY HOSPITAL « 

Texarkana, Texas

Issue ?1

Whether Wadley Hospita l ,  in  v io la t ion  of 42 C.F.R. 124 .603(b)(1 ) ,  denied 
emergency services to  and denies them to o ther  indigent
c i t i z e n s  on the ground of I n a b i l i t y  to pay.

42 C.F.R. 124.603(b)(1) s t a t e s :

A f a c i l i t y  may not deny emergency serv ices  to  any person who 
res ides in the f a c i l i t y ' s  service area on the grounds t h a t  
the person is unable to  pay for the s e rv ic e . "

Summary of Facts __

All evidence shows th a t  i n a b i l i t y  to  pay was not the  basis  fo r
the emergency room d o c to r ' s  f a i l u r e  to administer  medical care to  her son. 
In accordance with ho sp i ta l  procedure, his v i t a l  signs were taken and his 
physician was contacted by a s t a f f  nurse. The decision to  send Tyrone 
Hunter to  the doc to r 's  o f f i c e  was made by an appropria te  medical person.
The length of time spent in the emergency coom was not any l o n g e r
than the time spent by o ther  p a t i e n t s .  Furthermore, the  charges fo r  the 
emergency care were paid by a th i rd -p a r ty  payor program (Medicaid). -

There is no evidence of o ther  indigent c i t i z e n s  being denied emergency 
se rv ices  at Wadley H osp i ta l .

OCR concludes th a t  Wadley Hospital did not v io la t e  42 C.F-R. 124.603(b)(1) 
with regard tc  ■ . a l l eg a t io n s .

Whether Wadley H osp i ta l ,  in  v io la t ion  of 42 C.F.R. 124.6 0 3 (c ) ( 1 ) ( i ) and 
( i i ) ,  f a i l e d  to make arrangements for  reimbursement for  se rv ice s  from S ta te  
and local government t h i r d - p a r t y  payors for se rv ices  provided by the 
hosp i ta l  t o  * : or  m » <-eT

*42 C.F.R. 124.603(c)(1) ( i )  and ( i i )  s t a t e :

(c) Third-party  programs. (1) The f a c i l i t y  shal l  make 
arrangements, i f  e l i g i b l e  to do so, for  reimbursement for  
se rv ices  with:

( i )  Those p r in c ip a l  S t a t e  and local governmental t h i r d - p a r t y  
payors t h a t  provide reimbursement for  s e r v i c e s . . .

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Page 2

( i i )  Federal Governmental t h i r d - p a r ty  programs such as*
Medicare and Medicaid."

Summary of Facts

Vie found th a t  Wadley Hospital had made arrangements with S t a t e  and Federal 
t h i r d - p a r ty  payors for  reimbursement of se rv ices .  With regard t o  t h e  
complaint in c id en ts :  1) services provided by Wadley Hospital  to

were b i l l e d  to and paid by Texas Medicaid; and 2) . was
released from Bowie County J a i l  at the  time he was admitted to Wadley 
Hospital and on his  dismissal from the hospi ta l  signed forms agreeing  to 
pay for  his b i l l . -  However, he did not pay, and the charges were w r i t t e n  
o f f  as c h a r i ty .

The in v e s t ig a t io n  revealed tha t  Wadley Hospital p a r t i c i p a t e s  in th e  
following t h i r d - p a r ty  payor programs: Medicare, Medicaid, Champus,
Workmen's Compensation, Northeast Texas Mental Health/Mental Re ta rda t ion  
Center,  and Community Action Resource Services (CARS), In c .

We have f u r th e r  determined tha t  Bowie County, Texas, in  which Wadley 
Hospital i s  loca ted ,  including the county j a i l ,  does not hayo any 
t h i r d - p a r ty  payor programs through which*'a hospital can be reimbursed by 
the  county for  medical services provided to ind igen ts .

OCR concludes t h a t  Wadley Hospital i s  in compliance with 42 C.F.R.  124.503 
(c)(1)  with respect  to  t h i s  issue .  . :

Issue #3

Whether Wadley H osp i ta l ,  in v io la t io n  of 42 C.F.R. 124 .6 0 3 (d ) (3 ) ,  requ ires  
preadmission deposi ts  before admitting or serving p a t i e n t s .

42 C.F.R. 124.603(d)(3) s t a t e s :

. . . I f  the e f f e c t  of [a f a c i l i t y ' s  requiring advance d e p o s i t s
before admitting or serving p a t i e n t s ]  is  that  some persons -
are denied adm iss ion . . .  or se rv ice  so le ly ' te cau se  they do
not have the  necessary cash on h a n d . . . [ t h e  f a c i l i t y ]  i s
required to  make a l t e rn a t iv e  arangements to ensure t h a t
persons who probably can pay fo r  the  services are not denied
them simply because they do not have the avai lab le  cash a t
the  time se rv ices  are r e q u e s te d . . . "

Summary of Facts

While the community service  regula t ion  does not require  th e  f a c i l i t y  to 
forego the  use of a deposi t  ro l icy  in' a l l  s i tu a t io n s ,  i t  i s  requ ired  to  
m a k e a l t e r n a t i v e  arrangement: to 'en su re  th a t  persons who probably can pay-, 
fo r  the se rv ices  are not denied them simply because they do not have the 
a v a i lab le  cash a t  the time services are requested.

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Page 3

3ft
We found th a t  the  h o s p i t a l ’s f inancial  p o l ic ie s  do not show s p e c i f i c  excep­
t ions  Sr when the exceptions are to  be applied fo r  waiving depos i t  
r e t i r e m e n t s  under circumstances in which the  app l ican t  can be expected to  
Day h1s b i l l  but i s  unable to  make a depos i t .  The h o s p i t a l ,  t h e r e f o r e ,  i s  
in v io la t ion  of t h i s  sect ion of the regu la t ion .  _ •

Further ‘signs were found in the emergency room-area s t a t i n g ,  "Cash deposi t  
r e t i r e d  before s e r v i c e s . '  A sign t h a t  ind ica te s  t h a t  preadmission de- 
n o s i t s  wil l be required Of a l l  persons as a precondit ion f o r  t rea tm ent  or 
service  v io la te s  42 C.F.R. 124.603(d)(3) s ince the  e f f e c t  o f  such a sign 
wil l  be to  deny admission or services or sub jec t  p a t i e n t s  t o  delay in
receiving s e rv ice s .

On December 7, 1982, the  hospital  sent  OCR a copy of i t s  rev ised  admission 
oolicy and procedures which provide for  a l t e r n a t iv e s  to  d epos i ts  f o r  
oersons who can be expected to pay t h e i r  b i l l s  but who do not have cash fo r  
a depsi t  a t  the  time services are requested.  The h o sp i ta l  a lso  assured OCR 
th a t  the  signs re fe r red  to  had been removed several months p re v lo s ly .  The 
act ions  by the  hosp i ta l  are considered adequate to  c o r r e c t  th e  v io la t io n
n o t e d  a b o v e .

Issue #4

’"--‘ her Wadley H ospita l ,  in  v io la t ion  of 42 C.F.R. 124.604(a) ,  has f a i l e d  
tcTpost  the S e c re ta ry ’s not ices  in English and Spanish in  a l l  appropr ia te
areas of the h o s p i t a l .

42 C.F.R. 124.604(a) s t a t e s :

The f a c i l i t y  sha l l  post no t ices ,  which the S ec re ta ry  ■
supplies  in English and Spanish, in appropria te  a reas  of th e  

including but not l im ited  to  the  admissions a re a ,  
the business o f f i c e  and the emergency room.

Summary of Facts

An inspect ion of the  f a c i l i t y  by OCR in v e s t ig a to r s  revealed  t h a t  t h e  
S ec re ta ry 's  not ices  had been posted, both in English and Spanish, i n  the  
appropria te  areas of the f a c i l i t y ,  inlcuding the admiss ion-business  o f f ice  
and emergency room a rea .  The evidence ind ica te s  t h a t  th e  signs were posted 

' i n  l a t e  September or early  October 1979. Wadley,Hospital i s  in compliance 
with 42 C.F.R. 124.604(a) with regard to  t h i s  I s su e .

Issue #5

Whether Wadley Hospita l ,  in v io la t ion  of 42 C.F.R. 124.604(c) ,  has f a i l e d  
to  take s teps to  ensure t h a t  reasonable e f f o r t  i s  made t o  communicate the 
content of the  posted notices to  persons the  hosp i ta l  be l ieves  cannot read
the no t ice .

42 C.F.R 124.604(c) s t a t e s :

The f a c i l i t y  sha l l  make reasonable e f f o r t s  to  communicate 
the contents  of the posted notice t o  persons who i t  has 
reason to  be l ieve  cannot read the no t ice .

B-5



r

Fage 4

Summary of Facts

V.'e found th a t  Hadley Hospital had e s tab l ished  a procedure fo r  communicating 
the content of the posted not ice  to persons the  .hospi ta l  b e l ie v e s  cannot 
read the no t ice .  Emergency room and admitting o f f ice  personnel who lea rn  
or conjecture  tha t  a p a t i e n t  is unable to  read,  have been i n s t r u c t e d  to  
make the p a t ien t  aware of the message of the  S e c re ta r y ' s  s i g n s .  OCR, 
th e r e f o r e ,  finds Hadley Hosptal in compliance with 42 C.F.R. 124.604(c)  
with respect  to  th i s  i s s u e .



r
3 R \  - 

P ' S  K/ >
*> £ ■f ̂ C/ ('Jr, »l

&'C', a. J-.
R e f s  0 6 8 0 3 1 0 8

fir. A. 1. HcElaurry, President •'• - - ;,T / '
Uadley Regional Medical Center
Box 1378 . * J  • /  .
Texarkana, TX 75501 - -t * .

Dear Hr. HcEIwurry: • • ” • . . - •
nffic® fo r  Civil Rights has corspleted i t s  Inves t iga t ion  o f  th«  

complaint against  Wadley Regional Medical Center by East Texas L e g a l ^  ^

Services of Texarkana, a l leged° tha t  the  hosp i ta l  " a* J - V 1?1**1?"
of T i t l e s  VI and XVI of the Public Health Service Act as a^n.ded In 1979 by 
denvina eoergency treatment  and in requ r ing  . t o
p l ^ f o r  serv ices  which should have been provided to  h ia  £ ^ e r  t h e
Hi U-Burton uncoopensated care  program. h l l i t ^ t o  (2) •*. .  „ j , ry \ riant.] of emergency services based on I n a b i l i t y  t o  pay, \&j

S s ' “  ?  i r s i i ' i  s ’ l i r ™ -

cannot read the no t ice .  . . .  t
T i t l e s  VI and XVI of the Public Health Service Act as amended 1n 1979 are  
| ^ l e r J ! t e d  by Part 124 of T i t l e  42 of the  Code of Federal Regulations (42 
fpq 1241 Violations a l leged  in the  complaint r e l a t e  t o  Subpart F* 
•Reasonable Volumeof Uncompensated Services to  Persons Unable t o  Pay", and
_ , r *rrv._annitv Service ."  The a l lega t ions  r e l a t i n g  to  Subpart F a re
inves t iga ted  by the Public Health Service Ad»a1nistrat1on. Our i n v e s t i ­
gation did not address those a l l eg a t io n s .

n . tho <spcretarv*s delegation of Hill-Burton community service

H a P  s E f a  w

“  K M S - S . S
Act (Hill-Burton)/ Wadley Hospital receives financial assistance froa the 
Department of Health and Hunan Services.
nxo^i nn an analysis of the  in fo rsa t ion  obtained during our i n v e s t ig a t io n , ' '  Based on an anaiysis  oi u  e a l lega t ions  seated  above vas v a l id .
S  Y Z  m t  the h o s p h a ^ t o U U d  42%?S 124.603(d)(3) of th e  c o m i t y  :
se rv ice  regulation by oa tn ta ln lng  preserv lce /preadnlss lon  deP?*, t h^
and l lg n s  wMch have th e  e f f e c t  of excluding persons «ho w y  be able  to.pay
for  se rv ice s .

B-7 ' '



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D E P A R T M E N T  O F  HEALTH AND HUMAN S E R V I C E S

f *
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Page 2
On Decenber 2. 1982, OCR wrote you of s i n l l a r  v io la t io n s  found 1n 
connection with another inv es t ig a t io n .  On December 7,  1982, you responded 
with documentation showing th a t  adalss lon po l ic ie s  and procedures had been 
a©ended to  provide fo r  a l t e r n a t iv e s  to  deposi ts  fo r  persons who can be 
exoected to pay t h e i r  b i l l s  but who do not have cash fo r  a <deposi t  a t  the  
t i ne services are requested* The hospi ta l  a lso  assured OCR t h a t  the  signs 
referred to  had been removed several oonths prev ious ly .  This ac t io n  taken 
to  correct  the v io la t io n  found 1n th a t  Inves t iga t ion  a lso  c o r r e c t s  th e  
viola t ion describe above. : —

As a r e s u l t  of the co rrec t ive  action taken, OCR now f inds  Uadley Regional 
Medical Center to  be 1n compliance with the  law and reg u la t io n  c i t e d  with 
regard to  the a l leg a t io n s  o f  the  c ca p la ln t .  This determination o f  

- compliance applies  only to  the  Issues of the a l l e g a t io n s  c i t e d  above. For 
your refe rence ,  the  p e r t in en t  fac ts  which fora  the  bas is  o f  our conclusion 
are  summarized 1n the attachf^ent to  t h i s  l e t t e r *

Under the Freedoa of Information Act, 1t say be necessary t o  r e le a se  t h i s  
l e t t e r  and re la ted  mater ial  In response to  an appropr ia te  req u e s t .

We appreciate  the  eburtesy you extended to  our r ep re se n ta t iv e s  during t h e i r  
v i s i t s .  I f  we say be of a ss is tance  to  you 1n the  f u t u r e ,  p lease  c a l l  on
US.  : .. '

Sincere ly ,

Davis A. Sanders 
Regional D irec to r

Enclosure

fnh r l̂ W7



a t t a c h m e n t  

uadley hospital

Texarkana, Texas

J C 2 .S -

Issue #1 ‘ vi -
whether Wadley Hospital, in v io la t ion  of 42 C.F.R. 124 .603(b)(1 ) ,  (tended 
A g e n c y  s e r i a l  to  and denies the* to  o th e r  In d ig en t ,
W i z e n s  on the grcond of i n a b i l i t y  to  pay. . ,

42 C.F.R. 124.603(b)(1) s t a t e s !  /  ‘ ^  ;

A f a c i l i t y  may not deny essergency services to  any person " ho >>■
res ides  in the f a c i l i t y ' s  service area on the grounds t h a t  
the person 1s unable to pAy fo r  the se rv ice .  . — . „  . .

Sumary of Facts - : *■.-

An  evidence show t h a t ^  ^  S S iS S  "c fn A

A cco rd a n ce  with hospital procedure, his *J * *L !]® "*  ind h1* V
S  W A p p r o p r i a t e  medical p e r s o n . ; ^

ITu * ♦ snent 1n the emergency room was not any longer
S «  t h f t i «  'nt by o t h e ^ p a t l e n t s !  “ e r t h e r i r e .  the  charges fo r  th e  v -  
Se rgency  a r e  Sere paid by a th i rd -p a r ty  payor program (Medicaid). ,

There is no evidence of other indigent c i t i z e n s  being denied emergency 
services a t  Wadley Hospita l .

OCR concludes th a t  Wadley Hospital did not v io la te  42 C.F.R. 124.603(b)(1) 
with regard a l l eg a t io n s .

Issue #2

(1l) '1efa11edetoHmaket arrange*entst fo r  re ln ^u ree i re r t^ fo r^ se r^ c M ^ fro m 's ta te
and 1o c a l ' government th i rd -p a r ty  payors for  services  provided by the 
hospi tal  t o  • • , or r ’ ’ _  .. .a-;

42 C.F.R. 124.603(c)(1) (1) and (11) s t a t e :

(c) Third-party programs. (1) The f a c i l i t y  shall raa^e .  „ 
arrangements, i f  e l ig ib le  to do so, for  reimbursement f o r
services with:
(11 Those p r inc ipal  State and local governmental t h i r d - p a r t y  
payors tha t  provide reimbursement for  s e r v i c e s . . .

B-9



Page 2
3 * i

%u

(11) Federal Governmental th i rd -p a r ty  programs such as 
Medicare and Medicaid.-

Summary of Facts • -• ' • • ’.'V- - • - “  . • *

We foilnd tha t  Wadley Hospital had made arrangements with S ta te  and Federal 
th i rd -p a r ty  payors for reimbursement of se rv ices .  With regard to  th e  • 
complaint 1nc1den^si 1) services provided by Wadley Hospital v-"

«ere b i l led  to and paid by Texas Medicaid; and 2) 
re leased from Bowie County J a i l  a t  the time he was admitted to  Wadley 
Hospital and on,h1s dismissal from' the hospital  signed foras agreeing t o  '
o/f S d U r i S !  * Hm,e¥er-'-bS d,d n0t W . . » d  the parses w e ^ r t l t e n  •

The Inves t iga t ion  revealed tha t  Wadley Hospital p a r t ic ip a te*  In th e  ' % 
following th i rd -p a r ty  payor programs: Medicare, Medicaid, Champus.'v V - -
Workmen s Compensation, Northeast Texas Mental Health/Mental R e ta rd a t io n '  " 
Center,  and Community Action Resource Services (CARS), Inc .

S ! . ! S r ! i f J r t ?e r  ^ er? 1nf d^ hat ? ° " 1e Count^» Texas,*1n which Wadley - Hospital 1s located,  Including the county J a i l ,  does not have any
t h i r d - p a r ty  payor programs through which a hospital  can be reimbursed b y -  
the county for  medical services provided to 1ndigents.  3. . ' . . •••"•

OCR concludes tha t  Wadley Hospital 1s 1n compliance with 42 C.F.R. 124.603 
(c)(1). with respect to  th i s  I s s u e . :  . ■ -v*. *■ . V ! ■ -

Issue #3 ' v .V ‘

Whether Wadley Hospita l ,  1n v io la t ion  of 42 C.F.R. 124.603(d)(3) .  requires  
preadmission deposits before admitting or serving p a t i e n t s .  4

42 C.F.R. 124.603(d)(3) s t a te s :

. . . I f  the e ffec t  of [a f a c i l i t y ’s requiring advance d ep o s i t* -  
before admitting or serving p a t i e n t s ]  1s tha t  scrae persons 
are denied admiss ion . . .  or service  solely  because they do 
not have the necessary cash on h a n d . . . [ th e  f a c i l i t y ]  1s 

. required to make a l te rn a t iv e  arangements W  ensure th a t  
persons who probably can pay for  the services are not denied 
them simply because they do not have the avai lab le  cash a t  
the  time services are r e q u e s t e d . . . -  _  _  ,

Summary of Facts

While the community service regulation does not require the f a c i l i t y  to 
forego the use of a deposit policy 1n a l l  s i tu a t io n s ,  1t 1s required t o  
make a l t e rn a t iv e  arrangements to ensure tha t  persons who probably can Dav 
fo r  the  services are not denied them simply because they do not have th* 
ava i lab le  cash at  the time services are requested.

B-10



3 U -

DEPARTMENT OP HEALTH AND HUMAN S E R V I C E S  .

We found th a t  the h o s p i t a l ' s  f inanc ia l  po l ic ies  do not show sp e c i f ic  excep­
t io n s  or when the exceptions are to  be applied for  waiving deposit  
requirements under circumstances 1n which the applicant  can be expected t o  
pay h is  b i l l  but 1s unable to  make a depos i t .  The h o s p i t a l ,  t h e r e f o r e ,  I s  
in v io la t io n  of th i s  sect ion of the  regu la t ion .

F ur the r ,  signs were found In the  emergency room area s t a t i n g ,  "Cash deposi t  
required before s e rv ic e s . - A sign th a t  indicates  th a t  preadmission de­
p o s i t s  wil l  be required of a l l  persons as a precondition fo r  t rea tment  or  
serv ice  v io la te s  42 C.F.R. 124.603(d)(3) since the e f f e c t  o f  such a sign 
w i l l  be to  deny admission or services  or subject  p a t i e n t s  t o  delay In 
receiv ing  se rv ices .

On December 7, 1982, the hospi ta l  sent  OCR a copy of I t s  rev ised  admission 
policy and procedures which provide for  a l t e rn a t iv e s  t o  d epos i ts  f o r  
persons who can be expected to  pay t h e i r  b i l l s  but who do not  have cash f o r  
a deps i t  a t  the time serv ices are requested.  The hosp i ta l  a lso  assured OCR 
th a t  the  signs referred  to  had been removed several months p re v lo s ly .  The 
a c t io n s  by the hospital  a re  considered adequate to  c o r r e c t  th e  v io la t io n  
noted above. : -

Issue #4 .7

Whether Wadley Hospital,  1n v io la t io n  of 42 C.F.R. 124.604(a),  has f a i l e d  
to  post  the  Secre tary 's  no t ices  1n English and Spanish 1n a l l  appropr ia te  ' 
a reas  o f  the  h osp i ta l .

42 C.F.R. 124.604(a) s t a t e s :  * ;

The f a c i l i t y  shall  post  n o t ic e s ,  which the Secretary 
supplies  1n English and Spanish, In appropriate a reas  of  the  
f a c i l i t y ,  Including but not l im ited  to  the  admissions a rea ,  
the  business o f f ice  and the emergency room.

Summary of Facts

An Inspection of the f a c i l i t y  by OCR Inves t iga tors  revealed th a t  the  
S e c re ta ry 's  notices had been posted,  both 1n English and Spanish, 1n th e  
appropr ia te  areas of the f a c i l i t y ,  1nlcud1ng the admission-business o f f i c e  
and emergency room area .  The evidence Indicates th a t  t h e  s igns  were posted 
in l a t e  September or ear ly  October 1979. Wadley Hospital 1s 1n compliance 
with 42 C.F.R. 124.604(a) with regard to  t h i s  I ssue .

Issue  #5

Whether Wadley Hospital,  1n v io la t io n  of 42 C.F.R. 124.604(c) ,  has f a i l e d  
to  take  s teps  to  ensure th a t  reasonable e f f o r t  1s made t o  communicate the  
content of the posted not ices  to  persons the hospital  b e l iev es  cannot read 
the  n o t ic e .

42 C.F.R 124.604(c) s t a t e s :  —

The f a c i l i t y  shall  make reasonable e f f o r t s  to  communicate
r e n n  r  t h e f t r e r a n |1‘t>l>FlCl | . SUXHAMM | DATS
I r l l l U S  r e a s o H n r - id l l i e vb  LdTinuv r e a q K h e  n]p t l c e .  _ I II II I



r

Page 4 A

\

{
*4

i

Summary of Facts - . ■ '

We found th a t  'Wadiey Hospital had establ ished a procedure fo r  cofnmunl ea t ing  . 
the content of the posted notice to persons the. hospi tal  be lieves  cannot 
read the no t ice ,  "Emergency root* and admitting o ff ice  personnel who 1 earn • - .
or conjecture th a t  a p a t ie n t  1s unable to  read, have been Ins t ruc ted  to  ,  - >> «
make the pa t ien t  aware of the oessage of the S ec re ta ry 's  s i g n s ,  OCR, 
th e re fo re ,  finds Wadley Hosptal 1n compliance with 42 C.F.R, 124.604(c) ,V v  :7>-; - 
w1th respect  to  t h i s  i s s u e . . ""-v

B-12



APPENDIX C

In re James Archer Smith Hospital,
(Homestead, Fla.; HHS/OCR No. 04813063).

C



. - I ' -  Jo, /- .
-

D E P A R T M E N T  OF H E / ' A  & HU M A N  SERVICES
Office for Civil Rights

APR 3 0  1984

Region IV
101 Marietta Tower
Atlanta GA 30323

Ms. Carolina A. Lombardi 
Staff Attorney
Legal Services of Greater Miami 
381 N. Krcme Avenue, Suite 206 
Post Office Box P 
Homestead, Florida 33030

Dear Ms. Lombardi:

Re: Complaint No. 04-81-3063
Ramiro and Maria Urrea

The Office for Civil Rights (OCR) has completed its investigation of your 
complaint received Decariber 24, 1980, in behalf of Maria and Ramiro Urrea 
against James Archer Smith Hospital, Homestead, Florida. You charged 
that, by closing its emergency room, James Archer Smith Hospital violated 
its ccmmunity service assurance as set forth in the regulation 
(Hill-Burton) at 42 C.F.R. Section 124.603(a)(1) and 42 C.F.R. Section 
124.603(b)(1). You also expanded your complaint into a class action to 
include al 1 persons similarly situated.

Under the authority of Titles VI and XVI of the Public Health Service Act 
(Hill-3urton) with implementing regulation for the community service 
assurance at 42 C.F.R*., Section 124.601 et seq., the Office for Civil 
Rights (OCR) conducted an investigation of the captioned complaint.
OCR's investigation included an on-site visit, collecrtion of relevant 
documents, and interviews with the complainants, hospital personnel, and 
other individuals with knowledge relevant to this case. This letter is 
to notify you of the results of our investigation.

TVo basic issues were examined in this investigation vhich relate 
directly to the ccrrmunity service assurance obligations of JASH as set 
forth in the regulation:

1. Whether the individual or class complainants were discriminated 
against by the recipient on grounds unrelated to their need for 
services or the availability of such services at the recipient 
facility in violation of 42 C.F.R. Section 124.603(a)(1)

2. Whether the individual or class complainants were denied 
emergency services by the recipient on the ground of inability 
to pay in violation of 42 C.F.R. Section 124.603(b)(1).

C-l



V V r
Ms. C a ro l in a  A. Lcrribardi
Page Two

The legal standards governing the charges raised in this case are stated 
at 42 C.F.R. Sections 124.603(a)(1) and 124.603(b)(1) which read as 
follcws:

42 C.F.R. Section 124.603(a)(1)

(1) In order to comply with its ccnmunity service 
assurance, a facility shall make the services provided in 
the facility or portion thereof constructed, modernized, or 
converted with Federal assistance under Title VI or Title 
XVI of the Act available to all persons residing (and, in 
the case of facilities assisted under Title XVI of the Act, 
employed) in the facility's service area without 
discrimination on the ground of race, color, national 
origin, creed, or any other ground unrelated to an 
individual's need for the service or the availability of 
the needed service in the facility.

42 C.F.R. Section 124.603(b)(1)

(b) Emergency services

(1) A facility may not deny emergency services to any^ 
per sen who resides (or, in the case of facilities assisted 
under Title XVI of the Act, is employed) in the facility's 
service area on the ground that the person is unable to pay 
for those services.

Analysis of the evidence showed that for ten (10) days in November, 1980, 
the staff doctors of JASH refused to provide backup care for any person 
admitted to the JASH emergency room. This refusal to provide emergency 
■backup was the result of a vote of the staff doctors. The stated reason 
for their action was that large numbers of emergency patients seek 
treatment at JASH, and there is insufficient staff and manpower to cover 
the large volume of emergency work.

JASH has doctors under contract to provide emergency rocm services. 
However, since the private doctors on staff refused to provide emergency 
backup, the JASH Board of Directors voted to close the emergency room.

In conclusion, OCR determined that JASH violated its cai inunity service 
obligation by closing its emergency rocm in November, 1930; and further 
that due to the threatening statement made by the majority of staff 
physicians that they may again refuse emergency backup services, the 
possibility of additional violation still continued.

C -2



Ms, C a ro l in a  A. L crrbard i
Page T h ree

The provision in the Hill-Burton regulation relevant to the violation is 
42 C.F.R., Section 124.603(a)(1). The case to be made under 42 C.F.R. 
Section 124.603 (a)(1) rests on evidence of need and availability of 
services in the facility's emergency roam and denial of these services to 
residents on grounds unrelated to need or availability. Evidence of 
JASH's normal emergency roan patient load shews the need for services of 
the facility's emergency roam. That the services were available was 
shown by the fact that at all times during the physicians’ walkout, the 
facility kept its emergency roan fully staffed and reportedly did provide 
services for cases deemed true emergencies.

The. ground for denial of services was not because the residents did not 
need services, nor was it because the facility did not have an emergency 
department offering services. The reason for denial was the hospital’s 
closure of its emergency department because members of its medical staff 
wished to protest the high emergency patient load imposed on them as 
back-up physicians and announced that they would not respond to calls for 
back-up coverage. This ground for denying services is inpermissible 
under 42 C.F.R. Section 124.603 (a)(1) and the hospital’s actions 
constituted a violation of this provision.

The rationale for a cause finding under 42 C.F.R. Secticn 124.603 (b)(1) 
is based upon the denial of emergency services to the service area 
residents due, at least in part, to the high number of patients unable to 
pey. Evidence shows that vhile the official statement given by the 
medical staff explaining its actions in terms of high patient load, the 
volume of indigent patients was a critical factor in the physician 
walkout and hence, the emergency roam closure. Evidence that the number 
of indigent patients was part of the motivation for the walkout is 
available in statements of medical staff members and the hospital 
administrator to the press, statements of the chief emergency roan 
physician, and minutes of the hospital board meeting held November 4, 
1930. Because the evidence links the denial of emergency services to the 
indiaency of the patient population, the prevision at 42 C.F.R. Section 
124.603 (b)(1) applies to this situation. It is concluded that the 
overall intent of previsions in 42 C.F.R. Section 124.603 (b)(1) ana (2) 
vhen read in conjunction with the general provision at Section 124.603 
(a)(1) is that the cairaunity service assurance means that a Hill-Burton 
facility that has an emergency capability cannot refuse emergency 
services to those who need them.

In concurrence with the administrator's desire to correct any possible 
violations prior to issuance of a Letter of Findings, OCR requested that 
the recipient take the following actions:

1. JASH shall ensure OCR that it will not close its emergency rocm 
and that emergency services shall continue to be available to all 
residing in its service area regardless of ability to psy.



r
Ms. C a ro l in a  A. Lom bardi
Page F ou r

2. JASH shall provide the Office for Civil Rights a plan for keeping 
the emergency rocm open if the staff doctors again refuse to 
provide emergency backup services.

3. In order to meet its legal obligation under Hill-Burton, JASH 
shall designate, as a requirement for staff privileges, that staff 
doctors must provide backup emergency services as needed for the 
hospital to continue emergency care for persons living in its 
service area as required by the regulation.

4. JASH shall notify OCR of any future vote by staff doctors to 
refuse to provide emergency services and vhat steps JASH intends 
to take to resolve this potential crisis.

The specific allegation that Jessica Urrea was denied emergency services 
on the ground of inability to pay is governed by 42 C.F.R. Section 
124.603(b)(1) which reads as follows:

(1) A facility may not deny emergency services to any 
person who resides (or, in the case of facilities assisted 
under Title XVI of the Act, is employed) in the facility's 
service area on the ground that the person is unable to pay 
for those services.

OCR found that the services requested by !^ria and Ramiro Urrea for their 
daughter, Jessica, could not be documented to be of an emergent nature. 
Ihe parents stated in an affidavit attached to the original complaint 
that after they were denied services at JASH because they did not have 
$50 to pay the requested fee, "we took Jessica heme and did the best we 
could". They later testified that they took her to the clinic and 
received the necessary treatment. OCR has concluded that there was 
insufficient evidence to reach a determination under 42 C.F.R. Section 
124.603 (b)(1) as to the individual ccnplainant.

Since the date of the on-site phase of the investigation, the Hospital 
Corporation of America has assumed management responsibilities for JASH. 
All of the "cause" citations found in the subject complaint case have 
been adequately corrected and the remedies required are set forth in a 
corrective action plan approved by OCR prior to the issuance of this 
letter.

Daring the compliance review of JASH, we examined hospital policies and 
procedures related to ccmpliance with the requirements imposed by the 
regulation implementing Titles VI and XVI of the Public Health Service 
Act. The areas reviewed included:

C -4



Ms. C a r o l in a  A. Lom bardi
Page F iv e

1. Service to all persons residing in the service area

2. Emergency Services

3. Third Party Payor Programs

4. Exclusionary Admission Policies

5. Posting Notice 

Findings * 1 2 3

Evidence was provided and it has been documented that all units within 
the hospital are available to all persons covered by the community 
services responsibility. The hospital does not restrict the number of 
Medicare/Medicaid patients it will admit because of the inability to 
pay. Although a deposit is required of non-emergency cases, if the 
insurance coverage is not adequate, the patient may establish a payment 
plan (no pre-payment is required of Medicare/Medicaid eligibles) and 
third party payors are billed when appropriate.

It has been documented that patients needing admission (elective or 
emergent) without physicians on staff may be admitted to the hospital via 
the Emergency Roam whereby a list of doctors "on call" is maintained.
These private and resident physicians will accept and treat patients who 
do not lave private physicians. One-time privileges can be made 
available to physicians not on staff. There are no residency or 
citizenship requirements. '

Documentation provided by the hospital demonstrates that the hospital has:

(1) Amended its By-lav/s to require members of its medical staff to 
provide back up services to emergency roam physicians. This 
requirement is imposed on all members of the medical staff as a 
condition for medical staff privileges;

(2) Provided for granting emergency admitting privileges to the 
physicians under contract to provide emergency roam coverage. 
This is to insure appropriate medical care for emergency roam 
patients in unusual emergency situations;

(3) Developed an Emergency Roam Manual. (March 7, 1982) which 
provides for emergency admissions and admission of those 
patients who present for emergency care, and do not have a 
private physician.

0 5



Ms. C a r o l in a  A. L oribard i
Page S ix

— ^ ^ SCriminat0:rY P°licies in English and Spanish These policies have been costed in 4-w n. „ ^.p^oLsn.
Office JchdttiigiSiS? U r g e n c y  Rocm, Business

l B S a ^ r S t f T r f ^ Q ^ "  Prwida3 ^  0 8  hospital demonstrates that in 
m Z 'f 1, °f 17,935 P ^ h t s  were seen in the meroency rear. CnTv

f these patients were transferred to other hospitals In v  7
s t a S L S 12 D S r i r?hU C e  '*iCh "lay ̂  discriminatory, t h e S ^

S d ^ l ^ d S e f S f ^  “ a - ^  toS devel°r*3 ^  itplatented policies and procedures for (1) provision of services to residents of t h e K i v k
P a ^ b  P ?  prcvlslon °f emergency service, ard acceptance of Third Partv
5 S c e r S rS r o M S t i ° nai i y' ^  toSpital feS ^  - tp r c ^ a le  Ynotices of its policies. These actions are in corroliance with the 
th e  S S u c  H ealth

Under the Freedom of Information Act, the Office for Civil Riqhts is 
required to release this letter afo related materials *
Ribh^SU ^  maTlbe:r of the P^iic. In the event the Office for Civil 
• S s^cil a request, we will mahe every effort to protec4-
lnformatnon^ therein vhich identifies individuals or that, if released 
would constitute an unwarranted invasion of privacy. released,

l l j l l .  haVS ^ estio^  concerning this case, or if we may be of further

Sincerely yours,

Marie A. Chretien 
Reg icnal Manager 
Office for Civil Rights 
Region IV

C -6



CERTIFICATE OF SERVICE

I hereby certify that on this ay of January, 1991, I caused eight copies of the

Brief for the Asian American Legal Defense and Education Fund, The NAACP Legal Defense 

and Educational Fund, Inc., The National Medical Association, the NOW Legal Defense and 

Education Fund, and the Puerto Rican Legal Defense and Education Fund in support of 

Respondent to be sent by overnight mail to: Clerk, U.S. Court of Appeals, 5th Circuit Court of 

Appeals, 600 Camp Street, New Orleans, LA, 70130.

I further certify that on this y of January, 1991, two (2) true and correct

copies of the foregoing Brief have been duly served by being deposited in the United States mail, 

first class postage prepaid, addressed to:

William DeWitt Alsup 
Attorney at Law 
Alsup & Alsup 
3210 S. Alameda 
Corpus Christi, TX 78404

Edward J. Ganem 
Attorney at Law
Law Offices of Ganem & Vasquez 
101 South Main, Suite 202 
Victoria, TX 77902

Donald P. Wilcox 
General Counsel 
Hugh Barton
Assistant General Counsel 
Texas Medical Association 
1801 N. Lamar Blvd. 
Austin, TX 78701

Leslie Shaw 
Attorney
U.S. Department of Health and 
Human Services 
Office of the General Counsel 
Inspector General Division 
Room 5542, Cohen Building 
330 Independence Ave., S.W. 
Washington, DC 20201

Ronald L. Ellis

1