Attorney Notes 1336, 1340, 1367, 1401

    IN THE UNITED STATES DISTRICT COURT 
FOR THE SOUTHERN DISTRICT OF NEW YORK

_______________________________________ X
Yvonne Mussington, individually and :
on behalf of her son, Jonathan Jacobs; :
Rosemary Johnson, individually and :
on behalf of her children, :
Edward Cuffee Jr., :Tony Johnson, Roger Cuffee, :Shamaekia Cuffee, Jennifer Cuffee, :
Jessica Cuffee, Kevin Cuffee, and :
Veronica Johnson; :Church of the Intercession; :
Iglesia Episcopal de Santa Maria; :
Religious Committee on the New York :
City Health Crisis, Inc.; :Riverside Church Office of Social :
Justice; St. Mary's Episcopal :
Church Manhattan; and Upper Manhattan :
Anglican/Episcopal Clergy Association; :

Plaintiffs, :
vs. CA NO.
St. Luke's-Roosevelt Hospital :
Center, the New York State :
Department of Health, and Mark R. :
Chassin, Commissioner of Health, :
in his official capacity. :

Defendants. :
--------------------------------------- X

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

I. Preliminary Statement.
1. Plaintiffs are low income African American and Latino 

adults and their children, and religious organizations that are 
located in the Central and West Harlem communities and are 
comprised of low income African American and Latino members. 
Plaintiffs and their members use or are likely to use the St.

1



Luke's site of the St. Luke's-Roosevelt Hospital Center 
(hereinafter "SLRHC") for inpatient obstetric, neonatal 
intensive, pediatric and medical-surgical care.

2. SLRHC has two facilities. The St. Luke's site is 
located on West 114th Street, in a community where the incidence 
of infant mortality, low birth weight deliveries and debilitating 
and life threatening diseases are among the highest in New York 
City. The Roosevelt site is located on West 59th Street, in a 
healthier community.

3. The St. Luke's site provides services to three to four 
times the number of participants in New York State's medical 
assistance program (hereinafter "Medicaid") than does Roosevelt.

4. SLRHC will remove all obstetric, neonatal and pediatric 
beds, as well as more than 200 medical-surgical beds from the 
facility at the St. Luke's site under a construction plan 
approved with contingencies by the New York State Department of 
Health (hereinafter "DOH") and the Commissioner of Health. This 
construction plan will disproportionately and adversely impact 
Medicaid recipients, for whom there is a critical shortage of 
accessible medical services, and will reduce the number and 
percentage of SLRHC's patients who are Medicaid recipients.

5. The plan will also disproportionately and adversely 
impact African Americans and Latinos and decrease the number and 
percentage of African American and Latino patients who utilize 
SLRHC.

6. By eliminating obstetric, neonatal intensive care and

2



pediatric inpatient services at St. Luke's and reducing the 
site's medical-surgical beds, SLRHC is attempting to reduce its 
poor and minority inpatient population. SLRHC seeks to reduce 
its poor and minority inpatient population, in part, in order to 
attract privately insured, white patients, and is also acting in 
response to its perception that medical professionals do not want 
to treat patients from poor minority communities.

7. SLRHC devised its construction plan to downsize St. 
Luke's with the purpose and effect of discriminating against 
participants in the Medicaid program in violation of its 
community service obligations under the Hospital Survey and 
Construction Act of 1946, Title VI of the Public Health Service 
Act (the "Hill Burton Act"), 42 U.S.C. § 291 et seg. (1991), and 
its supporting regulations, 42 C.F.R. § 124.603(a)(1) and (c)(2) 
(1991).

8. Additionally, SLRHC devised its plan with the purpose 
and effect of discriminating against potential patients on the 
basis of race and national origin in violation of the Hill Burton 
Act and its supporting regulations, Title VI of the Civil Rights 
Act of 1964 ("Title VI"), 42 U.S.C. § 2000d et seg. (1981), and 
its implementing regulations, 45 C.F.R. § 80 et seg. (1991);
Title II of the Civil Rights Act of 1964 ("Title II"), 42 U.S.C.
§ 2000a et sea. (1981); N.Y. Const, art. 1 § 11; N.Y. Civ. Rights 
Law § 40 et sea. (McKinney 1983); N.Y. Exec. Law §§ 290, 291(2), 
296(2)(a)(McKinney 1983); and N.Y.C. Admin. Code § 8-107(4),
(17) .

3



9. By approving SLRHC's construction plan with knowledge of 
its disproportionate and adverse impact on the basis of race and 
national origin and by allowing the Hospital to implement the 
plan without modification, despite procedural irregularities in 
the adoption and approval of the plan, the DOH and the 
Commissioner are acting in violation of Title VI and its 
implementing regulations, 42 U.S.C. § 1983, the Equal Protection 
Clause of the XIV Amendment to the U.S. Constitution, and N.Y. 
Const, art. 1 § 11.
II. Jurisdiction and Venue.

10. The Court has subject matter jurisdiction over this 
action under 28 U.S.C. § 1331 (1991), which confers original 
jurisdiction over all civil suits arising under the Constitution 
and laws of the United States.

11. The Court also has subject matter jurisdiction under 28
U.S.C. § 1343(a)(3) and (4) (1991), which provides for original
jurisdiction of federal courts in all suits authorized by Title 
VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, to redress 
the deprivation of any rights, privileges, and immunities 
guaranteed by the United States Constitution or by acts of 
Congress.

12. The Court has supplemental jurisdiction of state and 
local claims pursuant to 28 U.S.C. § 1367 (1991), which provides 
for supplemental jurisdiction over all claims so related to 
federal claims that they form part of the same case or 
controversy.

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13. Venue is proper in the Southern District of New York
under 28 U.S.C. § 1391(b) (1991).

14. Plaintiffs have exhausted administrative remedies 
available under the Hill Burton Act.

HI. Basis for Injunctive and Declaratory Relief.
15. Plaintiffs' action for declaratory and injunctive

relief, and for other appropriate relief, is authorized by 28 
U.S.C. §§ 2201 and 2202 (1991), Title VI of the Civil Rights Act 
of 1964, 42 U.S.C. § 2000d et sea.. the Federal Rules of Civil 
Procedure 57 and 65, N.Y. Const, art. 1 § 11, N.Y. Civ. Rights 
Law § 40 et sea.. N.Y. Exec. Law § 297, and N.Y.C. Admin. Code § 
8-107(4), (17).

IV. Plaintiffs.
16. Yvonne Mussington, an African American woman, resides 

in the Harlem community with her seven year old son, Jonathan 
Jacobs, who is severely epileptic.

17. Jonathan has had three grand mal seizures since August, 
1991, each of which resulted in medical emergency visits to St. 
Luke's. After two of these emergencies, Jonathan was 
hospitalized and received inpatient pediatric care at St. Luke's.

18. Jonathan's condition requires timely, appropriate care. 
During one of the seizures, Jonathan stopped breathing and went 
into cardiac arrest.

19. Ms. Mussington and Jonathan rely on St. Luke's for

5



health care and will be harmed by the removal of pediatric 
inpatient care and medical-surgical beds from the St. Luke s 
facility.

20. Rosemary Johnson, a 34 year old African American woman 
who relies on Medicaid to pay for her family's medical care, 
resides at 445 West 125th Street, apartment #6E, New York, N.Y. 
10027 with her children, whose ages range from two weeks to 
eighteen years. On November 28, 1992, Mrs. Johnson delivered her 
youngest child, Veronica, at the St. Luke's site, as she has done 
with her three youngest children. Veronica was admitted to the 
neonatal intensive care unit after her birth.

21. Jennifer Cuffee also received inpatient neonatal 
intensive care services at St. Luke's. During this period, Ms. 
Johnson stayed at St. Luke's during the nights.

22. Ms. Johnson was hospitalized at St. Luke's for an 
infected kidney, during which time other family members were able 
to be at St. Luke's to confer with her physician and to visit 
her.

23. Ms. Johnson relies on Medicaid to pay for health care 
for her family. She has no excess income and cannot afford 
travel expenses to Roosevelt. Currently, she and her family walk 
to St. Luke's for treatment and to visit family members admitted 
for inpatient care.

24. If inpatient services at the St. Luke's facility are 
moved to Roosevelt, Ms. Johnson and her family will seek services 
at Harlem Hospital. The Johnson family relies on St. Luke's for

6



health care and will be harmed by the removal of obstetric, 
neonatal intensive, pediatric, and medical-surgical inpatient 
care from St. Luke's.

25. Church of the Intercession is located at 550 West 155th 
Street, New York, N.Y. 10032 and serves a predominantly low 
income, medically underserved African American and Latino 
community. Masses are held in both English and Spanish. Many of 
the approximately 1,000 congregants of Church of the Intercession 
rely on St. Luke's for inpatient services will be harmed by the 
removal and reduction of services at St. Luke's.

26. Iglesia Episcopal de Santa Maria is located at 521 W. 
126th Street, New York, N.Y. 10027 and is comprised of a Latino 
Congregation of approximately eighty families. A majority of 
members are low income, and many are insured through the Medicaid 
program. Although membership spans the generations, the 
congregation is young and includes many women of childbearing 
age, as well as many children. Most members live between 123rd 
and 138th Street, and utilize health services closest to home. 
Iglesia Episcopal de Santa Maria and its members rely on the St. 
Luke's site for health care and will be harmed by the removal and 
reduction of inpatient care services from St. Luke's.

27. The Religious Committee on the New York City Health 
Crisis, Inc., is a citywide interfaith coalition formed in 1979 
in response to the deterioration of public health services in New 
York City and the threat of additional cutbacks in medically 
underserved neighborhoods. A large proportion of the Committee's

7



membership is African American and Latino and resides in Harlem 
and Northern Manhattan. In particular, the Committee works on 
behalf of its membership to address the high rates of infant 
mortality, maternal mortality, low birth weight deliveries and 
HIV infection in Northern Manhattan. The Committee and its 
membership will be harmed by the loss of inpatient services at 
St. Luke's.

28. The Riverside Church Office of Social Justice is 
located at 490 Riverside Drive, New York, N.Y. 10027 and is 
affiliated with the Riverside Church. The Office works on an 
array of social services and advocacy efforts, including programs 
to provide outreach to community residents who are HIV positive, 
training on issues of racial justice, and social services to 
residents of public housing. The Office focuses its efforts on 
the community between 110th and 155th Street, and serves a 
predominantly poor population. The Riverside Church Office of 
Social Justice, its work, and the population that it serves will 
be harmed by the loss of inpatient services at St. Luke's.

29. St. Mary's Episcopal Church is located at 521 W. 126th 
Street, New York, N.Y. 10027 and is comprised of a largely 
African American Congregation. St. Mary's is a neighborhood 
church that serves a low income community, and many of its 
members come from two large New York City Housing Authority 
projects, Grant Houses and Manhattanville Project. St. Mary's 
was founded at its present location in 1823 and its membership 
has relied on a close association with St. Luke's, which is

8



within walking distance of the church. A high percentage of 
pregnant women from St. Mary's utilize St. Luke's for deliveries 
and a high percentage of children from St. Mary's go to St.
Luke's when pediatric inpatient care is needed. St. Mary's 
Episcopal Church and its membership rely on St. Luke's for health 
care and will be harmed by the removal and reduction of inpatient 
care services from St. Luke's.

30. The Upper Manhattan Anglican/Episcopal Clergy 
Association is an organization of more than thirty members of the 
clergy who work extensively with Episcopal parishes in Northern 
Manhattan and have responsibility for pastoral oversight for 
between two and three thousand families. Members of the 
Association serve the low income, medically underserved, 
predominantly African American and Latino communities of Northern 
Manhattan; members provide counselling, comfort for parishioners 
who are hospitalized or grieving, and referrals to health care 
resources. The clergy and members of their congregations will be 
harmed by the removal and reduction of inpatient care services 
from St. Luke's.
V. Defendants.

31. St. Luke's-Roosevelt Hospital Center is a full service,
voluntary hospital that has received a $382 million loan from the 
State of New York, back by a Federal Housing Administration 
mortgage guarantee, to finance its construction and modernization 
project. SLRHC has two facilities in different locations: the
St. Luke's facility is located on West 114th Street and Amsterdam

9



Avenue, and the Roosevelt facility is located on Ninth Avenue
between 58th and 59th Streets.

32. Originally two separate hospitals, St. Luke's/Women's 
("St. Luke's") and Roosevelt merged in 1979. Prior to its merger 
with Roosevelt, St. Luke's received federal funds under the 
Hospital Survey and Construction Act (42 U.S.C. 291 et seg.), 
(hereinafter "Hill Burton Act"), and the merged SLRHC reaffirmed 
its obligations under the Hill Burton Act. SLRHC is subject to 
the requirements of the Hill Burton Act and its regulations.

33. As a recipient of federal funds, SLRHC is subject to 
Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et 
sea, and its regulations.

34. The New York State Department of Health is the state 
executive department charged with regulating hospitals within the 
state and is the state agency required to approve requests to 
reduce or reconfigure hospital services. It receives federal 
financial assistance and is subject to the requirements of Title 
VI, 42 U.S.C. § 2000d, and its regulations. The New York State 
Constitution, art. 17 § 3 mandates that the state provide for the 
protection and promotion of the health of its inhabitants. DOH's 
principal place of business is Corning Tower Bldg., Empire State 
Plaza, Albany, N.Y. 12237, and it has offices in New York City.

35. Mark R. Chassin is the Commissioner of Health, the 
chief executive officer of the DOH. His principal place of 
business is Corning Tower Bldg., Empire State Plaza, Albany, N.Y. 
12237.

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VII. Procedural Background
36. On April 4, 1991 the St. Luke's Community Coalition, 

which includes the Upper Manhattan Anglican/Episcopal Clergy 
Association, the Harlem Valley Churches (which includes plaintiff 
churches), and other individual and group complainants, filed a 
civil rights complaint with the U.S. Department of Health and 
Human Services' Office for Civil Rights (hereinafter "OCR") 
against SLRHC, alleging violations of the community service 
obligations of the Hill Burton Act and violations of Title VI 
(OCR #02-91-3064). OCR accepted the complaint and initiated an 
investigation. After six months, by letter dated October 25, 
1991, OCR informed complainants that they had exhausted 
administrative remedies under the Hill Burton Act.

37. Plaintiffs and the SLRHC attempted unsuccessful 
mediation during the winter, 1991-1992.

38. OCR has yet to issue findings on the complaint. 
Plaintiffs now seek judicial relief.

VIII. Factual Background for All Counts.
A. Demographic Background of the Communities Served at
the St. Luke's and the Roosevelt Facilities:
39. The communities currently served by the St. Luke's 

facility, including Central and West Harlem, Manhattan Valley and 
part of Washington Heights, are predominantly African American 
and Latino and are among the poorest in New York City. An 
extremely high proportion of residents are unemployed or are 
working poor. As a result, many participate in the Medicaid

11



program.
40. The population near the St. Luke's facility comprises a 

higher number and percentage of Medicaid beneficiaries than the 
population near the Roosevelt facility. The St. Luke's facility 
treats three to four times more Medicaid recipients than does the 
Roosevelt facility.

41. The St. Luke's patient population is 80% Latino and 
African American, while Roosevelt's patient population is 
approximately 40% Latino and African American.

42. During the planning and implementation of SLRHC's 
construction plan, the Hospital and DOH have been aware of the 
economic disparities between the communities served by the St. 
Luke's facility and those served by the Roosevelt facility. 
Moreover, SLRHC projected that the communities served by St. 
Luke's would remain poor, while those served by Roosevelt would 
experience both an increase in average income and a decrease in 
the proportion of the population that is African American and 
Latino.

B. Health Status of the Communities Served at the St.
Luke's and the Roosevelt Facilities:
43. The poor health status of the communities served by St. 

Luke's is compounded by a severe shortage of health care 
providers. Indeed, the federal government designated certain 
neighborhoods within the St. Luke's community as "medically 
underserved" and "health manpower shortage areas."

44. The problem of emergency room gridlock, which is 
related to the availability of inpatient beds, is particularly

12



acute in Northern Manhattan and causes delays in the receipt of 
needed health care services for Central and West Harlem 
residents.

45. In contrast, the communities served by Roosevelt have a 
smaller population, experience lower rates of chronic and acute 
illness and are home to a greater concentration of health care 
professionals.

46. In 1990, an index used by the New York City Health 
Systems Agency (hereinafter "HSA") ranked a portion of the area 
served by St. Luke's as experiencing the worst health crisis in 
New York City based on the incidence of conditions such as 
asthma, diabetes, otitis media, cellulitis, heart failure, 
pneumonia, lung cancer, pneumocystis and tuberculosis, cancers 
and infections of the female reproductive tract, renal failure 
and hypertension.

47. The health crisis in Central and West Harlem is 
particularly acute for poor expectant mothers, infants, and 
children. The communities have high rates of measles, 
tuberculosis, syphilis, adolescent births, maternal drug 
dependency, late or no prenatal care, low birth weight babies, 
infant mortality, and HIV positive infants.

48. According to New York City Department of Health 
statistics for 1986, 21% of infants born in Central Harlem were 
of low birth weight, in this case weighing 2,000 grams or less at 
birth, compared to 10% in Riverside and the Lower West Side, two 
regions near the Roosevelt site.

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49. In 1986 the infant mortality rate in the six Central 
Harlem health districts that are located within the St. Luke's 
service area was the highest in New York City - 25.7 infant 
deaths per 1,000 live births. While Central Harlem experienced 
an infant mortality rate of 25.7, the rate in Riverside was 12.2, 
and in the Lower West Side, 10.6.

50. Moreover, the infant mortality rate in the St. Luke's 
service area increased from 17.0 to 27.0 between the years 1986 
and 1988. During the same years the infant mortality rate 
declined from 12.5 to 10.5 in the Roosevelt service area.

51. According to 1990 Census data, there are more than 
39,000 children under the age of 18 residing in the St. Luke's 
service area. In contrast, there are less than half that number 
(fewer than 18,000) in the Roosevelt service area.

C. SLRHC Background:
52. St. Luke's Hospital has been located at its current 

site, West 114th Street and Amsterdam Avenue, since 1893. In 
1952 Women's Hospital merged with St. Luke's and, in 1965,
Women's moved to the St. Luke's site.

53. In 1973, St. Luke's Hospital received final approval on 
its application for Hill Burton funds. Roosevelt Hospital had 
received Hill Burton funds in 1953.

54. In September, 1979 St. Luke's/Women's Hospital and 
Roosevelt Hospital received approval to merge and created the 
SLRHC. At the time of merger, St. Luke's had 788 beds; Roosevelt 
had 627 beds. The merged SLRHC maintained separate locations for

14



its two facilities. St. Luke's remained at W. 114th Street, 
while Roosevelt remained at W. 59th Street.

55. The State approved the merger on the condition that the 
merged institution expressly provide that it will continue to 
adhere to its community service obligations as a recipient of 
federal funds. SLRHC agreed to do so by Resolution issued by the 
Board of Trustees of the newly merged facility.

56. The merged Hospital's service area incorporated both 
the St. Luke's (upon information and belief, 96th Street to 134th 
Street) and the Roosevelt service areas (upon information and 
belief, 34th Street to 96th Street). Subsequently, by agreement 
between SLRHC, Harlem Hospital and Columbia Presbyterian, SLRHC's 
service area was extended north to 142nd Street.

D. SLRHC's Construction Plan:
57. SLRHC's plan to consolidate services at Roosevelt and 

to downsize the St. Luke's facility is intended to and will have 
the effect of reducing its Medicaid patient population, as well 
as its African American and Latino populations.

58. After the merger, SLRHC devised a construction and 
modernization plan that was intended, in part, to improve its 
image among households with private insurance coverage, a 
disproportionate number of whom in the SLRHC service area are 
white.

59. SLRHC based its construction and modernization plan on 
a market analysis report it produced or caused to be produced.
The Market Study found that Medicaid recipients prefer St. Luke's

15



and that St. Luke's was also preferred by the nonwhite 
population.

60. The Market Study suggested that SLRHC emphasize 
services at Roosevelt rather than St. Luke's in order "to improve 
its image" with privately insured patients.

61. On September 29, 1983, SLRHC submitted to DOH Part I of 
the Certificate of Need (CON) application for construction and 
modernization, pursuant to Part 710 of the New York State 
Hospital Code and Section 1122 of the Social Security Act. The 
application stated that SLRHC would reduce the number of beds at 
the St. Luke's site from 780 to 588, while increasing the beds at 
Roosevelt from 535 to 727. The plan called for the consolidation 
of obstetric, neonatal intensive care and pediatric services at 
Roosevelt, an expansion of beds, generally, at Roosevelt, and an 
overall reduction of beds at St. Luke's.

62. Between January 1 and December 31, 1982, SLRHC reported 
a combined total of 6,700 general maternity discharges. Of these 
general maternity discharges, two-thirds (4,449), occurred at St. 
Luke's. Despite greater need and utilization of St. Luke's,
SLRHC did not consider consolidating services at St. Luke's.

63. Upon information and belief, at no time did SLRHC 
contemplate maintaining existing inpatient obstetric, neonatal 
intensive care and pediatric services or expanding inpatient 
services at St. Luke's to meet the health needs of its service 
area and to attract a mixed payor population to the St. Luke's 
site. In selecting Roosevelt as the site for consolidation of

16



obstetric, neonatal intensive care and pediatric, and the site 
for expansion, generally, SLRHC did not consider the present or 
future medical needs of the St. Luke's patient population.

64. SLRHC made the decision to consolidate services at the 
Roosevelt facility and to downsize the St. Luke's facility in the 
face of its knowledge of the greater medical need for these 
health services at the St. Luke's site.

65. Due to a moratorium on new construction, DOH made no 
final determination on SLRHC's 1983 CON application.

66. On August 15, 1986, SLRHC submitted an amended CON with 
a total bed count of 1,142. According to the 1986 CON 
application, SLRHC planned, again, to drastically downsize St. 
Luke's —  from 780 to 475 beds, including the proposed transfer 
of all obstetric, pediatric, and neonatal intensive care services 
from St. Luke's to Roosevelt.

67. In contrast, while the St. Luke's community would lose 
305 beds, Roosevelt would gain 42 obstetric, 22 neonatal 
intensive care and 33 pediatric inpatient beds.

68. Although SLRHC, in its 1983 and 1986 CON applications, 
recognized the relationship between location of services and 
access to services for the poor, it proceeded with its plan to 
eliminate critically needed services at the St. Luke's site.

69. In 1986, when SLRHC filed its amended CON, the need for 
continued inpatient care in the St. Luke's community, including 
obstetric, pediatric, and neonatal intensive care, was evident. 
Health statistics for Central and West Harlem, including the high

17



proportion of at-risk deliveries, clearly indicated an increasing 
need for inpatient obstetric and related services.

70. SLRHC's plan, including the reduction of services to 
Central and West Harlem and the overall reconfiguration of beds, 
costs $467 million —  to be paid in large part by federally 
insured New York State mortgage bonds. A total of $382 million 
in bonds were to be issued by the New York State Medical Care 
Facilities Financing Agency and backed by the Federal Housing 
Administration.

71. In September, 1986, with inadequate community 
notification and input, the Project Review Subcommittee of the 
HSA approved SLRHC's construction plan.

72. On November 6, 1986 the New York State Hospital Review 
and Planning Council recommended disapproval of SLRHC's plan "on 
the basis of need" but, nevertheless, gave a recommendation that 
the CON be approved.

73. During the CON and subsequent local approval processes, 
it was evident to SLRHC and DOH that a significant portion of the 
public currently served at St. Luke's would no longer use the 
Hospital for care once the construction plan was fully 
implemented.

74. On March 4, 1987 DOH approved SLRHC's bed reallocation 
plan and, subsequently, has approved the implementation of the 
construction plan.

75. In partial recognition of the harm that would be caused 
by the loss of obstetric, neonatal intensive care, and pediatric

18



beds at St. Luke's, DOH placed a number of conditions on its 
final approval of the bed distribution. These conditions 
inadequately addressed the need for inpatient obstetric, neonatal 
intensive care and pediatric beds at the St. Luke's site, but 
left community members with the hollow promise that the decision 
where to locate the beds would be reopened and reconsidered in 
the future.

76. Despite multiple acknowledgements of the potential harm 
that SLRHC's reconfiguration will cause to the population served 
by St. Luke's, DOH has allowed SLRHC's construction and 
modernization project to proceed as approved in the 1986 CON.

77. Community Boards 4, 7 and 9, which together encompass 
the West Side of Manhattan between 14th Street and 155th Street, 
expressed strong reservations about SLRHC's plan and specifically 
objected to the planned consolidation of inpatient obstetric, 
neonatal intensive care, and pediatrics at Roosevelt.

78. During the local approval processes that followed DOH's 
approval of the CON, the Hospital and DOH again made promises to 
members of the St. Luke's community and the Community Boards that 
have not been fulfilled, including a promise of subsequent, 
meaningful reassessments of the decision to relocate obstetric, 
neonatal intensive care and pediatric beds to Roosevelt.

79. In April, 1989, the West Side/West Harlem Community 
Health Planning Coalition reported that the need for inpatient 
maternal and child health services was greater near St. Luke's 
than near Roosevelt, that utilization rates for neonatal

19



intensive care at facilities in Northern Manhattan —  i.e. St.
Luke's, Harlem Hospital and Columbia Presbyterian —  were well 
above 100% of capacity, and, further, that SLRHC's relocation 
plan was based on questionable planning assumptions and 
procedures. The report recommended against relocating such 
services at Roosevelt.

80. In June, 1990, the HSA reported to the New York State 
Commissioner of Health that health status data would have 
suggested locating inpatient maternal and child care beds at St. 
Luke's. HSA had found that patients who rely on Medicaid are 
less likely to travel for care; that, specifically, obstetric 
patients from Central and West Harlem tend to utilize only 
providers within the community for inpatient obstetric services; 
and that a percentage of Medicaid and self-pay patients who 
receive delivery services at St. Luke's will deliver at Harlem 
Hospital and Columbia Presbyterian after the transfer of beds to 
Roosevelt.

81. The June, 1990 HSA report recommended that an obstetric 
unit be retained at St. Luke's. This recommendation took into 
account architectural and cost constraints presented by SLRHC's 
construction plans, plans that were themselves predicated on 
SLRHC's prior decision to enlarge Roosevelt and diminish St.
Luke's.

82. Based on the June, 1990 HSA report, Commissioner 
Axelrod, in July, 1990, required that SLRHC submit a new CON with 
plans for additional beds at St. Luke's, to include 22 obstetric

20



beds, 14 neonatal intensive care beds and necessary pediatric 
services.

83. To date, SLRHC has not complied with this requirement.
84. Construction is currently proceeding at both the 

Roosevelt and St. Luke's sites in accordance with the 1986 CON.
85. The DOH has not enforced its own mandate that SLRHC 

maintain inpatient obstetric and neonatal intensive care beds at 
the St. Luke's site.

86. Although SLRHC has recently indicated in public 
correspondence a willingness to retain 22 obstetric and 14 
neonatal intensive care beds for two years, on information and 
belief, SLRHC has not developed a concrete plan to secure or 
earmark the necessary funding for such a change. Furthermore, 
such a plan would remain out of compliance with the July, 1991 
directive from the Commissioner, which required a permanent 
alteration in SLRHC's construction plan.

87. Moreover, retention of 22 obstetric and 14 neonatal 
intensive care beds alone would not restore to the St. Luke's 
community the full number of beds that are currently at that 
location, which include 58 obstetric, 16 neonatal intensive care, 
and 47 pediatric beds, as well as the approximately 200 medical- 
surgical beds scheduled for elimination.

IX. The Impact of the Plan:
88. Health statistics demonstrate and health care experts, 

studies, and reports have repeatedly stated, that the Central and

21



West Harlem communities cannot afford to lose the approximately 
300 beds and services that they will lose if SLRHC's plan is 
implemented. The plan will further deplete an already medically 
underserved community of much needed resources and will 
disproportionately affect Medicaid recipients, Latinos, and 
African Americans.

89. According to data collected by DOH, in 1988 St. Luke's 
discharged 3,754 obstetric patients, 3,217 newborns and neonates, 
1,756 pediatrics patients, 8,140 medical and 5,842 surgery 
patients.

90. According to data collected by DOH, in 1988 
approximately 48% of St. Luke's patients relied on Medicaid for 
payment, and the patient population was more than 80% African 
American and Latino. Specifically, St. Luke's provided inpatient 
services to 11,503 patients who relied on Medicaid to pay for 
health services. St. Luke's served 8,406 Latino patients and 
9,720 African American patients.

91. Residents of Central and West Harlem rely on St.
Luke's, as well as Harlem and Columbia Presbyterian Hospitals, 
and studies demonstrate that many will not travel out of their 
neighborhood and, particularly, not travel south to Roosevelt for 
care.

92. Harlem Hospital is closer in proximity to Central and 
West Harlem residents than is the Roosevelt site. As a result, 
many low income patients who currently utilize services at St. 
Luke's will be taken to Harlem Hospital for services and will

22



disperse to other facilities. For example, as a result of the 
diminished capacity of St. Luke's, many residents of Central and 
West Harlem who would otherwise have been taken by the Emergency 
Medical Services to St. Luke's will be diverted to Harlem 
Hospital.

93. The displacement of patients from St. Luke's to Harlem 
Hospital and, to a lesser degree, to Columbia Presbyterian, will 
exacerbate overcrowded conditions at those facilities, delay 
care, and cause harm to patients.

94. The impact will be particularly severe on newborns in 
need of intensive care. The consolidation of neonatal services 
at the Roosevelt site will increase the neonatal intensive care 
patient load at Harlem and Columbia Presbyterian Hospitals, which 
are already overcapacity. Harlem and Columbia Presbyterian are 
experiencing 100-200% utilization of neonatal intensive care 
capacity.

95. The transfer of services will also increase delays and 
cause harm to patients who continue to utilize the St. Luke's 
site, particularly those who arrive at the St. Luke's emergency 
room.

96. The transfer will cause harm to obstetric patients from 
Central and West Harlem who arrive at the St. Luke's emergency 
room in labor. Many will have received little or no prenatal 
care and their deliveries will be high-risk. For many others, 
although they may have received timely prenatal care, their 
deliveries will be high-risk because of illness or chronic health

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conditions. Under SLRHC's plan, St. Luke's will no longer have 
inpatient obstetric or neonatal intensive care units to 
accommodate their deliveries, and the Hospital's obstetric and 
neonatal care specialists will work downtown at Roosevelt.

97. In Central and West Harlem, where health indicators 
reflect such a high incidence of disabling diseases and severe 
health conditions, the availability of pediatric inpatient care 
is not dispensable. Many children from this area suffer from 
conditions that require inpatient treatment, including juvenile 
diabetes, sickle cell disease, and severe asthma. High quality 
primary care must be integrated with full service, accessible 
inpatient facilities. The departure of inpatient pediatric 
services from the St. Luke's community will decrease the 
likelihood that Central and West Harlem children will receive 
appropriate and timely specialty care and inpatient services.

98. The consolidation of obstetric, neonatal intensive care 
and pediatric inpatient services at Roosevelt will also have the 
effect of drawing specialists involved in the provision of these 
services farther away from Harlem. The transfer of inpatient 
obstetric services, in particular, will remove from Harlem the 
few obstetricians who currently maintain second offices at St. 
Luke's.

99. The reduction in the number of medical-surgical beds at 
St. Luke's will have a similar effect on the availability of 
physicians at St. Luke's generally, decreasing the already meager 
number of physicians in Harlem. According to the 1986 CON, of

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the 990 physicians with admitting privileges at SLRHC, including 
424 physicians who are affiliated with SLRHC and who maintain 
offices in the its service area, only 11 have offices in Harlem 
zip codes 10026 and 10027. The downsizing of St. Luke's 
threatens to decrease this small number even further.

XI. Legal Claims
First Count

(Discrimination based on payor status in violation of 
the Hill Burton Act's community service obligations, 42 
U.S.C. 291(c)(e), 42 C.F.R. § 124.603(a)(1) and (c)(2))
100. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
101. The Hospital Survey and Construction Act, 42 U.S.C.

291 et sea., or Hill Burton Act, requires federally assisted 
hospitals to provide health services without discrimination based 
on participation in a government program such as Medicaid. Id.; 
42 C.F.R. § 124.603(a)(1) and (c)(2). Because SLRHC's plan to 
transfer obstetric, neonatal intensive care and pediatric 
inpatient services and to reduce medical-surgical beds at the St. 
Luke's site has the purpose and will have the effect of reducing 
its Medicaid payor population, and the effect of causing harm 
disproportionately to Medicaid recipients, SLRHC is 
discriminating against Medicaid recipients in violation of the 
Hill Burton Act and its supporting regulations.

Second Count

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(Race and national origin discrimination in violation 
of the Hill Burton Act's community service obligations,
42 U.S.C. § 291c(e), 2 C.F.R. § 124.603(a)(1))
102. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
103. The Hospital Survey and Construction Act, 42 U.S.C.

291 et sea.. or Hill Burton Act, reguires federally assisted 
hospitals to provide health services without discrimination based 
on race or national origin. Id.; 42 C.F.R. § 124.603(a)(1). 
Because SLRHC's plan to transfer obstetric, neonatal intensive 
care and pediatric inpatient services and to reduce the number of 
medical-surgical beds at the St. Luke's site has the purpose and 
will have the effect of reducing its African American and Latino 
patient population in order to increase its white patient 
population, and the effect of causing harm disproportionately to 
African Americans and Latinos, SLRHC is discriminating on the 
basis of race and national origin in violation of the Hill Burton 
Act and its supporting regulations.

Third Count
(Race and national origin discrimination in violation 
of Title VI of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000d et sea.. its implementing regulations, 45 
C.F.R. § 80 et sea.. and 42 U.S.C. § 1983)
104. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
105. Title VI of the Civil Rights Act of 1964, 42 U.S.C.

26



2000d et sea., prohibits a recipient of federal funds from 
discrimination on the basis of race and national origin. Because 
defendants are recipients of federal funds and because SLRHC's 
plan to transfer obstetric, neonatal intensive care and pediatric 
inpatient services and to reduce medical-surgical beds at the St. 
Luke's site has the purpose and will have the effect of reducing 
the African American and Latino patient population served by 
SLRHC, and the effect of causing harm disproportionately to 
African American and Latino patients, defendants are 
discriminating on the basis of race and national origin in 
violation of Title VI and its implementing regulations.

106. State defendants are also in violation of 42 U.S.C. § 
1983 for subjecting plaintiffs to deprivation of their civil 
rights under color of law.

Fourth Count
(Race and national origin discrimination in violation
of Title II of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000a, et seq.)
107. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
108. Title II of the Civil Rights Act of 1964, 42 U.S.C. 

2000a et seq., prohibits discrimination in places of public 
accommodation on the basis of race and national origin. Because 
SLRHC is a place of public accommodation and because SLRHC's plan 
to transfer obstetric, neonatal intensive care and pediatric 
inpatient services and to reduce medical-surgical beds at the St.

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Luke's site has the purpose and intended effect of reducing the 
African American and Latino patient population served by the 
Hospital, SLRHC is discriminating on the basis of race and 
national origin in violation of Title II.

Fifth Count
(Race and national origin discrimination in violation 
of the Equal Protection Clause of the XIV Amendment of 
the U.S. Constitution, and 42 U.S.C. § 1983)
109. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
110. The Equal Protection Clause of the Fourteenth 

Amendment to the U.S. Constitution prohibits discrimination on 
the basis of race and national origin. Because SLRHC's plan to 
transfer obstetric, neonatal intensive care and pediatric 
inpatient services and to reduce medical-surgical beds at the St. 
Luke's site constitutes racial and national origin discrimination 
by having the purpose and intended effect of reducing the African 
American and Latino patient population served by SLRHC, and 
because state defendants approved SLRHC's construction plan with 
knowledge of its disproportionate and adverse impact, but 
nevertheless allowed SLRHC to implement the plan without 
modification, state defendants are discriminating in violation of 
the Equal Protection Clause of the Fourteenth Amendment.

111. State defendants are also in violation of 42 U.S.C. § 
1983 for subjecting plaintiffs to deprivation of their civil 
rights under color of law.

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Sixth Count
(Race and color discrimination in violation of the N.Y. 
Const, art. 1 § 11)
112. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
113. Article 1 § 11 of the Constitution of the State of New 

York states:
No person shall be denied the equal protection of the 
laws of this state or any subdivision thereof. No 
person shall, because of race, color, creed or 
religion, be subjected to any discrimination in his 
civil rights by any other person or by any firm, 
corporation, or institution, or by the state or any 
agency or subdivision of the state.
114. Because SLRHC's plan to transfer obstetric, neonatal 

intensive care and pediatric inpatient services and to reduce 
medical-surgical beds at the St. Luke's site has the purpose and 
will have the effect of reducing the African American and Latino 
patient population served by SLRHC, and the effect of causing 
harm disproportionately to African American and Latino patients, 
SLRHC and state defendants are discriminating on the basis of 
race and color in violation of the N.Y. Const, art. 1 § 11.

Seventh Count
(Race and national origin discrimination in violation 
of N.Y. Civ. Rights Law § 40 et sea.. N.Y. Exec. Law §§
290, 291(2), 296(2)(a))
115. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
116. N.Y. Civ. Rights Law § 40 et sea, prohibits

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discrimination on the basis of race or national origin in places 
of public accommodation and other acts of discrimination by any 
other person, firm, corporation or institution, or by the state 
or any agency or subdivision of the state.

117. N.Y. Exec. Law § 290 sets out the purposes of the New
York State Human Rights Law and provides:

that the state has the responsibility to act to assure 
that every individual within this state is afforded an 
egual opportunity to enjoy a full and productive life 
and that the failure to provide such equal opportunity, 
whether because of discrimination, prejudice, 
intolerance or inadequate education, training, housing 
or health care not only threatens the rights and proper 
privileges of its inhabitants but threatens the peace, 
order, health, safety and general welfare of the state 
and its inhabitants.

N.Y. Exec, law § 290(3). N.Y. Exec. Law § 291 provides, in part, 
that the use of places of public accommodation without 
discrimination because of race or national origin is recognized 
as and declared to be a civil right. N.Y. Exec. Law § 296(2)(a) 
specifically prohibits discrimination by a provider of a public 
accommodation on the basis of race or national origin.

118. Because SLRHC is a place of public accommodation and 
because SLRHC's plan to transfer obstetric, neonatal intensive 
care and pediatric inpatient services and to reduce medical- 
surgical beds at the St. Luke's site has the purpose and will 
have the effect of reducing the African American and Latino 
patient population served by SLRHC, and the effect of causing 
harm disproportionately to African Americans and Latinos, SLRHC 
is discriminating on the basis of race and national origin in 
violation of N.Y. Civ. Rights Law § 40 et sea, and N.Y. Exec. Law

30



§§ 290, 291(2), 296(2)(a).
Eighth Count

(Race and national origin discrimination in violation
of N.Y.C. Admin. Code § 8-107(4) and (17))
119. Paragraphs 1-99 are realleged and incorporated herein 

by reference.
120. The N.Y.C. administrative code prohibits 

discrimination by a provider of a public accommodation on the 
basis of race or national origin. Because SLRHC is a place of 
public accommodation and because SLRHC's plan to transfer 
obstetric, neonatal intensive care and pediatric inpatient 
services and to reduce medical-surgical beds at the St. Luke's 
site has the purpose and will have the effect of reducing the 
African American and Latino patient population served by SLRHC, 
and the effect of causing harm disproportionately to African 
Americans and Latinos, SLRHC is discriminating on the basis of 
race and national origin in violation of N.Y.C. Admin. Code § 8- 
107(4) and (17).

XII. Relief
WHEREFORE, for the foregoing reasons, plaintiffs 

respectfully request this Court to:
1. Enter a declaratory judgment on behalf of plaintiffs:

a. that SLRHC's plan to remove or reduce obstetric, 
neonatal intensive care, pediatric, and medical-surgical 
inpatient services from the St. Luke's facility discriminates

31



against beneficiaries of the Medicaid program in violation of 
SLRHC's community service obligations under the Hill Burton Act, 
42 u.S.C. § 291 et sea, and its implementing regulations, 42 
C.F.R. § 124.603(a)(1) and (c)(2);

b. that SLRHC's plan to remove or reduce obstetric,
neonatal intensive care, pediatric, and medical-surgical 
inpatient services from the St. Luke's facility discriminates 
against African Americans and Latinos on the basis of race and 
national origin in violation of the Hill Burton Act 42 U.S.C. § 
291 et sea, and its implementing regulations, 42 C.F.R. § 
124.603(a)(1); Title VI of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et sea, and its implementing regulations, 45
C.F.R. § 80 et sea.; Title II of the Civil Rights Act of 1964, 42
U.S.C. § 2000a et sea.; N.Y. Const, art. 1 § 11; N.Y. Civ. Rights
Law § 40 et seg.; N.Y. Exec. Law §§ 290, 291(2), 296(2) (a); and
N.Y.C. Admin. Code § 8-107(4), (17); and

c. that by approving SLRHC's construction plan with 
knowledge of its disproportionate and adverse impact on the basis 
of race and national origin and by allowing the Hospital to 
implement the plan without modification, despite procedural 
irregularities in the adoption and approval of the plan, the New 
York State Department of Health and the Commissioner are acting 
in violation of Title VI of the Civil Rights Act of 1964, 42 
U.S.C. § 2000d et sea, and its implementing regulations, 42 
U.S.C. § 1983; the Equal Protection Clause of the XIV Amendment 
to the U. S. Constitution; and N.Y. Const, art. 1 § 11.

32



2. Issue a permanent injunction as follows:
a. restraining SLRHC, its officers, agents, employees 

and representatives from implementing or continuing to implement 
its plan to remove or reduce obstetric, neonatal intensive care, 
pediatric, and medical-surgical inpatient services from the St. 
Luke's facility;

b. restraining the New York State Department of Health 
and Commissioner Mark R. Chassin and their officers, agents, 
employees and successors in office from:

(i) permitting the removal or reduction of obstetric, 
neonatal intensive care, pediatric, and general medical- 
surgical inpatient services from the St. Luke's facility;
(ii) removing any of the current conditions and 
contingencies attached to its approval of SLRHC's 1986 
application for a Certificate of Need, including the 
requirement that SLRHC retain 22 obstetric and 14 neonatal 
intensive care beds and necessary pediatric services at St. 
Luke's, without approval of the Court for as long as the 
Court retains jurisdiction of the above captioned action;
(iii) approving any subsequent application for a Certificate 
of Need or any other attempt to remove or reduce obstetric, 
neonatal intensive care, pediatric, or medical-surgical 
inpatient services from the St. Luke's facility without 
approval of the Court for as long as the Court retains 
jurisdiction of the above captioned action;
3. Order SLRHC to adopt and implement a plan that will

33



eliminate the aforementioned discriminatory practices;
4. Assume and maintain jurisdiction over this action until

such time as full relief has been afforded plaintiffs;
5. Award plaintiffs reasonable costs and attorneys fees;

and
6. Grant such other and further relief as this Court deems

necessary and proper.

Respectfully Submitted,

Ronald L. Ellis, Esq., #3347RE 
Marianne L. Engelman Lado, 

Esq., #6749ML 
Maya Wiley, Esq., #8600MW 
NAACP Legal Defense and

Educational Fund, Inc.
99 Hudson Street, 16th FI.
New York, NY 10013 
(212) 219-1900

Kenneth Kimerling, Esq.
Nina Perales, Esq., #9310NP 
Puerto Rican Legal Defense and 

Education Fund, Inc.
99 Hudson Street, 14th FI.
New York, NY 10013 
(212) 219-3360

Dated; December 11, 1992 Julius L. Chambers, Esq.

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