Motion for Reconsideration of Trial Date; Memorandum in Support; Correspondence from Dodds to Harding

     [||a4066979-28ed-4f71-9b55-4c22c6ffd3e3||] IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

Plaintiffs, 

Vv. Civil No. H 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

  

  

/ 

RICHARD GORDON HATCHER, et al., 

Plaintiffs, 

Ve. Civil No, H 77-154 

METHODIST HOSPITAL OF CARY, INC., 

et al., 

Defendants. y 

  

MOTION FOR RECONSIDERATION OF 

DECEMBER 5, 1977 TRIAL DATE 
  

Defendant, Joseph A. Califano, Jr., by his undersigned 

attorneys, hereby moves this Court to reconsider its order 

that the trial.of this action will commence on December 5, 

1977 and postpone the trial date until the Department of Health, 

Education, and Welfare has had an opportunity to complete its 

administrative investigation. The reasons for this motion are 

that the Secretary does not have a sufficient factual basis to 

go to trial until the administrative review is completed, that 

the doctrine of primary jurisdiction will be Frustrated if the 

agency is not allowed to first exercise its jurisdiction, and 

that the plaintiffs will not be harmed by this extension. 

 



  

In support of this motion, the Court is respectfully 

referred to the Memorandum of Points and Authorities filed 

herewith. 

Respectfully submitted, 

i AS 22 | = 

{Cn Den ae A {en abc oul UZ] 
BARBARA ALLEN BABCOCK : 

Assistant Attorney General 

  

  

RICHARD L. KEISER 

United States Attorney 

OF COUNSEL: 

JEFFREY CHAMPAGNE Dean d {1 EL pry ny INE wr hE A ~ an Xan Soy | Cry) 

U.S. Department of DAVID J. ANDERSON ; 
Health, Education 

and Welfare 

  

3 

  

  

MARVIN G. GAVIN abn 43 Som. of,0, 
Regional Attorney BARBARA B. O'MALLEY : ] 

EDWARD L. KOVEN 
Assistant Regional Ty 0 i ge 

Attorney Kolber J ADDO 
Department of Health, REBECCA L. ROSS 

Education and Welfare 
300 South Wacker Drive Attorneys for Defendants 

15th Floor Attorneys, Department of Justice 
Chicago, Illinois Washington, D. C. 120530 

Telephone: 739-2230 

 



  

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF INDIANA 

HAMMOND DIVISION 

  

BERNICE TERRY, et al., 

  

  

Plaintiffs, 

Vv. Civil No. HH 76-373 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

i 

RICHARD GORDON HATCHER, et al., 

Plaintiffs, By 

Vv. Civil No. H 77-154 

METHODIST HOSPITAL OF GARY, INC., 

et al., 

Defendants. 

/ 
  

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT OF 

MOTION FOR RECONSIDERATION OF 

DECEMBER 5, 1977 TRIAL DATE 
  

STATEMENT 
  

Plaintiffs have alleged in this action that Methodist 

Hospital of Gary is violating Title VI of the Civil Rights 

Act of 1964, 42 U.S.C. $20004 et seq. and §504 of the Rehabi- 

litation Act of 1973, 29 U.8.C. §706, by providing allegedly 

inferior care to the minority residents of Gary while providing 

better care to non-minority residents in the suburbs. Plain- 

tiffs also allege that the Secretary has failed to fulfill his 

responsibilities under Title VI and §504 nationwide and in 

Gary by failing to prevent or correct situations such as that 

alleged in Gary. 

 



  

The facts behind this litigation are somewhat complex. 

In 1972, Gary Methodist applied for a Hill~-Burton grant pur- 

suant ‘to 42 U.8.C.A. §§291~291= Tor $333,300 for fiscal year 

1972 and for $819,227 for fiscal year 1973 in connection with 

the proposed construction of a new facility in Merrillville, 

Indiana, located about 14 miles south of downtown Gary. In 

addition, Methodist applied for a Hill-Burton loan guarantee 

of 816,336,193 pursuant to 42 U.85.C.A. §84601-4655. Under 

the loan guarantee program, the federal government pays a 3% 

interest subsidy and the borrower must pay the remaining per- 

centage of the loan. 

Because regional HEW officials were concerned that the 

construction of a new facility in Merrillville might result 

in a loss of services to the inner-city minority residents of 

Gary and consequently violate Title VI of the Civil Rights Act, 

they conducted a Title VI review of the project. Pursuant to 

this investigation, the regional office required Gary Methodist 

to sign extensive assurances specifically guaranteeing that 

Gary Methodist would continue to operate as a viable acute 

care hospital in Gary and that financial resources generated 

by Broadway Methodist would be used to assist Gary Methodist 

when necessary. These assurances were executed in July, 1973. 

When Methodist determined in July, 1974 that it wished 

to construct a health services building in Gary, a health ser- 

vices building in Merrillville, and a new laundry in Merrill- 

ville, it sent a copy of its proposals to the regional Office 

for Civil Rights for approval. Por two years, from July, 1974 

until April, 1976, Methodist put together applications for 

Federal financial assistance for the two health services 

buildings and laundry and processed its applications through 

 



  

the appropriate local and state health agency reviewing autho- 

vities. On April 23,:.1975, the regional Office for Civil Rights 

received the Hill-Burton applications for Title VI review. 

The Office for Civil Rights (OCR) investigated several con- 

cerns including the changes in services proposed by the con- 

struction plans. The regional office, OCR, determined on 

September 20, 1976 that the applications for the construction 

of the health services buildings and laundry presented no poten- 

tial or actual Title VI problems and recommended proceedin 

with funding. On September 28, 1976, the Department of Health, 

Education, and Welfare executed two loan guarantee agreements 

with Methodist. If the Department subsequently determines that 

the recipient is unable to meet federal requirements which it 

says it does meet in its application, the Department can refuse 

to execute the endorsement to the loan guarantee agreement (close). 

Because the Department 1s investigating Title VI and §504 com- 

plaints concerning the hospital, it is not willing to execute 

this endorsement. 

On or about October 1, 1976, several persons wrote mailgrams 

and letters to orn generally objecting to the approvals given to 

Gary Methodist. — Letters explaining HEW's previous review 

were sent to those persons on October 21, 1976. 

On September 29, 1976, the Gary Human Relations Commission 

(GHRC) delivered a letter of complaint to OCR alleging: 

(1) Gary Methodist Hospital had failed to replace 

the "inadequate power plant, X-ray, and emergency 

room,” 

  

*/ Because these letters did not set forth any specific or 
general civil rights allegations, they were treated not as 
civil rights complaints, but as expressions of conclusory 
opinions by interested parties. 

 



  

(2) Methodist deleted three of the original five 

improvements from Gary Methodist Hospital that 

were in the original Hill-Burton application, and 

(3) There was a prediction that at some undisclosed 

future time the number of beds at Broadway Methodist 

Hospital would be increased and the number of beds 

at Gary Methodist Hospital would be reduced. 

On November 24, 1976, the GHRC added some additional allega- 

tions concerning the type of equipment used at the two hospitals 

and the qualifications of the medical personnel. HEW investigated 

these complaints and on March 29, 1977 issued a preliminary 

letter of findings to the GHRC holding that there was no 

Title V1 violation. During a March 16, 1977 deposition of 

Dr. Alfonso Holiday HEW became aware of a new allegation 

concerning an alleged reduction in the availability of 

radio-therapy services at Gary Methodist. HEW initiated an 

investigation of this new allegation. 

In April, 1977, Mr. David Tatel became Director of the 

Office for Civil Rights. He realized that although there are 

general regulations, policy has not been developed in specific 

detail. He also realized that while HEW's regional office had 

been diligently investigating complaints, because there was 

no adequately specific policy, the standards under which they 

had been operating deserved bolstering and further scrutiny. 

He therefore did not allow the preliminary letter of findings 

to the GHRC's complaint to become final. He also felt that 

although the specific plaintiffs in this litigation had not 

exhausted their administrative remedies, that HEW's reorgani- 

zation and policy shift to the central office required that 

 



  

HEW treat the consolidated complaints in these cases as new 

complaints. This would enable HEW to gather the factual 

basis needed to make determinations using as a starting point 

the standards ostablished in the letter of findings to Wilming- 

ton Medical Center. > 

OCR also determined after consultation with the regional 

staff, the plaintiffs and the hospital that the problem was not 

one which could be solved without reference to the other hospitals 

in the area. It became clear that HEW should not prevent Broad- 

way Methodist from building additional beds or improving its 

Merrillville location without taking into consideration the 

competition from other hospitals in the area. It also be- 

came clear that a determination of whether any one hospital 

had caused or contributed to the apparent segregation in 

Gary would result in allegations that other hospitals had 

done the same thing, or that it was necessary to perpetuate 

this situation for fear of competition from other federally 

funded hospitals. HEW also determined that no remedy would 

be ultimately successful (i.e., ending any discrimination 

while allowing the hospitals to remain viable) unless all 

hospitals were a party to that remedy so that a consistent 

policy could be determined as to all of the hospitals in the 

area. HEW therefore decided to conduct a Title VI review of 

all hospitals in Lake County. That review has now begun and 

1s expected to be completed in late March. 

On September 7, 1977 this Court set this case for trial 

on December 5, 1977. HEW respectfully requests that the trial 

be postponed until after the review is completed. In light of 

HEW's offer to stipulate that it would not enforce 42 C.F.R. 

  

*/ WMC has proposed to move part of its facility to a suburban 
location. After a civil rights review, HEW determined that 
the proposed plan would violate Title VI and required certain 
assurances and plans from the hospital. A copy of the letter 
of findings is attached. 

 



  

§100.109, the provision which requires Methodist Hospital to 

obligate its funds by the end of March, until the Court has 

entered a final judgment, the hospital will not be harmed by 

this extension, and HEW will have an administrative record 

for this Court to review. Moreover, if this Court does not 

stay its hand, the doctrine of primary jurisdiction will be 

frustrated, and HEW will be put in the unenviable position of 

completing the review after the responsibilities of one hos- 

pital has been adjudicated. This could result in HEW either 

not being able to solve this potential problem equitably or 

in requiring inconsistent actions by the different hospitals 

in the area. Finally, HEW will be unable to fully participate 

in the trial because. its factual basis cannot be completed in 

light of the two months of data required to be submitted by 

all hospitals which HEW will utilize as a basis for gathering 

further information. The Secretary of the Department of 

Health, Education, and Welfare therefore respectfully requests 

that the trial date established by this Court be postponed 

pending completion of the administrative review. 

ARGUMENT   

I. This Court Should Stay Its Hand 
Until HEW Has An Opportunity To 
Exercise Its Primary Jurisdiction 
  

The doctrine of primary jurisdiction is closely aligned 

to that of exhaustion of administrative remedies. It con- 

stitutes a judicial recognition that in numerous situations, 

Congress has established a scheme whereby the expertise of 

an agency can be first exercised in order to avoid unneces- 

sary litigation and to provide a record which the Court can 

review. Additionally, the agency can coordinate its deci- 

sions nationally so that consistent determinations can be 

made. 

 



  

As the United States Court of Appeals for the Seventh 

Circuit said in Interstate Commerce Commission v. All-American, 
  

  

Inc., 505. 7.24 1360, 13562 {7th Cir, 1974): 

The doctrine of primary jurisdiction 
determines whether the federal court will 
refrain from exercising its unquestioned 
jurisdiction over a dispute until after an 
administrative agency has resolved some 
question arising in the proceeding before 
the court. It represents a recognition of 
the need for an orderly coordination between 
the functions of court and agency in securing 
the objectives of their often overlapping 
competency. Far East Conference v. United 
States, 342 U.8. 570, 575," 72:8. Ct. 492,96 
L.Ed. 576 (1952). The doctrine, first snun- 
ciated in Texas & Pacific R. v. Abilene Cotton 
011. Co., 204 U.S. 426, 27 S.Ct, 350, 51 1.74. 
553 (1907), has been developed and refined in 
subsequent decisions. '[I]ln cases raising is- 
sues of fact not within the conventional exper- 
ience of judges or cases requiring the exercise 
of administrative discretion, agencies created 
by Congress for regulating the subject matter 
should not be passed over.' Far East Conference 
¥., United States, supra, 342 U.S. at 574, 72 

S.Ct. at 494,  'Primary jurisdiction . . . 
applies where a claim is originally cognizable 
in the courts, and comes into play whenever 
enforcement of the claim requires the resolu- 
tion of issues which, under a regulatory scheme, 

have been placed within the special competence 
of an administrative body. .. .. .'. United 
States v. Western P.R. Co., 352 0.8. 59, 64-65, 

77. 8.Ct. 161,465 1 1.84.24 126 (1956). 

  

    

  

  

  

The instant case is precisely the kind of situation to 

which this doctrine should apply and HEW is in the process 

of preparing a factual basis for this Court to review. 

Congress has provided an elaborate mechanism for terminating 

funds to recipients such as Methodist Hospital which gives the 

hospital every opportunity to voluntarily comply with Title 

VI requirements. It also gives HEW the opportunity to explore 

innovative methods of solving Title VI and §504 problems while 

assuring consistency between different program areas and dif- 

ferent recipients. 

 



  

Although plaintiffs have only made general allegations 

concerning the hospital's provision of health care, they have 

made it clear that the remedy which they envision entails 

preventing Broadway Methodist from further expansion and en- 

suring that Gary Methodist is the primary facility with Broad- 

way being only a satellite. HEW is concerned that that will 

result in Broadway becoming a totally white hospital. It may 

also mean that whites around Broadway will not go to Gary 

Methodist, but will instead go to other suburban hospitals. 

It may mean that physicians now at Broadway will simply move 

their practices to other hospitals. And, it may mean that 

eventually neither Broadway nor Gary will remain open. The 

other alternative (assuming some violation of Title VI as 

plaintiffs allege) would be to either "forgive" the violation 

(a result contrary to Congress' intention) or to simply termi- 

nate federal financial assistance (a solution which could also 

result in both hospitals closing). 

HEW determined that there was yet another alternative: 

to find a remedy whereby all hospitals would be equally af- 

fected so that one hospital's compliance with Title VI would 

not result in an economic advantage to the others. This deter- 

mination was made after it appeared that all hospitals in the 

area were actively competing with each other for staff and 

patients and that if a civil rights problem existed, it was 

probably caused or aggravated by this competition. 

The Department of Health, Education, and Welfare is there- 

fore in a very awkward position by virtue of this Court's 

September 9, 1977 ruling setting this case for trial on 

December 5, 1977. Unless both HEW and the Court found no 

 



  

discrimination, or unless this Court should find discrimina- 

tion and leave the remedy to HEW, requirements set by the 

Court for Methodist Hospital could conflict with remedies 

devised for the other hospitals by HEW. If this Court should 

determine that Methodist 1s not discriminating and HEW should 

determine that all hospitals have contributed to a violation 

of Title VI, the remedy devised by HEW could not include Gary 

Methodist. Such a result should be avoided. 

One of the difficulties in this case arises from the 

Fact that it is procedurally complicated - a fact HEW tried 

to obviate by initiating its review. These plaintiffs have 

not exhausted their administrative remedies and their claims 

are apparently somewnat different from the claims raised by 

the Gary Human Relations Committee. While HEW has withdrawn 

its Motion to Dismiss for failure to exhaust administrative 

remedies, that withdrawal was done in order to expeditiously 

settle this complaint through the administrative channels. 

HEW therefore requests that their administrative review pro- 

cess be allowed to proceed to conclusion prior to any deter- 

mination by this Court. 

II. Defendants Will Not Be 

Injured By This Extension 
  

The Secretary has offered to enter into a stipulation 

with both plaintiffs and defendant hospital that it will toll 

the time for enforcement of 42 C.F.R. §100.109(a), the provi- 

sion which requires Methodist Hospital to obligate its funds 

by the end of March, until this Court has entered a final judg- 

ment. This would mean that the remainder of the hospitals’ 

additional six months would not begin to run until the date 

this Court enters a final order. 

 



  

HEW offered this stipulation because of the importance to 

both national civil rights policy and to the Lake County area 

Of completing its civil rights review. Such a stipulation has 

never before been offered and will not again be offered except 

in an extreme situation like that present here. 

Although the hospital has neither accepted nor rejected 

this offer of stipulation, it appears clear that if it is 

harmed by this continuance, it is an injury of its own making. 

The reason for holding a trial prior to HEW's final adminis- 

trative action was to not prejudice the hospital's §1122 ap- 

proval. The stipulation removes the need for this immediacy 

and consequently HEW should be allowed to fulfill its Title VI 

responsibilities, and exercise its expertise so that if a 

judicial determination need ever be made, it can be done on 

the basis of a thorough administrative record. 

CONCLUSION 
  

For the foregoing reasons, defendant Joseph Califano 

respectfullly requests that the trial date be postponed until 

it has completed its administrative review. 

Respectfully submitted, 

{A | nn i / 7 / /| 

FGNhe NG WX iin Dr be nc i | CW 
gd 

  

BARBARA ALLEN BABCOCK ok 
Assistant Attorney General 

  

RICHARD I. KEISER 

United States Attorney 

OF COUNSEL: 

  

JEFFREY CHAMPAGNE iid ds Go ilinen | on 
U.S. Department of DAVID J. ANDERSON ! 

Health, Education 

and Welfare 

  

- 
; 7) Yi ) oN ( /) / / 

MARVIN 3. Savy 1D aloe (4 Wet lis | Gn 

Regional Attorney BARBARA B. O'MALLEY a 

EDWARD L. KOVEN 

Assistant Regional 
Attorney 

-10- 

 



  

Department of Health, 
Education and Welfare 

300 South Wacker Drive 

18th Floor 

Chicago, Illinois 

Vtg uF, y £35 dil snnn (AAO 0 - oh . NALD 
  

REBECCA L. ROSS 

Attorneys for Defendants 
Attorneys, Department of 
Washington, D. CC. - 20530 
Telephone: 739-2230 

Be 

Justice 

 



y ? 7 
Ret sie mal 4 ad Dat 

ris a | 4 a YY 1 im a i 
| IRN 

DEPARTMENT OF HEALTH. EDUCATION, AND WELFARE 
REGION II? 

35335 MARKET STREET 

  

4 PHILADELPHIA, PENNSYLVANIA 19101 

July 5, 1977 OFFICE OF THE SECRETARY 
OFFICE FOR CIVIL RIGHTS 

MAILING ADDRESS 
- 

5. P.O. Box 13716 

Mr. James A. Harding, President BaP HIA ooh 
Wilmington Medical Center, Inc. 
501 W. 14th Street 

Wilmington, Delaware 19899 

Dear Mr. Harding: 

This letter contains the findings of the Office for 
Civil Rights (OCR), of the Department of Health, Edu- 
cation, and Welfare (HEW) concerning Wilmington Medical 
Center's Plan Omega. 

Y¥. Introduction 
  

A. Background   

"Plan Omega”, as described by the Wilmington Medical 
Center (WMC), is a "long-range construction and moderni- 

: zation program® which includes constructing "a new 
800~bed community hospital/tertiary care center on a 
200-acre site at the intersection of Ogletown-Stanton 
and New Churchman's Roads in New Castle County (hereafter, 
"Southwest Division], and remodeling the Center's present 
Delaware Division as a modern, 250-bed community 
hospital /primary care center, but also with emergency 
tertiary care available." 1/ The latest in a series 
of proposals by WMC's Long Range Planning Committee 
Plan Omega was approved by the Board of Directors on 
October 15, 1975, 

  

[} 

2, 

1/ Document entitled "Wilmington Medical Center - An Update on 
Plan Omega”, Apri 11, 1977, p. 1. 

 



  

Page 2 

On September 10, 1976, a group of organizations and in- 
dividuals brought suit against WMC and several governmental 
entities, including the United States_Department of Health, 
Education, and Welfare, on the grounds that Plan Omega 

violated, inter alia, Title VI of ‘the Civil Rights Act of 
1964, 42 U.S.C. §20004, and Section 504 of the Rehabilitation 
Act of 1973, 29 U.3.C. $794. « 2/ BREW was named as a ¢o- 

defendant because it allegedly "approved" Plan Omega pursuant 
to Section 1122 of the Social Security act, 42 §.5.C. §1320a-1. 

  

OCR commenced a review of Plan Omega on January 19, 1977. 

On February 18, 1977, at the Court's request, the Secretary 
filed a report detailing the investigative plan to be 
used by OCR in conducting its review. 3/ The plan was 
later augmented to include a hospital-conducted survey 
of modes of transportation used by patients coming to 
WMC for one month ending April 30, 1977, as well as a study 
of transportation modes used by employees of WMC on one 

  

particular day. OCR also undertook a study of transportation 
to the proposed Southwest Division as currently projected by 
area trensportation providers, as well as an examination of the 
capability Of WMC itself to provide transportation to patients, 

visitors and employees. 

In conducting the esnips OCR staff 
team was mindful of a mber of factors reflecting the 
present and future hanson care needs of New Castle County 
and WMC's role in providing that care. Among those factors 
are the following: : 

2/ NAACP, et al. v. Wilmington Medical Center, et al., Civil       a 

Action No. 716-298 (D. Del.) 

_3/ ‘Report to Court Concerning Investigation of Plan Omega with 
Respect to Alleged Title VI Violation. 

 



    

(1) WMC now provides approximately 75% of the inpatient hospital care in the area; the 
remaining 25% is provided Principally by St. Francis and Riverside hospitals, both located in the City of Wilmington, and to a lesser degree by Union Memorial Hospital in Elkton, Maryland and Chester-Crozer Hospital in Chester, Pennsylvania. With regard to clinical services and tertiary care, WMC's role 1s even more significant. 

{2) There ig a generally recognized need for viable and accessible hospital services to the people of the communities of southwestern New Castle County. This need has been acknowledged by the Bureau of Comprehensive Health Planning, the Suburban County Hospital Task Force, and the Plaintiffs in the above cited litigation. Among most of these sources there is general acceptance of the proposition that either under the aegis of WMC, or under other sponsorship, a hospital facility located in or near the southwestern communities of New Castle County will be built in the not-too-distant future. 

(3) WMC must provide for improvements Of its existing facilities in order to meet various health and safety requirements. To accomplish this, while building for the future, WHC must maintain a sufficiently sound financial base. 

{4) The appropriate service area to be considered 1s New Castle County, since approximately 85% of WMC's current patient population resides within the county. 

The OCR staff team reviewed the allegations of Plaintiffs in the above-cited lawsuit, their responses to WMC's interrogatories, and other information which Plaintiffs made available to us. 

Particular assistance in appraising the relationship of all of the above factors to Plan Omega was provided by Dr. Montague Brown, Professor of Health Administration at. the Duke University Medical School, and his associates. 

 



  

Page 4 

We have concluded that Plan Omega contains many features 
which will assist in assuring that WMC retains its ability 
to deliver high quality health care to all segments of the 
New Castle County population, equally and in settings which 
are not racially isolated. However, other aspects of Plan 
Omega threaten this goal and must be altered by way of 
Plans and assurances (to be discussed, infra) to avoid 
a finding of noncompliance with Title VI of the Civil 
Rights Act of 1964 and Section 504 of the Rehabilitation 
Act of 1973. Absent such measures, OCR believes that the 
new facility is likely to serve only a very small segment 
of the county's minority population. Therefore, health service 
delivery to the county's minority population would become 
almost exclusively the responsibility of the older, urban, 
and increasingly racially identifiable and segregated facility. 

B. Legal Standard 
  

Our review was based on Title VI of the Civil Rights Act 
of 1964 and Section 504 of the Rehabilitation Act of 1973. 
$601 of the Civil Rights Act of 1964, 42 U.5.C. §200043, 
provides: 

0 person in the United States shall, on 
the ground of race, color, or national 
origin, be excluded from participation in, 
be denied the benefits of, or be subjected 
to discrimination under any program or activity 
receiving Federal financial assistance. 

Section 504 of the Rehabilitation Act of 1873, 29 U.S.C. 5754; 
to the same effact provides: 

[N]Jo otherwise qualified handicapped 
individual. . .shall, solely by reason of 
his handicap, be excluded from participation 
in, be denied the benefits of, or be 
subjected to discrimination under any 
program or activity receiving Federal 
financial assistance. 

With respect to both Title VI and section 504, the 
Department has adopted regulations which prohibit site selection 
decisions that have the effect of excluding individuals from 
federal assisted programs, or otherwise discriminating against 
them, on the grounds of race, national origin or handicap in 
any programs receiving federal financial assistance. 

 



  

Page 5 ” 

F 

The Title VI regulation, at 45 C.FP.R. §80.3(1) (3), 
provides: 

In determining the site or location of a 
facility, an applicant or recipient may not 
make selections with the effect of excluding 
individuals from, denying them the benefits of, 
or subjecting them to discrimination 
under any programs to which this regulation 
applies, on the ground of race, color, or 
national origin; or with the purpose or 
effect of defeating or substantially 
impairing the accomplishment of the 

objectives of the Act or this requlation. 
(emphasis added) 

  

  

  

  

  

  

Similarly, the §504 regulation, at 45 C.F.R. §84.4(b)(5), 
provides: 

In determining the site or location of 
a facility, an avplicant for assistance or 

a recipient may not make selections (i) that 

have the effect of excluding handicapped 
persens from, denying them the benefits of, 

or otherwise subjecting them to discrimina- 
tion under any program or activity that 

receives or benefits from Federal financial 
assistance or (ii) that have the purpose 
Or effect of defeating or substantially 
impairing the accomplishment of the 
cbjectives of the program or activity with 
respect to handicapped persons. 

The following additional sections of the regulations 

are relevan our review, since Plan Omega involves 
both site s and also the overall administrative 
structure o ho: Facility. OD

: 
=~
 

The Title VI regulation, at 45 C.P.R. §80.3(b){2), 
provides: 

3 

A recipient, in determining the types of 
services, financial aid, or other benefits, 
or facilities which will be provided under any 
such program, or the class of individuals to 
whom, or the situations in which, such services, 
financial aid, other benefits, or facilities 

will be provided under any such program, or the 

 



  

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Page © 

class of individuals to be afforded an opportunity 
to participate in any such program, may not, 
directly or through contractual or other 
arrangements, utilize criteria or methods 
of administration which have the effect 
of subjecting individuals to discrimination 
because of their race, color, or national 
origin, or have the effect of defeating or 
substantially impairing accomplishment of 
the objectives of the program as respect 
individuals of a particular race, color, 
or national origin. 

Similarly, the §504 regulation, at 45 C.F.R. §84.4(b) (4), 
provides: 

A recipient may not directly or through 
contractual or other arrangements, utilize 

¢ basis of handicap, (ii) that have 
2 Or effect of defeating or sub- 

mpairing accomplishment of the 
f the recipient's program with 

handicapped persons, or (iii) that 
e discrimination of another 
both recipeints are subject to 
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ur view that a prima facie case of discrimina- 
tion of these regulations is made by showing 
ular action proposed by a recipient of Federal 

portionately burdens members of a racial 
oup, or the handicapped. This Office 

recognizes, however, that an action which has a dispro- 
portionate adverse impact upon an identifiable racial or 
ethnic group, or on the handicapped, is not discriminatory 
1f there are compelling justifications for it. Once 
a disproportionate racial impact is showh, the recipient 
must bear the burden of demonstrating (a) that the impact 
is justified by important non-race related goals which 
the law recognizes and (b) that there are no alternative 
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Page 7 

accomplishment of these goals without disproportionate 

impact. A similar showing of necessity is required where 

impact upon the handicapped is concerned. In the context 

of hospital site selection, the relevant goals are related 

to the delivery of quality, accessible, integrated health care. 

As this letter will indicate, OCR has found that, absent 

additional actions and assurances, implementation of Plan 

Omega, as presently conceived, would violate Title VI and 

Section 504, since the proposed relocation (1) would have 

a disproportionate impact on the basis of race and handicap 

and (2) that degree of impact is not justified by sub~- 

stantial considerations unrelated to race, national origin 

or handicap. 

Inasmuch as our findings were reached after taking into 

account overall health planning considerations and supplementary 

information provided by WMC on a variety of subjects, _4/ OCR’ 

investigation has weighed some, if not all, of the relevant 

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portionate impact. WNC will, of course, have an opportunity 

to present further evidence in this regard if it so chooses. 

We have taken into account WMC's claims regarding (1) the 

verall health benefits that would accrue to the community 

under Plan Omega, (2) alternative sites available and the 

nature of the reasons for rejecting them, and (3) steps that 

would be taken in conjunction with Plan Omega to ameliorate 

the dispropecrtionate impact. 

II. Demographics (Racial and Ethnic Minority Population) 
  

In assessing the impact of Plan Omega upon the black 

population of New Castle County, an array of racial 

and ethnic demographic data was compiled and analyzed. 

Using United States Census Bureau data, both with respect 

to the county as a whole and with regard to mail zip code 

zones, OCR was able to determine the racial and ethnic makeup 

&-
 

  

2 8/ WMC's legal and administrative staff have been enormously 

cooperative in promptly providing any information OCR 

requested. This cooperation is greatly appreciated by OCR. 

 



  

Page 8 

>” 

and concentration of New Castle County. Using either the 
concentric circle method 5/ or the quadrant method 6/, 
as appropriate, it was possible to ascertain the dis- 
tribution of the various racial and ethnic populations in 
guestion as well as the proximity of those populations to the 
Delaware Division and to the proposed Southwest Division of 

WMC. 

According to the 1970 census, New Castle County has a 
population of 385,856, 0f which 13.1% is minority. The City 

cf Wilmington's total population is 80,386 including 35,450 
minorities, or 44.1%. While the county as a whole experienced 

a growth of 25.5% from 1960 to 1970, Wilmington lost 16.1% of 
its population during the same periods, thus indicating a 
population shift away from the city. An analysis of population 
of the county under the quadrant method indeed reveals that 
a near majority (48.6%) lives in the Southwest area. However, 
using the concentric circle method, the data clearly show 

that a majority of the county's posuls tion resides nearer to 
the Delaware Division than to the Southwest Division. In 

fact, approximately four and one half times as many persons 

  

5/ The concentric circle method of analysis involves drawing 

a series of concentric circles, all the points of which are 
equidistant from the center, with the center being either 
the Delaware Division or the Southwest Division, as 
appropriate. It is then possible, using Census data, to 
determine how many persons live within a radius of a 

given number of miles of either division. 

6/ The quadrant method involves aividing New Castle County 

into four separate quadrants with the City of Wilmington 
serving as the central focal point. The population of 

Wilmington is not considered to be included in any of 
the four qu 1adrants but is considered separately from that 

of each of the four quadrants, which are as follows: 
(1) Northwest (Greenville), (2) Northeast (Brandywine), 
(3) Southwest (Stanton, Middletown, Elsmere), and (4) 
Southeast (New Castle). By then associating those zip 
zones with the appropriate quadrant, we were able to 
calculate the populations of each of the four quadrants 

plus Wilmington itself. 

 



  

Page 9 

live within 2-1/2 miles of Delaware Division as live within 
. that distance of the proposed Southwest Division. Indeed, for 
blacks, Spanish-surnamed, aged, and disabled, the patterns are 
even clearer. For example, approximately forty times as 
many blacks live within 2-1/2 miles of the Delaware Division 
as live within 2-1/2 miles of the Southwest site. While the 
disparity for all groups diminishes as the distance from 
the two sites increases, it is clear that, in terms of 

proximity, the relocation provosed under Plan Omega will 
disproportionately impact upon the above-mentioned groups. 

Factors other than distance which affect accessibility, 
such as availability of privately-owned transportation, 
reinforce rather than diminishe this disproportionate impact. 
According to the Census, 74.8% of all households in New Castle 
County without automobiles reside within 2-1/2 miles of the 
Delaware Division. 

n 1:71. Access 

  

  

  

A. Discrimination on the basis of Race, Color, 

Cr National Origin 

Undzr 45 C.F.R. §80.3(b)(3), quoted above, where a 
recipient selects a site for ons of its facilities and access 
to services available at that site is disproportionately 
limited for members of a particular racial or ethnic group, a 
prima facie violation of §30.3(b){3), and hence Title VI, 
occurs. Tae primary access problem presented by Plan Onega 
involves transportation to the proposed southwest site. 

In considering this issue, we have examined the existing 
and proposed transportation matrix, the types of public 
and private transit services available (including those 
currently prov ided by WMC), the modes of transportation 

Gin r 
utilized by WIC patients during a selected recent period, 

and a Seo ention of modes of patient transit to the Southwest 
site. For purposes of this analysis, OCR accepted the 
inclusion, as part of Plan Omega, of WMC pdans for providing 
transportation as those plans were expressed in a June 7 
letter from George H. Larson, Director of Plant Operations, 
to William Wade, Esquire, a copy of which was given to OCR. 
A review of the above information leads us to conclude that, 
insofar as transportation is concerned, Plan Omega would 

 



  

  

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Page 10 

not, if coupled with plans and assurances to be discussed, 
infra, violate Title VI. 

Our analysis of the transportation matrix, i.e., the 
system of roads and highways in the vicinity of the proposed 
Southwest site, indicates an overload of present capacity. 
OF the six major SN in that vicinity, only two, viz., 
I-95 and New Churcaman's Road, are experiencing traffic 
volume below capacity. Soversi of the other roads are handling 
at least one and one half times their present capacity, and 
therefore are considered to be above the critical level. 
Projections we received indicate that the situation will become 

more severe by 1980. However, Route I-95 will remain at or 

below capacity and has an eleven-foot-wide shoulder to 

facilitate movement of emergency vehicles. Proposed improve- 
ments to Route 7 will coincide with the construction of the 
proposed Southwest facility and, hence, may create minor but 

remediable impediments to the flow of traffic on one approach 
route to the site. 

Our review of the array of county transportation services 
which now serve or which by 1980 could serve the proposed 
Southwest site shows that the most reliable, most efficient and 
least expvensive transportation between divisions is now and will 
in the future bz provided by WMC itself. The other modes of 
transit examined were taxis, DART, DAST, VIPS, and private autos. 
Taxls ars expensive, costing $18.00 to $19.00 on the average 
for a round trip from downtown Wilminchon to the proposed 
Southwest site. The cab companies said that it would be 

possible to run a shuttle service to the Southwest site, 
Similar to the airport shuttle, at a cost of 50%. 0Ff regular 
cab fare; however, no such proposal has been formally made. 

At present, DART (Dz2laware Area Rapid Transit) has no bus 

route serving the site, and either of its two alternatives 
rvice to the site involves lengthy routes and 

considerable time. DAST (Delaware Authority for Specialized 
Transportation) is designed to serve the handicapped and 
elderly only and does so generally only upon advance telephone 
request from an agency representative. Despite certain proposed 
amendments to its enabling legislation, DAST will continue to 
serve only the handicapped and elderly (see discussion, infra). 
Finally, a new concept in transit service called VIPS (Vehicular 
Individual Profile System) is a computer assisted method to 
match a handicapped Delaware resident with the appropriate mode 
of transportation and provide for payment through coupons, thus 
rendering the service available even to the very poor. Illowever, 

 



  

Page 11 

VIPS would, if implemented, serve only the handicapped. 

Moreover, many of the above concepts are dependent upon 

funding which is by no means certain to be provided. 

Thus, in light of the demographic data, it is likely that, 

if these existing or proposed New Castle County transportation 

services are all that will be available, the impact of the 

transportation problems resulting from the relocation under 

Plan Omega will fall disproportionately upon the minority 

populations of the county. However, as noted above, WMC 

through its Director of Plant Operations indicated that 

it would provide the following transportation in connection 

with Plan Omega: 

1. A shuttle will run between the two divisions every 

fifteen minutes between the hours of 6:00 am and 

9:00 pm. 

2. The service will run at least five days per week 

and possibly extend to weekends if the need 

warrants. 

3. A minimum of three shuttles, each with a capacity 

of twenty to thirty passengers, will operate 

between the divisions. 

4 the shyptet le vehicles will be p 
od Y 

roperly equipped 

rt handicapped persons. 

-m 

to determine the approximate number of persons 

without reliable means of transportation to the 

hwest site, WMC, at our request, conducted a one- 

on patient, employee and visitor transportation. 

In © 

who would 
proposed S 
month surv 
After subt 
to be served at Delaware Division), we found 1069 daily person- 

trips which would be without reliable transportation to the 

Southwest site, (all those who walked, were driven by a non- 

household member, or who took a bus or taxi to the Delaware 

Division during the period of the survey). Therefore, 15% 

of the 6976 person-trips per day to Delawarg Division would 

be without reliable means of transportation fo the Southwest 

site. However, under Plan Omega, WMC itself, irrespective 

of all other modes of transit, would have the capacity to 

transport at no cost to the passenger from 1800 to 2700 

person trips per day, or from 1-1/2 to 2-1/2 times the 

number of patients, visitors, and employees whom 

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Page 12 | . . 

we project would be without other reliable means of trans- 

portation. We note, however, that these overall figures 
do not take into account peak load periods for patients, 
employees, and visitors. Such needs must be taken into 

account. 

Although this analysis of access to the proposed Southwest 

Division has focused upon available modes of private and public 

transportation, OCR recognizes that a hospital 1s not inherently 

responsible for meeting the transportation needs of its patients 

and visitors. On the other hand, when a hospital which receives 

federal financial assistance cndertakes a voluntary action, 

such as Plan Omega, which shifts medical facilitles and resources 

to a location relatively inaccessible to identifiable minority 

groups absent special provision of transportation, the hospital 

bears some responsibility to take steps adequate at least to 

maintain the preexisting level of access for minority groups. 

in defining the appropriate responsibility of WMC, OCR has 

considered a variety of factors, including, among others, the 

existence of other hospitals or clinics, the extent of the 

facility's service area, the currently available modes of access 

to the existing facilities, and the resources being relocated 

from the current facility. We conclude that, if WMC provides 

an acceptable plan for sufficient hospital-owned transportation, 

as well as the other assurances discussed below, Plan Omega 

would not (insofar a= access of minority population groups 

is concerned) viclate Title VI or the site selection re gulation, 

AS C.P.R. 880.3{b1(3). While minority group patients admitted 

to the Southwest site will suffer relatively greater incon- 

venience than New Castle County whites -- for example, an 

increase in travel time for non-emergency cases of approximately 

25 minutes -- our investigation has revealed no significant, 

predictable harm to the health or safety of minority group 

patients, since major clinic and emergency room facilities will 

be maintained at the Delaware Division. Thus, OCR concludes no 

estimable impact of Plan Omega upon the willingness of minority 

group citizens to seek health care can be reliably identified. 

Accordingly, OCR has concluded that although the demographic 

data suggest a disproportionate impact in terms of access for 

the minority population, this burden or inconvenience will 

not have the effect of "excluding individuals from, 

denying them the benefits of, or subjecting them to discrimi- 

nation under federal programs. This conclusion is, of course, 

subject to WMC's willingness to (1) bind itself to carry 

out the transportation plan set forth in the Larson letter, 

regardless of cost (OCR believes that the services 

described in the letter are financially feasible for WMC) 

 



  

  

{ 

Page 13 ’ 

and (2) execute the plans and assurances described, infra. 

B. Discrimination Against the Handicapped 

The site selection regulation promulgated pursuant to 
section 504 of the Rehabilitation Act of. 1973 and set forth. at 
45 C.F.R. 8$84.4(b)(5) im; taken from, and is almost identical 
to, the Title VI site selection regulation quoted supra. 

OCR encountered great difficulty in obtaining data on the 
incidence and distribution of handicapped persons in New Castle 
County, largely due to the fact that "handicapped person" was 
only very recently defined by regulation and due to the fact 
that the very definition itself did not permit a simple "head 
count" survey. Nevertheless, based on data avallable to us, 
OCR believes that handicapped persons are located in greater 
concentrations near the Delaware Division than near the 
Southwest location. Thus, the preceding Title VI discussion 
of the access question and the finding with respect thereto 
applies to our concerns about discrimination against the handi- 
capped. Since WMC plans to make transit accommodations for more 
persons than appears necessary, and since it plans to provide 
appropriate transportation for handicapved persons, we fing 
(subject to appropriate binding assurances) no impediment to 
access insofar as transportation to and from the new site is 
concerned and hence no violation of 45 C.F.R. §84.4(b)(5) in 
that regard. 

HEW facilities engineers have examined the plans for 
construction of the Southwest Division and have identified 
a series of deficiencies and architectural barriers preventing 
access by the handicapped. Until the plans and specifications 
are altered to correct these deficiences, Plan Omega cannot 
be viewed as complying with $504. 

Plan Omega also contemplates a renovation of the 
Delaware Division. At present, the architectural plans for 
the renovation are not yet complete. When they become available, 
HEW facilities engineers will inspect them to insure compliance 
with required standards; this evaluation would include, but 
would not necessarily be limited to, parking facilities, res 
rooms, water fountains, ramps, walks, stairs, entrances, and 
door handles. WMC's compliance with §504 cannot, however, 
be postponed until the renovation. Under the applicable 
regulations, WMC must achieve "program accessibility" no 
later than August 2, 1977, eliminate all Structural barriers 
within three years, and have a transition Plan by December, 1977 

 



  

Page 14 

for the accomplishment of this latter goal. Plan Omega's 
acceptability when revised in accordance with the 
other concerns expressed in this letter is contingent, 
therefore, upon (1) WMC's commitment to, or showing of, 
"program accessibility" and (2) presentation either of a transition plan which meets the requirements of the §504 
regulations or completed architectural plans for the 
renovation of the Delaware Division showing removal of all 
physical barriers within the three-year time period.*/ 

Delivery of Services: 
IV. Segregation, Quality, and Continuity 
  

  

A. Discrimin 
  

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Ich discrimination can be 
facility (as discussed above 
ulting from the location of two or more separate 
Bh render like services. OCR's early projections made on the 1s of current inpatient utilization of servi and its init ungerstanding of the proposed location o services under Plan Omega, did not appear to create a 

problem in this regard. However, recent information provided 

The Ti 
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X/ an Issue concerning the handicapped other than the 
transportation issue, viz., staffing and communication, Presents immediate compliance problems. While this investi- gation does not constitute a complete compliance review Of WMC as it is presently constituted, some Section 504 areas in which WMC would currently be out of compliance and which are not addressed by, or do not appear to be destined for correction under, Plan:0Omega were considered and are noted as compliance issues. - Staffing to facilitate communication with handicapped persons, particularly blind and deaf persons, 1s now nearly non-existent at WMC, largely owing to a previous lack of standards. Since Plan Omega includes no reference to these problems, WMC must be deemed out of compliance with Section 504 and an assurance that WMC will meet all Section 504 requirements in this regard will be required in order that WMC come into compliance. 

  

43 C.E.R.i8$80.3(b3(3}, 

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A 

Pl 

ds us to conclude that Plan Omega does not incor- 
ficient safeguards to avoid an unlawful S€gregative 

Under Plan Omega, there will be 255 beds devoteg to 
inpatient Services at the Delaware Division ang 792 beds are 

Blanned for those services at the Southwest Division. WMC 
document entitled "pj 1lity and Service Location™ (February 
18, 1977). Specia ed’ beds have been grouped as follows 
for the two Proje d locations: 

Delaware Division (downtown Wilmington) 

—=227alg Uivision 

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Family Practice - 28-31 Beds Surgery - 58-67 Beds Medicine - 68-74 Beds Psychiatry ICS~ICcy 23 Beds Emergency Roonm Holding - ig Medicine 188, Coco, 10h 43 Surgicenter - 12 Beds Surgery ICU - 18 Beds 

RE a RR NET Se TOTAL - 250 beds minimum 

Southwest Division (Stanton) 

  

OB/GYN, CYN, OB = 132 Beds Pediatrics, including Hurserjes - J15 SIC, MICH, OCU - 162 Beds Surgery - 134 Beds Medicine - 349 Beds 

SY Tm 

TOTAL - 792 beds minimum 

OCR collecteg data on inpatient admissions from December 1, 
1976 through February 1977 in order to evaluate inpatient care 
both Presently and jin the future, Our initia] Projections for 
inpatient Care were based op the SUppositidn that Certain 
inpatient Services were to be offered Only at one of the 
two locations, ag described in Plan Omega, By assigning the 
Patients who, during our Study Period, received Services 
which under Plan Omega would be offered at a particular 
location, we were able to construct ga Patient profile by 
face for each site location. This Profile, which was based 
On an assumption that ail Patients admitted for ja Service 

 



  

Page 16 ; : 

which was offered "primar ily" at a particular site would 
receive services at that primary site, shows the followin 

Inpatient Service by Race: Delaware Division 

  

Race No. Percent 

Black 740 5 16.1 
Puerto Rican 43 1.0 
White 3668 79.6 
Other 44 1.0 
Unknown -:1}] 2.4 

TOTAL 4606 100.0 

Inpatient Service by Race: Southwest Division 

    

Race No. Percent 

Black 911 16,5 
Puerto Rican 79 1.4 
White 4419 80.0 
Other 55 1.0 
Unknown 58 Jil 

TOTAL , 5522 100.0 

It appeared, based on these projections, that no 
segregative effect would result. We emphasize again, however, 
that these projections were based on the assumptions that 
(1) in the few instances where patients have a choice, thev 
will select the closest hospital, and (2) Plan Omega provides 
for little duplication of services. In the course of the 
investigation, we discovered through discussion with WMC 

‘officials that no services except outpatient "Siintes for 
the Disadvantaged" would be provided exclusively at the Delaware 
Division. The only non-duplicated in-patient services will 
be (1) obstetrics, (2) newborn nursery, (3) premature nursery, 
and (4) radiation therapy, all of which will be available 
exclusively at the Southwest Division. With respect to patients 
who will be admitted for a service which could be obtained 
at either location, admission is to be made on the basis 
of "physician option. 7/ 1t is our viewgthat this mode of 
admission offers opportunity for choices which could result 

  

1/ We include all services "primari L11y" located at one or 
the other division within the scope of physician 
option, because the hospital defines "primari ily” as 
referring to those services which have their headquarters 
at a particular location but for which patients can be 
admitted to either location. 

 



Page 17 a 
\ 

  

in the raci..ly disproportionate or segregated delivery 
of the duplicated services (particularly general surgery 
and general medicine) -- including all those services 
to be offered at the Delaware Division. 

OCR's initial projections of inpatient distribution by 
race were also based on the assumption that where services would 
be available at both locations, patients would be admitted to 
the facility closest to their homes. However, the white 
patients projected at the Delaware Division are, on the average, 
more affluent, have more automobiles, and hence, are more 
mobile than the minority population. Whites in the northwest 
quadrant EEA and the northeast guadrant (Brandywine) 
would therefore experience_comparatively little difficulty 
in going tc the Southwest Division, particularly in view 
of their accessibility to I-95, while blacks in the City, 
many of whom would be without their own transportation to 
the Southwest, might well opt for the Delaware Division. 
This disparity would in our opinion permit a higher white 
utilization of the Southwest Division and a correspondingly 
lower white utilization of the Delaware Division. While, 
at this point, there appears to be no real difference in 
the quality of services currently projected at the two si 
many patients might quite naturally equate newness with 
and would accordingly perceive the Southwest Division as 
the superior facility. In addition, we believe that some 
proportion of white patients may desire to avoid the Delaware 
Division because of the racial composition of the City of 
Wilmington. These assumptions reflect the experience in other 
communities. Thus, while the exclusive location of four services 
at the Southwest Division will prevent that Division from 
becoming an all white facility, the lack of inpatient services 
located exclusively at the Delaware Division, combined with 
New Castle County demographics and the mobility and factors 
mentioned above, could well produce a facility that has a 
disproportionately high percentage of blacks. 

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Wnile it is difficult to predict with precision the exten 
to which Delaware Division could become racially identifiable 
a black facility, we have been able to make a revised projection, 
based on an assessment of these additional factors and inferences 
drawn therefrom. Although physician option is a complex process, 
which may be affected by the location of the physician's 
office, the patient's residence, the preference and/or convenience 
of either or both the physician and the patient, the assessed 
degree of risk, and bed availability, certain conclusions may be 
drawn: For example, the Southwest Division would probably 
admit not only those patients receiving the four services mentioned 
above, all of which will be exclusively at Southwest, but 
also those children and adolescents admitted as general or 
medical surgical patients. Admission of persons of this age 

 



  

Page 18 

group to the facility which houses the specialities and 
sub-specialties peculiar to that age group is consistent 
with the concept of tertiary care as explained by OCR's 
consultant, Dr. Brown. 

OCR considere: 
patient population 
varying assumption 
admitting inpatient 
adult medical and 

On the basis of p 
specialized progr 
the Southwest Div 
other and unknown e 
to Delaware Division, ( 
(all but one of whom we 

t 

the possible racial composition of the 
at the Southwest and Delaware Divisions und 
about the exercise of "physician option" in 

Assuming (1) that one-half of the remaining 
gical patients at Southwest were identified 
med "high risk”, (2) that the array of 
reviously treated as assignable to 

etaln their white, Puerto Ricay 
y while all blacks are reassi 
and that all the Dupont patie 

Ee) are taken out of the 
Delaware Division coun sultant impatient racial 
configuration would be black at the Southwest Division and 
30% black at the Delaware Division. It should be noted that this 
latter projection yields a patient distribution of 7488 at 
Southwest and 2495 at Delaware, which is far more compatible with 
the 792/250 bed distribution than is the 5522/4606 patient 
distribution projec under OCR's initial assumptions. This 
would indicate that 
it might at first a 

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While a 30% b la inpatient population at Delaware Division, 
as opposed to a corr t 

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ponding 12% at the Southwest Division, 
would not render t elaware Division amenable to 
description as a "majority" black or "predominately" black 
facility, such a configuration clearly demonstrates a wide 
variance between the two divisions insofar as utilization 
by.blacks is concerned. 

In addition to the above-discussed problems of demographics 
and patient perceptions, almost all of the outpatient clinics will 
be located at the Delaware Division under Plan Omega. During the 
period from December 1976 through February 1977, 55.5% of the 
visits to these clinics, known as "Clinics for the Disadvant- 
aged" in Plan Omega, were made by blacks, while 6.1% of the 
visi were made by Puerto Ricans. Thus, more than three-fifths 

ts 

Of the 23,180 patient visits to these clinics made dur ing 
this three-month period were minority. The location of the 
Clinics (with the exception of 8 clinics comprising only 
2% Of the patient visits) at the Delaware Division thus 
insures a significant additional minority presence at that 

 



  

Page 19 

location. This additional minority presence must be weighed as a 

factor in the potential racial identifiability of the Division. 

The problem discussed above with respect to a 

services applies to ancillary services for non-clinic 

+ Under Plan Omega, only five ancillary services will b 

exclusively at the Delaware Division and ten exclusively 

Southwest Division, while twenty-five will be located at 

places. Considering only those 15 services which will be 

exclusively at Delaware or Southwest, OCR's survey from 

December 1976 to February 1977 showed that 12% of the pati 

visits to Southwest and 35% of the patient visits to Dela: 

would be black. This disparity is, as is the case with 

inpatient services (see discussion, above), likely to become 

significantly greater when the result of Shs latan op! 

assignment for the 25 duplicated services ls considere 

While racial identifiability itself can in some circum- 

stances be a violation of Title VI, §/ the consequences of such 

identifiability, particularly when coupled with the fact 

that the "minority" hospital is also the "ola" hospital, 

underscore the violation in this instance. The danger is that 

unequal distribution of new eguipment, physician preference 

and patient preference could have a snowballing effect in terms 

of deterioration of the Delaware Division, and could ultimately 

lead to its closure. While we again stress that this view of 

the ultimate result involves considerable speculation, we find 

that the duplication of medical and surgical services, the 

question of "primary availability” of services, and the "physicilan 

option" component combine to prevent a finding that Plan 

Omega complies with Title VI because of the grave risks that 

the Delaware Division will become a racially identified facility. 

There is another element to our concern: Initial 

jections of the expected utilization patterns were based on 

information supplied to us by WMC officials. These pro- 

jections Changed when it became apparent that WMC officials 

were far from unanimous in their explanations as to how 

  

-8/ This would typically depend on the organization of the hospital, 

the demography, and other local factors including the degree tO 

which the hospital's voluntary actions contributed to or 

caused the racial identifiability. 

 



  

[4 

Page 21 
: 

(1) As we mentioned earlier in this letter, there is 
general acceptance of the proposition that not only is there 
a need for a hospital facility in the Southwestern Part of New 
Castle County, but that such a facility will be built in the 
near future, if not under the aegis of WMC, then by someone els 
OCR was advised by members of the Suburban County Hospital Task 
Force that they had been approached by groups interested in 
building such ;3 facility. Moreover, the Bureau of Comprehensivy 
Health Planning has endorsed the Proposition that a hospital 
be built in that area. Were such a hospital independent of WMC 
WMC would lose a significant portion of its affluent clientele 
the new ang more convenient (for that Clientele) facilicy, 
with a concomitant loss of revenue. This would in turn impair WMC's ability to provide high quality care to those who are unable to pay high fees. "It is in the interest of al} residents of lew Castle County, including minority persons and handicapped Persons, to have a financially sound medical facility capable of delivering high 
quality comprehensive health care to all Persons, regardless of 
ability to Pay. Accordingly, to the extent that WMC's ability to Provide such care is contingent on jts Sponsoring 
whatever facility will pe built to the Southwest of Wilmington, sone disproportionate impact resulting from the 
Partial relocation is justified, 

(2) SIL is generally agreed that Provision of SOophisti- 
cated tertiary care Services represents an important improvemen 
in the delivery of healt} Care opportunities. Por reasons 
of economies of scale and quality, it is also accepted that 
tertiary services must be offered in groups or clusters, including as broad a range of such services 2% possible. Thus, 
OCR accepts the Position of WMC that if construction of a facility which could handle a Comprehensive set of tertiary 
Services ator near the Delaware Division location is not Possible, the Provosed size and Scope of the Southwest ity is reasonable, 

{3}, OCR also considered some factors which tend to mitigate the disproportionate impact of Plan Omega upon minority and handicapped persons, including Provision of 
transportation, Unitary administration, budgeting, ang Staffing. These are Critical, and oCR will insist on detailed 
Plans as well as assurances that WMC will miintain a unitary 
Structure for the two facilities, | Phe Same 1s true as regards transportation and access, as discussed above. 

The prima facie Case -of discrimination based upon the finding of disproportionate impact thus has not been 

a 
— 

Qa 
— 

I 4 

to 

4 
o 

 



    

  

  

Page 22 
’ 

satisfactory rebutted at present. Therefore, we find Plan 

Omega to be out of compliance with Title VI of the Civil 

Rights Act of 1964 and Section 504 of the Rehabilitation 

Act of 1973. 

VI. Conditions and Assurances for Title VI and Section 

504 Compliance - 

As indicated above, the Office for Civil Rights concludes 

that, as presently formulated and explained, Plan Omega would, 

if effectuated, violate Title VI of the Civil Rights Act of 19 

and §504 of the Rehabilitation Act of 1973. The shifting 

explanation of the Plan's provisions minimizing duplication 

of services subject to "physician option" at the two sites 

has been particularly troubling. 

OCR recognizes the justification for additional hospital 

capacity in the southwestern portion of New Castle County. 

Given adequate modification of Plan Omega -— LO De recorded 

in a comprehensive written description far mor specific 

than the current document -- as well as the binding commitment 

of WMC to take additional steps to minimize or eliminate 

the disproportionate impact of the relocation, OCR believes 

that construction and operation of a southwest facility withou 

violation of Title VI or §504 is feasible. 

To this end, we describe below some of the conditions and 

assurances which we believe are required if Plan Omega, as 

modified, is to be viewed as consistent with the Title VI 

and §504 obligations of WMC. See 45 C.F.R. $880.31), (P¥(3), 

84.4(b). In some instances, the commitment of WMC to the 

principle expressed in assurances, together with adequate 

provision for future monitoring and corrective action where 

required, will suffice. In others, OCR must have before 

review and approval in © 

Title VI and §504: 

1. 

handle normal and pea 

portation, as well as 

and Southwest Divisions. 

william Wade 

ae. 

6:00 a.m. 

rder to satisfy the requi r m 
L ef 

WMC must implement a transportation plan adeg 

k load patient visitor and staff trans— 

staff movement, between the Delaware 

on proposed by WMC for its 
ents of 

a 
= uat 

WMC's letter of ulune 7, 1877 to 

proposed the following: 

A shuttle will run between the two divisions 

every fifteen minutes between the hours of 

and 9:00 p.m. 

to 

  

(o
))
 

N
o



  

hb. The service will run at least five . 

days per week and possibly extend 

to weekends if the need warrants. 

c. A minimum of three shuttles, each 

with a capacity of 20 to 30 passengers, 

will operate between the divisions. 

d. The shuttle vehicles will be properly 

equipped to transport handicapped 

Data and plans available to OCR suggest that this capacity may 

be inadequate to handle patient, visitor, and employee peak 

loads. Of particular concern is transportation at the beginning 

and end of visiting hours and work shifts. Accordingly, 

WMC must devise and present to OCR for approval a transportation 

plan (including cost justifications and avidence of fiscal 

and other feasibility) sufficient to accommodate such peak 

loads. In the event that WMC's estimation of need differs 

from that of OCR, WMC must be prepared to present to OCR a 

detailed justification for a lesser estimation of peak loads 

and an appropriate justification for WMC's transportation 

plan. WMC's transp rtation plan must include a commitment to 

weekend shuttle service for patients, visitors and staff. WMC's 

transportation plan must also provide for adegate trans- 

tation for handicapped persons. WMC's transportation plan 

must in addition provide for (a) back-up passenger vehicles, 

(b) back-up ambulances, and (c) back-up vehicles capable of 

transporting the nonemergency handicapoed, either in the form 

of additional vehicles owned by WMC or of arrangements in the 

nature of requirements contracts with local lessors, so that 

additional vehicles will be available in the event that the 

main vehicles are not in operation or cannot meet the demand. 

3. WMC must, in addition TO ensuring that transportation 

be accessible to the handicapped in accordance with regulations 

promulgated pursuant to §504, take steps Lo ensure that 

information regarding handicap-accessibility will be made 

available to affected persons. 

3. WMC must provide for and encourage an advisory 

board and/or ombudsperson authorized to receive and act 

upon {within WMC's administrative structure) complaints or 

related problems related to segregation or the relative 

quality of care in WMC's two sites. 

4. WMC must take all reasonable steps to encourage 

community groups, advisory groups and volunteer groups as 

well as the print and electronic media to make the existence 

of both transportation system and the advisory board/ombuds- 

person known to the community.  



  

ambulance service and 

circumstances, emergen 

WMC must adopt a 
~~ 

patients should be taken to 
Cc 

rooms without regard to race or national origin, 

WMC must develop a detailed plan of admini management and operation of the Delaware Division a Proposed Southwest Division which will minimize, to greatest extent Possible, or eliminate the potentia racially differentiated utilization patterns betwee; facilities to occur as a result of patient choice o Physician option. Such a Plan may recommend to OCR whatever effective techniques WMC considers appropr elimination of duplication of services at t facilities. The same considerations should be appl to outpatient anclllary services. It is suggested sid the following types of l18sues and plans in S plans for OCR review: 

That WMC would detail to OCR/HEW and WMC's staff what "primarily" means in the contex of a service being "primarily" at one Site Or the other, in such a Way as to limit (within the bounds of medical prudence) 
the possibility that duplication of 
Services will result in the racial 
identifiability of the two Sites. 

policy and inform both its own 
11 other private or public ambulance services operating in New Castle county that, under ordinary 
Y pa 

C 

That WMC would alter its Plans so as to place (within the bounds of medical prudence) services which are currently to be "primarily" in one site in the category of services which 
are "exclusively, except for emergencies” in one site, in Order to limit the 
POSsibility that duplication of services Will result in the racial identifiability of the two sties. 

That WMC would adopt a policy and inform i staff that, where duplication of inpatient services and outpatient auxiliary, services exists, patients should be instructed to utilize the facility closest to their home Or place of work wherever possible, to the extent that it would limit the possibility that duplication of services will result in the identifiability of the two sites. 

 



  

‘ Page 25 

d. That WMC would articulate and implement 
standards for referring inpatients to the 
two sites to the extent that it would 
limit the POSsibility that duplication of 
Services will result in the racial 
identifiability Of the two sites. 

€¢. That WMC would articulate and implement 
standards for applying the terms "high 
risk” and "low risk" to minimize 
the possibility that _duplica- 
tion or separation of services will 
result in the racial identifiabilit 
Of either site. 

7. WMC must submit, for OCR review, a plan under which it will operate its Delaware and P2 aan divisions ina unitary fashion. At a minimu » Ehis would include plans and assurances: 

8. That unitary staffing be implemented, including rotation of professional staff through both 
divisions. 

be. That, to.the extent to which WMC is or becomes 8 teaching hospital, it ia Operated in a 
Unitary manner. This is understood to include 

ervisors and teachers at 
n 

a full arr ay Of sup 
lv 1 

lication exists, the units 
je I he two divisions be admi nistered in a unitary fashion. Por e€xample, the two emergency rooms will be administered DY. a single person, under a single budget, with 

a@ unitary review and evaluation procedure, and with a unitary supplies and equipment procure- ment procedure. 

the two divisions of WMC will be administered 
gd. Th 

un a single budget. i 
>
 

; 

€. That there will be a unitary purchase system for supplies. 

£. That there will be a unitary review and evaluation System, treating the two divisions as a single unit. It 1s understood that this will epply to. the PSRO and all other review Procedures. 

 



  

Page 26 : 

ent be done on g. That all purchase of new equipm 

u the same high leve 
Ss 

LO 

; 

unitary basis so as to ensure 
of quality at the two divisio 
possibility that either divis 
an inferior faciliuy. 

N
o
o
 

and limit the 

n become viewed as 

h. That all easonable steps be taken to create a 
single health care delivery system so as to 

limit the possibility that either location become 
racially identifiable. 

i. That the hospital budget and any subsidiary 
information will be kept and made available 
to OCR/HEW upon appropriate notice to WMC. 

8. WMC must alter existing plans for the proposed 
Southwest site construction in accordance with the 
comments of HEW facilities engineers in order to insur 
that the construction complies with Section 504 of the 
Rehabilitation Act of 1973. In addition, WMC nust 

demonstrate that it will meet the "program accessibility" 
requirements of 45 C.P.R. §84.22{a) at the Delaware Division 

py August 2, 1977 and that it either {1) has completed 
renovation plans for the Delaware Division which will 
insure that the requirements of 45 C.P.R. -§84.22(48) are 
met within three years of the effective date of the 
regulation, or (2) has prepared a transition plan for the 
Delaware Division which meets the requirements of 45 C.F.R 
§84.22(e). : 

9. WMC must submit a plan for OCR review under 
which records would be kept and made available to OCR 
so that OCR, and WMC can monitor the compliance with these 
plans and assurances. See. 45 C.F.R. §30.6{b), {(cC). 

10. Prior to any additions to or expansion of the 
southwest site, plans must be submitted for approval to 
the Regional Civil Rights Director .0of the Department 
Of Health, Education, and Welfars, as well as to any 
other official or agency as may be required by statute. 

- 

9, 

ll. Prior toi:any reduction of services at Delaware 
Division such proposed reduction must be submitted to and 
approved py the Regional Civil Rights Director of the 
Department of Health, Education, and Welfare in a manner 
consistent with Title VI of the Civil Rights Act of 1964 
and the regulations issued pursuant thereto. 

 



  

   

Page 27 . 

12. WMC must com mit itself to effectuate these conditions, plans and assurances with the understanding that they 
constitute a contract between WMC and OCR/HEW, breach of 
which will constitute a violation of Title VI and/or §504, 
and that such conditions (unless modified jointly by WMC 
and OCR/HEW) will remain in effect so.long as WMC continues 
to be a recipient uf Federal financial assistance. 

We feel that the above represent reasonable and 
feasible steps by which WMC can bring its Plan Omega into 
compliance with Title VI and §504. Please do not hesitate 
to call on OCR staff for technical assistance in achieving 
full compliance. 

/ / 

5 < 
Dewé&y-_E.\ Dodds 
Director 
Office for Civil Rights 
Region III 

3, 

 



  

CERTIFICATE OF SERVICE   

I hereby certify that copies of Motion for Reconsideration 

of December 5, 1977 Trial Date and Memorandum in support thereof 

have been served this 30th day of September, 1977 by mailing 

postage prepaid to: 

Jack Greenberg 
Beth J. Lief 

Melvin R. Levanthal 

10 Columbus Circle 

New York, New York 10019 

Julian Allen 
2009 Broadway 
Gary, Indiana 46407 

Marilyn G. Rose 
Christine B. Hickman 

1751 N Street, N.W. 

Washington, D. C.: 200345 

Theodore Sendak 
Attorney General 
State House 

Indianapolis, Indiana 46320 

Anthony DeBonis 
720 West Chicago Avenue 
East Chicago, Indiana 

Bruce Sayers 

HODGES, DAVIS, GRUENBER, 

COMPTON & SAYERS 

5525 Broadway 
Gary, Indiana 46410 

Chil = ) i 

\Xa\ein A J) LS S 
REBECCA IL. ROSS 
  

Attorney, Department of Justice 
10th § Constitution Avenue, N.Y. 

Washington, D. CC. 20530 

Telephone: 739-2230 [||a4066979-28ed-4f71-9b55-4c22c6ffd3e3||]