I. HOSPITAL FLIGHT FROM MINORITY COMMUNITIES

Brietta R. Clark, Hospital Flight from Minority Communities: How Our Existing Civil Rights Framework Fosters Racial Inequality in Healthcare, 9 DePaul Journal of Health Care Law 1023-1100 (2005) (270 Footnotes omitted).

Hospital relocations and closures are a nationwide problem and one that is longstanding.   The implications for racial minorities' access to *1029 health care became visible during the 1980s as a result of civil rights litigation brought to prevent the growing number of private and public closures.   During this time, social scientists and policy analysts began focusing on this problem by studying the patterns of hospital reconfiguration, analyzing their causes and impact on health care delivery.   These studies confirmed what civil rights advocates and minority communities already knew: private hospitals were leaving minority communities, and those with the least resources, in order to relocate to more affluent, predominantly white communities. At the same time, public hospitals, upon which minorities and the poor relied heavily, were falling victim to closure by local governments trying to conserve resources. 

*1030 These studies provide support for the story that minority communities have shared through their own narratives, political action, and law suits alleging race discrimination in violation of Title VI. They demonstrate why this problem cannot be understood by simply looking at an isolated instance of one hospital's decision to close or relocate services and comparing the immediate effects of closure with the hospital's or local government's purported justifications. Closures must be considered in light of hospitals' role in the larger public-private patchwork used to deliver health care in this country. They must be considered as part of a trend created and furthered by federal and local action, as well as conscious inaction. Finally, they make clear that we can not simply accept claims of fiscal concern and economic pressure as sufficient justifications for such closures.

A. Harmful Effects of Hospital Closures 

Alan Sager has performed the most comprehensive study of hospital restructuring to date, reviewing the patterns of hospital restructuring from 1937-1980 in eighteen cities of the Northeast and Midwest.   His study documented significant correlations between race and the location of hospital closings or removal of services. Specifically, Sager found that “[a]s the minority proportion of the neighborhood around the hospital increases, so does the proportion of hospitals closing or relocating. . ..”   This conclusion was supported by another study of hospital restructuring that documented an even stronger racial correlation between the likelihood of closures and the racial makeup of the in-patient population of the hospital.   Social scientists have also observed an important correlation between the location of closures and the socioeconomic status of the community affected by closure. For example, both Sager and Sara McLafferty have noted the trends of hospital closures or the termination of services within areas of predominantly lower socio economic status (SES), with high portions *1031 of Medicaid and uninsured patients, and the relocation of those services to high SES areas.   The correlation of race and SES to hospital closures is critical to understanding the magnitude of the effects of closure for minority communities with the least resources and greatest need.

The magnitude of the harm suffered by minority communities may not be immediately obvious because our health care system is a complex patchwork of private and public actors without clearly defined duties. The effects of closure depend in large part on the availability and willingness of other hospitals to help fill the community's needs. In theory, closure of a facility will not adversely affect care, if there are other facilities in the community that can adequately provide needed care in a timely manner. However, a number of factors, including overt and covert racial bias, economic discrimination, and overcrowding of public hospitals, undermine the ability or willingness of other hospitals to adequately fill this need. Moreover, hospital closures can trigger a domino effect that threatens longer term access and quality of care for remaining hospitals, and the maintenance of a quality primary care network of providers for minority communities. 

1. Disruption in Inpatient, Outpatient, and Emergency Services

The most obvious effect of closure is a disruption of hospital services to residents in the affected community, such as inpatient acute care, outpatient services, and emergency room or trauma services.   The increased travel time and distance for residents needing emergency care can mean the difference between life and death. The SES factor compounds the negative effects of hospital closures because residents of these communities are often exposed to extraordinarily high rates of violent crimes (i.e., shootings and stabbings) or are more likely to suffer from a serious or life-threatening illness at the point they enter the health care system due to a lack of insurance or ability to pay for preventive care. 

*1032 Even in nonemergency cases, the increased time and distance faced by minority communities has a demonstrable impact on their access to health care.   A common scenario is that services are relocated from a lower SES, predominantly minority community to a more affluent, primarily white community located a great distance away. This effectively forecloses care where affordable private or public transportation is not available.   Second, even where public transportation exists, the added time for travel and cost can create barriers too difficult for residents of these communities to overcome, given their already precarious balancing of work, childcare, and other care giving responsibilities.   For patients who speak limited English and depend on friends or family to accompany them to the doctor for translation, the extra time involved may make it more difficult or even impossible to coordinate times for appointment.   To the extent that people in the affected communities are discouraged or prevented from accessing early treatment, this increases the likelihood that patients will be sicker by the time they finally do enter the health care system. 

This disruption in access to hospital care is made worse by the unreliability of remaining voluntary or public hospitals to provide patients with timely and medically appropriate care.   Despite Title *1033 VI's prohibition on race discrimination, many hospitals have continued to overtly discriminate against racial and ethnic minorities or have used economic proxies to disguise intentional discrimination.   For example, in a speech given by the Director of the OCR in 1999, he cited a number of overt Title VI violations by hospitals, including a New York hospital with segregated maternity wards, a hospital in McAllen, Texas, that clothed its security officers in uniforms resembling the Border Patrol, and a South Carolina hospital that had a policy in effect of not giving epidurals to non-English speaking women.   Even where there is no evidence of overt racial discrimination, however, hospitals regularly engage in overt and covert discrimination against Medicaid recipients and the uninsured, which disproportionately harms minorities.   Finally, in cases where there are hospitals located within a reasonable distance and willing to serve residents in the affected communities, these hospitals are often overburdened and/or provide substandard care so that residents are still effectively prevented from accessing timely and quality medical care. 

2. Long Term Threats to Primary Care Services & Quality of Care

A less obvious effect of hospital closures is the disruption in primary care services, due in part to “physician flight” following the hospitals that leave the inner city. Sager identified this pattern as part of the larger trend of the de facto segregation of inner-city communities. This “physician flight” began as an outgrowth of the typical de facto residential segregation that took off during the 1970s and 80s as physicians followed their patients who moved to the suburbs. Initially, *1034 physicians would maintain two practices - one in the suburbs and one in the city; gradually, however, physicians maintained fewer hours at their city location, until they decided to close it altogether.   Hospital closures further encourage the departure of primary care physicians in minority communities because these hospitals are a critical base for the physicians' practice.   This creates a vicious cycle as physicians with hospital-based practices leave the community, causing affected residents to become even more dependent on the few remaining public or private hospitals and further straining remaining hospitals' ability or willingness to provide a safety net for the poor.   These effects are evident through the increasing dependence of minority communities on hospital emergency rooms and public hospitals for routine and other non-emergency care:

[F]or a large number of minority and low-income individuals more often than not the public hospital's emergency department services as an entry point into the health system. It is not unusual for the public hospital to act as the primary care center, preventive care center, trauma center and the intensive care center for the indigent patient such as the feverish baby, the shooting victim, the high risk pregnancy, the premature neonate. . ..” With this kind of activity and care the public hospital's emergency department has become the ‘family doctor’ of inner city communities.   Public hospitals have historically been the safety net for poorer residents and primarily minority communities for all types of care, in large part because of racial bias and/or financial discrimination by physicians and private hospitals.   Thus, the combination of public and private emergency room closures has compounded the problem of access to all types of care for minority communities.

Another long term effect of private hospital closures and relocations is the ultimate deterioration, or what has been commonly *1035 termed “ghettoization,” of the remaining hospital facility.   Social scientists and health advocates have documented the problem of relocating critical services and physician resources out of communities that need it the most, leaving them with facilities that are not adequately maintained or served by physicians and local planning entities.   The result is a gradual deterioration of the facility plant and quality of care delivered to the affected communities. Hospital closures set into motion a chain of events that threaten minority communities' immediate and long term access to primary care, emergency and nonemergency hospital care, and results in a substandard quality of care provided by the few deteriorating or overburdened facilities that remain.

3. Psychological Effects

I began with a discussion of King/Drew because it highlights one of the most devastating effects of hospital closures - the psychic harm that results to minority communities from the disproportionate closures and reduction of services in minority communities. There are at least two dimensions of this harm that may not be immediately obvious. First, psychological harm results when there is a violation of an expectation of access to care, which can arise from the removal of care that is already being provided.   For more affluent communities, hospital closures will not necessarily trigger this effect because the expectation of access to care is not significantly disrupted. For residents of these communities, hospital stays are not typically considered part of everyday life. Interactions with hospitals are rare, while relationships with primary care physicians, nursing homes, and rehabilitation centers are much more significant.   When a hospital stay is necessary, people in these communities typically have a choice of where to go. The trend shows hospitals competing for these “markets” so there typically will not be a shortage of providers willing to treat these patients. In order to fully grasp the psychological dimension of hospital closures on minority communities, however, it is critical to understand the different experience of minority communities that depend on these hospitals for *1036 their survival and are often left with little if any effective alternatives for care as a result of such closures.

Affected communities are acutely aware of their dependence on hospitals for their lives. Losing services so vital to the community triggers the ultimate fear of survival. We hear this fear in the King Drew community's outrage when the County decided to close King/Drew's trauma unit, the busiest trauma unit in the city. Vast numbers of people with life threatening conditions would have to travel at least an extra ten or fifteen minutes to the next closest ER, a distance that could mean the difference between life and death. Moreover, the ability and willingness of the other hospitals to treat the sickest and poorest of the Watts community is questionable. Closure of King/Drew's trauma center literally meant cutting the community's lifeline. Recently, Jesse Jackson captured the intensity of this fear in his statements on behalf of the Watts community, protesting closure of the trauma center:

People here are so emotional because they feel threatened. . ..People are scared. There are car wrecks on the freeway - they're scared. Most of these folks don't have insurance - they're scared. They've made AK-47s and Uzis legal again - they're scared. . ..This hospital was born from that kind of pain.” 

Another source of psychological harm is the violation of expectation about the level of care received relative to others. Such expectations arise from the promise of equality guaranteed through federal and local antidiscrimination laws and from local mandates about the minimal level of care required for all communities.   While minority communities are ever conscious of the racial and economic disparities in society generally, hospital closures reify this disparity in immediate and powerful ways that exacerbate feelings of racial stigma. This is particularly the case where a private or public entity is not just closing a hospital, but is terminating services or closing a facility as part of a larger plan to relocate services to predominantly white communities that are more affluent and do not have as a great a need. Relocations and closures are a signal to affected communities that those in charge of doling out public resources have given up on the *1037 community - that newer facilities in affluent areas will be given priority in the allocation of scarce resources. This sends a clear message to minority communities that they are less valuable and less deserving of certain resources than the white communities.   Once again, commentary on King/Drew reflects the racial stigma attached to hospital closures:

Community activists, who fought so hard for the hospital's creation, are [] consumed with the fear that it could be closed. * * * Strong willed and fiercely protective . . . a coterie of African America leaders, most now in their 70s and 80s, [] defend King/Drew with the same intensity that they once devoted to the civil rights movement. To them it is part of the same struggle.

Some vividly recall how things used to be, when they had to find a ride to the main county hospital some 15 miles away. It was a long trip if you didn't have a car - and most people didn't. “Twenty-five dollars sick” meant you were in bad enough shape to pay for a cab across town.

Many remember the case of Leonard Deadwyler, a black man who in 1966 was rushing his pregnant wife from their home in Watts to County General Hospital ... in Boyle Heights when police stopped him for speeding. An officer approached his car and shot him to death. The shooting was determined to have been an accident, but many saw it as a racist killing.

*1038 They also remember how the voters of Los Angeles County, mostly white, refused to pay for King/Drew's construction, forcing Supervisor Kenneth Hahn to find money elsewhere. Even now, threats to trim the hospital's budget revive fears that whites are trying to take it away. 

It is clear from the protests of the Watts community that any government action to terminate certain services at the hospital is viewed as a threat to their rights, not a means of protection. There is no faith that government action will result in better care; there is only fear that such actions are thinly veiled attacks on one of the few institutions willing to serve minorities in a health system that continues to exclude and dehumanize people of color.   It is difficult to communicate the dehumanizing effects suffered as a result of these closures. Narratives, such as those presented in Mama Might be Better Off Dead, by Laurie Abraham, and sporadic newspaper articles about communities' protests of proposed closures help to present this picture from the community's perspective. However, I will offer two examples based on recent testimony by an emergency room physician at a Los Angeles town hall meeting.

California has been particularly hard hit by a health care crisis in recent years, with more than 70 hospital emergency room and trauma centers closed since 1990, creating a shortage of health care facilities and professionals. The problem of hospital closures and overburdened emergency rooms, while receiving little media attention, is considered a major crisis by physicians, health advocates, and patients. About a year ago, a proposition was proposed to raise funds to reimburse emergency rooms and physicians in California who treat indigent patients. In his testimony in favor of this proposition, an emergency room physician recalled a woman who had a miscarriage was forced to wait in the hospital waiting room for hours with her fetus in a Tupperware dish before she could be seen. He also testified about the lack of physician specialists willing to serve on call for emergency rooms in these urban settings. He recalled a boy who came into the emergency room with a serious head injury, but could not be helped properly. The physician said he could not find the proper specialist at any of the other local ERs, and the boy was not able to get the emergency treatment he needed. These patients and their families could not access needed care *1039 in a timely manner because of a shortage of physicians and overburdened emergency rooms, due in large part to the closures of hospitals and draining of resources in the most vulnerable communities. These were not atypical occurrences.

The emergency room physician did not have words to express the humiliation and helplessness he knew the woman experienced who had the miscarriage. Nor could he effectively communicate the frustration and hopelessness the boy's parents experienced as they watched him suffer preventable injuries because he could not get the necessary care in time. Minority communities experience this frustration, helplessness, and dehumanizing feeling each time they encounter barriers to access, but such feelings are intensified as they watch critical hospital services leave their communities. Ironically, California law acknowledges the psychic dimension of the harm that can result where such barriers to care exist. For example, it requires that “Every county and city shall relieve and support all incompetent, poor, indigent persons, and those incapacitated by age, disease, or accident [when] such persons are not supported [by other means],   and that “aid shall be administered and services provided promptly and humanely, with due regard for the preservation of family life, and without discrimination. . ...”   Unfortunately, this mandate has not prevented the dehumanizing effects of hospital flight on minority communities.

B. Why Are Hospitals Leaving?

In 1978, the American Hospital Association published an article summarizing the results of a survey done of administrators of closed or relocated hospitals to ascertain the primary reasons for closure.   They surveyed 231 hospitals that closed or relocated during the years 1975-1977. Of 231 hospitals, the reasons for closure or relocation were broken down as follows: 27% reported financial reasons for closure or relocation, 23% were replaced by a new facility, 14% closed due to low occupancy rate; 13% closed because they were outdated facilities; and 10% closed due to inadequate supply of physicians.   These are consistent with the reasons offered by defendants in legal challenges brought to prevent closure. In every case, defendants give economic *1040 justifications for closure.   Fiscal reasons are heavily relied upon by local governments deciding to close public hospitals or allowing private hospitals to relocate services from minority communities.   Secondarily, criteria such as occupancy rate and quality of the facility are cited as important considerations. 

These justifications have created the perception that the benefits of hospital closures typically outweigh any disadvantages. This perception is based on the assumption that such closures actually reduce excess bed capacity, improve quality of care, and help save scarce public resources that will benefit society at large. Studies of hospital restructuring have called such assumptions into question. For example, Sager demonstrated that although the rate of closures was increasing, the pattern of hospital relocations and closures did not reduce overall bed capacity. This is because while some hospitals were closing, others were expanding their bed capacity.   Moreover, the location of the bed reductions did not correlate to communities with existing overcapacity; rather, minority communities and lower SES communities with the highest need for hospital beds tended to experience the greatest loss. 

Trends in the types of hospitals closed and expanded over time provided further evidence that the pattern of restructurings were more likely to drive up the cost of health care, rather than enable the government to conserve resources. For example, Sager found that smaller community hospitals were more likely to close, while larger *1041 hospitals, especially teaching facilities and hospitals located in higher SES communities, were often expanded or renovated substantially.   Sager argued that this can result in an overall increase in health care costs for two reasons. First, these patterns suggest that patients are being shuffled from smaller community hospitals that are typically better suited to providing the kind of care needed, and at relatively low cost, to larger, more expensive facilities that are less focused on delivering the kind of care most needed by the affected communities.   Second, to the extent that hospital closures disrupt access to preventive and early treatment for underserved communities, patients enter the health care system when they are sicker and in need of more expensive medical treatment:

It seems clear that the observed pattern of reconfiguration is not moving us toward some desirable stable state of fewer, stronger, and more appropriately sized and located institutions able to serve their cities' patients. Rather, public hospital bed reductions and the closing of less costly voluntary hospitals (both serving high proportions of minority and Medicaid-funded patients) will oblige surviving hospitals - if they have room - to choose between denying care to displaced patients and admitting them, possibly lessening their own chances of remaining open. 

Despite the fact that hospital closures have not remedied purported fiscal concerns about conserving scarce resources, there are powerful economic incentives for hospitals' to flee predominantly minority, low SES communities. First, because many physicians have relocated their practice to suburban areas, there is a shortage of physicians willing to use the hospitals in these urban communities as their patient base.   Physician referrals are critical to a hospital's ability to attract private pay patients, and so this shortage of physicians has resulted in a decrease in the number of private pay patients using these hospitals. On the other hand, demographic changes have resulted *1042 in an increase in patients less able to pay for care, either because they are unable to get private or public insurance or because they receive Medicaid (which does not provide adequate reimbursement).   Thus, hospitals have faced a changing in-patient population that resulted in significant reductions in patient revenue. Consequently, the problem of hospital closures is caused by both an underfunding of health services for the poor and an inadequate supply of physicians. 

While some hospitals experience severe revenue reductions that force them to consider alternatives for economic survival, it is not necessarily the case that these hospitals are on the brink of financial disaster or even close to it. Rather, many hospitals have begun acting like typical corporations in a competitive market; that is, hospitals are increasingly considering strategies to maximize their profits to ensure their long term survival, such as relocation to more affluent markets. Another common strategy has been to renovate facilities and expand technological capability to attract more physicians with a wealthier patient base. While this may enhance quality of care for the most affluent, it has actually increased the cost of care generally and depleted resources that should be directed to communities in need.   Finally, social scientists and health policy analysts have attributed these trends to the failure of local and federal government to create a sustainable health care financing system and to the government's shift away from active facilities planning to a largely unregulated industry that allows market competition to determine hospital restructuring patters.   In some cases, local governments have actively encouraged or facilitated closures and relocations that were clearly driven by market competition, but that harmed communities in dire need of hospital resources. 

*1043 C. Hospital Flight as a Civil Rights Issue

In response to the increasing flight of hospitals from predominantly minority, urban communities, civil rights and health care advocates partnered to bring Title VI legal challenges to prevent public and private closures. Title VI was believed to be a powerful weapon in the fight against racial disparities in distribution of hospital resources for three reasons. First, the federal funding requirement meant that Title VI obligations reached into almost every aspect of health care delivery because of the federal government's extensive funding of private and public hospitals. Second, an Office of Civil Rights (OCR) was created and charged with the enforcement of federal civil rights laws in all areas. Finally, pursuant to authority granted in Title VI, the agency overseeing health care administration, the Department of Health, Education, and Welfare (DHEW) used its power to promulgate regulations that explicitly prohibited recipients of federal funding from using criteria or methods of administration that have discriminatory effects   or from choosing a “site or location of a facility” that would have such effects.   Thus, Title VI prohibited precisely the kind of racial inequality that resulted from hospital relocations and closures, without proof of intentional racial bias. Moreover, it empowered DHEW, through the OCR, to actively prevent such discriminatory effects, and it appeared to give communities a private right of action under Title VI to prevent closures where the government failed to do so.

Yet Title VI was not the weapon advocates hoped it would be. While the failures of civil rights laws to remedy problems of discriminatory effects is not new or unique to health care, the hospital closure problem is particularly useful for critiquing our traditional civil *1044 rights framework, as well as, for understanding more specifically the problem of racial inequality in health care. In order to flesh this out, I will examine all three parts of the civil rights framework critical to preventing discriminatory closures: (1) federal legislation providing significant health care subsidies for public and private health care providers; (2) the federal government's administrative power to oversee state hospital planning and to ensure Title VI compliance in the distribution of health care resources; and (3) the judiciary's role as providing a check on the federal and state actors, as well as private hospitals, attempting to restructure hospital services in discriminatory ways. In Parts II - IV of this article, I will show how in each of part, the government has not only failed to live up to the promise of Title VI, it has made decisions that have fostered racial inequity in the distribution of hospital resources and demonstrated, at a minimum, a conscious disregard for the effects on minorities' access to care.