Full opinion text
OPINION LATCHUM, Chief Judge. Once again this Court is called upon to consider the legality of “Plan Omega,” the controversial proposal of the defendant Wilmington Medical Center, Inc. (“WMC”) to relocate a major portion of its urban hospital facilities and services to a suburban location. The case has been in active litigation before this Court and the Court of Appeals for more than three and a half years and thus far has spawned eight reported opinions. In order to understand the issues presently before the Court it is necessary first to review the procedural history of this bitterly contested action. I. PROCEDURAL HISTORY Certain black, Puerto Rican and handicapped individuals, and groups representing similar persons (the “plaintiffs”) commenced this action on September 10, 1976, naming as defendants WMC, the Secretary of the Department of Health, Education and Welfare (“HEW”), the Director of the [Delaware] Bureau of Comprehensive Health Planning (“BCHP”), and the Chairman of Health Planning Council, Inc. (“HPC”). The gravamen of the original complaint against WMC claimed that it, as a recipient of federal funds under the medicare and medicaid programs, had violated its obligations to the plaintiffs, beneficiaries of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, by commencing to implement Plan Omega. In addition, plaintiffs alleged that HEW had violated its duty to enforce Title VI and Section 504: (1) by approving Plan Omega under Section 1122 of the Social Security Act, 42 U.S.C. § 1320a-l (“Section 1122”); (2) by approving regulations thereunder which failed to require that a proposal under Section 1122 comply with Title VI and Section 504; (3) by entering into an agreement with BCHP which failed to ensure that proposals under Section 1122 comply with Title VI and Section 504; (4) by adopting a procedure which prohibited HEW review of Section 1122 proposals for substantive compliance with Title VI and Section 504; (5) by following such an allegedly improper procedure in approving Plan Omega; and (6) by failing to file an environmental impact statement concerning Plan Omega under the National Environmental Protection Act of 1969, 42 U.S.C. § 4321 et seq. (the “NEPA claim”). Finally, the complaint charged that BCHP and HPC had violated Title VI and Section 504 by not adopting procedures to ensure that proposals under Section 1122 comply with Title VI and Section 504 and by making findings and recommending approval of Plan Omega. This Court subsequently stayed its actions on the complaint and ordered HEW to conduct a civil rights investigation of plaintiffs’ allegations. 426 F.Supp. 919 (D.Del. 1977). That investigation led to a finding that Plan Omega, as then proposed, constituted a prima facie violation of Title VI and Section 504. HEW also found, however, that, by giving written assurances in certain areas, WMC could bring Plan Omega into compliance with Title VI and Section 504. Consequently, after negotiations between HEW and WMC, the parties entered into a contract drafted in open-ended, normative language which obligated WMC to modify and supplement those particular features which HEW had determined would otherwise have a prima facie discriminatory effect (the “Supplemental Agreement”). In an opinion filed on April 7, 1978, this Court reviewed HEW’s findings and held that HEW’s conclusion, that Plan Omega as modified by the Supplemental Agreement would not violate Title VI or Section 504, was not arbitrary and capricious. NAACP v. WMC, Inc., 453 F.Supp. 280 (D.Del.1978). This Court further held that the plaintiffs had no right to bring a private action under those statutes and granted summary judgment in favor of the defendants, HEW and WMC. Plaintiffs appealed that decision and the Court of Appeals reversed in part, holding that the plaintiffs did have a private right to a trial de novo in this Court on their Title VI and Section 504 claims. NAACP v. WMC, Inc., 599 F.2d 1247 (C.A.3, 1979). The Court of Appeals therefore remanded the case to this Court for a trial on the merits. Following remand, this Court, in accordance with the mandate of the Third Circuit, dismissed HEW from this action for the purposes of the trial on plaintiffs’ private right of action. BCHP, HPC and their respective directors were dismissed from this action by agreement of all parties by court order dated July 17, 1979. On September 4,1979, this Court granted plaintiffs leave to file a Third Amended and Supplemental Complaint. This amendment added the City of Wilmington as a party plaintiff and struck those paragraphs relating to HEW in the complaint. Also added were allegations of violations of the Age Discrimination Act of 1975, 42 U.S.C. § 6102 (“Section 6102” claim) and an allegation charging WMC with “intending” the discriminatory consequences alleged under all three civil rights acts. The trial to the Court sitting without a jury commenced on October 9, 1979, and concluded on November 15, 1979. Some 28 witnesses testified for plaintiffs in their case in chief, 18 witnesses testified for WMC in its case in chief, 3 witnesses testified for plaintiffs in rebuttal, and 4 witnesses testified for WMC on surrebuttal. The trial transcript consists of 3,349 pages of testimony. Over 400 exhibits were introduced into evidence. Post-trial briefing was completed on January 24,1980, and the case is now ready for final disposition. This opinion shall constitute the Court’s findings of fact and conclusions of law as required by Rule 52(a), F.R.Civ.P. II. FACTS The Court finds itself unwillingly cast by this litigation into the role of a modern day Nostradamus. The Court is not being asked to perform those traditional tasks for which courts have a special competence— the determination of facts relating to actual events which have occurred in the past. Rather, the Court is required to prophesy the consequences of events which may or may not occur in the future. Lacking a crystal ball or any other reliable talismanic symbol, the Court must look to the facts as they exist today, the modified plans of WMC, and the conflicting judgments of the medical and social experts who testified at trial in an attempt to pierce the mists that obscure future events. The Court will begin its prognostications with a description of the present demographic characteristics of New Castle County and the role played by WMC in providing health care today. One must look at this actual world in order to determine first how Plan Omega would differ from the present and, second, what impacts those possible differences might have on the various minorities who are protected by the statutes invoked by the plaintiffs in this case. A. WMC And Its Role In Providing Health Care WMC is the major provider of hospital care services to the people of New Castle County. This privately owned, non-profit corporation has a capacity of 1104 of the 1471 non-profit, acute general hospital beds in New Castle County. That number represents 55% of similar beds in the entire State. In addition, it includes a 60 bed rehabilitation center in New Castle County (“Pelleport”) which will not be affected by Plan Omega. Acute hospital care is provided at three “divisions” of WMC — the General, Memorial and Delaware Divisions. All three divisions are located in different areas of the City of Wilmington and are well served by bus routes which run throughout the heavily populated portions of the County. WMC provides both general medical and surgical services and secondary and tertiary hospital care. Many of the latter types of services are provided exclusively by WMC. Indeed, WMC is the sole provider of tertiary hospital care in the State of Delaware. WMC was organized in 1965 through the merger of three non-profit hospitals — Wilmington General, Memorial and Delaware Hospitals. These three hospitals currently constitute the three divisions of WMC. Two primary reasons prompted the merger: (1) to reduce the duplication of facilities and concentrate hospital care available to the community, and (2) to provide the scope of clinical experience to attract the support of a major teaching university toward a resident program. By 1965, the intern and resident programs at the three independent hospitals had reached a crises point. The programs needed strengthening in order to attract residents who would become physicians and serve in the state and community. These objectives were perceived, and are still perceived, by the doctors on WMC’s staff as being best served by placing all the medical and surgical services under one roof. The goal of physical consolidation of all health care services was viewed by the staff in 1965, and at present, as the best method for providing first class hospital care for the residents of New Castle County. Although the major provider of hospital care, WMC is by no means the only provider of such care to county residents. St. Francis Hospital maintains between 250 to 300 hospitals beds and Riverside Hospital, an Osteopathic facility, operates with a 100 bed capacity. Both of these facilities are located in Wilmington. The result of this concentration is that Wilmington has more beds than would be desirable under national standards and the rapidly growing southwestern portion of the County around Newark, Delaware, is grossly underserved. The Newark area is presently served only by an emergency room. The need for hospital facilities in the vicinity of Newark is widely recognized and the Delaware Health Planning Council has recommended that hospital beds be provided to serve that area. Although the services provided by St. Francis, Riverside and WMC are not the same, the quality of physicians that are available at all three hospitals is roughly equivalent. A majority of WMC’s staff have privileges at St. Francis while as many as 60 to 70 WMC physicians are on the consulting staff of Riverside. Riverside is also a teaching hospital qualified by the American Osteopathic Association. While WMC is, in a sense, one of three operational hospitals in New Castle County, the role played by WMC as a health care provider is quite different from the other two hospitals. All three hospitals provide general medical, surgical and pediatrics services. However, WMC is almost the sole provider of obstetrical services. Riverside has only 2 OB beds and St. Francis has closed its OB unit. WMC is the only provider of many aspects of tertiary hospital care; certain advanced medical treatment facilities, such as x-ray therapy, cobalt therapy, radium therapy, therapeutic radioscopy, and inpatient renal dialysis facilities, are provided only at WMC. Certain subspecialties of medicine are almost exclusively available at WMC. WMC is the only hospital in the County with a teaching program recognized by the American Medical Association. Because the potential effect of Omega upon the quality and operation of this teaching program has become a major issue in this case, the Court will describe that program at some length. The witnesses at trial unanimously agreed that continuance of WMC’s teaching program was essential to its maintenance of a high quality system of health care to the County and State. First, lacking a medical school, Delaware has traditionally depended upon out-of-state physicians for its quota of doctors. WMC’s student and residency program has been one of the primary means of attracting medical students to become physicians to serve the State and the community. Even more important, WMC’s residency program is absolutely essential to enable WMC to provide the best medical care possible for its patients. Indeed, without that program, WMC’s ability to function as a tertiary care institution would be seriously impaired. Residents are needed to supervise the care of patients whose lives are dependent upon artificial life support equipment. WMC would be unable to maintain facilities such as the surgical ICU or to support highly sophisticated medical procedures such as those performed by the trauma team without a residency program. Furthermore, without the 142 residents it now has, WMC would be unable to provide many health care services for lack of an adequate staff. For example, residents staff the outpatient clinics where a great deal of primary care is provided to indigent and semi-indigent people. In fact, practically all the services are staffed by residents. While engaged in a residency, a resident, as an integral part of his medical education and training, will rotate among the various services attending to different types of medical problems and patients. These rotations follow variable schedules so that residents will serve at various times on different floors among the four hospitals that make up WMC. As a result, residents are exposed to varied educational experiences and WMC obtains an essential staff. For instance, a second or third year pediatrics resident is always assigned to the Emergency Room to aid its staff in making the often difficult pediatric diagnosis. WMC has both residents and medical students from The Thomas Jefferson Medical School in Philadelphia in its educational program. Medical students require a great deal of supervision but as the student progresses and proves his or her ability to handle responsibility less and less supervision is required. At the clinics and on night duty residents frequently attend patients without staff physicians even being present. Naturally, if a complicated problem arises, the resident may consult with a fully trained board certified physician. Supervision of residents and medical students by board certified physicians is essential to the ability of these doctors-in-training to deliver quality care. As a general proposition inadequately supervised students and residents will undergo an inferior educational experience and deliver an inferior quality of health care. WMC also differs from the other hospitals in New Castle County in the amount of free care which it provides. It is the largest provider of free care in the County to those who are both unable to pay for care themselves and unable to qualify for government assistance. To this end, WMC spends approximately $8,000,000 a year, a figure which represents 9.2% of all patient care provided by the institution. This care is subsidized entirely from endowment funds and funds which are derived from higher rates that are charged to paying patients and their private insurers. Partly as a result of this subsidization, WMC’s hospital rates are the highest in the State of Delaware. WMC is also unique in the type and scope of outpatient services which it provides, in particular, its clinics. WMC provides both primary care clinics and certain specialty clinics. The primary care clinics, which WMC maintains in all major medical specialties, along with the Emergency Room, are used by the poor in much the same way as more affluent people use the services of a private physician. Given the importance of primary care as a means of detecting an illness in its early stages or preventing an illness from occurring, if the clinics offer a poorer quality of care under Omega or if their organization is changed so as to discourage their use (if “barriers” arise), the quality of the health of the poor in general, and minorities in particular, may very well suffer. WMC maintains a second type of clinic, its specialty clinics. These clinics are used by all socio-economic classes. Patients are referred to a specialty clinic by their primary care physicians. These clinics often require sophisticated equipment for diagnosis and treatment. WMC’s ability to provide all of the services just discussed is hampered at the present time by an inadequate physical plant. The numerous inadequacies of that plant threaten both the Center’s ability to continue its all-important educational program and its ability to maintain in the future the high quality of care which it presently delivers. The fragmentation of programs which is caused by the physical dispersal of the hospital has a present adverse effect both upon patient care and upon the teaching program. Because a whole patient is treated and not a specific organ, it is important to have specialists trained in the diagnosis and treatment of the ailments of all parts of the body available at the site where care is rendered. Similarly, interaction with physicians and residents in other specialties is important for the education of residents. The fact that WMC presently has its services split among three buildings reduces this type of interaction. For these reasons, the staff and all who expressed an opinion on the matter agreed that the optimal situation would be a hospital under one roof. WMC’s present buildings also lack research facilities and adequate conference space. Both are necessary for a high quality residency program. The lack of research facilities has caused WMC’s surgical residency program to be put on probation by its accrediting body. Finally, WMC’s physical facilities are aging and in various states of disrepair. Moreover, because of changes in hospital standards that have occurred since the buildings were constructed, the facilities are presently not in compliance with the State’s hospital licensing law. The poor state of WMC’s buildings has hampered the hospital’s ability to recruit high quality residents. However, the most serious problem posed for WMC by its deteriorating facilities is the possibility that they could cause it to lose its accreditation. On the last two occasions that WMC was evaluated by the Joint Commission on Accreditation of Hospitals, it received only one year “probational” accreditations. It has not been granted full accreditation because of various deficiencies in the hospitals’ physical plants. If WMC should receive three one-year accreditations in succession, it would be reviewed intensively to determine whether it should lose its accreditation entirely. If WMC were to lose its accreditation, the AMA would no longer qualify its educational program. Loss of AMA qualification would effectively destroy that program. Loss of accreditation could also result in a loss of Medicare and Medicaid funds. A loss of these funds would effectively destroy WMC financially. In 1975,-$19.4 million, 38% of WMC’s income, was derived from Medicare and Medicaid. Thus, WMC is presently under the compulsion of both law and necessity to bring its three major divisions into compliance with various code standards. The estimated cost of doing so in 1976 was in excess of $20 million. These renovations would also cause WMC’s bed capacity to be reduced by 200 beds. WMC would consequently lose any associated revenues. Moreover, without the construction of any new facilities, the community would suffer a shortage of acute care hospital beds. All this would be required to maintain the wholly unsatisfactory three-roof situation. B. Plan Omega 1. Division of services Under Plan Omega, two of WMC’s deteriorated facilities, the General Division and the Memorial Division, will be closed entirely. The Delaware Division will be reduced from its present 480 beds to 250 beds. This reduction in capacity will be due almost entirely to the elimination of “nonconforming” beds and the use of that space for other functions, such as administrative office space. Finally, a new 780 bed hospital will be built on a site south of Stanton, Delaware (“Southwest Division” or “Stanton Division”), located 9.35 miles southwest of the Delaware Division. The site is located in a rural area with virtually no population living within a mile of it. It is presently served by neither bus routes nor any other form of mass transportation. A representative of the Delaware Area Regional Transportation Authority (“DART”) testified that DART has no present plans to establish bus routes to the site even if a hospital were built there. Omega involves more than simply closing beds in the city and moving them to the suburbs. Some major hospital services will be located exclusively at Stanton while others will be located exclusively at the Delaware Division. Included among the inpatient services which will be located exclusively at the Southwest Division are all obstetrical, gynecological, and pediatric services, certain subspecialties of medicine such as oncology, gastroenterology, nephrology, and neurology, and certain subspecialties of surgery such as neurosurgery, orthopedic surgery, and thoracic surgery. Some clinic, outpatient, and support services will also be located exclusively at Stanton, including the high-risk prenatal and specialty pediatric and gynecological clinics, and the specialty cardiac, radiation therapy and hemodialysis support services. The Delaware Division will exclusively house the psychiatry, ear, eye, and nose, and dentistry specialties. The primary care clinics will be consolidated and located exclusively at the Delaware Division. Thus, with the exception of the few lightly utilized specialty clinics mentioned earlier, all clinics will be located at the Delaware Division. A number of services will be provided at both facilities. Both will provide general medical and general surgical services on an inpatient basis, the bed capacity for these services being 154 at the Delaware Division and 451 at the Southwest Division. Both will also have a family practice service which provides general medical service. Both facilities will be tertiary care institutions, and certain forms of tertiary care will be duplicated in the two. For example, both will house fully staffed and equipped medical and surgical Intensive Care Units and Intensive Coronary Care Units. Both will even include pediatric intensive care units (also called intensive care nurseries). Thus, even though the pediatrics service will be located at Stanton, both divisions will be able to treat pediatric emergencies. Both will have operating rooms fully equipped with all the latest materials and devices, including such highly sophisticated equipment as a CAT scan. Finally, both divisions will house Class I Emergency Rooms and various necessary support services, such as diagnostic x-rays. The Emergency Rooms will be fully equipped to handle any and all surgical, medical, pediatric, gynecological and obstetrical emergencies. 2. Effect of the Supplemental Agreement Omega cannot be considered without reference to the Supplemental Agreement entered into by HEW and WMC for the purpose of assuring that Omega would have no discriminatory impacts. That agreement will govern the operations of WMC under Omega. For the purposes of this Courts predictions of the future effects of Omega, it finds that, where the Supplemental Agreement imposes what the Court has designated “categorical obligations” (see below), WMC will meet those obligations. Consequently, in these areas, the contract itself is found to be the best forecaster of future events. Much of the evidence adduced by the plaintiffs was presented to demonstrate that certain means prescribed by the Supplemental Agreement would not achieve the ends which were required by that contract. To the extent that plaintiffs have adduced such evidence, this Court finds it irrelevant. In presenting their arguments, the plaintiffs have failed to take into consideration the fact that the contract, without distinguishing between the two, imposes two different types of obligations. Some obligations are categorical ones (“categorical obligations”) which must be achieved in order to maintain compliance with the civil rights statutes. Others are merely plans of action (“minimal obligations”) prescribed solely for the purpose of achieving the categorical obligations. In general, the contract provides that if, after implementing the prescribed minimal obligations, WMC still fails to meet the categorical obligations, WMC will have to take additional actions to enable it to meet the categorical obligations. Plaintiffs adduced a great deal of evidence for the purpose of showing that the minimal obligations would not achieve the categorical obligations, completely ignoring the fact that the contract would require revisions of the minimal obligations in order for WMC to meet the categorical obligations of the contract. An example of the interplay between the various types of obligations in the Supplemental Agreement is presented by the requirements relating to racial identifiability. The Supplemental Agreement imposes upon WMC the categorical obligation to prevent either division of the hospital under Omega from becoming racially identifiable. To achieve that end, the Supplemental Agreement prescribes other minimal requirements. It both requires a certain division of inpatient services between the two divisions and requires that for services offered at both divisions a patient be offered admission first to the Division closest to his or her home as determined by ZIP codes. The agreement further provides that if, at any time, compliance with these minimal obligations does not result in the achievement of the categorical obligation that neither division become racially identifiable, “WMC shall have 180 days thereafter to remedy said racial identifiability by whatever means necessary.” Failure to remedy said racial identifiability is deemed a prima facie violation of Title VI. Thus, the testimony adduced by plaintiffs in an attempt to show that the present inpatient utilization plan (one of the minimal requirements) will produce racial identifiability is simply irrelevant to the possible occurrence of future events, because, if plaintiffs’ predictions occur, the contract requires new remedial actions on the part of WMC. For that reason, the Court must find that neither division will become racially identifiable under Omega. Similarly, in other cases where the contract imposes categorical obligations, the Court finds that WMC will comply with those obligations. The plaintiffs nevertheless argue that WMC will somehow avoid the contract’s categorical obligations. The Court disagrees. The obligations cannot be avoided if avoidance would create a discriminatory impact. The obligations are imposed without temporal limit, extending indefinitely into the future. They are imposed “regardless of cost.” In addition, any failure to comply with either the minimal or categorical obligations is automatically considered: a prima facie violation of said Title VI and/or said Section 504, and will further constitute grounds for the termination of other federal assistance. The contract also provides that HEW can monitor WMC’s activities, thus assuring that, if WMC does not meet its obligations, sanctions will be applied. WMC is required to keep and to submit on a regular basis numerous records and reports which will enable HEW to ascertain whether the hospital stays in compliance with the Supplemental Agreement and that none of WMC’s operations becomes discriminatory. Furthermore, many of the terms of the Supplemental Agreement are drafted in such open-ended and normative language that HEW will be afforded an ample opportunity to intervene if any WMC practice, not explicitly covered by the Supplemental Agreement, should appear to the agency to have a discriminatory impact. The contract’s requirements may only be altered with the concurrence of HEW and then only in the event that changes occur in the community’s systems for the delivery of health care and/or changes occur in community needs. Plaintiffs have also argued that HEW would excuse WMC from compliance with the Supplemental Agreement in the event that the hospital met with financial difficulties. The Court cannot assume that the agency would act in a manner contrary to its statutory duties or authorize any practice or practices having a discriminatory impact. The Court must conclude that the agency will closely scrutinize WMC’s operations and will enforce both the contract and the civil rights acts with due diligence. 3. Requirements of the Supplemental Agreement The Supplemental Agreement imposes both minimal and categorical obligations in a number of other areas. Those requirements will be briefly summarized at this point. Perhaps one of the most important provisions of the Supplemental Agreement in terms of the effect on the quality of patient care that will be rendered by WMC under Omega is the provision which requires WMC to operate the Delaware Division and the Southwest Division on a unitary basis. WMC must maintain a unitary medical staff, a unitary teaching program, a unitary administration and wholly unitary finances. The requirement of a unitary medical staff and unitary teaching program with rotations of residents required between the Delaware and the Southwest Divisions ensures that the quality of physicians serving the two divisions will be equal. The effect of this upon the relative quality of care between the two divisions is obvious. The Supplemental Agreement also contains provisions requiring certain changes and controlling other possible future changes in WMC’s physical facilities. The agreement imposes upon WMC the categorical obligation “to complete renovation of the Delaware Division, regardless of cost, within three (3) years of the date on which the construction of the Southwest Division is completed” (emphasis added), and imposes the minimal obligation that WMC set aside $2.8 million to be devoted exclusively to that renovation. The agreement also requires that before taking any actions that would individually or cumulatively expand the service capacity of the Southwest Division or reduce the service capacity of the Delaware Division by 5%, WMC must submit plans for those actions to HEW to allow that agency to determine whether the action would be consistent with the civil rights acts. Thus, the agreement forecloses the possibility that even incremental changes in the relative distribution of beds could occur without review for compliance with the civil rights acts. Consequently, plaintiffs’ fears that WMC can and will allow the gradual decline and eventual closing of the Delaware Division can never become a reality, absent some major change in either the health care systems or demographic patterns of New Castle County. A third important aspect of the Supplemental Agreement is its requirements regarding transportation to and from the Southwest Division. The agreement contains categorical obligations that WMC provide “free” and “adequate” transportation for patients, visitors, and employees between the Delaware Division and the Southwest Division and that that transportation “be equipped to provide convenient service to the handicapped.” To this end, the agreement imposes the minimal requirements that WMC maintain in operation four 20-30 passenger buses (not less than two equipped to provide convenient service to the handicapped), three ambulances, and two van-type station wagons (both equipped to provide convenient service to the handicapped). Those vehicles must be maintained in a shuttle service running every 15 minutes between the Southwest Division and the Delaware Division during specified hours. The availability of this transportation system generally and the availability of transportation to the handicapped, in particular, must be advertised both in English and Spanish. Besides requiring that WMC provide transportation that is convenient to the handicapped, the agreement also requires that the Southwest Division be built and the Delaware Division be renovated so as to be accessible to the handicapped as mandated by Section 504. The requirement that WMC allow neither division to become racially identifiable has already been discussed. WMC has also agreed to pay particular attention to the need for employment opportunities for urban minority groups, and to take into account these needs in its employment policies under Omega. Finally, the agreement calls for the appointment of a bilingual ombudsperson to receive and to act upon any complaints relating to discrimination. C. The Present And Future Socio-Economic And Demographic Characteristics Of New Castle County The final set of facts needed in order to project the impact of Omega consists of the present and future social, economic and demographic characteristics of the area which WMC serves. In all probability the future characteristics will not differ in any significant respect from the present characteristics. Dr. Harold Brown, the chief demographer in the State of Delaware for the past twenty years, testified without contradiction that the statistics found in the 1970 census are reasonable reflections of the current socio-economic picture and that this picture should remain unchanged through the 1980’s. 1. Distribution and economic status of minority, elderly and handicapped populations of New Castle County The minority and elderly populations of New Castle County are concentrated heavily in the City of Wilmington and those ZIP codes assigned to the Delaware Division for duplicated services under Plan Omega. These population groups are thus concentrated in areas that are quite close to the Delaware Division and the other two present divisions of the Wilmington Medical Center. These groups are overwhelmingly and disproportionately low-income in relation to the total population of the County and comprise the bulk of households in the County that are without access to private means of transportation. Of the blacks in New Castle County, 72% live in the Wilmington/Elsmere area, while another 14% live in the Southbridge/New Castle corridor. Approximately 80 times as many blacks live within 2.5 miles of the Delaware Division as live within 2.5 miles of the proposed Southwest Division. Data developed by WMC shows that the minority population using WMC is similarly distributed. In the 90-day period between December 1, 1976 and February 28, 1977, some 76% of WMC’s minority inpatients (black and Puerto Rican) and 81.8% of WMC’s minority service employees lived in the Wilmington/Elsmere area. The elderly comprise 7% of the population of New Castle County. About 12 times as many elderly people live within 2.5 miles of the Delaware Division as within 2.5 miles of the Stanton site. A total of 76.3% of the elderly live in communities located in northern and eastern New Castle County, 38.9% live in the City of Wilmington alone. In contrast, only 5.9% live in the Greater Newark area. Dr. Brown predicted that the elderly population would remain more or less in the same location with some increase occurring in the Brandy-wine Hundred, an area north of the City of Wilmington. The general past emigration from the City of Wilmington did not include the elderly who tended to remain because of their inability to afford to go elsewhere and because of the concentration of public housing for the elderly in Wilmington. Absolutely no credible evidence has been developed in this case concerning the distribution of handicapped people in New Castle County. Plaintiffs have argued that uncontradicted testimony that the elderly have a disproportionately higher incidence of mobile limiting handicaps will also establish the proposition that the distribution of the handicapped population mirrors the distribution of the elderly. To make such an extrapolation upon such meager evidence would be totally unwarranted. Since the plaintiffs bear all burdens of proof on the issue of impact, the Court must assume that the distribution of the handicapped in New Castle County mirrors the distribution of the population as a whole. The black and elderly populations of New Castle County are also disproportionately low income. If one divides the income range of New Castle County into terciles, about 61% of the black households are in the bottom tercile compared to 30% of the white households. The elderly, who compose only 7.7% of the total population of New Castle County, account for 15.8% of the population with income below the poverty level. 2. Transportation characteristics of New Castle County In New Castle County, as in the United States as a whole, by far the predominant means of transportation is the private automobile. The County and the State as a whole are well served by the state highway system. Most people in the State with access to an automobile can easily reach medical facilities. Indeed, in a survey of inpatients arriving at WMC, it was determined that 79% of WMC’s patients arrived in an automobile driven by the patient, a friend, or a member of the family. Emergency ambulance service is also available throughout the State of Delaware and County ambulance service is readily accessible to all residents of New Castle County. A privately owned non-emergency ambulance service based in Wilmington also provides transport but at a very high cost. In the survey of inpatient modes of transportation, 16.7% of WMC’s inpatients arrived by ambulance. The Southwest Division will be located in an area which is readily accessible to Interstate I-95. Given that fact, it will be readily accessible to that vast majority of WMC’s patients who arrive by ambulance or by private automobile. The picture is not as bright for the 3% of WMC’s inpatients who must rely upon other means of transport. That 3% is predominantly composed of minority and elderly individuals living in or near the City of Wilmington. Of the 16,000 households in the County which lack access to automobiles, 73.8% are in the Wilmington/Elsmere area while only 12.3% are in the southwestern part of the County. Altogether, 38% of Wilmington’s households lack access to automobiles while only 4% of Greater Newark’s households lack such access. Of the households without cars in Wilmington/Elsmere and the northern suburbs, 71.3% are non-black elderly or blacks of all ages. Those people who lack access to automobiles and who do not qualify for the use of an ambulance must rely upon public transportation, private organizations or some other limited options. The major public transportation system in New Castle County is the public bus system, DART, the Delaware Authority for Regional Transit. DART has no present or presently proposed routes which will serve the Southwest Division site. DART is the only form of public transportation in New Castle County that operates on regular routes. Other transportation is demand oriented. Taxicabs are unreliable and expensive. A round trip from the Delaware Division to the Southwest Division costs approximately $15.00. Another transportation resource, which under state law is only available to those handicapped and elderly individuals who are unable to use other modes of transportation, is the Delaware Authority for Specialized Transportation (“DAST”). DAST contracts with various agencies to provide transportation which is paid for by those agencies. WMC has not contracted with DAST to provide such services for its patients, visitors or employees. A DAST representative testified that if DAST were required to transport many of those it now takes to the various divisions of WMC to the Southwest Division, the greater distance and lesser ability to provide multipurpose trips (the inner city locations are near many other services used by the handicapped) could strain DAST’s resources and reduce its services to the handicapped. However, given the fact that WMC, under the Supplemental Agreement, is required to provide a free shuttle between the Delaware Division and the Southwest Division equipped to transport handicapped, the Court finds that this overload will not develop. Other transportation and escort services are also presently provided by volunteers or senior citizen centers. Because of the greater distances involved, these services may not be provided for people going to the Southwest Division. However, many, if not most, of the trips provided by these sources are for the purpose of clinic visits. Since the clinics will not be moved, this source of transportation presumably will still be provided for that purpose. There are also some large well established volunteer organizations which presently provide transportation to hospitals and will probably remain undeterred by any possible extra distance to the Southwest Division. The American Cancer Society will transport cancer patients to and from treatment. The American Red Cross provides weekday transport. Finally, WMC itself has for years been providing transportation among its three city divisions. The Center presently provides free ambulance service among its four present divisions, and because of the split of its services, has developed a great deal of expertise in transporting even very ill patients. For example, WMC has the present ability and sophisticated equipment needed to transport an abnormally small baby delivered in an Emergency Room over long distances with no adverse effects. Of course, under the Supplemental Agreement, WMC will also have to operate the free shuttle described earlier. This shuttle must fill any hospital related transportation demand that the sources just discussed fail to meet. The Court finds that WMC will do so. 3. Health needs of minority groups and the elderly for the services being relocated exclusively to the Southwest Division Minorities and the elderly have a disproportionately high need for many of the services which will be located exclusively at the Southwest Division under Omega. A number of witnesses for the plaintiffs questioned the rationality of locating those services which are most needed by minorities outside of the city and reached the conclusion that because of the relocation the health of the minority populations would suffer relative to the white population. The best example of this particular aspect of Omega is presented by those services relating to childbearing and the health of infants. The high-risk obstetrics clinics, special pediatric clinics, and all obstetrics, gynecology and pediatric (except for two holding beds) inpatient services will be located at the Southwest Division. These services are among those that are most heavily used by minorities. For example, while minorities comprise only 13% of the New Castle County population, they represent 33% of the patient days in pediatrics, 24% of the patient days in obstetrics, and 45.9% of the patient days in the premature nursery. Certain socio-economic factors are primarily responsible for the disparate needs of minorities for these services. First, the evidence indicated that minority teenagers are more likely than white teenagers to become pregnant, and that teenage mothers have a substantially higher risk of adverse pregnancy outcome than do other mothers. This is so, according to the testimony, because adolescents are, in general, very poor users of health care, tending not to seek primary medical care in the early stages of pregnancy and tending to miss appointments even once such care has been initiated. As a result, babies of teenage pregnancies have significantly higher incidences of perinatal death, mental retardation, and other neurological problems. A second factor contributing to the greater need of minorities for obstetrical and pediatric services is the fact that black and hispanic women tend to bear more children than do their white counterparts. This in and of itself helps to account for the higher minority utilization of obstetrical and pediatric services. This factor, however, also increases minority need for these services in another way. Women who bear children when they are over 35 years of age or are in their fourth or subsequent pregnancy are at especially high risk of having complications in their pregnancy or childbirth. The testimony also indicated that minorities are also more likely than whites to have certain diseases, such as organic heart disease, pneumonia, diabetes, and hypertension, which increase pregnancy risks. Moreover, since minorities are more likely than whites to fail to obtain early care during pregnancy, these diseases are more likely to result in pregnancy complications in minorities than they are in whites. As a result of all of these factors, the testimony indicated that minorities as a group are much more likely to be at higher risk than are whites. Overall, only 20% of white mothers but 40% of black mothers fall into the high risk category. These differences are reflected both in the higher relative minority presence in the WMC services relating to obstetrics and pediatrics noted earlier and in national and state health statistics. National infant mortality rates show a differential related to race with black infants showing significantly higher rates of newborn and infant death than white infants. Out of every 1000 black legitimate live births, 39.5 die in the first year of life while only 20.8 out of every 1000 white births die during that period. In Delaware, the neonatal death rate for minorities was more than twice that for Caucasians in 1977 (14.6 versus 6.8 per thousand) and later infancy death was three times as high for minorities in that year (6.0 versus 2.0 per thousand). Minorities also have a disproportionate need for services related to cerebral vascular diseases and for those related to the treatment of cancer. Neurosurgery, special cardiovascular laboratories, nephrology (cerebral vascular related services) and radiation therapy and oncology (cancer related) will all be located exclusively at Stanton. The disparate needs of minorities for these services is demonstrated by national statistics. Minorities have an age adjusted death rate from cerebral vascular diseases of 91 per 100,000, while for whites the rate is 56. The minority death rate from cancer (malignant neoplasms) is 157 per 100,000, compared to 129 for whites. The elderly also, not surprisingly, show a disproportionate need both for WMC’s services in general and for some of the services in particular which will be located exclusively at the Southwest site. The elderly comprise only 7% of the general population but that group accounts for 16.6% of WMC’s admissions. Moreover, because of the longer length of stay experienced by the elderly, they account for approximately 29% of WMC’s patient days. The elderly have a particular need for services relating to cerebral vascular and cardiovascular diseases. For cerebral vascular diseases, the national rate of discharge for those 65 and older is 20 per 1,000 population compared to a rate of 2.9 for all people. The elderly have a disproportionate need for some of the other services that will be located exclusively at the Southwest Division. For example, the elderly represented 23% of the admissions to gastroenterology, 31% of the admissions to thoracic surgery and 36% of the admissions for radiation therapy. Thus, under Omega, certain services will be moved 9.35 miles farther from the populations that need them most. There is little dispute between the parties on this fact. There is also overwhelming evidence to the effect that by achieving greater consolidation of services, by effecting extensive modernization, and by providing service to the southwestern areas that have heretofore lacked any hospital beds, Plan Omega will achieve an overall improvement of the level of hospital care provided to WMC’s service population as a whole. The real issue of fact is whether that overall improvement is being effected at the cost of decreasing the quality of care for minorities. Plaintiffs so argue. Defendants, on the other hand, contend that because of the way services will be divided between the two locations and because of the availability of the shuttle and emergency transportation, the added 9.35 miles will have only a minimal effect at best and that the other improvements will result in much better care for minorities than exists at present. The Court will now set forth the parties’ contentions in greater detail. III. THE PARTIES’ CONTENTIONS The numerous, disparate, adverse impacts which plaintiffs allege Omega will have upon minorities, the elderly and the handicapped fall into three major categories. One category relates to minority access to health care under Omega. A second category relates to the quality of health care that minorities will receive under Omega. The third relates to the racial identifiability of the Delaware Division under Omega. Plaintiffs first charge that access to health care for the minority groups under Omega will be inadequate in many respects. They contend that since the various minority groups are concentrated in Wilmington and its northern suburbs and since these groups disproportionately lack access to private transportation, they will disproportionately be forced to rely upon the WMC shuttle to travel to the Southwest Division. Forced reliance upon the shuttle, plaintiffs contend, will be an adverse impact in and of itself. They argue that the shuttle is inadequately planned and cannot operate on the schedule set with the number of vehicles to be used. Second, there are persons who, because of their health or the nature of their treatment at WMC, will not be able to use the shuttle. Third, the shuttle will increase the risk to passengers of contracting a communicable disease. Fourth, some people, especially working people, will not have the extra time to use the shuttle and still connect with other transportation (primarily DART) to get home, or to pick up children from a day-care center, or take care of other responsibilities. Another segment of the population will be deterred by the travel time, and the strangeness of the rural Stanton area, from going to the new hospital. Fifth, the shuttles may not be adequately equipped and staffed to serve the handicapped. Plaintiffs then argue that these “inadequacies” will translate into medical problems for the shuttle users. First, senior citizens, who are apt to be confused or timid, and who will often need some form of escort service, will be deterred from seeking needed treatment altogether. Cancer patients, plaintiffs claim, will postpone visits for treatment or decrease their number of visits for treatment, thus harming their health. Mothers required to use the high risk clinics will delay initiation of care and increase the number of missed visits. This decreased prenatal care will translate into greater risks for the mother and a greater likelihood of death or poor health for the infant. Plaintiffs also argue that there will be a decreased number of visitors and that because of the great importance of visitors to the care and recovery of the elderly, young children and post-partum mothers, the health of those groups will suffer. Plaintiffs also contend that special problems will arise for Hispanics who rely upon community workers, friends or family for translating services. Claiming that WMC now inadequately provides for those who speak only Spanish, plaintiffs contend that Omega will accentuate the problem, both by making it less likely that outside translators will be able to accompany patients to the more distant hospital and by assuring that fewer WMC bilingual workers will be located at Stanton. Finally plaintiffs focus upon certain travel related impacts which will affect both those who use the shuttle and those who will not. The time required to reach WMC facilities will be increased disproportionately for the minority groups. This, plaintiffs charge, is itself an adverse impact. The extra time will deter both users of the shuttle and those who drive themselves from seeking care. Plaintiffs’ second category of contentions centers around their general contention that the quality of care offered at the Delaware Division will be inferior both to that offered at the Southwest Division and to that presently offered at WMC in many respects. This inferiority, they contend, will be experienced disproportionately by minorities, the elderly, and the handicapped because of a disproportionately high use of the Delaware Division by those groups. In this regard, plaintiffs first argue that the quality of inpatient care offered at the Delaware Division in the General Medical, General Surgical and Cardiology Services will be inferior to that offered in those services at the Southwest Division. They contend that the physician staff will be inadequate. The Southwest Division will act as a magnet for physicians in New Castle County according to plaintiffs’ predictions. Doctors will locate their offices near Stanton and will tend to practice exclusively at the “newer, more sophisticated” facility. This will be especially so for certain subspecialists. As a result, these subspecialists will not be available for consultations or for treatment when complications arise in procedures being performed at the Delaware Division. Most private attending physicians, who will be primarily located at Stanton, will tend to come late and to leave early from the Delaware Division, thus decreasing both the quality of teaching the resident staff will receive and the quality of care at the Delaware Division. Finally, plaintiffs contend that any shortages in medical personnel will be experienced primarily by the Delaware Division because most doctors will prefer the Southwest Division. For example, the present shortage of cardiologists and of surgical residents will result in a shortage of those personnel at the Delaware Division with a consequent decline in the quality of care. Plaintiffs also contend that the Delaware Division will be physically inferior to the Southwest Division. They maintain that renovation of the Delaware Division has not been adequately planned and that WMC will never make the Delaware Division capable of delivering a quality of care equal to that which will be delivered at the Southwest Division. They further contend that WMC has not and will not be able to devote the financial resources sufficient to effect the modernization which the Supplemental Agreement requires. Indeed, they argue that Plan Omega is likely to bankrupt WMC altogether. Thirdly, plaintiffs allege that the quality of clinic care will decline under Omega because of lack of supervision of the residents staffing the clinics, because of the separation of outpatient facilities from inpatient facilities, and because of inevitable under-staffing. Finally, plaintiffs contend that the quality of care that will be offered at the Delaware Division Emergency Room will be inferior. The poor care will primarily be due to the lack of specialists to provide back-up service in cases whose difficulties exceed the capabilities of the jack-of-all trades Emergency Medicine physicians. Plaintiffs particularly emphasize the problems that may arise in obstetrics, where problems in diagnosis and treatment beyond the ken of the Emergency Physician are likely to arise and to need such immediate attention that dire consequences could ensue before a trained obstetrician could be called from his or her office, his or her home, or the Southwest Division and travel to the Delaware Division. Similar problems could allegedly arise if emergencies arose in any area of medical specialty which will be located exclusively at Stanton. Plaintiffs’ final broad category of contention regarding impacts is that under the proposed assignment plan, the Delaware Division will become racially identifiable, having a minority inpatient presence greater than 25%. Thus, plaintiffs argue, the Delaware Division will become a classic “ghetto hospital” — populated by minorities, understaffed with inferior doctors, and housed in inadequate, deteriorated and overcrowded facilities. Omega, plaintiffs conclude, is just the first step in WMC’s total abandonment of the city. In addition, plaintiffs claim that WMC has adopted this discriminatory plan for no good reason. They insist that WMC has failed to articulate any overriding necessity for Omega and that the reasons proffered by WMC for the adoption of the plan are either specious or unfounded in fact. Moreover, plaintiffs argue, many less discriminatory plans exist which could achieve WMC’s objectives more effectively than Omega will. Specifically, they contend that a plan consisting of an 800 bed Delaware Division and a 200 bed Southwest Division (“Reverse Omega”) would be far superior to Plan Omega and would lack Omega’s discriminatory effects. Finally, plaintiffs contend that WMC intended to discriminate against the plaintiff classes in the planning and design of Omega. WMC, naturally, disagrees with the plaintiffs on all these points. WMC contends that all health care will be immensely improved under Omega, that the Delaware Division and the Southwest Division will deliver an equally high quality of care, and neither will be racially identifiable. WMC also contends that of the almost fifty different plans or variations of plans studied by WMC in its decade-long planning process, Omega was the only one which could possibly fulfill the Center’s vital needs. Defendants contend that hospital facilities are needed both in the Newark area and the City of Wilmington. Moreover, it is necessary that WMC provide those facilities, because if another entity were to build a hospital in Newark, that new hospital would siphon off paying patients and thereby deprive WMC of needed revenues. The loss of such revenues, WMC contends, would result in dramatic fee increases and would perhaps curtail the hospital’s ability to offer free care. WMC also contends that some new building is necessary; changing government codes and the deterioration of its present facilities has made extensive renovations necessary. If such renovations are not made, the deteriorated state of the buildings puts WMC at risk of losing its accreditation with the consequent possible loss of Medicare and Medicaid qualification as well as the destruction of its residency program. Finally, WMC contends that greater consolidation of physical facilities is needed both to improve the quality of its hospital care and to improve its residency program. While a complex under one roof would best achieve this goal, WMC contends that a 780-250 bed split is the closest to that ideal that can be achieved if WMC’s other goal of providing beds both in the city and in the southwest is to be met. Omega is the only plan, WMC claims, that is within its financial means and that can achieve the triple goal of modernization, consolidation and provision of beds both in the city and in the southwest. Plans which would locate the bulk of beds in the city, WMC argues, would be so costly as to be beyond its financial resources. Finally, WMC contends that it did not intend to discriminate and that such discriminatory intent is necessary to state a cause of action under the statutes upon which plaintiffs rely. The Court will first address this last contention in its discussion of the proper standard of review. IV. THE APPROPRIATE LEGAL STANDARDS A. The Prima Facie Case: Impact Or Intent Title VI broadly proscribes racial discrimination in any program receiving Federal funds. It provides: No 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. 42 U.S.C. § 2000d. Section 504 and Section 6102 employ practically identical language to extend, with certain exceptions, the type of protection afforded racial minorities by Title VI to the handicapped and to the elderly. Section 504 provides: No otherwise qualified handicapped individual in the United States, as defined in section 706(7) of this title, shall solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted