Title VI Challenges by Private Parties to the Location of Health Care Facilities: Toward a just and Effective Action

OF THE UNITED STATES 100 (1992) (tbl. 142)). In total, federal funds pay for 41% of hospital care, 32% of nursing home care and 28% of doctors' fees. Id. (citing BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES 100 (tbl, 141), 98 (tbl. 137)). 138 See. ROBERTS, supra note 129, at 40; Perkins, supra note 2, at 380; Watson, Inner City, supra note 2, at 1667; Watson, Reinvigorating Title VI, supra note 2, at 944. 1 " Kenneth R. Wing, The Community Service Obligation of Hill-Burton Health Facilities, 23 B.C. L. REv. 577, 578, 600 (1982) (requirement that hospitals receiving Hill-Burton funds provide charity care); see also Jane Perkins & Michael Dowell, Tax Exemption for Health Care Facilities: Charity Care Enters the Picture, 22 CLEARINGHOUSE REV. 247, 250-51 (1988) [hereinafter Perkins & Dowell, Charity Care] (requirement that hospitals receiving tax exempt status provide meaningful amounts of charity care); Jane Perkins & Michael Dowell, Developments Regarding the Charitable Tax Exemption for Hospitals, 19 CLEARINGHOUSE REv. 472, 472 (1985) [hereinafter Perkins & Dowell, Developments] (requirement that hospitals receiving tax exempt status under 26 U.S.C. § 501(c) (3) (1994) be operated for charitable purposes). 140 See BARRY R. FURROW ET AL., HEALTH LAW: CASES, MATERIALS AND PROBLEMS 628 (2d ed. 1991); Perkins, supra note 2, at 380-81. 141 42 U.S.C. § 291c(e) (1) (1988); 42 C.F.R. § 124.603(a) (1) (1994); Perkins, supra note 2, at 380-81; see also Wing, supra note 139, at 600. 142 Perkins, supra note 2, at 381; see generally Stan Dorn, et al., Anti-Discrimination Provisions and Health Care Access: New Slants on Old Approaches, 20 CLEARINGHOUSE REV. 439 (Summer 534 BOSTON COLLEGE LAW REVIEW [Vol. 37:517 States also have an interest in the regulation of health care."' Some states regulate hospitals through a certificate of need program, which is designed to control construction of new facilities.'" From the mid-1970s until the early 1980s, state and federal governments controlled health care costs primarily by restricting the supply of health care resources. 145 This was accomplished in large part through certificate of need programs that required hospitals to obtain government approval for capital investments. 146 In 1986, the federal government repealed its most important certificate of need program. 147 Approximately twothirds of states have maintained some version of certificate of need programs. 148 In addition to direct subsidies in the form of Medicare and Medicaid payments, tax-free status is another benefit conferred to many hospitals. 149 One justification for this practice is that nonprofit hospitals are supposed to provide free care for those unable to pay)" Today, however, many for-profit and nonprofit hospitals are run in an identical fashionP Some commentators suggest that those who retain taxfree status be required to contribute more directly to the communities in which they are located.'" Today, almost all hospitals and nursing homes accept federal funds.'" Therefore, they all come within the reach of Title VI's nondiscrimination requirement.' 54 Despite the pervasiveness of federal subsidies of health care, however, health outcomes are not equal for minority and nonminority groups.'" 1986). Administrative complaints and litigation can be used to enforce community service violations. See Perkins, supra note 2, at 381. 143 See FURROW ET AL., supra note 140, at 684; Perkins & Dowell, Charity Care, supra note 139, at 247; Perkins & Dowell, Developments, supra note 139, at 476. 144 FURROW ET AL., supra note 140, at 682. 145 Id.