National Ass'n for the Advancement of Colored People v. Medical Center, Inc.

GIBBONS, Circuit Judge,

concurring and dissenting.

I join in Part I of the opinion of the court, which holds, contrary to the position advanced by the Wilmington Medical Center (WMC), that Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d et seq. (1976), Section 504. of the Rehabilitation Act of 1975, 29 U.S.C. § 794 (Supp. II 1978) and the Age Discrimination Act, 42 U.S.C. § 6101 et seq. (1976 & Supp. II), prohibit not intentional discrimination alone, but also disparate impact upon the classes those acts protect. Only an effects standard will encourage decision-makers to consider possible discriminatory consequences of a proposal before its implementation. I also join in Part II A of the opinion of the court, holding that the plaintiffs did not establish a prima facie case of violation of Section 504 of the Rehabilitation Act. I do not join in Part II B of the opinion, which assumes arguendo that the plaintiffs established a prima facie case of disparate impact against the aged and minorities. My view is that the plaintiffs quite clearly proved a prima facie case of disparate impact against both classes in significant respects. I dissent from Part III of the opinion of the court, which is entirely inconsistent with the intention which the court correctly attributes to Congress in its discussion of the federal funding statutes in Part I.

I.

In describing the requirements for a prima facie case the majority opinion states:

To establish a prima facie case under Title VI in these circumstances, some definite, measurable impact is required, otherwise needed and worthwhile efforts at improvement will be paralyzed. Reasonable accommodations must be made, but when they have been reached, new programs must be allowed to proceed.

Maj. op. p. 1332 (emphasis supplied). If the court ended its discussion with the italicized language, I would agree with its test. But the addition of the following sentences shows that the court is confusing the requirements of a prima facie case — definite, measurable impact on the protected class— with justification for the imposition of such *1341an impact. Medical and financial necessities may justify the adverse effects, but do not make them any less substantial. The distinction is critical. It is illogical to proceed, as the majority does, to the issue of justification, without first identifying the specific impacts which will occur, since what amount of accommodation is reasonable depends on the size of the impact.

On this record there is no question but that, contrary to the district court’s alternative holding, a definite, measurable impact on the protected classes has been shown. It need not be assumed arguendo. It is plain. The district court’s contrary conclusion is the result of several fundamental legal errors, which the majority opinion ignores.

A. Factual Background

Before reviewing the lower court’s ultimate findings, I summarize the background facts about Plan Omega which are common ground. The plan was the culmination of a long period of planning by WMC for the improvement of its ability to offer quality medical care. WMC is a private nonsectarian hospital which evolved from the merger in 1965 of three acute care general hospitals in the City of Wilmington, which after the merger maintained three separate physical facilities containing approximately 55 percent of the available acute care beds in the State of Delaware. Although the three separate facilities are located in different areas of the city, they are all well served by bus routes which run throughout heavily populated areas of New Castle County, as would be true of any new consolidated facility if it was located in Wilmington. The primary reasons for the merger were reduction of duplicate facilities and improvement of clinical experience for a resident program in order to attract residents who would serve the Delaware community. Thwarting this purpose is the fact that WMC’s physical facilities are aging and in various states of disrepair; their inadequacies have resulted in only probational accreditation by the Joint Commission on Accreditation of Hospitals. Loss of accreditation would mean ineligibility for participation in residency programs approved by the American Medical Association. Thus plant improvement is essential.

It has always been the judgment of the WMC medical staff that achievement of the hospital’s objectives could best be served by placing all medical and surgical services under one roof. However, by the time planning for a new facility commenced, Delaware, like other states, was experiencing a substantial shift in population growth from older urban to newer suburban locations. In New Castle County that shift in the growth pattern produced a rapid increase in its southwestern portion, around Newark, ' Delaware. That area is now served only by an emergency room, and the need for some hospital beds in the vicinity of Newark is widely recognized. The Delaware Health Planning Council, a state agency, has recommended that such beds be provided. If an institution other than WMC were to do:so, the latter would-be adversely affected. WMC is the largest provider of free care in the County to those unable to pay for care themselves and unable to qualify for government assistance. Partly as a result of subsidization of this free, care, WMC’s hospital rates are the highest in the State of Delaware. Since the population in the southwestern suburbs is generally more affluent than that in the urban northern part of the County, diversion of patients from WMC to.a new suburban institution would have the effect of increasing the' percentage of free care patients in WMC’s patient mix, and thus of adversely affecting its financial stability.

The combination of undisputed facts outlined in the preceding paragraph limited the . choices available to WMC. It could build a new hospital under a single roof in the suburbs, closing the Wilmington units, or it could build a new hospital in Wilmington, running the risk that another institution would build in the suburbs, or it could attempt, with separate facilities, to serve both *1342areas. When the third course was decided upon it became necessary to determine the mix of facilities in the two locations. In Plan Omega WMC opted for the erection of a new 780-bed hospital, the Southwest Division, in a rural location at Stanton, the closing of two of the three Wilmington divisions, and the reduction in bed capacity of the third, Delaware Division, from 480 to 250 beds. The Stanton location is not now and will not be in the foreseeable future served by public transportation, although it is on an interstate highway. The Plan involves more than allocating beds, however, for some major hospital services will be located exclusively at the larger Southwest Division, others exclusively in the smaller Delaware Division, and some in both places.1

As a result of the order of the district court that the Department of Health, Education and Welfare perform an investigation of Plan Omega’s compliance with Title VI,2 proceedings took place before that agency which resulted in a finding that, as originally conceived, Plan Omega would violate Title VI. A Supplemental Agreement between the agency and WMC was then made for the purpose of assuring that the plan would not violate the statute.3 The fact, though not the legal significance, of the Supplemental Agreement is undisputed.

The plaintiffs contend that the effect of Plan Omega is to impose on protected classes in New Castle County a disproportionate burden of decreased availability of medical services and of employment opportunities when compared to the rest of the population. That disparate impact, they contend, will result because the housing patterns in New Castle County concentrate greater numbers of the protected classes in those parts of the County nearer to the present WMC divisions, which under Plan Omega would be scaled down considerably. The travel burden imposed by the proposed Southwest Division would allegedly be exacerbated by the fact that the new facility would not be served by public transportation. The burden would, therefore, fall disproportionately on minorities, the handicapped, and the elderly, who, plaintiffs urge, have far less access to private transportation than does the rest of the population. Moreover, they predict that because the more significant inpatient medical services will be at the Southwest Division, the quality of care at the Delaware Division *1343will in many respects be inferior, and that division will ultimately become racially identified. These impacts would violate Title VI.

Before addressing the evidence supporting these contentions, it is worthwhile noting certain provisions of the Supplemental Agreement reached by WMC and the Department of Health, Education and Welfare. The agreement recites the Secretary’s desire to receive assurance that the operation of WMC under Plan Omega as implemented will be in compliance with Title VI and the Rehabilitation Act. The agreement covers main areas of future WMC operation. First, it obliges WMC to operate its own transportation system between the Delaware and Southwest Divisions. Second, it requires the adoption of a system of inpatient utilization control aimed at preventing one or the other division from becoming racially identifiable. Third, it requires that both divisions be operated on a unitary basis, with a single Board of Directors and Executive Committee, a single medical staff, consolidated teaching programs, and consolidated accounting. Fourth, it requires improvements in the plant of the Delaware Division and approval by the Regional Civil Rights Director of the Department of Health, Education and Welfare before any reductions in services at that division or material expansion of the Southwest Division occur. The agreement is, however, “subject to amendment from time to time by written instrument executed by the parties, to reflect such changes in systems for delivery of hospital care and of changing community needs.” 4

In determining that the plaintiffs had failed to prove a case of disparate impact, the trial court canvassed the evidence on each of the ways Plan Omega could be expected to impact upon the three protected classes. Since I agree with the majority’s disposition of the claim of disparate impact on the handicapped, I address the remaining claims of the aged and minorities.

B. The Disparate Impacts Identified

The plaintiffs’ evidence suggests that minorities and the elderly are concentrated in or near the City of Wilmington, that of households lacking access to automobiles, 73.8% were in that part of the County, and that such public transportation as is available in the County other than taxicabs is concentrated in that part of the County as well. Moreover, a round trip taxicab fare from the Delaware Division to the Stanton site costs approximately $15.00. 491 F.Supp. at 304-05. That evidence also suggested that minorities and the elderly have a disproportionately high incidence of need for those inpatient services which will be located exclusively at the Southwest Division.5 491 F.Supp. at 306. The plaintiffs’ evidence identified three classes of services falling in this category. First, services relating to childbearing and infant health are more likely to be needed by minorities. 491 F.Supp. at 306-07. Second, minorities are more likely than whites to need services for cerebral vascular diseases and for cancer. 491 F.Supp. at 307. Third, the elderly are more likely than the general population to need services relating to cerebral vascular and cardiovascular diseases, gastroenterology, thoracic surgery, and radiation therapy. 491 F.Supp. at 308. The evidence is clear, and virtually undisputed, therefore, that certain services will, under Plan Omega, be moved over nine miles further from the population that needs them most; a population that has least access to private transportation.

The evidence also discloses important differences between the Southwest and Dela*1344ware Divisions, differences which plaintiffs predict will result in unequal quality of care. Almost all clinic (outpatient) care will be concentrated at the Delaware Division, and a majority of clinic patients are members of minority groups. Moreover, of 33 inpatient departments, only 5, psychiatry, family practice, rhinolaryngological surgery, dentistry and ophthalmology, will be exclusively at Delaware Division, while 15 will be exclusively at Southwest and only 13 at both facilities. There is evidence that the Delaware Division will be housed in a renovated facility, presently dilapidated, while the Southwest Division will be brand new. Plaintiffs also offered evidence tending to show that estimates of revenue on which Plan Omega was based, and upon which the proposed renovation of Delaware Division was dependent, were questionable, and thus that even a renovated Delaware Division may not materialize. 491 F.Supp. at 327. Plaintiffs contend that Delaware Division is destined to become a second-rate facility, racially identifiable, and rendering to the minorities and the elderly in its service area services inferior to those rendered at the Southwest Division. The inferior service will result, they contend, from unavailability of board-certified specialists for consultation at the Delaware Division in those important specialties exclusively at Southwest.

For various reasons the trial court rejected the significance of most of the evidence referred to, and concluded that no violation of either Title VI or the Age Discrimination Act was shown. The court analyzed the evidence under three categories: effects on accessibility, effects on quality of care, and racial identifiability. I will do likewise.

1. Accessibility

Patently the removal of a number of medical specialties from Wilmington to the suburbs will impose a disproportionate travel burden on minorities and the elderly who are concentrated in the inner city and have less access to private transportation. But as amended by the Supplemental Agreement, Plan Omega includes a shuttle bus component intended to satisfy transportation demand. Plaintiffs produced the testimony of Dr. Marvin Manheim, a transportation expert, to the effect that the level of shuttle bus service specified in the Supplemental Agreement will be far less than the demand and will create for passengers prohibitively long waiting periods. The court discounted the relevance of Dr. Manheim’s testimony, however, construing the Supplemental Agreement as a categorical undertaking by WMC to provide adequate free transportation for patients, visitors and employees. The court concluded, moreover, that even in the worst case hypothesized by the transportation expert, the additional cost of providing needed free transportation would be minimal in comparison with WMC’s annual budget. 491 F.Supp. at 319.

Since the court did not discredit Dr. Manheim’s testimony on the likely inadequacy of the minimum transportation requirements set forth in the Supplemental Agreement, they must for purposes of review be accepted in determining whether plaintiffs proved a prima facie case. Rebuttal of this case hinged on the testimony of James Tyler, a defense witness, assuring that WMC would have the financial ability to meet this projected need. However, it was plaintiffs’ contention throughout trial that, regardless of WMC’s good intentions, its future revenue projections were seriously flawed and that, as a consequence, it would be unable to satisfy the anticipated need for shuttle service. Elsewhere in its opinion the court conceded that plaintiffs had presented “strong evidence” that revenues were overestimated. 491 F.Supp. at 328 n.230. But it deemed such evidence “irrelevant” for purposes of weighing the prima facie case. As will be discussed in more detail later,6 this attack on the credibility of WMC’s revenue projections was, to the contrary, high*1345ly relevant, and the court’s acceptance of Tyler’s assurances, with no consideration given to their reliability, tainted its conclusion that WMC would be able to upgrade its planned shuttle service. For purposes of plaintiffs’ prima facie case, we are left with undisputed evidence of a lack of public transportation from minority and residential areas to the Southwest Division, and of a planned private shuttle bus system which, as presently projected, will be inadequate.

Plaintiffs also produced evidence, and the trial court found, that even assuming adequate free shuttle service connecting the Delaware and Southwest Divisions, minority inpatients and visitors will still suffer a disproportionate increase in the amount of time spent traveling to reach WMC’s facilities. 491 F.Supp. at 320. The same would appear, from the evidence, to be true of the elderly. This time the burden would fall particularly heavily on the poor for whom it might mean lost wages, and on minority mothers of small children. There is also evidence that because of the nature of the populations affected — the elderly and minorities — an increase in travel time may translate into some decrease in the use of health care. 491 F.Supp. at 321. The court discounted the significance of this evidence.

Relying on section 604 of Title VI,7 it declined to consider any transportation impact on employees. This omission was improper, for while it is true that medicaid and medicare funds are not appropriated to provide employment, and thus may fall within section 604, the impact on employees still was relevant to the claim, advanced on behalf of hospital patients, that the Southwest and Delaware Divisions will become racially identifiable. In measuring the plaintiffs’ prima facie case, therefore, evidence about access to the Southwest Division by minority employees was highly relevant. The failure to consider it was error.

As to evidence of possible decrease in use of health care facilities, the court rejected it, noting that

[ojbviously, they will not be deterred from seeking care at any of the services located at the Delaware Division. Any deterrent . . . will only occur with services located exclusively at the Southwest Division. Moreover, increases in time and distance will usually only deter those seeking primary care and will have no effect upon those who will be inpatients, those who are terminally ill, or those who are referred by their doctor to a facility to receive specialized care. Since only doctor referred specialty clinics, inpatient facilities, and doctor referred specialty outpatient treatment facilities will be located at the Southwest Division, this deterrent factor should, for the most part, not apply.

491 F.Supp. at 322. While there was evidence from which another inference might have been drawn about the deterrent effect of distance upon minorities and the elderly seeking inpatient care at the Southwest Division, the above finding cannot be described as clearly erroneous.

The court went on to find, however, that in two respects which were treated as de minimis the added distance and travel time would have a deterrent effect on the statutorily protected classes. First, the location of all specialty obstetrical care at the Southwest Division, including specialty clinics and high-risk prenatal care, may deter a few minority women to skip appointments. Second, there will be a disproportionate decrease in the number of minority and elderly visitors to the Southwest Division. 491 F.Supp. at 322. The significance of these disparate impacts upon the protected classes is discussed in connection with quality of care.

2. Quality of Care

(i) Physical Facilities

Plaintiffs presented expert testimony that the cost of the features of Plan Omega *1346which called for the renovation of the Dela-ware Division to make it physically and aesthetically equal to the Southwest Division was seriously underestimated by the defendants. Under the Supplemental Agreement WMC agrees to use its best efforts to take $2,800,000 from the financing of Plan Omega and place it in escrow, to be expended on renovating the Delaware Division. However, plaintiffs’ expert predicted the cost of renovations would be $24,700,000. Plaintiffs also offered what the court described as “strong evidence” tending to show that the revenue projections upon which Plan Omega is predicated were overestimated, and thus that the improvements in the Delaware Division would not be carried out. 491 F.Supp. at 328. The court did not discredit this testimony, rather it disregarded the evidence as irrelevant, thus presenting us with a legal issue.

The evidence of underestimation of the cost of renovating the Delaware Division was held to be irrelevant because of the categorical requirements of the Supplemental Agreement. 491 F.Supp. at 325. Even leaving the Agreement aside, the court found that the needed renovations were of the type that could be met by use of money from the operating budget and unrestricted funds. 491 F.Supp. at 327. If, however, the revenue projections are underestimated as plaintiffs alleged, the operating budget will not be achieved and unrestricted funds will be invaded to meet opening deficits. Although it noted the “seriousness of the consequences,” the court refused to “take a hard second look at the plan,” holding instead that plaintiffs’ evidence of overestimation of revenues — indeed the whole question of Plan Omega’s financial feasibility— was irrelevant,

because this question is better left for determination by the commercial market. The [bond] market will be able to apply sanctions as swiftly, surely and with greater accuracy than this court could apply.

491 F.Supp. at 328.

Such reliance on the Supplemental Agreement or the bond market as a basis for declining to consider plaintiffs’ evidence on cost underestimation and revenue overestimation cannot withstand analysis. If Delaware Division were not to be renovated substantially, after erection of Southwest Division went forward, the case for disparate impact upon the protected classes would be overwhelming. It is no answer to say that substantial evidence of financial infeasibility is irrelevant because WMC has made a promise to HEW. In the first place the Supplemental Agreement does not appear to me as categorical as the trial court believed it to be.8 Moreover, the agreement is subject to amendment at any time.9 But more fundamentally, the court’s deference to HEW enforcement of an agreement, in place of a decision on the merits of the plaintiffs’ claims, is inconsistent with the mandate of this court in the prior appeal. When the case was last before us we considered both • the ruling that the federal statutes relied on did not permit a private cause of action, and the ruling that HEW did not have to afford a trial-type hearing. We did not pass upon the merits of the appeal from the latter ruling, because we held that it was to the court that plaintiffs could look for relief. Reliance upon the Supplemental Agreement worked out between WMC and HEW, an agreement which antedated both of the orders we re*1347viewed in our earlier decision, is inconsistent with the clear purpose of our remand for a trial in the district court.10

Even less defensible from a legal standpoint is a rejection of the relevancy of plaintiffs’ financial feasibility evidence on the ground that they could rely upon the certain wisdom of the bond market. That market may, for all we know, be perfectly confident that the balance between the interest rate it seeks and the security offered by WMC, even if a default occurs, is an acceptable risk. The one thing that is fairly predictable is that if three years after Southwest Division is completed WMC cannot afford to complete the renovations of Delaware Division, the bondholders will be far more interested in keeping the former rather than the latter in operation. Thus it was error to reject the relevancy of plaintiffs’ evidence on financial feasibility as a part of their prima facie ease. That evidence, if credited, casts serious doubt upon the likelihood of Delaware Division being a hospital plant equivalent to Southwest Division, since the renovation depends on the availability of an operating surplus. The district court did riot discredit it, and we may not. If one projects the possibility that Delaware Division may not be renovated, the case for disparate impact upon the minorities and the elderly who are likely to be its patients is strong.11

(ii) Quality of Medical Service

Aside from their general prediction that for financial reasons Delaware Division would be an inferior facility, the plaintiffs also offered evidence attempting to prove that the quality of care received by minorities and the elderly under Plan Omega will be poorer than that received by the general population.

Plaintiffs’ first contention is that although both Divisions will offer some services in medicine and in surgery,12 the services delivered at Delaware Division will be inferior, (1) because of the unavailability of board-certified specialists in some specialties for consultation at that division, and (2) because of the likelihood that, even when a specialty service is offered at both, a shortage of board-certified physicians at the Delaware Division will result from their abandonment of it out of preference for Southwest. The impact in either event upon minorities and the elderly would be considerably greater than upon the general population. The court discredited the evidence suggesting that this scenario will occur; it reasoned that under Plan Omega specialists at Southwest would be required to be on call for consultation at Delaware, that Delaware would be a fully equipped hospital in which such subspecialists could practice,13 and that under the Plan doctors would be *1348prohibited from limiting their practices to one division. In this instance, more than any other, the court was called upon to exercise intuition and judgment about human behavior in the future. While the district court’s description of plaintiffs’ evidence on this point as having “absolutely no merit” is hyperbolic, 491 F.Supp. at 330, one cannot say that the court erred in discrediting it. Its rejection is reinforced by the conclusion that in most cases patients in need of subspecialty services will be admitted directly to Southwest, and others can be transferred there. 491 F.Supp. at 329-30. But still, all depends on the assumption of financial feasibility.

Plaintiffs also attempted to prove that the quality of the resident staff at Delaware would be inferior in numbers and quality. The court concluded otherwise, because Plan Omega contemplates operating the residency program on a unified basis, with residents being rotated among floors in both facilities. They also challenged the quality of Emergency Room services, although the Plan calls for duplicate Class 1 emergency rooms with similar backup specialists.- In both of these instances, as well, one is unable to say that the court erred in finding no disparate impact on the protected class, assuming financial feasibility of the entire program.

However, all of these findings favorable to WMC are tainted by the court’s treatment of evidence of financial feasibility as irrelevant. All would probably have been determined otherwise if it were found that WMC could not afford to upgrade Delaware Division after the completion of Southwest Division. In that event, plaintiffs’ case of disparate impact would be overwhelming.

In two respects the court found that plaintiffs had proved disparate impact in quality of care: access to a high risk prenatal clinic, and impact on visitors to inpatients.

As to prenatal care the evidence is clear that the incidence of high risk pregnancy is greater among minority women than in the female population at large. Obstetrical service will be concentrated at Southwest. Because of the distance to that division, the court found that persons in need of prenatal outpatient care, especially teenagers, will be more likely than others to miss appointments and be deterred from seeking care. 491 F.Supp. at 335. In considering plaintiffs’ prima facie case this finding was discounted because, the court concluded,

[t]he fact is, however, that the special clinics which WMC maintains for teenagers and Hispanics are not called “high risk clinics” and will be located at the Delaware Division under Omega.

491 F.Supp. at 335. If the quoted language was intended as a finding that there would be equivalent obstetrical clinic care at Southwest and Delaware, there is no support for it in the record. The evidence is that the only clinic at which an attending physician is present is the “obstetrical high risk clinic” (JA 525-6, 529), and that clinic will be at Southwest (JA 1002). Thus the finding of disparate impact on minority women with high risk pregnancies is unrebutted.

As to visitors, the court acknowledged that increased travel time will have a deterrent effect on minorities and the elderly. 491 F.Supp. at 332. Specialty services for which the elderly are particularly in need are concentrated at Southwest, for example, and the court acknowledged that a lack of visitors can have both psychic and physical deleterious effects on them. 491 F.Supp. at 332. All pediatrics inpatient services will likewise be at Southwest and the court conceded that visits from family members are extremely important for sick children. 491 F.Supp. at 338. Obstetrical inpatient services will be at Southwest, and OB inpatients were also found to have a great need for visitors. 491 F.Supp. at 334. But while conceding that elderly inpatients and minority users of WMC’s pediatric and obstetrical services will be disproportionately impacted by the inhibiting effect of time and distance on visitors, the court disre*1349garded those disparate impacts as insufficiently substantial to be taken into account in determining whether a prima facie case had been made out. The question of substantiality for purposes of Title VI and the Age Discrimination Act is a question of law. At least in the area of hospital care, where the marketplace typically affords few alternative facilities and impaired access may gravely affect health, I am reluctant to impose a very strict standard of substantiality. Therefore, I cannot agree with the court’s conclusion that these disparate impacts are insubstantial.

3. Racial Identifiability

Finally, plaintiffs attack the Supplemental Agreement provision for inpatient utilization control, whereby patients needing services offered by both the Southwest and Delaware Divisions would be assigned to one or the other according to zip code. Expert testimony was presented suggesting that this method of allocation will fail to prevent the Delaware Division from becoming racially identifiable14 and will, in fact, cause overcrowding that can be alleviated only in such a way as to make the minority presence at the Delaware Division even more dominant. Noting that the assignment plan merely required the hospitals to offer beds to certain assigned patients, but did not compel the patients to take them, plaintiffs’ experts testified that a multitude of factors would influence the choice of the more affluent, more mobile white population to go to the Southwest Division, while the poorer, less mobile minority population would await a bed at the Delaware Division. Further exacerbating the racial identifiability of the inner-city hospital, plaintiffs urge, would be the tendency for WMC’s minority service employees to prefer working there because of the greater travel time required for them to reach the Southwest Division.

In the face of such evidence and an admission by HEW that it had not considered the overcrowding consequence, the court again chose to disregard it as “simply irrelevant” because of the Supplemental Agreement which requires WMC to remedy any ensuing racial identifiability “by whatever means necessary.” 491 F.Supp. at 300. In response to plaintiffs’ concerns that WMC might somehow avoid this contractual obligation, the court noted that “HEW can monitor WMC’s activities, thus assuring that, if WMC does not meet its obligations, sanctions will be applied.” 491 F.Supp. at 300.15 I have already indicated that such reliance on the terms of the Supplemental Agreement cannot substitute for a decision on the merits of plaintiffs’ concerns. Since no weight was given to their evidence, the court’s finding that the threatened overcrowding or racial identifiability can be remedied by simply transferring four inpatients per day from the Delaware to the Southwest Division, 491 F.Supp. at 339, cannot be upheld, especially when the transfer of minority and elderly inpatients risks reducing the quality of their care because of the impact it would have on their access to visitors.16

In summary, after looking at the entire record, including the evidence which the court erroneously disregarded, and considering the disparate impacts which were actually found, I conclude that the judgment appealed from cannot be affirmed on the basis of a failure by the plaintiffs to prove a prima facie case of disparate impact of Plan Omega on minorities and the elderly.

*1350II.

As the opinion of the court correctly indicates,17 when plaintiffs in a Title VI or Age Discrimination Act case have produced evidence of disparate impact, the defendants must at least come forward with evidence in rebuttal or justification to “meet” the plaintiffs’ prima facie case. Unfortunately, however, the court never gets more specific and, hence, there is a large gap in its analysis. By assuming that the plaintiffs’ unrebutted evidence established a prima facie case of disparate impact, without discussing that evidence in detail, the opinion fails to focus upon the nature and extent of the several different impacts on which evidence was offered. It then passes on to the quite separate issue of burden of persuasion, without first pausing to inform just what it is the factfinder must be persuaded of. The content of the rebuttal or justification evidence cannot be determined in the abstract. It must be related to the precise impacts suggested by the plaintiffs’ evidence.

If we were dealing with an effort to prove intentional race or age discrimination by inference from the circumstantial evidence of disparate impact upon minorities or elderly persons, the content of the rebuttal evidence would be sufficiently self-evident that an opinion writer might safely assume it need not be referred to explicitly; evidence of a nondiscriminatory business purpose for the challenged actions supports an inference that accomplishing that purpose was the true motive. Notwithstanding the inference of improper motive which arguably arises from disparate impact, the existence of a proper business purpose places the evidence on motive at best in equipoise, such that the party with the burden of persuasion on that issue loses. The plaintiff can still carry this burden by demonstrating that the business purpose was a pretext, feigned in order to hide the actual discriminatory animus. If such a pretext is established, the defendant loses, for he cannot ever justify action taken, regardless of pretext, for the purpose of discriminating.

In a case such as this one, however, where the plaintiffs do not rely upon an intent to discriminate, the legal standards for rebuttal or justification are much more complex. Part I of the opinion of the court is a welcome clarification of the analytical distinction between intent cases and disparate impact cases, and a proper recognition that spending power statutes such as Title VI and the Age Discrimination Act address both problems. Unfortunately, however, by ignoring the critical differences between the legal standards for rebuttal and justification in the two types of cases, the court leaves the law almost as confused as it was found.

When a member of a class protected by a funding statute’s nondiscriminatory clause has produced evidence that a defendant’s actions will impose a disparate impact on that class, there are two analytically separate kinds of evidence which may be offered. First, the defendant can rebut the evidence offered by plaintiffs, by evidence that the impacts complained of will not occur. For example, a defendant can show that steps will be or have been taken to effectively prevent their occurrence. Alternatively, a defendant can justify those impacts by showing that they must necessarily occur, if certain important objectives are to be accomplished, even though a defendant has chosen what it believes to be the feasible alternative having the least discriminatory impact. This distinction between rebuttal and justification is critical. Rebuttal is in essence a factual matter. Justification, on the other hand, while it involves factual matters which may be in dispute, also involves a legal standard, which the opinion of the court never supplies. It never decides the legal question presented by this case: what must defendants do before they may justify a redistribution of federal benefits away from a protected class. In my view, a plan imposing such an impact *1351can only be justified by a showing that defendant has valid needs essential to its business or service, that the proposed plan will feasibly meet those needs, and that other plans with lesser impact on the protected classes will not.18

In the trial court WMC offered evidence both in rebuttal and in justification. The trial court considered both, and decided in WMC’s favor. If the court had weighed all the relevant evidence regarding potential impacts and the steps taken to remove or mitigate them, and concluded that the alleged impacts would not occur, it might be proper to affirm on the basis that such a finding was not clearly erroneous. Alternatively, if the court had identified specific impacts which will occur, but concluded after weighing all the relevant evidence that these impacts are inevitable, because Plan Omega is the only feasible method of meeting WMC’s compelling needs, that finding might likewise be affirmed as not clearly erroneous. But neither of these courses is properly open to this court on the present record because of the errors referred to in Part I above. The district court’s entire analysis is flawed by its interrelated holdings that evidence of financial infeasibility was irrelevant and that the Supplemental Agreement would overcome all defects in Plan Omega bearing upon the vital issues of transportation, racial identifiability, and quality of service. By assuming favorable revenue projections and complete compliance with the Agreement, the court relieved WMC of the need to rebut those major impacts suggested by plaintiffs’ experts.19 It also thereby narrowed the number and severity of the impacts which might have to be justified. Problems which would be major if WMC lacked the financial resources to make adjustments were made de minimis by the simple stroke of disregarding plaintiffs’ financial evidence. Thus although the district court sought to apply the correct legal standards, both with respect to rebuttal and with respect to justification, it did so against a background of “meager” disparate impacts created by its own assumed factual matrix which cannot be relied upon. And because the majority opinion of this court addresses neither plaintiffs’ impact evidence nor the appropriate legal standard for justification, the errors below go uncorrected.

The majority does attempt to put the trial court’s ruling on financial feasibility in a favorable light, but in vain.20 Evidence that Plan Omega is fiscally unsound goes to *1352the heart of the case, for it not only raises the threat of a racially identifiable facility and other adverse impacts, but also indicates that this burden placed on minorities and the elderly is unjustified. It is one thing to demonstrate, as defendants have done, that Plan Omega is designed to serve compelling objectives; whether it will accomplish them, however, is another, equally important question left open on this record. In light of the trial court’s refusal to consider “strong evidence” that Plan Omega seriously overestimates future revenues and may therefore pose a drain on WMC’s resources, I cannot find the consolation others have in the district court’s “overarching” finding that the level of care for all population groups will improve. As suggested above, I concede that a substantial burden on the access of minorities and the elderly to federal benefits is nonetheless justified if the relocation is the only feasible alternative capable of meeting defendant’s needs. Conversely, however, an infeasible plan is insufficient justification as a matter of law. Thus, to dismiss the issue of financial feasibility as completely irrelevant subverts the Congressional policy in favor of nondiseriminatory funding.21

The discussion so far has concerned the legal standards by which a defendant’s actions should be measured, and not the matter of who bears the burden of persuasion. The point is that, regardless of where that burden is placed, the errors discussed in Part I above completely tainted the trial court’s substantive analysis. That alone requires a reversal and remand.

III.

Equally troubling from a precedential standpoint, however, is the majority’s decision equating the defendant’s burden in a case of disparate impact with that borne in a case of intentional discrimination. Today’s holding achieves an artificial symmetry, but at considerable cost to the prospects of eliminating all forms of discrimination which, as the opinion of the court confirms, was the impetus behind Title VI and the Age Discrimination Act. I have no serious difficulty with leaving the burden of persuasion on the plaintiffs when what is brought forward by defendants is rebuttal — evidence that there will be no impact— rather than justification. However, since in many cases the means of proof of justification will not be within the reach of the protected class and allocation of the burden of persuasion will be dispositive, the only allocation consistent with the Congressional intention to protect the disadvantaged class from actions having discriminatory effects is to assign the burden of justifying the impact to the defendant who receives federal funds. The policy decision was made by Congress, and in filling in the gaps in the statute we should allocate the burden consistent with that policy.

The majority reaches its result without considering the interest in evenhanded access to the federal benefits Congress provides and without acknowledging the problems of proof. Instead, it looks to the one line of discrimination cases where burdens have been clearly spelled out, involving intentional employment discrimination, and argues that such rules must be uniformly applied in all cases brought under nondiscrimination statutes. The plea for symmetry has only the attraction of relieving courts from analyzing the substantive dif*1353ferences between two quite distinct statutory prohibitions. The defendant accused of discriminating intentionally stands in a very different position than one accused of actions which have unintended adverse effects. As noted before, the plaintiffs in this case are not asking that the factfinder draw from circumstantial evidence of disparate impact, an inference of discriminatory intent. Rather, the gravamen of the complaint is that the benefits of a federal program are being redistributed away from protected classes unnecessarily, and that racially identifiable facilities are being spawned with the help of federal funds. The object of the litigation is not so much to punish a wrongdoer, as to prevent indifference and correct for inadvertence. The presumption in a case which has proceeded to the point in litigation where definite impact is established is that defendant is subjectively willing to mitigate the impacts, but is constrained from further accommodation by other pressing needs and the lack of reasonable alternatives. Something akin to an affirmative defense makes sense logically in such a context; on the other hand, I reject the majority’s proposition that “[o]ne could just as readily say in an intent case that the necessity to prove a nondiscriminatory reason is an affirmative defense. . . . ” Maj. op. p. 1333. To the contrary, such reasons are offered to disprove the existence of discriminatory intent. They can never justify it.

The logic of requiring recipients of federal aid to justify the disparate impact caused by their actions was recognized by the Supreme Court in Board of Education v. Harris, 444 U.S. 130, 100 S.Ct. 363, 62 L.Ed.2d 275 (1979). Statistical proof of discriminatory effects in that case had established a prima facie violation of the Emergency School Aid Act. That inference could be rebutted, said the Court, adding

We conclude, however, that the burden is on the party against whom the statistical case has been made. See Castaneda v. Partida, 430 U.S. 482, 497-98, and n.19 [97 S.Ct. 1272, 1281-1282 and n.19, 51 L.Ed.2d 498] (1977); Griggs v. Duke Power Co., 401 U.S. 424, 434 [91 S.Ct. 849, 855, 28 L.Ed.2d 158] (1971). That burden perhaps could be carried by proof of “educational necessity,” analogous to the “business necessity” justification applied under Title VII of the Civil Rights Act of 1964, 78 Stat. 253, 42 U.S.C. § 2000e et seq.; see, e. g., Dothard v. Rawlinson, 433 U.S. 321, 329 [97 S.Ct. 2720, 2726, 53 L.Ed.2d 786] (1977); Furnco Construction Corp. v. Waters, 438 U.S. 567, 581-583 [98 S.Ct. 2943, 2952-2953, 57 L.Ed.2d 957] (1978) (dissenting opinion).

444 U.S. at 151, 100 S.Ct. at 375; cf., Southeastern Community College v. Davis, 442 U.S. 397, 407, 99 S.Ct. 2361, 2367, 60 L.Ed.2d 980 (1979) (§ 504). However much ambiguity surrounds the nature of the burden on a nonfederally-funded employer in Title VII impact cases, Harris represents a clear signal that burden-shifting on justification is called for where principles of nondiscrimination in funding are to be enforced.

Even within the context of Title VII, on which the majority focuses, appellate courts faced with having to clarify the nature of the employer’s burden on the issue of business necessity have described it as “heavy” or labeled it as one of persuasion. See, e. g., Donnell v. General Motors Corp., 576 F.2d 1292, 1298 (8th Cir. 1978); Smith v. Olin Chemical Corp., 555 F.2d 1283, 1286 (5th Cir. 1977); Vulcan Society of N.Y. v. Civil Service Comm’n, 490 F.2d 387, 393 (2d Cir. 1973). The majority’s suggestion that the Supreme Court has since settled the issue of burden in such impact cases is belied by the Court’s most recent pronouncement in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). That opinion implies that the allocation of burdens in a disparate treatment case does not *1354necessarily govern disparate impact cases.22 450 U.S. at 252 n.5, 101 S.Ct. at 1093 n.5.

Citing intent and impact cases indiscriminately and recommending they be approached in the same way threatens to confuse the litigation process and lead to unfortunate misunderstandings such as may have occurred in the decision of the district court. It held that WMC had met its burden of producing some evidence, and that the plaintiffs failed to prove that the hospital’s justification for Plan Omega was pretextual. 491 F.Supp. at 345. This misconceives what it was the court had to decide. The contention was not that the reasons advanced were not genuine, but that there were feasible alternatives with less disparate impact. That was the heart of the issue: whether Plan Omega with its disproportionately adverse effects was unnecessary23

The majority’s observation that a completed Title VI violation involves not disparate impacts per se, but only those that are unnecessary, may arguably make terminology such as “affirmative defense” unsuitable; but it does not answer the question of where the risk of non-persuasion on the issue of justification should be placed as a matter of public policy and from the viewpoint of who has the evidence. Indeed, the problems of developing evidence and assembling it in admissible form cannot be separated from the fulfillment of statutory policy flowing from Congressional intent.24

Bringing such considerations to bear in this matter, I am concerned that allocating the risk of non-persuasion on justification *1355in an impact case by reference to precedent established in cases of intentional discrimination ignores important distinctions between access to proof in the two types of cases. In intent cases, the plaintiff-victim is often in a better position than the defendant to develop and uncover the particular acts upon which the charge of discrimination is based. In some instances, such evidence is probably more accessible to the victim, particularly when the discriminatory acts are committed by subordinates, but must be defended by their superiors. Evidence of the presence or absence of impact may also be equally available. But assuming some impact, the proof of justification is always going to be in the possession of the defendant and rarely also in the possession of plaintiff members of the protected class, since the latter are unlikely to be privy to the decision-making process or the competing considerations which ultimately form the defense of justification.

One need look no further than the instant appeal to appreciate the crucial importance which the risk of non-persuasion assumes in a case like this. All parties seem reconciled to the need for placing some facility in the Stanton area to foreclose competition from another institution, and all parties agree that WMC needs a new large hospital. The dispute has to a large extent been whether some variety of “Reverse Omega” could mitigate the disparate impacts of a relocation and still feasibly accomplish the hospital’s pressing needs. By relying on intent cases and placing the burden of demonstrating feasible alternatives on the plaintiffs, the court saddled them and their expert with the task of filling in the gaps in WMC’s own consideration of alternatives,25 and relieved WMC, which had far more ready access to the information, of the need to persuade that the alternatives were not financially or medically feasible. Moreover, the risk of non-persuasion was made critical by the abundance of conflicting evidence as to the projected cost differential between Omega and Reverse Omega, and it is noteworthy that the court did not accept at face value WMC’s cost estimates, but made its own. 491 F.Supp. at 345. In short, the burden placed on plaintiffs was impractical and the error severe, not harmless. Thus, even if the errors discussed in Parts I and II did not require reversal, the erroneous allocation of burden of persuasion does.

IV.

I do not minimize the complexity of the trial judge’s task in this case, requiring as it does consideration of future consequences. However, since the effective delivery of federally-supported health care is at stake, the federal interest in preventing creation of a racially identifiable facility and the possible curtailment of hospital services is clear. The dockets of this court and others bear testimony to the difficulties of desegregating institutions after they have become segregated. Regulations affecting *1356site selection, designed to forestall segregation in health care delivery, intentional or otherwise, from occurring in the first place, simply reflect the wisdom — acknowledged, ironically enough, in the medical profession — that an ounce of prevention is worth a pound of cure.

. Placement of inpatient services under Plan Omega would be as follows:

Department Section Location

Medical: Allergy Both

Cardiology Both

Dermatology Both

Endocrinology Gastroenterology Both Southwest

Internal Medicine Both

Nephrology Southwest

Rheumatology Both

Physical Medicine Both

Chest Diseases Both

Infectious Disease Both

Neurology Southwest

Oncology Southwest

Psychiatry Delaware

Radiation Therapy Southwest

Family Practice Delaware

Surgical: General Both

Neurosurgery Southwest

Orthopedic Surgery Southwest

Plastic Southwest

Proctology Both

Thoracic Southwest

Otology Both

Rhinolaryngology Delaware

Vascular Both

Dentistry Delaware

Ophthalmology Delaware

Urology Southwest

Obstetrics/

Gynecology: Obstetrics Southwest

Gynecology Southwest

Pediatrics: Pediatrics Southwest

Newborn Southwest

Premature Southwest

In addition, some clinic, outpatient, and support services will also be located exclusively at the Southwest Division, 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.

. See NAACP v. Wilmington Medical Center, Inc., 453 F.Supp. 280 (D.Del.1978).

. The Supplemental Agreement is in the record as PX2.

. Supplemental Agreement, Paragraph (14).

. Services to be exclusively at Southwest include gastroenterology, nephrology, neurology, oncology, radiation therapy, neurosurgery, orthopedic surgery, plastic surgery, thoracic surgery, urology, obstetrics, gynecology and pediatrics, both newborn and premature.

. See Part I(B)(2)(i) infra.

. Nothing contained in this subchapter shall be construed to authorize action under this sub-chapter by any department or agency with respect to any employment practice of any employer ... except where a primary objective of the Federal financial assistance is to provide employment.

42 U.S.C. § 2000d-3.

. Paragraph 12(d) provides:

WMC agrees to complete renovation of the Delaware Division regardless of cost, within (3) years of the date on which construction of the Southwest Division is completed. Failure to complete said renovation within said period shall be deemed to be a violation of Title VI of the Civil Rights Act of 1964.

The Supplemental Agreement does not, however, describe the nature or scope of the renovations, as the court itself conceded. 491 F.Supp. at 301 n.89.

. Paragraph (14) provides:

This agreement shall be subject to amendment from time to time by written instrument executed by the parties, to reflect such changes in systems for delivery of hospital care and of changing community needs.

. See NAACP v. Wilmington Medical Center, Inc., 453 F.Supp. 280, 453 F.Supp. 330 (D.Del. 1978), rev’d, 599 F.2d 1247 (3d Cir. 1979). The plaintiffs’ contentions, which the panel remanded for consideration, included inter alia “that the modified plan was based on erroneous and inadequate findings. . . . ” 599 F.2d at 1250.

In their brief on this appeal, plaintiffs point to inadequacies in the HEW investigation which, they claim, undermine the credibility of its acceptance of the Supplemental Agreement. HEW’s chief investigator admitted, for instance, that the agency had not considered total patient days in accepting the patient assignment plan and thus did not consider the over-occupancy consequence prior to its acceptance of Plan Omega. It was also conceded that no health experts were consulted or involved in the drafting or revision of the letter of findings or the negotiations leading to the Supplemental Agreement (Joint Appendix (JA) 1243-6, 1250).

. In a related context, the Court of Appeals in Bryan v. Koch, 627 F.2d 612 (2d Cir. 1980), implied that plaintiffs challenging the shutdown of a municipal hospital had established a prima facie case of disparate impact where the City’s estimates for alternative care “rest on projections made without sufficient assurance. ...” 627 F.2d at 617. Accordingly, the panel found it “appropriate” to complete an assessment of the plaintiffs’ Title VI claim by examining the justification advanced by the City for closing the hospital.

. See note 1 supra.

. The court assumed, of course, that this would be financially feasible. See Part I(B)(2)(i) supra.

. Under Paragraph (6) of the Agreement, a division will be deemed racially identifiable if it shows “in excess of 25% minority inpatient utilization” based upon patient days.

. However, reliance on the monitoring and enforcement capability of HEW, now HHS, may be unrealistic. See Wing, Title VI and Health Facilities, 30 Hast.L.J. 137 (1978).

. See Part I(B)(2)(ii) supra.

. Maj. op. pp. 1334, 1337.

. The district court assumed that this was the legal standard for justification of disparate impact. 491 F.Supp. at 340. A plurality of this court, relying on Jefferson v. Hackney, 406 U.S. 535, 92 S.Ct. 1724, 32 L.Ed.2d 285 (1972), hint that any inquiry into alternatives at all may be inappropriate in Title VI cases. However, at the time that case was decided, the contours of Title Vi’s obligations had not been litigated, 406 U.S. at 577, 92 S.Ct. at 1746 (Marshall, J., concurring in part and dissenting in part), and the Court treated analysis under that statute and the fourteenth amendment as being equivalent. 406 U.S. at 549-50 n.19, 92 S.Ct. at 1733 n.19. Subsequently, it handed down its landmark opinion in Lau v. Nichols, 414 U.S. 563, 94 S.Ct. 786, 39 L.Ed.2d 1 (1974), deciding that Title VI, by itself, barred disparate effects. Since the announcement in Lau that Title VI can require affirmative action, the question of how much has remained open and is not controlled by Jefferson v. Hackney.

. The effect of this was to short-circuit the process of reasonable accommodation which Title VI is designed to foster. Recognition by the trial court of such specific, discrete impacts as the absence of a high risk prenatal clinic at the Delaware Division and consideration of plaintiffs’ evidence of financial infeasibility might well have elicited from WMC more reassuring revenue projections or prompted it to fine-tune Plan Omega in ways which would remove or sufficiently mitigate the problems identified, without necessitating the inquiry into justification and the merits of Reverse Omega or some alternative site. Indeed, WMC might have decided to rebut the prima facie case by adjusting the mix of services at their preferred site, for example, or by replacing generalized promises of adequate shuttle transportation with specific allocations of funds for expanded service or a concrete contingency plan satisfying plaintiffs’ concerns.

. The opinion of the court contends that the district court did make findings with respect to the financial feasibility of the Delaware Division renovations. That contention misses the point. It is clear that the district court refused *1352to decide the broader question on which renovation depends: i. e., whether Plan Omega taken as a whole is financially sound.

. The majority suggest that any financial inquiry is too speculative; yet they are willing to speculate, without any supporting evidence presented at trial, that the bond market will arrest a flawed project or that bondholders will abide by the terms of the Supplemental Agreement in the event a shortage of revenue befalls the project and threatens their security interest. On the other hand, if such optimism should prove unfounded, and a racially identifiable hospital of inferior quality ensues, the only sanction available to federal authorities at that point will be a cutoff of further funding. This does not help matters when the hospital is already financially strapped. Nor is there any assurance that the effects of a cut-off would be felt equally by the Stanton and Delaware Divisions.

. In Burdine the question for decision was the nature of an employer’s burden in an intent case. The Court began its analysis by saying:

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), we set forth the basic allocations of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment.5
6 We have recognized that the factual issues, and therefore the character of the evidence presented, differ when the plaintiff claims that a facially neutral employment policy has a discriminatory impact on protected classes, [citations omitted].

49 U.S.L.W. at 4215. The footnote wuld seem superfluous were it not construed as a signal that the evidence and the issues in an impact case may warrant a different burden of proof analysis.

Nor is a unitary burden for all Title VII cases established by the other Supreme Court precedents. The footnote in New York Transit Authority v. Beazer, 440 U.S. 568, 587 n.31, 99 S.Ct. 1355, 1366 n.31, 59 L.Ed.2d 587 (1979), did no more than reaffirm the decision in Albermarle Paper Co. v. Moody, 422 U.S. 405, 95 S.Ct. 2362, 45 L.Ed.2d 280 (1975), which in turn does not speak with the clarity attributed to it by the majority. Albermarle Paper Co. assigns plaintiffs, at most, the burden of proof on the existence of less discriminatory alternatives, an inquiry which is relevant only to the extent that the defendant has first persuasively shown that it has compelling needs and that its proposed plan will feasibly meet those needs. But even that construction of Albermarle Paper Co. would be too broad. The opinion can be read as simply acknowledging that plaintiffs who failed to prove a Griggs-type violation, could nonetheless still attempt to succeed on an intent theory if they were prepared to prove that less discriminatory alternatives existed and that, therefore, defendant’s justification was merely pretextual. 422 U.S. at 425, 95 S.Ct. at 2375. This use of alternatives as circumstantial evidence of discriminatory animus is standard in intentional discrimination cases. See Furnco Construction Corp. v. Waters, 438 U.S. 567, 578, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957 (1978). In contrast, the existence of alternatives to Plan Omega revealed in this litigation was not urged as evidence of pretext, but went directly to the question of whether the disparate impact of WMC’s proposed relocation could be mitigated and, therefore, federal benefits better distributed. That is purely an impact issue and, as such, should remain part of the defendant’s burden of justification.

. Elsewhere, the court seemed to appreciate the distinction, but the net effect of its ambiguous focus on pretext is to cast doubt on the court’s treatment of the evidence. Hopefully, the opinion of this court has at least relegated the concept of “pretext” to its proper place. See Maj. op. p. 1336 n.17.

. Cf. Shultz v. Wheaton Glass Co., 421 F.2d 259, 267 (3d Cir. 1970) (Equal Pay Act) (“In cases such as this, where the justification for the differential rests on economic benefit, the company has peculiarly within its knowledge the means of proof, and the burden therefore is one which cannot be satisfied by general or conclusory assertions.”)

. The difficulty of this task was at one point acknowledged by the district court. Although WMC submitted projections for Reverse Omega which showed it to be more costly than Omega, plaintiffs argued that the cost differential was due to the fact that the two plans did not contemplate equivalent facilities and services. In support of their contention, plaintiffs’ key expert witness attempted to construct an estimate of what the Plan Omega hospitals would cost if they were to match the hospitals Reverse Omega would create. Indeed, the court found that WMC never had attempted to develop a plan for Reverse Omega using the same parameters that were used for Omega. 491 F.Supp. at 343. Therefore, in order to properly compare the two plans, plaintiffs’ witness had to create an “Imaginary Omega.” However, the court found the expert’s projections unreliable, acknowledging, though, that this was because “in devising his estimates, [the expert] relied upon documents that were never designed for the purpose of making the comparison he was attempting.” 491 F.Supp. at 344.

A comparison among alternate plans using equivalent parameters would seem critical to proper determination of whether defendants’ chosen alternative was unavoidable despite its disproportionate adverse effects. Assigning the burden of justification to the recipient of federal funds will help ensure that documents permitting such comparison are placed before the court.