Something Short of Miraculous

Months in the making, the city's plan to maintain reproductive services at Brack still raises questions

Consumers Union policy analyst Lisa McGiffert

News Features
Consumers Union policy analyst Lisa McGiffert

News Features (Photo By John Anderson)

Last summer, activists wearing papal robes and nuns' habits embarked on an afternoon rush-hour march from Brackenridge Hospital to the headquarters of the Diocese of Austin, carrying signs that expressed "keep your rosaries off my ovaries" and similar sentiments. The protesters opposed the city's contract with the Catholic nonprofit Seton Healthcare Network, which has managed Austin's main public health-care facility since 1995, as antithetical to church-and-state separation and general respect for women's reproductive rights. In June 2001, the U.S. Conference of Catholic Bishops had modified the Ethical and Religious Directives for Catholic Health Care Services to prohibit Catholic-operated hospitals like Seton from allowing emergency contraception, tubal ligations (sterilizations), and several other reproductive services to take place on their premises -- even when provided by city-contracted staff.

The mock-clergy contingent has lain dormant for several months, but they might reappear this month as the City Council prepares to consider an amendment to the Seton/Brack lease agreement that would convert the fifth floor of the Brackenridge building -- which the city still owns -- into a separately licensed "hospital within a hospital." At this week's council session, council members were briefed on the lease amendment, which requires their approval. Meanwhile, the clock ticks: Seton, and therefore the city, expects fifth-floor renovations to be completed by July of 2003. Today's (Thursday) agenda originally included a public hearing on the amendment, but the item was once again postponed. Ever since the bishops' announcement in June, now-departing City Manager Jesus Garza, who negotiated the 1995 agreement, and city staff have presented this plan as the best possible option for getting around the Directives.

On Tuesday, when Garza announced his resignation to join the Lower Colorado River Authority, he listed the original 1995 agreement with Seton as one of his major achievements as city manager. Yet many reproductive and community health-care advocacy groups anticipated today's problems seven years ago and contested Seton's taking over Austin's public hospital when it was proposed. Regarding the current plan, many pressing questions remain unanswered. And by scheduling a public hearing on the lease before sharing the new lease language with council, it seems that Garza was trying to put the cart before the horse.

"We don't have a contract, which is still being negotiated," stresses Council Member Beverly Griffith, who has closely followed the "hospital within a hospital"'s evolution since last summer. "Does that put the city in the best possible bargaining position? And is that a concern?" Since the only reason for renegotiating the lease and building the fifth-floor facility is to accommodate Seton and the Directives, she said, Seton would be in default should negotiations with the city fail.

The Seton/Brack lease amendment has appeared on and disappeared from the council agenda numerous times. Mayor Kirk Watson had hoped the deal would be finalized before he left office, but when that didn't happen, said Trish Young, CEO of Austin/Travis County Community Health Centers, staff optimistically set an internal deadline to finalize a detailed proposal before council's holiday break. "We felt it was best to hold off and get more answers," she said, adding that the latest version of the city's proposal has "more flesh on the bones. We've tried to address everything we can think of," she continued, "but some issues need to be worked out on the operational level."

Throughout the process, Young and other city staff have spent countless hours meeting with Seton representatives as well as members of an "ad hoc" coalition that includes the Texas Abortion and Reproductive Rights Action League (TARAL), Planned Parenthood of the Texas Capital Region, Consumers Union, and other groups apprehensive about the plan. Lisa McGiffert, a senior policy analyst with Consumers Union, said lease discussions are "moving in the right general direction."

TARAL Public Affairs Director Sarah Wheat says staff has demonstrated "strong commitment" toward protecting women's reproductive services at Brack. She said city staff recently gave TARAL "verbal commitments" to add lease language ensuring that the city will have full autonomy to operate the fifth floor and promised that city employees will have access to all Brack patients for family-planning education purposes. Staff also promised to establish a system for informing rape victims who arrive at the Seton-managed emergency room that they can receive emergency contraception on the fifth floor. If and when it is completed, the 22,650-square-foot facility will include a lab, pharmacy, nursery, and labor and delivery areas, and it will accommodate about 1,000 deliveries a year. Of the 3,600 women who annually give birth at Brack, 75% rely on Medicaid.

Who Pays the Bill?

The city will be paying a price to keep Seton on board -- and over the long term, exactly how much remains unclear. Due to concerns that competitors could use its detailed financial information to their own advantage, Seton refuses to provide the city with its overhead-expense allocations, summaries of reproductive-services utilization, balance sheets, and other data that falls under the category of "trade secrets." Using hired health-care consultants -- including former Brackenridge CEO David Coats -- the city has projected that the "hospital within a hospital" will cost $6 million to $8 million to build. During the first two years, the city will reduce its $5.6 million charity-care payment to Seton in order to offset operating losses it incurs from running the new facility; after that, it and Seton will reevaluate that component. In exchange for losing the fifth floor, Seton will reduce its annual $1.8 million lease payment to the city by about $75,000.

Seton has agreed to cover duplicate costs required under the Directives -- including the separate entrance and pharmacy -- and will loan the city money for renovations and build-out of the new facility. However, taxpayers will eventually repay the main construction costs for expansion over 20 years at a 6% interest rate, which raises the final price tag considerably.

Many are far from happy with the emerging compromise. In October, the city-appointed Brackenridge Hospital Oversight Council -- a five-member citizen panel that includes several health-care professionals -- declared Seton, not taxpayers, should pay the entire bill for the new facility. And although the BHOC approved one set of recommendations that directly addressed the "hospital within a hospital," members unanimously decided that the best outcome would be for Seton to return all maternity services at Brack to city control. The ad hoc coalition of health-care groups strongly agreed with both of these key BHOC decisions.

But city staff has appeared unwilling to fully appraise the BHOC's primary recommendation or to explain why taxpayers must pay for a plan they never requested. Their consultants assert that a city takeover of all reproductive services at Brack would cost Seton funds it needs to make running the hospital financially viable. And since there is no alternative hospital operator waiting in the wings, the city has to meet Seton halfway -- especially since Seton is paying the bill for indigent health care that would otherwise be the city's responsibility. Sources close to the issue speculate that Seton's sheer size -- it's the main health-care provider in Central Texas, and one of the area's largest employers -- gives it additional leverage.

In the future, if the city and Seton cannot agree on funding for the hospital within a hospital, and the city discontinues operating the facility, the fifth floor will revert back to Seton and once again become part of its leased assets, states a summary released at yesterday's (Jan. 9) City Council work session on the proposed lease agreement. If this happens, Seton would no longer reduce its rent payment for losing access to Brack's fifth floor or for the city's original share of capital costs. "Seton, however, would reduce its rent payment going forward by what would otherwise have been 'Seton's share' of the capital cost (i.e., the non-expansion costs)," the summary states, asserting that in such a situation, Seton would not be in default of the lease. The city would no longer reduce its charity care payment to Seton to cover "Seton's share" of the capital cost, but could reduce such payments by up to $3,400,000 per fiscal year in order to pay a third party for services no longer provided at the fifth floor hospital.

TARAL and other coalition members fear "the 'hospital within a hospital' proposal is an expensive, temporary solution that creates a segregated and inadequate system," Wheat said. They fear that women receiving tubal ligations and other services on the fifth floor that are prohibited in the rest of the Brack facility -- including Seton's own second-floor maternity unit -- might be stigmatized by the experience. Planned Parenthood Communications Manager Danielle Tierney refers to the city's plan as "tortured." "After all is said and done," she said, "women will still be segregated based on their family-planning needs, just like the [Austin American-Statesman editorial cartoonist] Ben Sargent cartoon depicting a 'pagan floor.'"

Separate but Unequal?

Ron Hamel, an ethicist with the national Catholic Health Association in St. Louis, Mo., explains that the goal for Catholic health-care providers is "to be as distant as possible" from the performance of sterilizations and other services that the Church finds objectionable. The "hospital within a hospital" has been used elsewhere in the U.S. to maintain continuity of emergency contraception and other services at Catholic-managed hospitals, he acknowledges, but the ideal situation is to offer those services in a separate facility that has no relationship with the Catholic entity. "It's cleaner if it's in a separate building," he said.

Hamel said that because the Bishops mostly clarified existing language in the Directives (though some would dispute that), he doesn't foresee anything down the road that would imperil the hospital within a hospital at Brack. That the city still owns the building simplifies matters, he added. Nevertheless, CHA literature indicates that moral theologians differ in their interpretations of the "principle of cooperation," which assists Catholic individuals and institutions in discerning whether their actions -- or lack thereof -- assist others in wrongdoing. And according to the Ethical and Religious Directives, "wrongdoing" will be taking place 24 hours a day in the city's fifth-floor hospital.

Like all laws, Catholic rules regarding health care can be reinterpreted, updated, or completely misconstrued -- which is why critics of the city's plan remain skeptical that all questions of right and wrong raised by the Directives are settled. Some ad hoc coalition members say they want a written statement from Seton that changes in the Ethical and Religious Directives will never affect the fifth floor. Says Wheat: "We have no assurances and no reason to believe that the current proposal will not be jeopardized in the months or years ahead by additional changes or new interpretations of the [Directives]."

In October, for example, the City Council had to postpone action on the Seton/Brack lease agreement after Seton told the city that the fifth floor might not be able to provide emergency contraception to ovulating women -- including rape victims -- due to the Directives. Seton's 11th-hour announcement stunned then-Mayor Kirk Watson and cast a shadow over the "hospital within a hospital" plan, until Austin Bishop Gregory Aymond clarified that as a separate entity, the fifth floor would exist beyond the Church's jurisdiction.

Shortly after, Jesus Garza and Gus Garcia -- who wasn't mayor yet -- met with Aymond. "I told him I didn't want my church to stand in the way of us providing important services to women -- especially those who can't afford to pay," Garcia said. "He said, 'we'll work with you.'" Garcia also says all his meetings with Seton representatives have been cordial.

What's the Alternative?

Garcia -- who was a council member when Garza negotiated the original Seton/Brack contract in 1995 -- advocates the "hospital within a hospital" plan, but is mindful of its complexities. Ultimately, he doesn't want to see a for-profit hospital chain replace Seton at Brackenridge. "Seton is a nonprofit with commitments to serve the community in their statement of principles. I think they're more appropriate to do this work. That's just my opinion." Trish Young of the Community Health Centers says, although several people have told her they've spoken to providers who might be interested in taking over Brackenridge, she has never gotten any phone calls. And, she says, "it would be unusual for a single hospital-management company to take over a single hospital, much less a safety-net hospital, due to the risks."

Threatening to increase those "risks" is the city's rising population of uninsured residents -- including many pregnant women, as well as women trying to avoid pregnancy. Austin's uninsured population was 25% and growing even before the Twin Towers and Dow Jones came crashing down. From September to November 2001, Young said, the number of uninsured enrollees in the community health clinic system who don't qualify for Medicaid or the city's medical assistance program (MAP) went up by 19%. Meanwhile, the number of visitors to Brackenridge's emergency room has increased dramatically over the years. Beverly Griffith says medical professionals she knows have noticed an increased demand on the city's health-care system, but resources are drying up. "We must face it, make a plan, and execute it," she said. "It's not just a public or private problem -- it's wall to wall."

Planned Parenthood's Danielle Tierney says her group's local clinics -- which provide contraception and reproductive services to about 24,000 patients per year, including men -- face a money crunch. The organization awaits news from Capitol Hill on Title XX funding (the federal social services block grant to the states), which Congress cut by $25 million last year. Funding cuts mean Planned Parenthood's East Austin clinic would have to see fewer patients, but since it cannot turn patients away, it must schedule fewer patients per week, or rework staffing schedules.

An increasing number of local Planned Parenthood patients are unemployed, Tierney said. "We have a lot more patient records being transferred in from private physicians' offices, which is usually a good indicator of patients losing their health-insurance coverage." Other changes include more inquiries about the organization's sliding-fee scale.

Seton can't alter or ignore the Ethical and Religious Directives, and the city can't afford to take back Brack. "We're stuck trying to figure out how to provide comprehensive services with an entity that doesn't want to," said Lisa McGiffert of Consumers Union. "That brings us to the fifth-floor solution."

In October, Consumers Union released a report asserting that the city's claim that obstetric services represented 34% of Brackenridge's business -- and that Seton couldn't afford to lose that much in profits -- is misleading. The city's cost projections do not include the amount of business Seton takes in at Children's Hospital, which it also manages. And, the report asserts, "'business' means patients rather than revenue. Since most births are simple and low cost, [obstetrics] naturally represents a far higher share of a hospital's patient count than it does of its revenue." Though they don't have access to Seton's actual revenue figures, Consumers Union estimates that obstetric services represent only 8% of actual hospital revenues at Brackenridge. "Removing one OB unit in this region is unlikely to damage Seton's strong position in this market," the report states.

McGiffert agrees with city staff that finding a provider other than Seton to provide care at Brack would be difficult because of Seton's willingness to take on extra charity care, a significant burden. Regardless, she says, the city needs to figure out a better way to fund its indigent care. "It's embarrassing to me that we're not supporting our safety-net services," she said. "Even in the richest of our times, we were paying only a part of our charity-care needs, and we were leaving it up to Seton to pay the balance. It's very nice of Seton to do that, but as a community, we're beholden to them, and we're not going to have other choices if we don't adequately fund our charity-care needs. ... We are in a box."

One possible solution, McGiffert suggests, is to create a hospital financing district with taxing authority, similar to those in other Texas towns and cities. Financing districts require state legislation passed by voters. Given the gravity of the health-care issue -- and concerns over taxes -- McGiffert believes the community at large should have the opportunity to decide its health-care needs and wants. "We've never had a referendum or vote of support for health-care services in this city," she said.

Aside from financial considerations, state policy and social values also factor significantly in determining availability of reproductive services to women -- even those who have insurance. In Austin, city staff and City Council have made a determined effort to protect these services. Officials in other Texas cities -- for instance, in nearby Luling -- have turned their health-care systems over to Seton or another Catholic hospital, without replacing those services elsewhere within their communities.

"I believe that city staff have worked hard to make the best of a bad situation," says Planned Parenthood's Tierney. "But the unmet need for women's health care is growing. We still have a city hospital that is inadequate and unable to meet the health care needs of women." If concern from the general public remains confined to a handful of protesters dressed as clergy picketing the Diocese, finding a permanent solution to this problem might require a miracle. end story

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