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Hospital Attorney Calls Granting of Certificate Suspect

Dec. 22, 2004 – Health Commissioner Darlene Carty released copies Wednesday of the minutes of an ad hoc committee formed to evaluate whether an ambulatory surgical center is needed for St. Thomas.
The documents were made public almost a month after Carty announced approval of a Certificate of Need for the center, and more than three months after Amos Carty, Roy L. Schneider hospital chief legal counsel, made a September request for a copy of the minutes.
The committee, by its own admission, based its review on unofficial rules and regulations. Included in the committee minutes package is a "draft" copy of these rules.
Attorney Carty expressed doubt Wednesday over the legality of the process the committee used. "Based on initial review," he said, "the fact that the rules and regulations appear in draft form suggests to me that they have not been promulgated pursuant to V.I. Law. It does not appear that the governor has approved the rules and regulations, nor is it apparent that they were submitted to the Legislature."
He added, "I'm uncertain what action can be taken pursuant to these rules and regulations that don't appear to have the force and effect of law. Any action taken by the Commissioner of Health as recommended by the ad hoc review committee in reliance on 'draft' rules and regulations would be suspect."
Rodney Miller, the hospital's chief operating officer, said Wednesday he would withhold comment until he completed a review of the documents. He said the hospital will release a detailed response to the documents after Christmas.
The hospital announced on Dec. 16 that it will appeal the commissioner's decision.
An Oct. 14 memo from Dr. Keith Callwood, regulatory control officer, to Commissioner Carty and Moleto Smith, committee chair, states:
"As of this date, the Rules and Regulations Certificate of Need Program Application and Review Manual have not been officially adopted. Additionally, the below listed draft guidelines for the review of an ambulatory surgical center CON application have not been adopted."
He said guidelines to be included in the manual would include:
1. Ambulatory surgical center review
2. Financial feasibility review
3. Criteria and standards for financial feasibility: new ambulatory surgical center
4. Ambulatory surgical center standards.
Callwood followed this with a reference to the use of "the latest Territorial Health Plan," which was "developed November 1989 for the period 1990 to 1993." The meeting minutes includes copies of "previously repealed Rules and Regulations to previously repealed National Health Planning and Development Act."
In the committee's orientation meeting, Callwood referenced the background of the Health Planning/Certificate program in the V.I. which included repeal of that act, inactivity of the previous council, and the loss of health planning staff by 1984, after which, he said, "existing staff then conducted certificate reviews without community input and made recommendations to the Commissioner of Health."
Callwood said that a local health planning law was enacted in 1992 and rules and regulations were drafted, but not yet formally promulgated. The rules and regulations were submitted to the governor's legal counsel for review and they will be sent to the attorney general's office shortly for legal sufficiency review.
However, there is no further mention in the minutes of the disposition of the rules and regulations; whether they were sent to the attorney general's office is never again touched on in the minutes.
The commissioner had steadfastly blocked any attempts by the hospital administration or the media to obtain these documents. She told attorney Carty in October that she could not release the minutes on the advice of her legal counsel. (See "Committee Members Shed Light on Ambulatory Surgical Center Decision").
Aside from the perhaps suspect legality of the rules under which the committee functioned, the minutes still raise more questions than they answer.
Earlier this month, three of the committee members spoke to the Source, two guardedly, and one at length. At that time, one member stated that they had all signed a confidentiality agreement. Though no reason for it is detailed, it is included in the minutes.
A confidentiality agreement was entered into at the request of the applicants.
Callwood explained in the July 6 orientation meeting that there was "information submitted by the sponsors of the St. Thomas Ambulatory Surgical Project that they would like to be confidential. That is the reason for the confidentiality statement."
The minutes read that some members felt that the "statement is too broad." Callwood said, "The statement may be recalled and the committee develop and adopt a more specific statement."
The subject of the confidentiality agreement surfaced several more times in the meetings. Committee members were concerned about lawsuits, and asked that the agreement be revised to include protection, to which former Health Department counsel Devin Carrington agreed.
The members were more uncomfortable without the guidance of up-to-date rules and regulation. They continued to question the rules by which they were bound. At an Aug. 3 meeting, the committee questioned Carrington at length about the procedures they were using. They asked if they should proceed with the review although the Territorial Health Plan "needs updating." The plan is more than 15 years old.
Carrington said they should "rely on past practices." The committee inquired about the process used in a previous approval of an application for an ambulatory center. Carrington said he was "unaware of the process used, and that he was previously unable to locate such records."
The committee expressed concern that, absent these records, the applicant "may perceive that they are being put through this process utilizing this ad hoc committee, which was not used before, so as to disapprove their application."
There was discussion, the minutes read, that the "process may be tainted, since the public is not being notified of committee meetings." Some members said they felt that "since the committee was still deliberating issues of their scope of actions, responsibilities and review processes, public notice of the meetings should be withheld until these issues are clarified and the actual review of the application commences." Carrington said he would address these concerns with the commissioner
The reason why the committee was formed before a legal review process was formulated, under which a review committee could operate, has never been mentioned. This seemingly logical option has never been made public by the commissioner, nor anyone else in government.
Community activist Jason Budsan had written Carty requesting the minutes, which he picked up Wednesday. The commissioner told Budsan in a cover letter, "Contrary to representations I previously made, the V.I. Code limits the appeal of the commissioner's decision regarding the application of a certificate to an aggrieved party as opposed to 'any party.' For this I stand corrected."
The code states in Title 19, section 227, "Any party to the proceeding referred to in section 226 of this title who is aggrieved by the decision of the Commissioner may, within 30 calendar days …. file a notice of appeal in Territorial Court."
Budsan said Wednesday that he is bewildered. "How could Commissioner Carty make a decision based on the information given to her which reflects the committee's own doubts about the process used?" And he said he was equally confused about how the committee reached an almost unanimous decision, when it had expressed these doubts. The committee approved the
certificate on at 4-1 vote.
Regardless of these other consideration, the crux of the matter is whether there is a need for additional ambulatory surgical facilities. The hospital says a vehement "no," and it has said so since the application was made public earlier this year.
The doctors' group, down to five now from the initial nine, claims the hospital has inadequate facilities to accommodate all surgeries. They say the operating room operates at about 50 percent capacity and can't finish all its cases by 3 p.m. According to Dr. Frank Odlum, the operating rooms at the hospital have adequate facilities to handle all surgeries, including ambulatory, with excess time available, and are usually finished by about 1 p.m.
Callwood, in his final review to Commissioner Carty, noted data provided by hospital "shows that 79 percent of the time there is a turnover time of 20 minutes between use of operating rooms."
Odlum said the hospital staff met only once with the committee. He and attorney Carty provided the committee with a thick folder of operating room statistics which support that operating room turn-over times, the time between one patient leaving and another being brought in, are generally 20 minutes. The committee had said in its report to Carty that it didn't receive this material from the hospital.
The hospital has a turn-over rate which leaves excess capacity in its operating rooms, Odlum said. "There is virtually no waiting time to schedule elective surgical cases." He said block time is used by all the hospital's surgeons, which allows them to have choice times available, and there are one or two rooms available each day for other surgeons to schedule elective cases.
Odlum said earlier this week, as Miller has stressed a number of times, that ambulatory procedures bring in the most money to the hospital. It cannot afford to lose this revenue source. Odlum said that in his last operating day he had seven cases, "and five of those were outpatient surgeries who went home that same day."
Odlum said one doctor told the committee that she had been denied an operating room after having scheduled one. He said the reason for the denial was not lack of space. "Her privileges had expired," he said. "Every two years practitioners have to renew their current licenses, malpractice insurance and DEA licence. Hers weren't up to date."
Answering another complaint, Odlum said it is a "rare occurrence" when an operation is canceled. "It would only be in the case of a life and death situation," he said.
The five doctors comprising the center group – Byron Biscoe, Horace Griffith, Sonia Taylor Griffith, Derrick Jones, Catherine Kean – use the operating room "about 5 percent of the time," Odlum said. "They aren't general surgeons." Biscoe, the center group's chair, is an opthamologist.
Miller has said the five doctors couldn't operate an ambulatory surgical center themselves. "They would have to bring other physicians in," he said. He has also questioned how the five could raise the $3.2 million purportedly needed to finance the center.
Callwood's Oct. 14 memo to Carty lists several requirements the applicants have not met, most notably: "The applicant does not document the need for their proposed facility as an alternative to RLS Hospital. Additionally, the application does not address how the proposed facility will reduce off-island travel and out-migration of patients for such services."
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