Petitioners, Respondents. 1. I am a Senior Vice President - Hospital Administrator for Bon Secours

Size: px

Start display at page:

Download "Petitioners, Respondents. 1. I am a Senior Vice President - Hospital Administrator for Bon Secours"

Matthew Tucker
6 years ago
Views:

1 SUPREME COURT OF THE STA TE OF NEW YORK COUNTY OF ALBANY IN THE MATTER OF SARAH FULLER and PATRICIA LANDA, vs. Petitioners, NEW YORK STATE DEPARTMENT OF HEALTH and BON SECOURS HEAL TH SYSTEMS, AFFIDAVIT Index No Respondents. For an Order Pursuant to Article 78 of the Civil Procedure, Law and Rules. STATE OF NEW YORK ) ) ss.: COUNTY OF ORANGE ) JEFFREY REILLY, being duly sworn, deposes and states: 1. I am a Senior Vice President - Hospital Administrator for Bon Secours Community Hospital ("BSCH"), a New York not-for-profit corporation with a principal place of business located at 160 East Main Street, Port Jervis, New York, and I submit this affidavit on behalf of BSCH in opposition to petitioners' application for relief under Article 78 of the New York Civil Practice Law and Rules. The purpose of this affidavit is to provide the Court with background information related to the New York State Department of Health ("DOH")'s decision in December 2012 to permit BSCH to (1) convert four maternity beds at its hospital into { } 1

2 four medical/surgical beds, (2) decertify its remaining four maternity beds, and (3) decertify its authority to offer obstetrical services at the hospital. 2. BSCH is a member of Bon Secours Charity Health System ("Charity") along with Good Samaritan Hospital of Suffern, N.Y., and St. Anthony Community Hospital in Warwick, New York. Charity is a sponsored ministry of Bon Secours Health System, which has been named as a respondent in this action. Bon Secours Health System is a largely East Coast-based, Catholic health system headquartered in Marriottsville, Maryland. Petitioners named "Bon Secours Health System" as a respondent to this proceeding, on a "necessary party" basis. If any entity is a necessary party to the proceeding, it would be BSCH. Even though petitioners likely named the wrong necessary party, this affidavit is submitted in the interest of showing that, substantively, there is no merit to petitioners' request for relief. The Initial Limited Review Application: 3. On or about October 24, 2011, BSCH submitted a limited review application ("the application" or "LRA") to DOH by which it sought the agency's approval to (1) convert four maternity beds at BSCH into four medical/surgical beds, (2) decertify its remaining four maternity beds, and (3) decertify its authority to offer obstetrical services at the hospital. Along with this application, BSCH submitted a plan of closure to cease providing inpatient obstetric services. 4. BSCH's decision to submit the LRA to DOH was not entered into lightly, and it was based on concerns for patient safety and quality. At the time, BSCH had experienced, and continued to experience, a significant decrease in the volume of deliveries occurring at its hospital -- from 359 in 2003 to fewer than an estimated 100 deliveries in Fewer deliveries { } 2

3 at a hospital like BSCH result in a less-experienced staff, who are more likely to make mistakes and cause unnecessary harm to BSCH patients. As with any health care service that it provides, BSCH' s goal is for patients to receive quality services that lead to positive outcomes. 5. Like many other rural hospitals, BSCH's decrease in volume can be attributed to a variety of factors. Among these factors are a downturn in birth rates in general and an increase in the number of women who are beyond the child-bearing years in the Port Jervis community that BSCH serves. In addition, BSCH has had an extremely difficult time recruiting qualified obstetricians to the area to replace physicians who had either died or moved out of the area. 6. What BSCH was experiencing was not unusual for a community hospital that serves a rural population. There has been a significant drop nationwide in the number of such hospitals providing obstetric services. Hospital administrators most frequently cite the following reasons for closing obstetric units: low volume of deliveries in the community; financial vulnerability due to a high proportion of patients on Medicaid; and difficulty in staffing an obstetric unit. Recruitment efforts by rural hospitals often prove difficult not just because of location. Studies have shown that fewer physicians are choosing to be OB/GYNs or family practitioners because of malpractice burdens and changes in physicians' attitude toward work, family and leisure. 7. Indeed, a study performed at the University of Chicago recognized that the loss of hospital-based obstetric services in rural areas often results from a variety of interrelated factors: [L]ow volume of deliveries makes it difficult for hospitals to recruit physicians to staff their obstetric units because of increased liability risk to both physicians and the hospital, and insufficient revenues relative to the fixed costs of operating an obstetric facility. On the other hand, failure in attracting and retaining physicians... may result in patients bypassing local hospitals because patients are most likely to follow their physicians and { } 3

4 deliver babies at a hospital where their physicians have privileges. This results in reduced volume of deliveries at local hospitals. See Zhao, Lan, "Why Are Fewer Hospitals in the Delivery Business?," The Walsh Center for Rural Health Analysis, NORC at the University of Chicago, p Positive patient outcomes require an experienced team of practitioners - obstetricians, anesthesiologists, surgeons, nurses -- who are participating in enough births to remain competent in their respective fields. However, in areas where there is a low density of women of childbearing age and a low birth rate, the number of deliveries are not sufficient to allow physicians and nurses to maintain the skills necessary for safe deliveries. The American College of Obstetrics and Gynecology recommends that every practicing obstetrician deliver at least 100 babies a year. 9. BSCH has been serving the Port Jervis community for over 100 years. Despite its long-standing presence in the community, many of the factors noted above caused BSCH to begin to question its ability to safely operate the hospital's obstetrical unit. Further compounding the problem was the August 2011 opening of the modem Orange Regional Medical Center ("ORMC") in Middletown, New York. ORMC is a state-of-the-art facility with a NICU Level 2 unit that is located only 17 miles from BSCH. By the end of2011, ORMC was performing 25% of the Medicaid deliveries in BSCH's primary service area. BSCH expected ORMC's market share of deliveries to increase in BSCH' s mission is to provide high quality health care services to the Port Jervis community. Given the low volume of births, difficulties in recruiting qualified obstetricians despite years of effort and the increased "competition" from the modem facilities at ORMC, the BSCH Board of Directors came to the difficult conclusion that BSCH could no longer offer safe, quality obstetric services to delivering mothers. This decision did not mean that the Board had { ) 4

5 concluded that laboring women in Port Jervis do not deserve high quality services; to the contrary, the Board's decision was based on its desire to provide such women with the opportunity to safely deliver their babies in facilities that are better equipped and better qualified thanbsch. 11. To further illustrate the problems experienced by BSCH, in February 2012, BSCH entered into a Services Agreement with Middletown Community Health Center ("MCHC"), a Federally Qualified Health Center ("FQHC") located in the Port Jervis area, for the provision of physician on-call obstetrical services, on a 24-hour, seven days per week, 365 days per year basis ("the Services Agreement"). BSCH had been forced to enter into the Services Agreement because the hospital no longer had any physicians on its medical staff who could provide such services. DOH and Community Response to BSCH's Initial Limited Review Application: 12. BSCH's initial application to cease offering obstetrical services at the hospital received a negative reaction from many quarters of the Port Jervis community. Many public discussions ensued, at which members of the public expressed general concerns about access by women to obstetrical services, and they specifically objected to the prospect of having to travel 17 miles to receive care at ORMC. 13. In its discussions with BSCH and community leaders, DOH officials also indicated that they had concerns with the proposal; these concerns primarily related to the poverty levels in the Port Jervis community, the community's high Medicaid population, and how such individuals could reasonably be expected to access obstetrical services. DOH asked BSCH to reconsider its proposal and to think, in particular, of ways to partner with MCHC. { ) 5

6 14. In response to DOH's request, BSCH did reconsider its proposal. BSCH went back to the drawing board and tried to rethink how and if it could rebuild the hospital's obstetrical program to a sustainable level. BSCH officials also met with MCHC officials on several occasions to discuss different ways/models for partnering. While agreements were reached with MCHC on certain items, several things became clear: BSCH's concerns over low volume, as it related to quality and safety, remained unchanged; BSCH still had significant issues with recruiting qualified obstetricians to its hospital; and " Even assuming it would have been possible to rebuild the hospital's obstetrical program, there would be significant costs in pursuing such an effort. Although not the basis for its initial decision to seek approval to close the obstetrics unit, cost concerns became a significant factor in 2012, because BSCH's obstetrical service was projected to lose $3 million that year (without any added costs). 15. Nevertheless, BSCH recognized the concerns expressed by the community and DOH. As a result, in the summer of2012, it presented DOH with an alternative proposal to the initial LRA. Continued discussions between BSCH and DOH officials about BSCH's proposal to cease operation ofbsch's obstetrical unit continued through the fall of2012. All the while, Port Jervis community members continued to express to DOH and BSCH their concerns about BSCH's proposal. 16. During its discussions with DOH officials, BSCH officials pointed out that, within the year, DOH had approved the closure of maternity services at Medina Memorial (Orleans County) and Lakeside Memorial (Monroe County). In 2010, Medina was the smallest provider of maternity services in New York State, BSCH was the second smallest, and Lakeside was the fifth smallest. The nearest hospital to Medina is 29 minutes away, and the nearest { ) 6

7 hospital to Lakeside is 24 minutes. This is more travel time than it would take to go from BSCH to ORMC, which is also on an interstate highway. 17. As the DOH-BSCH discussions continued into the Fall of2012, additional complicating factors arose. First, one ofmchc's obstetricians announced that she was leaving the area in mid-october 2012, and MCHC did not know how it would replace the doctor. Second, MCHC sought to renegotiate the parties' Services Agreement, claiming that BSCH's payments to MCHC for on-call services were not enough to cover MCHC's costs. Then, in December 2012 (and before the Services Agreement could be renegotiated), MCHC determined that its staffing levels would no longer allow it to safely provide coverage for BSCH under the Services Agreement. As a result, MCHC sought to terminate the Services Agreement effective January 20, This meant that BSCH would have no available OB/GYNs to provide obstetrical services as of that date. DOH was notified of this development. DOH Grants BSCH's Application in December 2012: 18. After it was notified ofmchc's.desire to tenninate the Services Agreement and after over a year of detailed discussions with BSCH, MCHC and community leaders, on December 21, 2012, DOH granted approval to BSCH's LRA, effective January 20, See Petition, Ex. I. DO H's approval was contingent upon DOH's receipt of an updated closure plan and BSCH's commitment to work collaboratively with MCHC to ensure that the needs of pregnant women in the Port Jervis area were met. 19. To address DOH's concerns, BSCH's Board approved a resolution, committing to the following as part of the unit's closure plan: ( ) 7

8 For any pregnant woman who presents in BSCH's Emergency Department, where delivery is imminent and the patient can be safely transferred in accordance with professional discretion and all regulatory requirements, BSCH will arrange for and pay the cost of transporting such patient by ambulance to ORMC, if such transportation is not covered by insurance. BSCH will also arrange and pay for the transportation of the patient and baby back to their home, either by taxi service or a concierge-type service. In addition, BSCH will pay for the cost of taxi services for immediate family members wishing to visit the patient (limited to three round trip visits). BSCH committed to paying the foregoing transportation costs for a two year period. BSCH will provide an annual grant of $25,000 to MCHC, for MCHC to assist MCHC obstetric patients and their families who reside in BSCH's service area with the costs associated with traveling to/from ORMC. BSCH will provide this annual grant for a two year period. BSCH will continue its efforts to collaborate with MCHC to provide outreach and education in the Port Jervis community to address the needs of the high risk maternity population. In addition to the foregoing, BSCH agreed to provide obstetrics training and continuing education to its Emergency Department staff, and there will be designated space in the Emergency Department for births, if a woman presents and is not able to be transferred. 20. BSCH's obstetrical unit was formally closed on January 20, Petitioners request that the Court require BSCH to "recommence operation" of the obstetrical unit within thirty (30) days of any order issued by this Court. Given the passage of time since the closure of the unit, it is now simply unfeasible to re-open the unit, as providers have moved their practices elsewhere, and space has been converted, as requested, at the hospital. If petitioners had wanted to legally challenge DOH's decision to approve the LRA, they should have been done so prior to January 20, To wait to bring this proceeding several months after the obstetrical unit was closed (with DOH approval) and then seek an order requiring BSCH to reopen that unit seriously prejudices BSCH and makes re-opening the unit virtually impossible. { ) 8

9 WHEREFORE, Bon Secours Community Hospital respectfully requests that the Court deny, in its entirety, petitioners' application for relief under CPLR Article 78. Sworn to before me I?i day of June, Notary Public { } 9

- vs - Index No.I Assigned Justice John M. Curran. Respondents. Upon the annexed petition of Mary Holl, verified October 12,

- vs - Index No.I Assigned Justice John M. Curran. Respondents. Upon the annexed petition of Mary Holl, verified October 12, STATE OF NEW YORK SUPREME COURT : COUNTY OF ERIE MARY HOLL, as President of Teamsters Local 264 35 Tyrol Drive Cheektowaga, NY 14227, RICHARD CARR 35 Tyrol Drive Cheektowaga, NY 14227, Petitioners, NOTICE