Capital Care Network of Toledo v. Ohio Dep't of Health

153 Ohio St.3d 362

106 N.E.3d 1209

2018 Ohio 440

CAPITAL CARE NETWORK OF TOLEDO, Appellee,

v.OHIO DEPARTMENT OF HEALTH, Appellant.

No. 2016–1348

Supreme Court of Ohio.

Submitted September 12, 2017

Decided January 24, 2018^*

Gerhardstein & Branch Co., L.P.A., Jennifer L. Branch, and Alphonse A. Gerhardstein, Cincinnati, for appellee.

Michael DeWine, Attorney General, Eric E. Murphy, State Solicitor, Stephen P. Carney and Peter T. Reed, Deputy Solicitors, and Ryan L. Richardson and Tiffany L. Carwile, Assistant Attorneys General, for appellant.

O'Donnell, J.{¶ 1} This matter raises important issues that impact constitutional rights. The case has been thoroughly briefed, well argued, and presents single subject and due process challenges to provisions the legislature enacted as part of 2013 Am.Sub.H.B. No. 59 ("H.B. 59"), a biennial budget bill, which arguably impede rights guaranteed to women as declared by the United States Supreme Court in Roe v. Wade , 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973).

{¶ 2} But in the last analysis, this appeal involves a policy decision made by the legislative department of government in vesting the authority to license ambulatory surgical facilities in the Ohio Department of Health ("ODH") and in defining the scope of judicial review of its decisions. Adhering to the doctrine of separation of powers, we address the legal issue presented to our court, which concerns whether the order of the director of the Department of Health for the state of Ohio revoking the license of Capital Care Network of Toledo for failure to comply with Ohio Adm.Code 3701–83–19(E) is supported by reliable, probative, and substantial evidence and is in accordance with law.

{¶ 3} Since 1996, ODH regulations have required ambulatory surgical facilities in Ohio to have a written transfer agreement with a hospital to facilitate treatment in the event of an emergency or an urgent complication beyond the capability of the facility. ODH interprets Ohio Adm.Code 3701–83–19(E) to require ambulatory surgical facilities to have a written transfer agreement with a nearby hospital—specifically, a hospital within 30 minutes' transport from the facility. In 2013, the General Assembly codified the rule in R.C. 3702.303(A), expressly requiring written transfer agreements to be negotiated with local hospitals.

{¶ 4} Capital Care operated with a negotiated written transfer agreement with the University of Toledo Medical Center, but in April 2013, the university advised Capital Care that it would not renew its contract,which expired on July 31, 2013. Capital Care continued operating without an agreement until January 20, 2014, when it negotiated a new transfer agreement with the University of Michigan Health System to transfer patients to its hospital in Ann Arbor, Michigan, 52 miles from Capital Care's Toledo facility. ODH held an administrative hearing and as a result revoked and refused to renew Capital Care's health care facility license based on its violation of both R.C. 3702.303(A) and Ohio Adm.Code 3701–83–19(E).

{¶ 5} On Capital Care's administrative appeal, the Lucas County Common Pleas Court reversed the license revocation, finding R.C. 3702.303(A) unconstitutional and the revocation contrary to law. The Sixth District Court of Appeals affirmed, holding that R.C. 3702.303(A) and related statutes violate the Single Subject Clause of Article II, Section 15(D) of the Ohio Constitution, unlawfully delegate licensing authority to private parties, and impose an undue burden on obtaining an abortion.

{¶ 6} Neither court, however, examined the authority of ODH to revoke Capital Care's license for operating without a valid written transfer agreement in violation of Ohio Adm.Code 3701–83–19(E). In this case, the order of the Ohio Department of Health revoking the health care facility license of Capital Care is supported by reliable, probative, and substantial evidence and is in accordance with law because Capital Care operated without a written transfer agreement for a period of five months and its subsequent agreement with the University of Michigan does not satisfy the Ohio Administrative Code requirement to establish and maintain written transfer agreements for patients in emergency situations.

{¶ 7} Accordingly, we reverse the judgment of the court of appeals and reinstate the decision of the Ohio Department of Health.

Facts and Procedural History

{¶ 8} Capital Care is an ambulatory surgical facility located in Toledo, Ohio, that provides abortion services. All ambulatory surgical facilities in Ohio are required by statute to obtain a health care facility license from ODH, conditioned on compliance with quality standards established by ODH. R.C. 3702.30(A)(4)(a), (B), (D), and (E)(1).

{¶ 9} Ohio Adm.Code 3701–83–19(E) establishes that each ambulatory surgical facility "shall have a written transfer agreement with a hospital for transfer of patients in the event of medical complications, emergency situations, and for other needs as they arise." The regulations further authorize ODH to grant "a variance or waiver from any building or safety requirement established by Chapter 3701–83 of the Administrative Code, unless the requirement is mandated by statute." Ohio Adm.Code 3701–83–14(A).

{¶ 10} In 2010, Terrie Hubbard purchased Capital Care, which had been licensed as an ambulatory surgical facility by ODH. In August 2012, she obtained a written transfer agreement with the University of Toledo Medical Center. However, in April 2013, the university informed Hubbard and ODH that it would not renew the written transfer agreement with Capital Care, and it expired on July 31, 2013.

{¶ 11} On July 30, 2013, ODH inquired whether Capital Care had negotiated a new written transfer agreement, but Capital Care did not respond. ODH inspected the facility on August 1, 2013, and discovered that Capital Care had neither a written transfer agreement nor a written plan for complying with Ohio Adm.Code 3701–83–19(E). The next day, ODH Director Theodore E. Wymyslo, M.D., issued notice of his intent to revoke and refuse to renew Capital Care's health care facility license. ODH granted Capital Care a hearing but continued it on the ODH director's motion.

{¶ 12} Thereafter, effective September 29, 2013, the General Assembly codified the written transfer agreement rule when it enacted R.C. 3702.303 as part of the biennial budget bill, H.B. 59, requiring ambulatory surgical facilities to have

a written transfer agreement with a local hospital that specifies an effective procedure for the safe and immediate transfer of patients from the facility to the hospital when medical care beyond the care that can be provided at the ambulatory surgical facility is necessary, including when emergency situations occur or medical complications arise.

The statute further permits the ODH director to grant a variance from the written transfer agreement requirement pursuant to R.C. 3702.304(A) if that requirement would cause undue hardship, the variance would not jeopardize the health and safety of any patient, and the facility has an agreement with a physician who has admitting privileges at a local hospital to provide back-up coverage. H.B. 59 also enacted R.C. 3727.60(B), which prohibits public hospitals from entering into written transfer agreements with facilities performing nontherapeutic abortions or from authorizing a doctor to use the doctor's staff privileges to support a variance application.

{¶ 13} Capital Care never sought a waiver or variance of the written transfer agreement requirement pursuant to either the rule or the statute. Rather, on January 20, 2014, it entered into a written transfer agreement with the Regents of the University of Michigan on behalf of the University of Michigan Health System in Ann Arbor, Michigan, 52 miles from Capital Care.

{¶ 14} On February 18, 2014, Dr. Wymyslo again issued notice of his intent to revoke and refuse to renew Capital Care's health care facility license, explaining that "[t]he written transfer agreement violates the R.C. 3702.303(A) requirement that the written transfer agreement be with a local hospital."

{¶ 15} ODH conducted a hearing encompassing both the August 2, 2013 and February 18, 2014 notices. Dr. Wymyslo explained that the written transfer agreement requirement exists to protect the health of patients in the event of an emergency or urgent complication beyond the capability of the ambulatory surgical facility to handle by ensuring that the facility has made advance arrangements to transfer the patient and the patient's records to a hospital. He noted that transfer to a hospital through its emergency room decreases the quality of care because it "wastes valuable hours of time" if the emergency room staff has "to reconstruct what happened [and] learn past information" and admission to the hospital is not prearranged. Dr. Wymyslo pointed out that the written transfer agreement makes admission and treatment "faster and more efficient and [provides] better quality care."

{¶ 16} Based on his experience credentialing physicians providing emergency- and urgent-care backup at Miami Valley Hospital, Dr. Wymyslo testified that his expectation was that a written transfer agreement needs to be with a hospital within 30 minutes' transport from the facility in order to effectively provide for treatment in the event of emergencies and urgent complications. He explained that "anything more than a 30–minute time period becomes a patient safety and quality of care concern" and that "every hospital in Ohio" has used 30 minutes when they credential physicians as "a reasonable period of time in which an individual should have access to emergency intervention." Dr. Wymyslo described this 30–minute period as what is "reasonable, customary and in the best interest of the patient," in responding to emergencies and urgent complications. He also clarified that ODH had relied on the same 30–minute standard in reviewing written transfer...