Capital Care Network of Toledo v. State Dep't of Health, L–15–1186.

58 N.E.3d 1207

CAPITAL CARE NETWORK OF TOLEDO, Appellee

v.STATE of Ohio DEPARTMENT OF HEALTH, Appellant.

No. L–15–1186.

Court of Appeals of Ohio, Sixth District, Lucas County.

July 29, 2016.

Terry J. Lodge, Toledo, Jennifer L. Branch and Alphonse A. Gerhardstein, Cincinnati, for appellee.

Mike DeWine, Ohio Attorney General, Eric E. Murphy, State Solicitor, Stephen P. Carney and Peter T. Reed, Deputy Solicitors, for appellant.

SINGER, J.

{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common Pleas which reversed the decision of appellant, Ohio Department of Health (“ODH”). For the reasons that follow, we affirm the trial court's judgment.

Background

{¶ 2} Appellee, Capital Care Network of Toledo (“Capital Care”), is a medical facility located in Toledo, Ohio, which offers abortion services. Capital Care has been licensed by the ODH to operate an ambulatory surgical facility (“ASF”) since at least 2010. An ASF is a health care facility where outpatient surgery is performed. Ohio Adm.Code 3701–83–15(A)(1) ; R.C. 3702.30(A). All ASFs in Ohio are required to have a health care facility license, issued by the director of the ODH. Ohio Adm.Code 3701–83–03(A) ; R.C. 3702.30(D), (E)(1).

{¶ 3} In 2010, Terry Hubbard became the owner of Capital Care. Before Ms. Hubbard purchased Capital Care, she worked for Capital Care for eight years as a registered nurse. In August 2012, Capital Care and the University of Toledo Medical Center entered into a written transfer agreement (“WTA”). A WTA specifies a procedure for the transfer of a patient from an ASF to a hospital in the event of a medical complication or emergency, and was required by Ohio Adm.Code 3701–83–19(E).

{¶ 4} In April 2013, Capital Care was notified by the University of Toledo Medical Center that the hospital did not intend to renew the WTA when it expired on July 31, 2013. Capital Care sought another hospital which would agree to a WTA, but was unsuccessful at that time.

{¶ 5} In August 2013, Capital Care was notified that ODH's director was proposing to issue an order refusing to renew and revoking Capital Care's health care facility license due to a violation of Ohio Adm.Code 3701–83–19, which required an ASF to have a WTA with a hospital.

{¶ 6} On September 29, 2013, Am.Sub.H.B. 59 (“H.B. 59”) went into effect. The key provisions of the bill relating to the licensing of ASFs are codified in R.C. 3702.30 through 3702.33 and 3727.60. Pursuant to R.C. 3702.30(D) and (E)(1), all health care facilities, which includes ASFs, must have a license issued by the director of the ODH to operate. In order to obtain a license, an ASF must have a WTA with a local hospital, or be granted a variance from that requirement. R.C. 3702.303 and 3702.304. However, R.C. 3727.60 forbids any public hospital from entering into a WTA with an ASF which performs abortions. R.C. 3727.60 also forbids any public hospital from authorizing a physician who has staff privileges at the public hospital to use those privileges for an ASF, which performs abortions, to obtain a variance as a substitute for a WTA.

{¶ 7} Capital Care attempted to secure a WTA with a hospital in the Toledo area, but was unsuccessful. Therefore, in January 2014, Capital Care submitted to the ODH a WTA with the University of Michigan Health System of Ann Arbor, Michigan. However, in February 2014, Capital Care was notified that ODH's director was proposing to issue an order refusing to renew and revoking Capital Care's health care facility license for not having a WTA with a local hospital, in violation of Ohio Adm.Code 3701–83–19(E) and R.C. 3702.303. Capital Care requested a hearing on the proposed order. A hearing was held on March 26, 2014, before a hearing examiner.

{¶ 8} On June 10, 2014, the hearing examiner issued a report and recommendation finding the WTA submitted by Capital Care in January 2014 did not comply with the requirements of R.C. 3702.303. The hearing examiner concluded since Capital Care did not have an acceptable WTA with a local hospital or a variance, Capital Care did not meet the licensing requirements of R.C. 3702.30. Accordingly, the hearing examiner opined the ODH director's decision not to renew and to revoke Capital Care's license was valid. Capital Care submitted objections to the report and recommendation.

{¶ 9} On July 29, 2014, ODH's interim director issued an adjudication order refusing to renew and revoking Capital Care's health care facility license based on the hearing examiner's findings, and in accordance with R.C. 3702.32, 3702.303(A), R.C. Chapter 119 and Ohio Adm.Code 3701–83–19(E). Capital Care appealed to the trial court.

{¶ 10} On June 19, 2015, the trial court rendered its decision reversing the interim director's order. The court found R.C. 3702.303, 3702.304 and 3727.60 (hereinafter “the licensing provisions”) unconstitutional as applied to Capital Care because the WTA requirement and variance provisions contain unconstitutional delegations of licensing authority. ODH appealed.

{¶ 11} ODH sets forth one assignment of error:

On July 29, 2014, the Ohio Department of Health's Director issued an Order revoking the license of Capital Care Network for failure to have a written transfer agreement with a local hospital. The trial court erred when it found that this Order was not in accordance with law.

{¶ 12} ODH also sets forth two issues for review:

1. Does the U.S. Constitution allow Ohio to require ambulatory surgical facilities, as a licensing condition, to have a written transfer agreement with a local hospital or to obtain a variance from that requirement, and may it apply that requirement to abortion clinics on the same terms as other surgical facilities without violating the abortion-specific “undue burden” test or violating any purported rule against “delegating” state power to private parties?

2. Did the Director of Health properly conclude that a transfer agreement between a Toledo clinic and an Ann Arbor hospital 52 miles away either (1) does not qualify as a “written transfer agreement” with a “local hospital” under R.C. 3702.303(A), or (2) does not qualify as an agreement that adequately provides for safe “transfer of patients in the event of medical complications [or] emergency situations” under O.A.C. 3701–83–19(E) ?

Analysis

{¶ 13} Preliminarily, let us put this case in the proper perspective. ODH complains that this is just another administrative appeal involving an ASF, and that it is not an abortion case. It is an abortion case. The regulations and statutes involved are directed towards abortion providers. See, e.g., R.C. 3727.60 (prohibits all public hospitals from entering into a WTA with an ASF which performs nontherapeutic abortions and prohibits all public hospitals from authorizing a physician with staff privileges to use those privileges for an ASF which performs nontherapeutic abortions to obtain a variance as a substitute for a WTA). While the law does not forbid private hospitals from entering into a WTA with an ASF, private hospitals and physicians with privileges at private hospitals decline to enter into such agreements. Why? Such agreements with abortion-providing ASFs are controversial and fraught with consequences and issues undoubtedly not faced by ASFs which perform other types of services and procedures. See Whole Woman's Health v. Hellerstedt, 579 U.S. ––––, ––––, 136 S.Ct. 2292, 2312, 195 L.Ed.2d 665, 688 (2016) :

Brief for Planned Parenthood Federation of America et al. as Amici Curiae 14 (noting that abortion facilities in Waco, San Angelo, and Midland no longer operate because Planned Parenthood is “unable to find local physicians in those communities with privileges who are willing to provide abortions due to the size of those communities and the hostility that abortion providers face”).

{¶ 14} Therefore, since this is an abortion case, the trial court properly addressed the constitutional ramifications of the ODH interim director's adjudication order. We will do the same in addressing ODH's assignment of error that the trial court erred in finding the order issued by ODH's interim director was not in accordance with law.

Standard of Review

{¶ 15} The determination as to whether or not a statute is constitutional presents a question of law, which we review de novo. Andreyko v. City of Cincinnati, 153 Ohio App.3d 108, 2003-Ohio-2759, 791 N.E.2d 1025, ¶ 11 (1st Dist.). See also David P. v. Kim D., 6th Dist. Lucas No. L–06–1164, 2007-Ohio-1865, 2007 WL 1165711, ¶ 15.

The Licensing Provisions

R.C. 3702.303 —TRANSfer agreEments betwEen surgIcal faciLities and Hospitals

(A) Except as provided in division (C) of this section, an ambulatory surgical facility shall 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. A copy of the agreement shall be filed with the director of health.

(B) An ambulatory surgical facility shall update a written transfer agreement every two years and file a copy of the updated agreement with the director.

(C) The requirement for a written transfer agreement between an ambulatory surgical facility and a hospital does not apply if either of the following is the case:

(1) The facility is a provider-based entity, as defined in 42 C.F.R. 413.65(a)(2), of a hospital and the facility's policies and procedures to address situations when care beyond the care that can be provided at the ambulatory surgical facility are approved by the governing body of the facility's parent hospital and implemented;

(2) The director of health has, pursuant to the procedure specified in section 3702.304 of the Revised Code, granted the facility a variance from the requirement.

R.C. 3702.304 —Variance from Written Transfer Agreement

(A)(1) The

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