In Re: Founder's Women's Health Center v. Ohio State Department of Health
| Citation | 2002 Ohio 4295 |
| Decision Date | 15 August 2002 |
| Docket Number | 01AP-872,02-LW-6374,01AP-873 |
| Parties | In Re: Founder's Women's Health Center, Appellant-Appellant, v. Ohio State Department of Health, Appellee-Appellee. In Re: The Women's Med Center of Akron et al., Appellants-Appellants, v. Ohio State Department of Health, Appellee-Appellee. |
| Court | United States Court of Appeals (Ohio) |
Laufman & Gerhardstein, Alphonse A. Gerhardstein and Jennifer L. Branch, for appellants.
Betty D. Montgomery, Attorney General, and Dennis G. Nealon, for appellee.
APPEALS from the Franklin County Court of Common Pleas.
{¶1} These are appeals by appellants, Women's Med Center of Akron, Women's Med Center of Cincinnati, Women's Med Center of Dayton, and Founder's Women's Health Center, from judgments of the Franklin County Court of Common Pleas affirming determinations by the director of the Ohio Department of Health that appellants are ambulatory surgical facilities subject to licensure requirements under R.C. 3702.30.
{¶2} In proceedings before an administrative hearing examiner, the parties entered stipulations as to the primary facts of the case. Those stipulations, as well as facts set forth by the hearing examiner in two reports and recommendations, both dated April 5, 2000, provide the following factual background. In response to complaints received in 1999, surveyors from the Ohio Department of Health ("ODH") visited 22 facilities, including the facilities of the four appellants in the instant case. The director of ODH, through correspondence dated November 10, 1999, notified all the facilities surveyed that they were required to apply for licensure as an ambulatory surgical facility pursuant to R.C. 3702.30. Each of the appellants in this case filed an appeal and a request for an administrative hearing on the issue of whether its facility was an ambulatory surgical facility under Ohio law.
{¶3} A record hearing was held on February 7, 2000, in which the parties submitted agreed stipulations of fact. In the appeal involving appellants Women's Med Center of Akron, Women's Med Center of Cincinnati and Women's Med Center of Dayton (collectively "appellants WMC"), the parties' stipulations included the following agreed facts:
{¶4} "1. Women's Medical Professional Corp., dba Women's Med Center of Dayton, is located in Dayton, Ohio. Women's Medical Professional Corp., dba Women's Med Center of Cincinnati is located in Cincinnati, Ohio. Women's Medical Professional Corp., dba Women's Med Center of Akron is located in Akron[,] Ohio. Together, they shall be referred to as "WMCs". Women's Medical Professional Corp. owns, op-erates and manages the WMCs.
{¶5} "2. Dr. Martin Haskell, a medical doctor licensed to practice medicine in the state of Ohio since 1974, is the sole owner of the Corporation and each WMC.
{¶6} "3. In response to a complaint that the 22 facilities, including the WMCs, were operating as unlicensed ambulatory surgical facilities ("ASF"), Ohio Department of Health ("ODH") surveyors visited all 22 facilities to determine if they met the definition of an ASF and HCF. ***
{¶7} "4. ODH issued determinations that the WMCs were ASFs and required licensure. The WMCs requested hearings on the determination that they are ASFs. ***
{¶8} "***
{¶9} "6. Abortions as performed at the Facility are "outpatient surgery". Abortions are routinely performed at the WMCs and the WMCs function separately from a hospital's inpatient surgical service and from the offices of podiatrists and dentists.
{¶10} "7. 'Offices of private physicians' as used in R.C. 3702.30 is not defined in Ohio statute or rule. Neither the Ohio [State] Legislature nor ODH intended for 'offices of private physicians' to be required to be licensed.
{¶11} "8. Approximately 90- of all medical care rendered at the Centers was for the performance of abortions. The remaining 10- of all medical care rendered at the Centers was for the performance of other womens [sic] reproductive medical care.
{¶12} "***
{¶13} "11. Attachment 4 is a copy of an internal ODH memo dated May 1, 1996, concerning ODH's interpretation of a health care facility. It is the position of ODH that the primary purpose of the facility is the most significant, though not exclusive, factor in distinguishing an ASF from a physician's office. This internal memorandum was not rule filed.
{¶14}
{¶15} The parties entered into an "addendum to stipulations," which stated in part as follows:
{¶16} "1. Dr. Haskell operates each office and provides services to patients at each center. The five other physicians who also provide services to patients at these locations are under the direction and control of Dr. Haskell. *** All billing is done by WMPC and payable to WMPC. The physicians are not permitted to bill separately for their services. All medical records are the personal property of Martin Haskell, M.D. Any physician who stops providing services to these patients is not permitted to compete with Dr. Haskell for services. Dr. Haskell retains all direct control over the physicians, staff, and the functioning of the medical practice, including hiring, training and supervision of physicians and support personnel, the acquisition of medical equipment, and design of the office.
{¶17} "2. Patients are encouraged to return to the Centers for follow-up care, but may go to another physician for that service.
{¶18} "3. For the period of September 1998-September 1999, 3546 abortions were performed at the Dayton Center, 3363 at the Cincinnati Center, and 949 at the Akron Center.
{¶19} "4. Beginning May 1, 1996, ODH staff claim that they referred to the attached Memorandum dated May 1, 1996 when considering questions of HCF and ASF exemptions.
{¶20} "5. On February 3, 2000, ODH announced at a meeting of a private group, the Ohio Ambulatory Surgery Centers Association, that the factors to be considered when deciding if there is a private physician office exclusion are to be taken together. No one factor will determine whether the exemption will apply.
{¶21} "6. ODH did not follow the statutory rule-making requirements under ORC 119.03, when it drafted the internal May 1, 1996 Memorandum, the May 6, 1996 Memorandum, or the February 3, 2000 factors or release of any of these factors to the public.
{¶22} "7. ODH seeks to enforce compliance with the regulations by responding to complaints and reviewing promotional materials. ODH is not canvassing or investigating all physician offices in Ohio for compliance with the regulations.
{¶23}
{¶24} In the appeal involving appellant Founder's Women's Health Center (individually "appellant Founders"), the parties' stipulations included the following agreed facts:
{¶25} "1. Harley Blank, M.D., Robert Chosy, M.D., and Karl Schaeffer, M.D. own and operate Downtown Gynecologists, Inc. d/b/a Founder's Women's Health Center. They routinely perform abortions services at Founder's.
{¶26} "2. No other physicians provide services at Founder's.
{¶27} "3. Dr. Blank and Dr. Schaeffer also have an obstetrics and gynecological practice located on the property of a Catholic hospital. Dr[s]. Blank and Schaeffer perform surgeries at the practice located at the hospital site, including D & C, biopsy, endometrial biopsies, skin biopsies, LEEP conization of the cervix, and hysteroscopies. Due to their contract with the Catholic hospital, abortions are not allowed to be performed on the premises. Dr. Blank's prior second practice was not at a Catholic Hospital and he performed abortions [sic] services there.
{¶28} "4. In response to a complaint that the 22 facilities, including Founder's, were operating as unlicensed ambulatory surgical facilities ("ASF"), Ohio Department of Health ("ODH") surveyors visited all 22 facilities to determine if they met the definition of an ASF and a Health Care Facility (HCF). ***
{¶29} "5. ODH issued a determination that Founder's is an ASFs and required licensure. Founder's requested hearings on the determinations that they are ASFs. ***
{¶30} "***
{¶31} "7. Abortions as performed at the Facility are "outpatient surgery". Abortions are routinely performed at Founder's and Founder's functions separately from a hospital's inpatient surgical service and from the offices of podiatrists and dentists.
{¶32} "8. 'Offices of private physicians' as used in R.C. 3702.30 is not defined in Ohio statute or rule. Neither the Ohio State Legislature nor ODH intended for 'offices of private physicians' to be required to be licensed.
{¶33} "9. For the period of September 1998-September 1999, 2128 abortions were performed at Founder's.
{¶34} "10. Attachment 3 is a copy of advertisements for the Centers found in the appropriate Yellow Pages.
{¶35} "11. Attachment 4 is a copy of an internal ODH memo dated May 1, 1996, concerning ODH's interpretation of a health care facility. It is the position of ODH that the primary purpose of the facility is the most significant, though not the exclusive, factor in distinguishing an ASF from a physician's office. This internal memorandum was not rule filed.
{¶36} "12. It is the position of the Center that the definition of a private physician's office is a site housing a medical practice owned by a physician licensed to practice medicine in Ohio.
{¶37} "***
{¶38} "15. Nursing home operators, not owners, are licensed by ODH.
{¶39}
{¶40} The parties also...
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