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Judge rules in favor of St. E in appeal of decision to allow Christ Hospital to build ASC in Fort Mitchell


NKyTribune staff

Franklin Circuit Court Judge Thomas Wingate has reversed the decision of an administrative law judge and denied The Christ Hospital’s certificate of need (CON) request to establish an ambulatory surgical center (ASC) in Fort Mitchell.

In June, 2017, the Kentucky Cabinet for Health and Family Services ruled in favor of The Christ Hospital,  which would have cleared the way for construction of it’s Surgery Center-Fort Mitchell as part of a development on the site of the former Drawbridge Inn.

Wingate’s decision puts the future of the $24 million surgery center in serious doubt.

St. Elizabeth Healthcare President and CEO Garren Colvin said the health care provider is pleased and humbled by the judge’s ruling.

“Kentucky’s CON is all about providing access of the highest quality care to all citizens of the Commonwealth. That’s what we do every day, right here at St. Elizabeth Healthcare,” Colvin said in a statement. “We have been committed to the Northern Kentucky community for more than 150 years and provide over $100 million in care each year to the uninsured, as well as other valuable community benefits. This ruling will allow us to continue to improve the lives of the people we serve and assure an equitable playing field, efficient use of resources, and the availability of quality care for all.”

Colvin

In an interview with the Northern Kentucky Tribune in August, Colvin explained St. Elizabeth’s opposition to The Christ Hospital’s request for an ASC in Fort Mitchell.

“The certificate of need process was developed to prevent oversupply of healthcare services, including ambulatory surgery centers,” Colvin said then. “With nine facilities in Northern Kentucky that are less than 50 percent occupied, of which we only operate six, that tells me there is not a need for another ASC.”

The court also ruled in favor of St. Elizabeth Healthcare’s Motion for Summary Judgement in its civil action against The Christ Hospital.

In August of 2015, the CON Ambulatory Surgery Center review criteria was amended, over the objection of hospitals in the state of Kentucky. The amendment allowed outside entities to perform procedures without specific identification and it was during this window that The Christ Hospital submitted its application. In September of 2016, the criteria, which Colvin refers to as “the loophole,” was restored to its previous wording.

Page 1 of Judge Wingate’s decision (click to enlarge).

In a 33-page ruling, Wingate determined that the hearing officer misapplied the law in the final order and improperly interpreted review criterion. In the decision, Wingate also ruled that there was not substantial evidence that The Christ Hospital had “met its burden” under the State Health Plan (SHP) common review criterion.

The Christ Hospital President and CEO Mike Keating called the decision a setback for patients and for the residents of Northern Kentucky.

“What we have learned by caring for and speaking with Northern Kentucky residents is that consumers and patients prefer and are asking for more healthcare options in the communities where they live,” Keating said in a statement. “We will continue to explore how to bring more healthcare options to the residents of Northern Kentucky notwithstanding the efforts of others to limit competition.”

The complete statements from The Christ Hospital and from Garren Colvin, St. Elizabeth President & CEO are included below.

Colvin’s statement:

We are pleased and humbled with the judge’s ruling. The Christ Hospital had a fair opportunity to state its case, and the judge decided based upon all of the evidence that there is no need for another ambulatory surgery center in Northern Kentucky based on the existing excess capacity. In addition, Judge Wingate ruled that the proposal did not meet the State Health Plan criteria, and that the project failed to prove that it would adequately serve the uninsured and medically underserved population.

Kentucky’s CON is all about providing access of the highest quality care to all citizens of the Commonwealth. That’s what we do every day, right here at St. Elizabeth Healthcare. We have been committed to the Northern Kentucky community for more than 150 years and provide over $100 million in care each year to the uninsured, as well as other valuable community benefits. This ruling will allow us to continue to improve the lives of the people we serve and assure an equitable playing field, efficient use of resources, and the availability of quality care for all.

We will continue to work collaboratively with our state leaders in Frankfort to improve the CON process, though we believe strongly that this process remains an important part of the sustainability of healthcare in the Commonwealth, especially to ensure access for our most vulnerable populations and rural areas.

Statement from The Christ Hospital:

Keating

Northern Kentucky residents will continue to have limited access to healthcare options as a result of today’s denial of The Christ Hospital Health Network’s Certificate of Need (CON) application.

In June of 2017, the Kentucky Office of Health Policy approved The Christ Hospital Health Network’s CON application to construct an ambulatory surgery center (ASC) on the site of the former Drawbridge Inn in Fort Mitchell, KY. Shortly after, St. Elizabeth Healthcare appealed the decision. Today, that appeal has resulted in a denial of the application, meaning patients will not have their wishes for more healthcare options.

The project would have included outpatient surgical services, a diagnostic center and access to the most preferred physicians in the region.

The surgery center would have anchored the Fort Mitchell Gateway Project, a mixed-use project developed by Northern Kentucky-based Brandicorp which would have included a hotel, restaurants, retail businesses and multi-family units. The development site, which is conveniently located at the crossroads of Buttermilk Pike and I-75, would have created jobs, generated tax revenue and provided economic development for Northern Kentucky.

“Today was a setback for the patients and for the residents of Northern Kentucky,” said Mike Keating, President and CEO of The Christ Hospital. “What we have learned by caring for and speaking with Northern Kentucky residents is that consumers and patients prefer and are asking for more healthcare options in the communities where they live. We will continue to explore how to bring more healthcare options to the residents of Northern Kentucky notwithstanding the efforts of others to limit competition.”

Contact Northern Kentucky Tribune managing editor Mark Hansel at mark.hansel@nkytrib.com


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10 Comments

  1. Larry Robinson says:

    Dam shame the court is backing government in their effort to choose winners and losers. So much for free enterprise and good competition to help the consumer get the best services at fair pricing. I will continue to do my health care shopping across the river in Ohio where I can choose who I buy those competitively priced services from.

  2. Denny says:

    How much did St E pay off to get this!

  3. Margo says:

    I disagree with the ruling, St E has a monopoly in NKY there are many services they do not or refuse to provide. Therefore the residents should have additional options. St E has no ortho, therefore there is no competition nor do they have any Eye surgeons. This case was based on greed and not the best interests of the health of the residents of the State of Kentucky.

  4. Charlie Coleman says:

    Disappointed, however not surprised. The power structure wins again, the hard working taxpayers lose. So much for free markets.

  5. Marv Dunn says:

    That train has done left the station. Over the years we have allowed St. E to scoop up the doctors, offering them a deal they couldn’t refuse, and build themselves into a monopoly that no other hospital can penetrate. It will take some other entity, private or public, to go after this monopoly and break it up before any other hospital stands a chance of being allowed to compete. Another tactic might be to see if the Certificate of need policy is really constitutional.

  6. Anne McBee says:

    I am so disappointed in the Coourt’s ruling . Monopolies are dangerous to the consumer .

  7. Jerry and Marit Sewell says:

    It’s curious that Colvin referred to “assur[ing] a level playing field.” St. E desires nothing but a continued monopoly in Northern KY. This decision, and St. E’s opposition, assure there will NOT be a level playing field. My wife and I will continue to exercise our option of utilizing physicians and hospitals on the Cincinnati side of the river.

  8. Jeremy Hager says:

    St E is a Catholic Church that has to answer to the Covington diocese. The Covington diocese is extremely crooked. They had the 2nd highest amount of sexual abuse cases in the country. Why would we trust them with our healthcare. The reason the facilities are 50% unused is because a lot of people go to Ohio for better healthcare.

  9. Keli says:

    I am very disappointed that citizens of NKY are stuck with St. E as the only health care option. The reason we have 9 facilities that are only 50% occupied is that anyone with any intelligence and health insurance goes to Cincinnati for better Drs. St. Elizabeth Healthcare is sponsored by the Diocese of Covington and the Diocese of Covington had to pay up to $120mil in settlements to victims of clergy sexual abuse. Why should be want to have any facility that is sponsored by the Diocese of Covington entrusted with our care?

  10. Ann smith says:

    We recently moved here from out of state. Why was St. E allowed to take over and have 9 facilities? Politics in Frankfort and the Catholic Diocese in this area, real caring money grabbers. We have had problems with St E in that their billing is crooked as it gets. Will be going to Christ over the river and possibly moving also. Kentucky taxes you on taxes which is another subject.

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