Jan. 12, 2005 The Roy L. Schneider Hospital filed a petition for a writ of review in Superior Court Tuesday asking for a judicial review of Health Commissioner Darlene Carty's Nov. 26 decision to grant a certificate of need for a proposed ambulatory surgical center.
This is the most recent development in the ongoing battle over the center which began more than a year ago when a group of local physicians proposed the facility.
The hospital has retained the firm of Dudley, Topper and Feuerzeig to represent it in this case. In a blistering letter, attorney Henry L. Feuerzeig wrote Carty Dec. 29 demanding the certificate be withdrawn "due to gross violations of V. I. law." Feuerzeig gave Carty a Jan. 7 deadline to respond. (See "Attorney Blasts Certificate of Need Process".)
Carty answered Feuerzeig in a brief letter dated Jan. 5, saying, "Please be informed that I respectfully decline such an invitation." She said she "hoped" the hospital and the Department of Health and the hospital could "move forward in providing quality health care to the citizens of the territory."
Amos Carty, RLS legal counsel and chief operating officer, said Tuesday, "We are asking the court to review the commissioner's decision. If the court finds that the decision was entered erroneously, we are requesting the court to rescind the commissioner's decision until the legal process is followed."
The petition claims Carty failed to follow the V. I. Code, which requires official rules and regulations governing the certificate of need process.
Failing that, the law states, "The application shall be deferred until the department has developed and adopted certificate criteria and standards." The petition cites portions of a memo Dr. Keith Callwood, Health Department regulatory control officer, wrote to Carty. Feuerzeig cited the information from Callwood's memo in the writ. Specifically, citing V. I. Code 224, "an application for a certificate of need shall be made to the commissioner upon forms provided by the commissioner and shall be accompanied by written proposals, drawings, layouts, permits and other documents required by the commissioner and set forth in the rules and regulations of this chapter."
The writ states that "No such rules and regulations have been promulgated and adopted in accordance with the law of the V. I. …. and the application was submitted by the St. Thomas ASC, despite 19 V.I.C. 24, and was accompanied by no drawings, layouts or permits."
In fact, Dr. Byron Biscoe, ASC chairman, in a March 31 letter to Carty, requested the reviewing committee to "defer" the above listed documents until after the certificate had been issued. He said the costs of those documents would be $750,000. The certificate was issued without those documents.
The writ continues that the commissioner is "without authority to issue a CON and cannot do so until rules and regulations governing applications and the review and hearing process are promulgated in accordance with 3 V.I.C. 911-961."
It asks that the court "should exercise its jurisdiction…..and issue a Writ of Review that includes a clause requiring the commissioner to desist from further proceedings in the matter under review until a final determination thereof is made by this court." It also asks that the commissioner not accept any more applications for a certificate of need for an ambulatory center or "act on any such application until rules and regulations are promulgated."
The petition notes the Health Department gave insufficient time for the public to review the ASC application. The public was granted the right to review, but not to copy the application or accompanying documents, the writ states. Also, it continues, Carty did not extend the review period for the 30 days she had said were available for public comment.
In a battle that has been waged publicly for months, once reaching the Senate floor, the hospital contends the center would take business and, therefore, critical funds away from the hospital. The ASC doctors deny this, and say it would give the public a choice in facilities and would not injure the hospital's revenues. (See "Senators Hear Surgery Center Debate".)
Rodney E. Miller, RLS chief operating officer, said Tuesday, "Obviously, going to court was not our first option. But, at this point, this is the only alternative available to us to seek redress and get this matter resolved. Too much is at stake for the future of affordable and accessible health care to all Virgin Islanders."
Along with Carty, the suit names the V.I. Government, the Department of Health and the Ambulatory Surgical Center LL. According to RLS spokesperson, Michael Burton,.
the papers were served Tuesday to Carty and to David Bornn, the center's attorney.
Bornn did not return calls for comment Wednesday.
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