Wednesday, May 23, 2018
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Toledo abortion clinic fights closing recommendation

COLUMBUS — Toledo’s last abortion clinic argues that a state hearing officer was wrong when he recently recommended closing the facility because it lacks a valid emergency-care agreement with a “local” hospital.

The filing, released today by the Ohio Department of Health, urges Lance Himes, interim director, to reject hearing examiner William Kepko’s recommendation and not issue an order revoking Capital Care Network’s license.

The clinic’s Cincinnati attorney, Jennifer Branch, argued that the former director, Dr. Ted Wymyslo, arbitrarily determined that a “local” hospital must be within 30 minutes traveling time when he rejected a transfer agreement the clinic entered into with the University of Michigan Health System in Ann Arbor.

The state budget passed last year wrote what was previously an administrative rule into law to require ambulatory surgical facilities such as abortion clinics to have agreements in place with a hospital for the transfer of patients in the event of complications.

Lawmakers then went further to required that hospital to be “local,” without defining that word, and prohibiting public hospitals from entering into such agreements. The University of Toledo, the former Medical College of Ohio, had already notified Capital Care before then that it was not going to renew its transfer agreement that expired on July 31, and under the law would not be permitted to enter into such an agreement today.

Terrie Hubbard, the clinic’s owner, struggled for months to find a hospital willing to take UTMC's place before reaching the agreement with the Ann Arbor hospital more than 50 miles away. She testified before Mr. Kepko in March that she would arrange for a helicopter to transfer a patient experiencing life-threatening complications within 15 to 20 minutes.

“In the rare event that a patient experiences a life-threatening emergency requiring immediate medical attention, Capital Care’s procedure is to call 911 and allow EMTs to transfer the patient via ambulance to the nearest hospital of the EMT’s choice,” Ms. Branch wrote. “There is no risk that the patient will not be treated at the hospital because federal law requires the hospital to accept and treat every emergency patient until they are stabilized before sending the patient to another hospital.”

She wrote that the state’s insistence that a method of transportation be spelled out is inconsistent with the majority of other transfer agreements in place around the state. She also challenged the hearing examiner’s determination that he didn’t have jurisdiction to judge the constitutionality of the law.

Mr. Kepko had determined that Dr. Wymyslo’s 30-minute rule was reasonable and that the UMHS hospital didn’t qualify as local under the law. Ms. Hubbard’s helicopter transfer plan was unreliable, he said as he determined that the original order to close the facility was appropriate.

The issue is now before Mr. Himes, who as former legal counsel, had advised Dr. Wymyslo before the prior order to close the facility was issued last year.

Should a new closure order be issued, the case, including a constitutional challenge to the law, is expected to be appealed to court.

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