Abortion clinic gets Michigan deal

Toledo’s last provider fights to keep its license

Exterior photo of the Capital Care Network abortion clinic on Sylvania Avenue in Toledo.
Exterior photo of the Capital Care Network abortion clinic on Sylvania Avenue in Toledo.

COLUMBUS — Toledo’s last abortion clinic on Wednesday fought back against its license revocation as it argued a deal it recently struck with the University of Michigan Health System meets a state mandate that it have an emergency-care arrangement in place with a “local” hospital.

Capital Care Network hopes to persuade an Ohio Department of Health hearing examiner that the clinic had an emergency-care transfer agreement in force both times the health department said it was in violation of the law.

The first time was last year, when Capital Care’s owner said she had an agreement in hand with the Columbus-based Ohio Health system, whose closest hospital is Hardin Memorial in Kenton. The deal fell through. The second was last month, after the clinic had signed an arrangement with the Ann Arbor hospital that remains in place.

The state health director at the time, Dr. Ted Wymyslo, who recently stepped down, rejected the deal. He challenged the legality and “common sense” of transporting clinic patients suffering complications that far.

He testified before hearing examiner William J. Kepko that such a deal flies in the face of standard practice that emergency care generally be within 30 minutes traveling time.

“My first concern was even before I saw this agreement, and that was the understanding that a hospital that was about 53 miles away from the emergency ambulatory surgical facility was going to be providing services,” he testified. “In addition, it was out of state. … I was concerned because of distance mostly but also felt that this did not constitute what I would consider a local resource.”

But Terrie Hubbard, the clinic’s owner, tried to draw a distinction between a true emergency and other medical complications.

“In an emergency situation, I call 911,” she said. “The fire department station 16 or 17 is going to transfer to Toledo Hospital with or without a transfer agreement. My transfer agreement, I would hire a helicopter service to take them to the University of Michigan if it is not an immediate emergency.”

Under federal law, hospitals cannot turn away patients who show up in their emergency rooms.

Ms. Hubbard said she’s never had to make such a transfer in the four years she’s owned the facility and the eight years before that, when she worked there as a registered nurse.

A provision tucked into Ohio’s two-year budget passed last summer cemented in law a previously existing department rule requiring a transfer agreement as a condition for a license. State lawmakers, however, then went a step further by requiring that hospitals had to be “local,” a term that was not defined in the law.

It also prohibited public hospitals and the doctors associated with them from entering into transfer agreements.

The other abortion clinic in Toledo, Center for Choice, closed last summer under the administrative rule because it also lacked such an agreement. The attempted revocation of Capital Care’s license is occurring under application of the law.

Capital Care had a one-year deal in place with the University of Toledo Medical Center, the former Medical College of Ohio, but the hospital opted not to renew it as of July 31, 2013. No private hospital in the region was willing to take its place, causing Ms. Hubbard to widen her search as far as Cleveland and Detroit.

Since Jan. 20, the clinic has kept an agreement with the University of Michigan Health System, but the deal specifies the hospital is not obligated to transport the patient from Toledo. Attempts to reach a spokesman from the UM Health System for comment were unsuccessful on Wednesday.

Assistant Attorney General Lindsay Nash raised questions on behalf of the department about how long it would take for a summoned helicopter to arrive from as far away as Licking County to pick up a patient in a vacant lot next to the West Toledo clinic and transport her to Ann Arbor.

Some Ohio ambulatory surgical centers, the legal category under which abortion clinics fall, do have transfer agreements with out-of-state hospitals in West Virginia and Kentucky, but those are considered to be local for those border communities.

A recommendation to interim director Lance Himes is not expected from the department-appointed Mr. Kepko before June. The final decision belongs to Mr. Himes, who, Dr. Wymyslo testified, was the legal counsel who consulted with him on his decision to reject the Michigan agreement.

In the meantime, the clinic continues to operate.

Mr. Kepko made it clear he does not intend to weigh in on the contention of the clinic’s Cincinnati attorney, Jennifer Branch, that the law violates both the federal and state constitutions. But, over the objections of the state, he allowed Ms. Branch to use the hearing to develop a record for what is likely to end up in a courtroom.

Contact Jim Provance at: or 614-221-0496.