In decision released today, hearing examiner sides with state in closing Capital Care Network


COLUMBUS -- A state hearing examiner has recommended that Toledo’s last abortion provider, Capital Care Network, be closed because it lacks a valid emergency-care agreement with a local hospital as required by state law.

RELATED: Capital Care abortion clinic court document

William J. Kepko, the hearing examiner for the Ohio Department of Health, wrote in a decision released today that the state’s decision to revoke the clinic’s license as an ambulatory surgical center was valid. The final decision now lies with the interim director, Lance Himes, who served as the legal counsel who advised counsel to the former director, Dr. Ted Wymyslo, when he issued his original revocation order on Aug. 2, 2013.

“Capital Care’s written transfer agreement with the University of Michigan on behalf of the University of Michigan Health System, located in the state of Michigan, 52 miles from Capital Care, is not a local hospital as required by (state law),” Mr. Kepko wrote. “The use of the 30-minute availability rule by the Director of the Ohio Department of Health when evaluating Capital Care’s transfer agreement with UMHS is reasonable and consistent with (state law), requiring the transfer agreement to be with a local hospital.”

The clinic’s attorney, Jennifer Branch, has already indicated that an appeal will be filed should Mr. Himes agree with the recommendation and again issue an order revoking Capital Care’s operation. She used the hearing before Mr. Kepko to lay some of the groundwork for a constitutional challenge to the law.

The state budget passed last year wrote into law what had previously been an administrative rule within the Department of Health requiring ambulatory surgical centers to have agreements with hospitals to transfer patients if complications arise. Lawmakers then went a step further by requiring that agreement to be with a “local” hospital without defining what that meant.

The University of Toledo Medical Center chose not to renew its agreement with Capital Care as of July 31, 2013. The clinic struggled for months to find someone willing to take its place, ultimately reaching its agreement with UHMS.

The agreement with the Ann Arbor hospital, however, did not obligate the hospital to provide transportation. The clinic’s owner, Terrie Hubbard, testified that in a true emergency she would call 911 to have the patient transferred to a Toledo hospital which would have to treat her under federal law regardless of whether a transfer agreement was in place.

In the event of a complication that was not life threatening, Ms. Hubbard said she would hire a helicopter to fly the patient to Ann Arbor.

Mr. Kepko found that to be too unreliable and determined, in a decision clocked in on Thursday, that the clinic remains without a valid transfer agreement.

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