Wednesday, May 23, 2018
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Abortion provider’s Mich. deal not local


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

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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 Ohio law.

William J. Kepko, the hearing examiner for the Ohio Department of Health, wrote in a decision released by the Department of Health on Monday that the state’s decision to revoke the clinic’s license as an ambulatory surgical center was valid.

RELATED CONTENT: Capital Care abortion clinic court document

The final decision now lies with the interim director, Lance Himes, who served as legal counsel to the former director, Dr. Ted Wymyslo, when he issued his original license 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 Cincinnati attorney, Jennifer Branch, could not be reached for comment. But she has already indicated an appeal would be filed should Mr. Himes agree with the recommendation and again issue an order revoking Capital Care’s operating license.

She used the March hearing before Mr. Kepko to lay the groundwork for a constitutional challenge.

The two-year state budget passed last year cemented in law what had previously been an administrative rule within the health department 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 budget later prohibited public hospitals like UTMC, the former Medical College of Ohio, from entering into such agreements.

The clinic struggled for months to find someone willing to take its place before inking a deal with UMHS. The agreement with the Ann Harbor hospital, however, stated it would not be responsible for transportation of patients.

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 the patient under federal law regardless of whether a transfer agreement was in place.

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

Mr. Kepko found that to be unreliable and determined, in his decision time-stamped on Thursday, that the clinic has been without a valid transfer agreement for nearly a year.

“This ruling is no surprise given that [Gov. John] Kasich wrote these regulations to close abortion clinics,” said Kellie Copeland, NARAL Ohio executive director. “The transfer agreements don’t have anything to do with patient safety. They have everything to do with closing abortion clinics.

“The real tragedy is if they are successful in closing the last abortion clinic in Toledo,” she said. “Women still need access to abortion, and women may resort to drastic measures.”

Ohio Right to Life President Mike Gonidakis, who worked to have the transfer agreement language added to the state budget, applauded what he characterized as a “common-sense” decision.

“We believe this decision puts women’s health and safety ahead of politics, concluding that a hospital in another state does not meet the requirements that our state requires,” he said. “It would have been a first-of-a-kind decision if he’d ruled otherwise.”

He noted, however, that the clinic is likely to remain open for some time as the appeal works its way through the federal courts.

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

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