Dougherty attorney: DCH failed to properly enforce CON law

ALBANY — Even after all the back-and-forth between Dougherty County and Lee County officials and citizens over the proposed construction of a 60-bed hospital in Lee County — back-and-forth, it should be noted, that has grown contentious at times — Dougherty County Attorney Spencer Lee insists that the matter comes down to a simple fact.

The state Department of Community Health, Lee says, is not authorized to create exceptions to rules that were established by the state Legislature.

“I don’t care what the clatter is, this is the whole issue,” Lee told reporters at The Albany Herald in a recent meeting the county attorney and District 4 Dougherty County Commissioner Ewell Lyle held with reporters at the newspaper. “As we stated in the motion for the restraining order (on April 25), the Department of Community Health was not authorized to excuse LCMC OPCO (the registered name of the group that will build and manage the Lee hospital) from complying with the need standard or the adverse impact standard.

“To approve the unnecessary, harmful project, (DCH) expanded the scope of the county financed exception in a manner inconsistent with its clear terms.”

Lee discussed, piece by piece and in detail, the elements of the Lee project that, perhaps as much as any other issue in recent history, has driven a wedge between the neighboring counties. He refused to answer questions about any purported behind-the-scenes involvement by officials with Phoebe Putney Health System or the contention that groups like Will Geer’s Phoebe Factoids were being financed by others who oppose Dougherty county’s efforts.

“I will not answer those questions because I have not been authorized to do so by the County Commission, at whose pleasure I work,” Lee said. “I have, though, been authorized to share this information with you.”

Lee’s — and, thus, the county’s — argument against granting a CON to the Lee hospital group centers around a couple of elements in state certificate of need law.

“The Department of Community Health was not authorized to excuse LCMC OPCO from complying with the need standard or the adverse impact standard,” Lee said, referring to elements of the CON process. “And when the Lee hospital folks conceded that they could not meet the need standard under the department’s service-specific hospital rules, (Lee officials) were allowed to circumvent the objective criterion based solely on the county-financed exception.

“Under that exception, though, approval is granted only if more than 20 percent of the cost of a facility is financed by the county governing authority. In Lee County, the governing authority is the Lee Board of Commissioners, not the Lee Development Authority.”

Lee County officials have indicated that a large percentage of the funding for their hospital will come from bonds issued by the county’s Development Authority.

Lee said Dougherty County filed a temporary restraining order because “it will take us eight months or so to get this to a hearing.” If DCH grants final approval of a CON and construction moves forward on the hospital, Lee said, that work would be in vain if the courts ruled that DCH did not properly approve the CON.

Officials in Fulton Superior Court are expected to rule on the restraining order and the writ of mandamus filed by Dougherty County asking that the court determine that DCH lacks statutory authority to rule on Lee County’s CON application and that the DCH be compelled to enforce the CON law as enacted by the General Assembly in “the next couple of weeks.”

Lyle, meanwhile, said he and his fellow commissioners are representing the interests of Dougherty County citizens.

“Lee County officials talk about having the right to make decisions for their citizens without interference,” the District 4 commissioner said. “”But the legal process is not complete. Dougherty county has the right to do what’s best for its citizens, too.

“And I can tell you this: Officials in Dougherty County have not gone into Lee County to talk directly to their citizens about this matter. Lee County officials have. There is a very real conflict of interest here, and it begs the question: What part of certificate of need do the people involved in this not understand?”

TIMELINE

2015 — The Federal Trade Commission reaches an agreement with Phoebe Putney Health System that allows the Dougherty County health care system to purchase Palmyra Medical Center under certain conditions, one of which is that Phoebe “shall not file, formally or informally, directly or indirectly, with the Georgia Department of Community Health … objections to or negative comments about an application by any person or entity for a CON filed with DCH … in a six-county region” for a five-year period.

SEPT. 12, 2016 — At a meeting of the Dougherty County Commission, Dougherty Attorney Spencer Lee is directed to research what impact a proposed Lee County hospital will have on Dougherty County.

MAY 3, 2017 — DHG healthcare of Atlanta conducts for Phoebe Putney Memorial Hospital an impact study on how a Lee County Hospital would impact Phoebe.

JUNE 7, 2017 — At a work meeting of the Dougherty Commission, commissioners discuss the impact of a proposed Lee hospital on Dougherty County and grant attorney Lee approval to gather additional information on Lee County’s certificate of need proposal.

JULY 25, 2017 — Lee contacts Monty Veazey, president/CEO of the Georgia Alliance of Community Hospitals, asking him to discuss the economic impact of the proposed Lee hospital with the Dougherty Commission.

AUG. 7, 2017 — Veazey tells Dougherty Commissioners at a meeting that a Lee hospital would have an annual negative economic impact of as much as $30.9 million on Phoebe and tells the board, “You have a fiduciary duty to oppose this hospital.”

AUG. 16, 2017 — The Dougherty Commission passes a resolution formally opposing the Lee hospital and requesting that the Department of Community Health allow Phoebe to provide information “relative to the project.”

SEPT. 21, 2017 — Lee sends Kathy Polvino of the KBP law firm a termination of engagement letter after the county, which had reached a $35,000 agreement on Aug. 15 to have Polvino represent its interests and conduct an economic impact study concerning the Lee hospital, chose instead to contract with Robert Rozier of the Baker&Hostetler firm.

SEPT. 22, 2017 — Baker&Hostetler sends Dougherty county an engagement of counsel notice.

OCT. 17, 2017 — Baker&Hostetler delivers an impact study that concludes the Lee hospital “is not needed and will constitute an unnecessary cost and duplication of existing services.”

OCT. 17, 2017 — Dougherty County, along with Crisp Regional Medical Center, the Georgia Alliance of Community Hospitals and William Hancock, spell out their specific oppositions to the Lee Medical Center at an opposition meeting before the Department of Community Health in Atlanta.

NOV. 15, 2017 — Lee County Medical Center is granted a certificate of need by the Department of Community Health.

DEC. 14, 2017 — Dougherty County and the Alliance of Community Hospitals request administrative appeals hearings before DCH.

MARCH 21, 2018 — DCH turns down both Dougherty’s and GACH’s appeals hearing requests.

APRIL 18, 2018 — Rozier files a verified petition for declaratory judgment and a writ of mandamus in Fulton County Superior Court asking that the court determine that DCH lacks statutory authority to rule on Lee County’s CON application and that the DCH be compelled to enforce the CON law as enacted by the General Assembly.

APRIL 25, 2018 — Rozier files, on Dougherty County’s behalf, a motion in Fulton Superior Court asking for a temporary restraining order to stop DCH from issuing a final CON and LCMC OPCO from proceeding with work on the proposed hospital.