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Attorney Blasts Certificate of Need Process

Dec. 30, 2004 –– The Roy L. Schneider hospital is demanding Health Commissioner Darlene Carty withdraw the Certificate of Need she approved for a proposed ambulatory surgical center.
The hospital has retained the firm of Dudley, Topper and Feuerzeig. In a blistering letter, attorney Henry L. Feuerzeig wrote Carty Wednesday demanding the certificate be withdrawn "due to gross violations of V. I. law."
Feuerzeig cited remarks made by Dr. Keith Callwood, in an Oct. 14 memo to Carty and Moleto Smith, ad hoc review committee chair, recommending approval of the certificate. Callwood is the Health Department regulatory control officer, responsible for the administration of the certificate and liaison between the committee and Carty.
The committee meeting minutes and related documents had been held secret until earlier this month. They were made public almost a month after Carty announced approval of a Certificate of Need for the center, and more than three months after Amos Carty, the hospital's chief legal counsel, made a request for a copy of the minutes.
The committee, by its own admission, based its review on unofficial rules and regulations, which were based on a "draft" copy of these rules. (See "Hospital Attorney Calls Granting of Certificate Suspect.").
Feuerzeig wrote, based on information included in Callwood's memo, that Carty's granting of the certificate was done "without legal authority and in direct violation of V.I. law." In that memo, Callwood noted that V.I. law requires the Health Department to set specific certificate criteria and standards.
Failing that, the law states, "The application shall be deferred until the department has developed and adopted certificate criteria and standards."
Feuerzeig cited the following passage from Callwood's memo:
"As of this date, the Rules and Regulations Certificate of Need Program Application and Review Manual has not been officially adopted. Additionally, the below listed draft guidelines for the review of an ambulatory surgical center certificate application have not been adopted."
Feuerzeig wrote Carty, "As sections 224 and 225 of V.I. Code Title 19 make abundantly clear, without those standards, criteria and rules and regulations, you are without legal authority to grant a certificate. Section 224 is unmistakably clear that an application for a certificate 'shall be accompanied by written proposals, drawings, layouts, permits and other documents required by the commissioner as set forth in rules and regulations to this chapter."
Further, Feuerzeig wrote, "The suggestion in your response that you or the committee had the authority to rely on past practice or procedures under federal law also flies in the face of the V.I. Code Annotated Title 913." This section, among other things, requires submission of the rules and regulations to the legislature, and notice of promulgation of the regulations published in a newspaper of general circulation.
The attorney also noted, "Not only have no rules and regulations been adopted, the DRAFT guidelines, have not been adopted."
Feuerzeig also chided Carty for the committee's secrecy, which has been a cause of public concern. (See "Committee Members Shed Light on Ambulatory Surgical Center decision").
He told Carty, "You knew that the public processes for review of any standards, criteria and rules and regulations …. has not been implemented. Based on the admission of your department and legal counsel of the absence of required standards, criteria and rules and regulations, it could be said that the violation of V.I. law was knowing and willful.
"However, even if it was not," Feuerzeig continued, "an immediate withdrawal of the certificate and implementation of a lawful review process is required to demonstrate to the public that the violations were unintended, and to provide for an appropriate and legal review of the certificate application."
Feuerzeig gave a Jan. 7 deadline to Carty to advise that she will withdraw the certificate grant. Otherwise, he said, "further appropriate action by RLS will be taken, which we expect to be joined by other member of the public, and will be taken in the courts."
At a Dec. 9 press conference, RLS officials announced the hospital would appeal the commissioner's decision. RLS chief legal counsel Amos Carty said then that the hospital had hired Epstein, Becker and Greene, a worldwide legal firm specializing in health care law, to "explore all options necessary and required for the appeal."
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