A bill that could make it more difficult for hospitals to cut services before receiving state authorization to do so was approved by the insurance and real estate committee on Tuesday.
The bill addresses recent moves, such as those by four of Connecticut’s hospitals — Sharon, Windham, Rockville and Johnson Memorial in Stafford — to pare back or cut services.
Some advocates believe the cuts circumvent state law, which requires that hospitals receive approval from the Office of Health Strategy in the form of a “certificate of need” before reducing services such as intensive care and labor and delivery.
“We believe that language should be included that specifically states that no closure of services or consolidation of entities should occur prior to a Certificate of Need approval. We believe this is the spirit of the current statute but in practice, this is not what is always happening,” wrote John Brady, a registered nurse and executive vice president of AFT CT, a union that represents 30,000 members, including nurses and health care professionals, in public hearing testimony.
The bill mandates, among other provisions, that OHS conduct and submit a report by Jan. 15, 2023, that studies several aspects of the certificate of need process, including increased penalties for noncompliance, though it does not make immediate changes regarding termination and suspension of services.
Cuts now, permission later
In the cases of Sharon’s ICU and Windham’s labor and delivery unit, both hospitals have notified the state of its planned cuts. But the facilities began making changes to services before applying for a certificate of need.
Nuvance, the owner of Sharon Hospital, intends to downgrade the facility’s intensive care unit to a progressive care unit. Though both ICUs and PCUs qualify as critical care units, a PCU isn’t equipped to handle the same level of complexity as an ICU. The company notified the state of its plan in December 2021, writing that the changes should not require a certificate of need because it wasn’t technically “terminating” services, just changing its level of critical care.
David Kurish, a physician who practices in Sharon and admits patients to the hospital’s ICU, claimed that Nuvance began transferring patients requiring ICU-level care to other institutions as early as last summer, months before notifying the state.
“Nuvance elected to bypass the formal process required to set the policy into motion and is now asking for permission after the fact,” wrote Dr. Kurish in February 2022 letter published by Save Sharon Hospital, a community organization dedicated preserving services at the facility.
According to an OHS spokesperson, the agency has not formally recognized Nuvance as noncompliant with the certificate of need process for its paring back of its ICU services, but it did reject the company’s claim that the downgrade did not require a certificate of need, notifying the hospital earlier this month that it would need to get state approval before officially making the change.
In an emailed statement, Sharon Hospital president Mark Hirko wrote that Sharon Hospital’s plan to downgrade its ICU reflects “changing standards of care.”
“As OHS continues reviewing our proposed consolidation, we will maintain our ICU and continue providing the best possible care to our patients, keeping them at Sharon Hospital whenever possible and transferring those who can be better served by specialized care at other facilities,” he said.
Hartford HealthCare, Windham’s parent company, stopped labor and delivery services in June 2020 but didn’t apply for a certificate of need until September 2020. OHS fined Windham $65,000 for its premature termination of services.
Hartford HealthCare is appealing the fine. The company did not respond to a request for comment.
Rose Reyes, who sits on the Windham Town Council, said in written testimony, “Windham and the eastern region of CT are the profiles of communities in need of a stronger [certificate of need] process. We need greater safeguards within the process as we strive to create communities that provide for all their residents.”
Communities like Windham are particularly hard-hit by cuts in hospital services. A quarter of Windham residents live below the poverty line, compared to 10% statewide. Over 10% of Windham households don’t own a vehicle, making it more difficult to travel to receive care at alternative locations. Windham residents also have higher rates of chronic diseases than residents of other towns in Windham County.
Is a suspension a termination?
Rockville Hospital and Johnson Memorial both stopped offering services but avoided the certificate of need process entirely by dubbing them “suspensions.” “Suspensions” of services, unlike “terminations,” don’t explicitly require state approval.
On March 14, 2020, Gov. Ned Lamont issued an executive order allowing OHS to temporarily waive the certificate of need process for any hospital that was looking to shut down certain units in order to increase capacity for COVID patients.
Ten days later, Rockville Hospital notified the state that it would be suspending its surgical services under the executive order to free up more beds to treat COVID patients. The following month, Johnson Memorial did the same with its labor and delivery services, among others.
In May 2021, Lamont terminated the COVID waiver. At that point, any hospital that suspended services under the COVID waiver should have resumed those services. But neither Rockville nor Johnson Memorial did.
In November 2021, Prospect Medical Holdings, the owner of Rockville Hospital, requested an extension of the waiver, which OHS denied, instructing the company to either file for a certificate of need or resume services. According to Brady at AFT Connecticut, Prospect has done neither. OHS fined the hospital $118,000, which it is appealing.
Last week, in an insurance and real estate public hearing, Vicki Veltri, executive director of OHS, said there should be a “discussion” as to whether penalties should be increased and to how much.
As for Johnson Memorial, its parent company, Trinity, sent a letter to OHS last November saying that the hospital had briefly resumed labor and delivery services between July and October of 2020 but, after facing staffing challenges, shut them down again. However, the company said it is not seeking to terminate labor and delivery, so it would not be pursuing a certificate of need.
The OHS spokesperson said that the agency has “opened an inquiry/investigation into Johnson Memorial’s termination of services.” If the hospital is found to be in violation of statute, OHS could issue a fine.
Trinity declined to comment on progress towards resuming services. Prospect Medical Holdings did not respond to a request for comment.
At this point, Rockville surgical services and Johnson Memorial labor and delivery have been suspended for nearly two years — all without state approval.
In the same public hearing, Veltri acknowledged that OHS has grown wary of “long-term suspensions,” though she did not mention any specific cases.
“To my knowledge, there has never been a definition of ‘suspension’ in the statute and we have a concern about long-term suspensions, which may constructively be terminations,” she said.
Veltri stated that OHS believes there should be a definition of suspension in statute, and “it should be no more than six months before that suspension may be considered a termination.”