A lawyer for Johnson Memorial Hospital in Stafford argued Wednesday that the state should rescind or reduce a $394,000 fine issued by state regulators for the rural hospital’s termination of labor and delivery services without first seeking permission.
The state Office of Health Strategy issued the fine earlier this year on the grounds that the Trinity Health of New England-owned hospital discontinued its birthing services in 2020 without requesting a required Certificate of Need from the state.
At the time, an emergency order from Gov. Ned Lamont gave hospitals flexibility to temporarily discontinue services during the pandemic. However, the order expired and the hospital has not provided birthing services since October of 2020, which prompted the OHS to fine the hospital $1,000 a day for a 394-day period.
During Wednesday’s hearing, David DeBassio, a lawyer representing JMH, argued the fine was inappropriate because the hospital had not until recently intended to close its labor and delivery unit and had been making efforts to staff the birthing ward. Therefore, there had been no reason to file a Certificate of Need sooner, he said.
“This wasn’t a situation where Johnson Memorial Hospital willfully terminated labor and delivery services,” DeBassio said. “They had the intent to resume those services. The pandemic affected that. Their mistaken belief they could actually achieve the staffing levels needed to provide those services affected that. The labor market affected that and their inability to actually achieve those staffing goals affected that.”
Stuart Rosenberg, president of the hospital, told the hearing officer that his team made efforts to recruit nurses to staff the unit.
“Our talent acquisition team went out to several websites, schools to recruit nurses in this specialty and it is a specialty,” Rosenberg said. “We offered incentives for hiring like a lot of other hospitals in this state are doing. Sign on bonuses, referral bonuses. We put all our resources into this initiative.”
Rosenberg and DeBassio said some nurses were recruited and trained only to subsequently decide they did not want to work on the Stafford-based hospital campus.
However, exactly what the hospital offered to recruit nurses was unclear. Lara Manzione, a lawyer for the Office of Health Strategy, asked Rosenberg for details and DeBassio objected, saying the numbers would be a meaningless benchmark in the absence of data from other hospitals.
Manzione said she was not convinced the hospital offered enough of an incentive to attract staff.
“To the extent that the hearing officer might prove or might believe that, ‘Well, it was tough to hire people,’ I want to try and chip away at the fact that you did not do everything within your power, you did not offer enough money to try to recruit people,” Manzione said. “You did not go to the ends of the earth to try to find workers here.”
Manzione said she found no merit in the hospital’s argument that the fine should be reduced or eliminated.
State law requires a facility to file a Certificate of Need before it discontinues offering a medical service so regulators can evaluate the situation, she said. The hospital did not do so, but acted as if its failure to follow the law was a result of a good faith misunderstanding, she said.
“Just because Johnson Memorial Hospital repeatedly said that it didn’t intend to terminate L&D services doesn’t matter,” Manzione said. “After all, the evidence showed the hospital did finally file a CON to terminate L&D services on Sept. 29, 2022, just a few months ago. It would be inappropriate to allow Johnson Memorial Hospital to evade paying a civil penalty when other similarly situated hospitals have been assessed civil penalties for similar activities.”
Johnson’s efforts to close its maternity ward mirror downsizing initiatives at hospitals around the state. Earlier this year, OHS recommended denying Hartford HealthCare’s request to shutter labor and delivery services at Windham Hospital in a decision the health care system has since appealed. Last month, patients and public officials rallied in opposition to Nuvance Health’s request to close the labor and delivery unit at Sharon Hospital.
Daniel Csuka, the hearing officer overseeing the case, gave both attorneys the opportunity to file follow-up briefs before making a final determination on Johnson Memorial Hospital’s fine.
