HCCA Statement Re: CDPH Survey/Report

A hospital spokesperson addressed this response in response to a request for comment from a Voice reporter. In the interest of ensuring we are able to represent all sides, we are publishing the full comment from HCCA.

This is in response to your recent e-mail requesting a statement from the Hospital regarding the California Department of Public Health (CDPH) Report.  We are confident that your article will not contain the decidedly negative “spin” on the Report, as was done by another reporter for a different newspaper.

In particular, the other newspapers article “buried the lead” by failing to give appropriate emphasis to the Report’s conclusions about the dysfunctional behavior of the Hospital’s prior medical staff.  As the Report found, the prior medical staff continuously failed to work collaboratively with the Board and refused to follow its own rules.  This is now the second report by a reviewing agency which has concluded that the prior medical staff was failing to perform its essential functions and was thereby threatening patient safety.

The first report, issued in early 2016 by the federal Center for Medicare and Medicaid Services, likewise found that the prior medical staff was dysfunctional and threatened to pull the Hospital’s Medicare and Medicaid certifications if immediate steps were not taken to correct the problem.   The Board, which is ultimately responsible for Hospital operations, took the only action that would resolve the problem within the very limited time-period provided: it disaffiliated from the old medical staff and affiliated with a new medical staff that was committed to performing its essential functions in overseeing staff performance and working cooperatively with the Board to enhance patient safety.

Against this backdrop, the CDPH issued its recent Report, which is critical of the way in which the Board responded to the threatened loss of the Hospital’s Medicare and Medicaid certifications.   The Hospital firmly believes these conclusions are unjustified and based on a misunderstanding or misapplication of the applicable law.

The Report calls for the Hospital to submit a plan of correction, which is in process.  The ultimate decision by the CDPH with respect to the matters cited in the Report will not be made until the Hospital has filed its plan of correction and appeal of the citations, and the entire process has been completed.  A reporter’s publishing a public comment like “State Report Rips TRMC” before the process has been completed without understanding what the regulations actually require, is irresponsible and reflects that reporter’s lack of knowledge of how the review process works.

Finally, the Hospital is concerned that the CDPH survey (coming over a year after the events cited) appears to be the result of complaints by the disgruntled physicians who no longer work at the Hospital, and the small group of community dissidents who support them, in an effort to either influence the pending lawsuit and/or to influence public opinion connection with Dr. Kumar’s recall.  The Hospital will fight its court battles in court, where they should be fought, and not in the media.

The Hospital has no objection to the CDPH enforcing appropriate laws or responding to bona fide complaints.  However, we do object to allowing frivolous and unwarranted complaints being used as a tool of harassment.  Indeed, the Hospital is concerned that the CDPH has wittingly or unwittingly engaged in “underground regulatory adoptions” and enforcement of regulatory standards that are only announced after the fact at the behest of the California Medical Association (CMA), which is both funding the prior medical staff’s lawsuit against the Hospital and is closely affiliated with the Department’s survey process (See e.g., Cal. Hlth. & Safety Code §§1279, 1282, 22 C.C.R. §70101(g)).  Courts prohibit CDPH and other agencies from using surveys and other enforcement procedures to reveal regulatory requirements beyond the plain language of their regulations, a process known as “revelatory discipline.”

In TRMC’s case, CDPH alleged that TRMC violated 22 C.C.R. §70701(a)(1)(F) which provides that “[t]he governing body shall adopt written bylaws in accordance with legal requirements and its community responsibility which shall include but not be limited to provision for: Self-government by the medical staff with respect to the professional work performed in the hospital, periodic meetings of the medical staff to review and analyze at regular intervals their clinical experience and requirement that the medical records of the patients shall be the basis for such review and analysis.” The regulation appears to require only that the Hospital adopt written bylaws related to medical staff self-governance. Yet nowhere in the citation does CDPH ever allege that TRMC hasn’t adopted the required Bylaw provisions. Rather, with no basis whatsoever, CDPH alleged that TMRC violated this simple regulation for reasons unrelated to adoption of a bylaw, much less the old medical staff’s self-governance. For example, CDPH alleged that the Hospital’s failure to document dispute resolution efforts with the medical staff violated the rule, as did the failure to create ad hoc committees to try to resolve the dispute.  Moreover, as a matter of fact, the Hospital tried in vain to convince the old medical staff to resolve any differences through the dispute resolution process set forth in the medical staff’s own Bylaws—but they consistently refused to do so.  In fact, the Hospital filed a mandamus action against the old medical staff to try to force them to adhere to their own dispute resolution procedures.   Tulare Local Healthcare District v. Medical Executive Committee, Case No, 259976 (2014).

These frivolous and unwarranted complaints are nothing more than an inappropriate pressure tactic being used by the CMA and the old medical staff to force the Hospital out of business, or to force it to capitulate to the personal economic interests of the disgruntled physicians.  These complaints are cost free to the malcontented.  But these are contrary to good public policy, as the limited resources of the regulatory agencies are being squandered for harassment purposes. Simply put, the costs associated with defending the frivolous complaints in legal and administrative actions literally take health care services away from Tulare residents.

The Board acted in the best interests of the Hospital and the community which it serves, and maintains that its actions were supportable by law.  As almost everyone in the community knows, this matter is currently pending in court and heading to trial, and the judge will make the ultimate decision.  It will not be made by the media, or by reporters, or by the CMA or its attorneys, or by any individual members of the community.   We hope that the community will reserve its judgment until the matter has been resolved by the court.

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