Delaware Health Resources Board November 15, 2007 Delaware Technical and Community College Dover, Delaware

Board Members Attending Staff Phyllis Sheppard, Chair Francis Osei-Afriyie S. Bernard Ableman, Esq., Vice Chair Judith A. Chaconas Katherine Deitcher, RN, BSN Judy Zumbo John A.J. Forest Jr., MD (By phone) Carolyn Mailey Linda S. Heller Patricia Murphy, Esq. Christine Pochomis William O’Connor, Ph.D. Suzanne Raab Long J. Kenneth Saunders Yrene E. Waldron Kathleen Russell Sarah K. Noonan Christian Hans Francke Joann O. Hasse Alfred Hatchett Richard Pack

Call to Order Ms. Sheppard called the meeting to order. She announced the presence of two new Board members, Ms. Noonan and Ms. Russell, at the meeting.

Approval of Minutes Ms. Waldron made a motion to approve the minutes of the October 25, 2007 meeting. Mr. Saunders seconded the motion. The minutes were approved by a voice vote.

It was noted that Dr. Forest was attending the meeting by phone. His participation was discontinued since he had a problem hearing members on his cell phone. Before hanging up the phone, he indicated his opposition to the application from Seaford Specialty Surgical Center.

Conflict of Interest None was noted

Certificate of Public Review - Decision Seaford Specialty Surgery Center (SSSC) – Establish a multi-specialty surgery center in Seaford

Members of the Review Committee: Mr. Pack, Chair; Ms. Hasse; Ms. Torsch; Dr. O’ Connor; and Dr. Forest.

D:\Docs\2018-04-22\09209f7dc9b3b7dd0b90134b986b8b9a.doc The Review Committee met prior to the Board meeting and formally adopted the Review Committee report which had previously been distributed to the Board members.

Prior to the presentation of the Review Committee report, Ms. Patricia Murphy reviewed the history of activities associated with this application to date, and noted that both the applicant and the opposition had been given the opportunity to argue and present evidence at committee hearings in the course of the review. She also added that the parties were scheduled to present arguments at the meeting before the full Board.

Presentation by Nanticoke Hospital

The following persons spoke on behalf of Nanticoke Memorial Hospital: Mr. David Hackett, Esq., attorney for Nanticoke, Mr. Mark Rappaport, new President and CEO of Nanticoke, Mr. Charles Allen, Board Member of Nanticoke Hospital and Ms. Jay Sutton, Director of Surgical Services at Nanticoke. In general, the spokespersons reiterated what had previously been said at committee meetings. They emphasized the current excess capacity of operating rooms at the hospital and advised that an approval of the application would worsen the already precarious financial situation of the hospital. They also noted the changes that are being implemented to improve the environment at the hospital in order to attract and retain physicians and other staff. In conclusion, they appealed to the members of the Board to disapprove the application.

Review Committee Report Presented by Mr. Richard Pack, Review Committee Chairman

The Chair gave a brief history of Seaford and talked about the hearings that were conducted by the Committee. He went through each of the seven statutory criteria and said that the members did not unanimously agree that the application met all of them. However, taking everything into consideration and based upon the preponderance of the evidence, the members voted 3 to 1 to recommend approval of the application to the Board. He moved that the application of Seaford Specialty Surgery Center, LLC to establish a freestanding surgical center in Seaford be approved. The motion was seconded by Ms. Hasse.

After the presentation, Ms. Sheppard invited the representatives of the applicant to come before the Board if they had anything to add and or answer questions posed by Board members.

Comment by the Applicant

The applicant was represented by Laura Murphy, Esq., Dr. James Rupp, Dr. Claude DiMarco, Dr. Ganesh Balu and Mr. Robert McCarville.

The representatives stated that there is a need for more operating rooms in the service area since the doctors are not able to do their cases at the hospital in a timely manner and the some of the patients are forced to travel outside of the area to receive services. Furthermore, it was noted that as of November 1, 2007 Medicare has added 750 new procedures to the ASC list for reimbursement.

D:\Docs\2018-04-22\09209f7dc9b3b7dd0b90134b986b8b9a.doc After the above, Mr. Francke requested and was given time to present his need analysis. In a nutshell, he indicated that there is excess capacity of operating rooms in the Seaford area and no need had been demonstrated by the applicant.

At this point Ms. Patricia Murphy, attorney for the Board, cautioned the members to indulge in a meaningful discussion on the seven statutory criteria during deliberations.

Following a lengthy discussion and question and answer period, the members voted on the motion proposed by the Review Committee Chairman Mr. Richard Pack and seconded by Review Committee member Ms. Hasse to approve the application of Seaford Specialty Surgery Center. The motion carried.

After Mr. Franke voted “no”, Ms. Patricia Murphy stated that is was her legal opinion that given that he did additional outside research and presented it this day as a witness to provide new evidence, that he needed to consider whether that action biased him in any manner and whether he was able to give an objective view and provide an objective vote. She stated she had alerted him to that before and was not aware he was going to vote. Mr. Franke said he had considered the application in significant detail and believed he had looked deeper into the matter than quite a few other people. Ms. Patricia Murphy said that she could not instruct him to recuse himself but that it is her legal opinion that it was not appropriate for him to vote given that he has acted as an outside witness. Mr. Francke did not rescind his vote.

The votes were as follows:

No: Mr. Ableman; Mr. Francke; Mr. O’Connor; Mr. Pack; Ms. Raab- Long Yes: Ms. Deitcher; Ms. Hasse; Mr. Hatchett; Ms. Heller; Ms. Pochomis; Mr. Saunders: Ms. Sheppard; Ms. Waldron

Abstain Ms. Russell; Ms. Noonan :

The motion to approve the application from Seaford Specialty Surgery Center, LLC carried, with 8 votes in favor and 5 votes against. The two new board members abstained from the vote.

Charity Care Task Force –

D:\Docs\2018-04-22\09209f7dc9b3b7dd0b90134b986b8b9a.doc The Charity Care Task Force is working on the administrative document and will present an update at the next meeting.

Other Business Dr. O’Connor expressed his opinion that there were inefficiencies in the review process and suggested the formation of a group to look at the current review procedures and report its findings to the Board in February 2008. Dr. O’Connor made a motion to this effect. Mr. Pack seconded the motion. There was discussion but no agreement on this point and no vote.

Public Comment None

Announcement of the Next Meeting The next meeting will take place on the third Thursday, December 13, 2007.

Adjourn The meeting adjourned.

D:\Docs\2018-04-22\09209f7dc9b3b7dd0b90134b986b8b9a.doc Attending Guest

Katherine Collison John Rhodes Jennifer Osei-Afriyie Barbara S. Bowser Pat Rankin Jach Riddle David Hackett, P.A. Mark Rappaport, CEO Nanticoke Charles Allen Jaye Sutton Robert Boyd Brad Lemon, MD James Rupp, MD Laura Sunstein Murphy, Esq. Rob McCarville Elaine Peterson Ganesh Balu, MD Claude DiMarco, MD Mrs. S. Bernard Ableman Sen. Robert L. Venables

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