- Special Sections
- Public Notices
After failing to land a certificate of need from the Cabinet for Health and Family Services, Mary Carol Akers will have her day in court.
Akers, an Elizabethtown certified nurse midwife, has appealed the ruling by Administrative Hearing Officer Kris M. Carlton that the Visitation Birth & Family Wellness Center is not needed, taking her grievances before Franklin Circuit Court.
In a formal complaint filed with the court, Akers and her attorney, J. Guthrie True, argued Carlton’s ruling was “arbitrary and capricious” because it violated the center’s statutory, regulatory and due process rights.
The complaint argues the cabinet should not have allowed Hardin Memorial Hospital, Flaget Memorial Hospital in Bardstown and Twin Lakes Regional Medical Center in Leitchfield to challenge the application as affected parties because state law dictates that “affected persons” are defined as healthcare facilities in the same service area that provide similar services. The complaint refutes this notion, stating the birth center provides alternative options not available in a hospital environment.
“They are traditional hospitals providing only hospital-based birthing environments,” the complaint states.
Akers has said the center was designed as a refuge for low-risk, expectant mothers who want to give birth in an alternative, home-like setting away from the sickness-based environment of a hospital. The center, if developed, would provide prenatal, labor and delivery and postpartum care to mothers and babies in a flexible setting where customized birthing options are welcome.
In the complaint, the center argues the state has devised a regulation which allows birth centers to operate alongside hospitals to “provide health care consumers a choice in birth settings … and a choice in care providers during birth.” As of now, no other alternative birth centers are active in Kentucky.
True made a motion during the earliest stages of the hearing to limit the scope of testimony, which would have required the hospitals to dispute the presumption of need for the birth center based solely on clear and convincing evidence. The motion was denied.
Over four days of testimony, attorneys for all three hospitals argued the facilities had adequate capacity for deliveries in the center’s service area, claimed the birth center’s projected births and financial estimations were faulty and questioned the safety of both mother and child if cared for by the center.
“The Administrative Law Judge erred by admitting all of this evidence,” the complaint stated.
The complaint also argued some of the evidence submitted challenged the licensing of the center rather than its need and was not relevant.
The center is asking the court to remove the three hospitals as affected persons in regard to the application, to rule that a presumption of need only can be overcome by convincing evidence alternative birthing services already are available and to overturn the cabinet’s ruling as erroneous. The center also is asking the court to direct the state to issue the certificate of need.
Akers in an interview said she chose to take legal action in Franklin Circuit Court rather than ask the cabinet for reconsideration of the application because she suspected the case would come back to Carlton.
“We thought that would be useless,” she said.
In late July, Carlton ruled Akers failed to provide credible evidence large numbers of patients would migrate from Jefferson County to Elizabethtown for obstetrical care. Akers’ application projected 90 percent of home births in Jefferson County would convert to birth center patients while 75 percent of home births in its secondary service area could convert.
Carlton also said the rejection of Medicaid as a pay source would restrict the center to a demographic that often looks for out-of-hospital options.
Research shows 99 percent of Jefferson County residents stay local to deliver their children and no evidence was presented by Akers indicating such a large number would drive an hour or more for care, according to Carlton. She also questioned why Akers chose Elizabethtown as the location for the center because so many of the center’s purported patients will reside elsewhere.
Michelle Murphy, director of marketing and public relations for HMH, said she was uncomfortable commenting on the appeal because she had not read the complaint.
“I wouldn’t even know how to respond,” Murphy said.
Attorneys representing HMH and Twin Lakes did not respond to calls and emails from The News-Enterprise seeking comment for this story.
Akers said the appeal will not give her a new hearing but rather a judge will review the testimony from the certificate of need hearing and render a decision.
She said there is a “fair chance” the appeal will be successful.
“There is a presumption of need,” she said.
Marty Finley can be reached at 270-505-1762 or mfinley@