The Times West Virginian

West Virginia

August 14, 2013

Judge: WVU Urgent Care operator is a public agency under state law

MORGANTOWN — University Health Associates is not a private practice for physicians but instead qualifies as a public agency under West Virginia law because of its “symbiotic relationship” with WVU Hospitals, a judge says. That means its records are subject to the state’s Freedom of Information Act.

The decision in Monongalia County Circuit is a victory for Mon General Hospital, a competitor that sued UHA last summer in an unsuccessful bid to stop the relocation of WVU Urgent Care in Morgantown. Among other things, Mon General demanded access to UHA’s books to help justify its objections to the state Health Care Authority.

Mon General President Darryl Duncan said Tuesday he was pleased with the ruling and suggested it may affect other cases involving West Virginia University Medical Corp., which does business as UHA.

It’s the second time the circuit court has reached this conclusion, Duncan said, “and we felt the facts were always there to support this decision.”

Mon General has long argued that UHA and WVU Medical Corp. are subject to FOIA because UHA is the clinical practice arm for WVU physicians, controlled directly by WVU Hospitals and West Virginia United Health Systems.

WVU Medical Corp. and UHA issued a statement saying they intend to appeal the ruling.

“We respectfully believe that it is in error,” said spokeswoman Amy Johns.

But Judge Phillip Gaujot said his decision complies with West Virginia’s “resounding public policy” of having a citizenry informed about the affairs of its government.

“The FOIA itself is a unique mechanism to remove the shroud of secrecy that can sometimes cloud governmental affairs, particularly adverse to accountability to the populace,” he wrote. “The FOIA is meant to empower the citizenry with perhaps its greatest tool, and that is knowledge.”

Gaujot’s order was entered last week, but Mon General made it public Tuesday. It also denies a motion to dismiss the underlying lawsuit filed last summer.

Duncan has denied his objective was to stop the relocation of the urgent care, which occurred in June.

Rather, Duncan wants all health care providers affiliated with WVU to go through the same review process as any other provider in the state when it comes to obtaining certificates of need for projects.

The Health Care Authority requires certificates of need for projects exceeding $2.9 million unless the entity is exempt. UHA argued it was a private practice and therefore exempt from the process. UHA contends it was created as a private physician practice more than 30 years ago, with its own bylaws, members and board of directors.

The Health Care Authority agreed, and in April, the Office of Judges upheld that decision.

UHA also argues it was neither created nor funded by any state or local authority.

But Gaujot said that argument ignores the reality of what he called an “intimate nexus” and “a symbiotic relationship” between WVU Medical Corp. and WVU Hospitals.

They share, for example, the same chief financial officer, Gaujot said. And WVU Board of Governors Policy 55 declares that the FOIA applies to “all units, colleges and divisions” and their employees under the board’s jurisdiction.

“Physician faculty members of the WVU School of Medicine, as WVU employees, are subject to the FOIA” under that policy, the judge wrote.

WVU Medical Corp. has also received and benefited from state-issued bonds, he said, and it operates under bylaws that can only be amended with the written permission of WVU’s president.

WVU Medical Corp. was created by WVU Hospitals and the School of Medicine “specifically to do what WVU could not do on its own,” the judge said — bill and collect for physician services. “WVUMC is operating for the state’s direct benefit and/or at the state’s specific behest.”

It serves as “a conduit corporation and hand-in-hand” with WVU Hospitals on behalf of both WVU and the School of Medicine on many fronts, Gaujot wrote, with billing being the most important.

“Excess money,” he noted, “is remitted to WVU.”

The judge also cited a 2010 joint operating agreement between WVU, WVU Hospitals and WVU Medical Corp. to “function as a single strategic and economic unit, to be known as WVU Healthcare.”

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