An Iowa appeals court has denied an eye surgeon's fourth attempt to get a certificate of need (CON) in order to build an ambulatory surgery center in Cedar Rapids.
For Lee Birchansky, MD, ABES, the founder of Fox Eye Surgery, Iowa's CON law has been a source of frustration that he says contributes to an increase in healthcare costs. "It has become clear to me that in Iowa, physicians are highly unlikely to obtain a CON for an ASC as the law favors protecting the interests of existing facilities," said Dr. Birchansky in an e-mail message.
Dr. Birchansky and Fox Eye Surgery appealed a 2008 CON denial by Iowa's State Health Facilities Council, but in 2009 a trial court agreed with the council. So the eye practice appealed to the Court of Appeals of Iowa, which affirmed the lower court's ruling on Aug. 25.
Dr. Birchansky has been trying to build a surgery center in Cedar Rapids since 1996. The health facilities council has denied all four of his applications. A spokesman for the Iowa Department of Public Health did not respond to a request for comment on the appeals court ruling.
From 1998 through 2004, Dr. Birchansky and St. Luke's Hospital had an arrangement in which St. Luke's operated a surgery center on property owned by Birchansky Real Estate, LC. The center didn't need a CON because it was considered an extension of St. Luke's. In the meantime, Dr. Birchansky applied for a CON to build another surgery center. But once St. Luke's closed its surgery center and moved outpatient procedures back to the hospital campus, Dr. Birchansky's CON application was denied, according to court documents.
Dr. Birchansky appealed the health facilities council's decision and a trial court ordered the council to review the application again. However, St. Luke's and Mercy Hospital appealed, and in 2007 the Supreme Court of Iowa ruled that the council's denial of Dr. Birchansky's CON was appropriate.
So Dr. Birchansky and Fox Eye tried again. In 2008 the council determined that the most recent application did not meet the criteria needed to receive a CON per Iowa law, especially since the Cedar Rapids area has underutilized ophthalmic operating rooms. When Fox Eye applied for the CON, Mercy Hospital had 2 operating rooms for ophthalmic surgery used at 20% to 30% capacity, and the Outpatient Surgery Center of Cedar Rapids had 5 ORs at 50% capacity. Dr. Birchansky had access to these facilities, say court documents.
In its most recent appeal, Fox Eye alleged that the council's decision was unreasonable and inconsistent with previous approvals, most notably the approval of a
CON for more ORs for Mercy Iowa City and the fact that CON approvals coincide with hospital support, according to court documents. The appeals court, however, disagreed with Fox Eye's argument. "The fact no hospital-opposed CON application has been granted and no hospital-supported application has been denied does not establish any improper analysis by the council," wrote the judges.
Dr. Birchansky says that Iowa's CON law is driving up healthcare costs since a significant portion of the region's cataract cases are performed in a more expensive hospital setting rather than surgery centers. "Lawmakers need to put the patient first and abolish the antiquated and broken CON law."
Kent Steinriede
