The Shabby History Of the Saratoga County Termination Of The Visiting Nurse Program

Last year this blog documented the grim story of the hiring of the Saratoga County Director of Mental Health, Michael Prezioso.  Saratoga County openly violated the hiring requirements for the director.  The County, particularly the County Administrator, was repeatedly caught misstating what had occurred.  The New York State Division For Mental Health ignored the violations.

Now Lew Benton, who worked for the Saratoga County Planning Department early in his career, has done yeoman work researching the County’s termination of the Visiting Nurse Association.  The similarities with the Mental Health debacle are striking.  The indifference to law and transparency are flagrant.  Based on history, one can assume that our Supervisors Matt Veitch and Peter Martin will be as silent on these violations as they were in the earlier case. 

Lew Benton On The Visiting Nurse Program Termination

You will recall Steve Williams’ story which appeared in the March 18 edition of the “Daily Gazette” under the headliner Saratoga County Home-care Nursing Services Termination Explained.

Steve’s story reported – after the fact – on the County’s “decision” to terminate its long established NYS Health Department Certified Home Health Care program administered by the County Public Health Nursing Service.  The story noted that the program – which provided temporary health services to some patients recently discharged from acute care facilities, hospice patients, and other predominately elderly residents – was ended following completion of a study by the “health care accounting specialists” McCarthy & Colon of Glens Falls.

The study was never made public but, according to Steve’s story, concluded that the service “lost” money and went on to note that “The decision to continue as a certified home health agency  service provider is a philosophical and fiscal decision that must be made by the County Board of Supervisors (my emphasis).” Of course, if we apply the basic criterion that all non-mandated County services which “lost” money should be terminated, several County agencies, boards and departments would cease to exist along with the need to levy a County real property tax.

Subsequent to Steve’s story some additional background has been made available.  It is now known from information provided by the state that County staff submitted a program closure plan to the NYS Department of Health on January 16, 2016, that the closure plan was approved by DOH on February 1, that the last program patients were discharged on March 31 and that 18 employees of the County Public Health Nursing Service were terminated.  And, we now know all of this was done without any public disclosure, without benefit of discussion and debate by the Board of Supervisors, without authorization of the Board of Supervisors and, apparently, even without the knowledge of most members of the Board of Supervisors.

Logically, many in the community have asked why and how a service established and governed by the Board of Supervisors and licensed by the NYS Department of Health  could be terminated without any public disclosure, discussion, debate or legislative action.  The simple answer is that it can’t.

I had read Steve’s March 18 story with some interest because many years ago I prepared – at the direction of the Board of Supervisors –  the original Certificate of Need and application to DOH that led to the program establishment. Then the Board of Supervisors was concerned about the high public costs, lack of oversight and regulation associated with private providers of such services and their corresponding impacts on patient care and the county budget.

What particularly caught my attention was the simple fact that the chair of the Board of Supervisors told Steve that last year’s “decision” to seek DOH approval to terminate the program was made in executive session.  I though that was an extraordinary foolish thing to say even if true.

Such “decisions” can not be made in executive session.  Surely only the full Board of supervisors in open public session and by resolution cold move to terminate. As it turns out, no committee of the Board and certainly not the full Board ever acted.

Saratoga County has no charter and no elected executive apart from the Board of Supervisors.  The county administrator is just that, an administrator who serves at the pleasure of the Board, and whose title and duties are defined in a local law.

Further, while terminating the program may result in savings, we are left to accept that simply based on the chair’s statement that the action was a “no brainer.”  Since audit report commissioned by the County prior to the “decision” was never made public we will never know with certainty the relative budget impact of the action.  Then there are several other potential impacts that were never addressed by the Board because its members never took of the question in the first instance.

Since Steve’s story was published there has been an opportunity to review available County records, examine current applicable NYS Public Health Law (PHL) and regulations, and consult with the licensing agency in an attempt to piece this all together.  The NYSDOH Deputy Commissioner for Primary Care and Health Systems Management was particularly helpful and forthcoming.

He advised me that the matter would be referred to DOH counsel’s office.  It will be interesting to learn what, if any, comes from that.

Law, Rules and Regs Governing CHHC Programs

First, the application process and requirements for a Home Care Licensure, including the establishment or deletion of services is outlined in Article 36 of the PHL and the New York Code of Rules and Regulations (NYCRR) at Title 10, Section 762.2.

The state code includes the following language (NYCRR Title 10, Sec. 762.2 (c):  “Any proposal for any of the following purposes shall constitute and shall be the subject of an application submitted for review pursuant to the requirements of this part and  Article 36 of the PHL, including a review by the State Hospital Review and Planning Council:

(1) the addition or deletion of a certified home health agency service, regardless of cost.”

The original application to DOH for licensure was, of course, submitted by then Board of Supervisors as the program “sponsor” and as the Public Health Nursing Service’s “governing authority.”  No staff person has the unilateral authority to apply to seek program certification or to terminate a program established by the Board and no County agency can seek to undertake or establish a program requiring state licensure without formal resolution of the Board of Supervisors.

This is also recognized by the DOH and spelled out in regulations.

Title 10, Section 760.1 – Definitions  Section 760.1 Definitions. For purposes of this Part, unless the context indicates otherwise, thefollowing terms shall have the following meanings.

(a) Sponsor means:

(1) any governmental subdivision … that is requesting or has received approval to operate a certified home health agency;

Neither the Board of Supervisors nor the County Public Health Committee Ever Acted to Terminate or Authorize Staff to Terminate the  CHHC Program

Yet, for whatever reasons, County staff applied to DOH to terminate the program without the authorization of the “sponsor” and “governing board,” the Board of Supervisors.

The March 18, 2016 “Daily Gazette” story noted that the current chair of the Board of Supervisors said unnamed ‘county officials didn’t want to say anything until they knew that DOH would approve the termination.’  Presumably these “county officials” did not want the public and those whose jobs were in jeopardy to be aware of program termination until after the fact.

To shelter the “decision” from public view and scrutiny the proposal was discussed, according to the current chair of the Board of Supervisors, by the 2015 County Public Health Committee meeting in “executive session.”

The now chair of the Board of told the “Daily Gazette” that the elimination of the service was discussed last year (2015) by the Public Health Committee, during meetings that were held in executive session because of the potential impact on personnel.  However, such a discussion, if it took place in executive session, would be in violation of the Open Meetings Law.  The termination of an existing service or the “decision” to terminate such service are NOT legitimate topics for executive session (see appended Open Meetings Law Section 105, Conduct of executive sessions).

All of this begs another question: How does a committee of the Board of Supervisors, with the county attorney and administrator present, not know the tenants of the Open Meetings Law, or simply ignores them in order to avoid press and public scrutiny.

Further, the DOH deputy commissioner for Primary Care and Health Systems was informed  that DOH staff spoke with the director of the County Public Health Nursing Service who indicated that the Saratoga County Board of Supervisors met in two separate executive sessions, July 13, 2015 and July 15, 2015,  at which time the decision to close the CHHA was made.  There was no associated Board resolution.  The director also advised DOH s that the County Administrator and attorneys were present at the executive sessions.

So two county officials, the current chair of the Board of Supervisors, and the head of the County Public Health Nursing Service have told the press and DOH that the “decision” to terminate the CHHC program was made in executives sessions at the July 13, 2015 Public Health Committee meeting and a July 15, 2015 meeting.  However, the minutes of the July 13 Public Health Committee – while referencing an executive session – make no reference of the subject of the closed meeting, as required, and specifically note that “no action was taken” on whatever matter may have been discussed.

The minutes of the referenced July 13, 2015 Public Health Committee meeting do, in fact, reference an executive session but the motion to go into executive session does not identify “ … the general area or areas of the subject or subjects to be considered …” (as required by the Open Meetings Law) was made.

The published minutes of that meeting are presented below.  I have highlighted the executive session language.

Public Health Committee Minutes, July 13, 2105, 4:00 p.m.

Present:    Chairman  Tollisen;  Supervisors  Kinowski,  Martin,  Collyer,  Richardson,  Wood,  and Lucia;  Spencer  Hellwig,  County  Administrator;  Steve  Dorsey,  County  Attorney;  Diane  Brown, Deputy Personnel  Director;  Cathy  Duncan,  Michele  Brown,  Public  Health;  Michael  Prezioso, Mental Health; Press.

Chairman Tollisen called the meeting to order and welcomed all in attendance. On a motion made by Mr. Kinowski, seconded by Mr. Collyer the minutes of the June 8, 2015 meeting were approved unanimously.

Mr.  Dorsey said  the  Town  and  Village  of  Galway  have  both  submitted  resolutions  requesting that their Vital Statistic Registration Districts be consolidated into one registration district which would be in the Town of Galway.  He said this change will require the approval of the Board of Supervisors. A  motion  was  made  by  Mr.  Collyer,  seconded  by  Mr.  Wood  to  approve  the  consolidation  of Vital Statistic Registration Districts in the Town and Village of Galway to the Town of Galway.  Unanimous.

Mrs. Duncan said Saratoga County Public Health participated in a full scale Biological Emergency Response  Team  Drill  (BERT)  in  April  of  2015.    She  said  the  drill  was  conducted  at  Saratoga Hospital and was a volunteer core group of people who are EMT’s pretending to be picking up an  Ebola  patient.    The  individual  was  taken  the  Saratoga  Hospital,  which  is  not  a  primary hospital for accepting Ebola patients.  Mrs. Duncan said Saratoga County was the first county to conduct such a drill in the United States.

Mrs.  Duncan  said Public  Health  has  worked  very  closely  with  Global  Foundries  to  hold  TB education for employees through presentations and working closely with nurses and employee health.

On  a  motion  made  by  Mr.  Richardson,  seconded  by  Mr.  Martin  the  meeting  moved  into Executive Session.

On  a  motion  made  by Mr.  Martin,  seconded  by  Mr.  Collyer  the  meeting  returned  to  Regular Session.

No action was taken.

On  a  motion  made  by  Mr.  Wood,  seconded  by  Mr.  Lucia  the  meeting  was  adjourned unanimously.

Respectfully submitted, Chris Sansom

Further, the DOH was told, according to the deputy commissioner for Primary Care and Health Systems Management, by county staff that the Board of Supervisors met in two separate executive sessions, July 13, 2015 and July 15, 2015, at which time the decision to close the CHHA was made.  However, the Board of Supervisors did not meet on July 13 or July 15.  The Board held an “Agenda Session” on the 15th and the Board’s Law and Finance Committee met earlier the same day.  Neither meeting adjourned to executive session and the termination of the CHHC program was not discussed or acted on.

Bottom Line

It appears that ONLY the Board of Supervisors could apply to DOH to terminate the CHHC Program.

According to their own records he Board of Supervisors never took up the question and never acted  on it.

The Public Health Committee MAY have discussed the matter in a July 13, 2015 executive session. The minutes do not include a reason for the closed session  but do indicate that “no action” was taken on whatever topic was discussed.  But even if the PHC had recommended that the program be terminated, that recommendation would have to be accepted and ratified by resolution of the full Board.

Recent representations by county officials to the press and DOH about actions by the Board of Supervisors to terminate the program were, apparently, untrue.  

We are left to speculate on why all of this was done in secrecy and what other public policy decisions may be kept from the press and public and for what reasons. 

That July 13, 2015 Public Health Committee executive session undoubtedly violated the Open Meetings Law and suggests the a need to reacquaint senior staff and the Board with the requirements of the statute.  As noted previously, executive session can, by law, only take place following motion identifying the general area or areas of the subject or subjects to be considered (see “Conduct of executive session” below).

Further, the subject matter does not meet the criteria necessary to move into a closed session. It seems inconceivable that no member of the Public Health Committee or staff had the moxie to call to question the validity of the executive session and object to it.

The public had a right to know in advance that the program was proposed to be terminated and unknown County staff denied that right.

We do not know who directed the County Public Health Nursing Service to file the closure plan with DOH, but whoever did was without the authority to do so absent Board of Supervisors resolution.

The DOH deputy commissioner for Primary Care and Health Systems Management has advised that he has or will refer the matter to council’s office for review.

Appendices

• 105. Conduct of executive sessions. 1. Upon a majority vote of its total membership, taken in an open meeting pursuant to a motion identifying the general area or areas of the subject or subjects to be considered, a public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys: a. matters which will imperil the public safety if disclosed; b. any matter which may disclose the identity of a law enforcement agent or informer; c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed; d. discussions regarding proposed, pending or current litigation; e. collective negotiations pursuant to article fourteen of the civil service law; f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation; g. the preparation, grading or administration of examinations; and h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof. 2. Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.