FREEDOM OF INFORMATION COMMISSION

OF THE STATE OF CONNECTICUT

In the Matter of a Complaint by FINAL DECISION

Danbury Hospital,

Complainant

against Docket #FIC 86-11

Commission on Hospitals and Health Care, Commissioners Gardner Wright, Jr. and Nancy Watters,

Respondents August 27, 1986

The above-captioned matter was heard as a contested case on May 22, 1986, at which time the complainant and the respondents appeared and presented testimony, exhibits and argument on the complaint.

After consideration of the entire record, the following facts are found:

1. The respondents are public agencies within the meaning of 1-18a(a), G.S.

2. By letter of complaint filed with the Commission on January 14, 1986 the complainant alleged that on January 3, 1986 the respondent commission held an emergency meeting, during which it proposed and adopted a resolution. The complainant claimed that the nature of the emergency was never identified, that in fact no emergency existed and that the respondents failed to place minutes of the meeting on file with the Secretary of State within 72 hours. The complainant asked that the Commission declare null and void all actions taken at the January 3, 1986 meeting and all actions based upon the resolution adopted at such meeting and that the Commission impose civil penalties against the respondents.

3. At hearing the respondents moved to dismiss the complaint on the ground that the Commission failed to hear the complaint within 20 days. The respondents' motion is hereby denied based upon the language of P.A. 86-408, which validates the complainant's appeal.

Docket #FIC 86-11 Page Two

4. On December 12, 1985 the respondents adopted a resolution which ordered an investigation, pursuant to 19a-149, G.S., of allegations that certain persons or organizations were offering or planning to offer open-heart surgery and other services without the respondent commission's approval. The respondents had received information that at least one patient was scheduled for open-heart surgery at the complainant hospital during the week of January 16th through 20th, 1986.

5. The respondent commission held a special meeting on January 3, 1986, notice for which stated that it was for the purpose of receiving submissions and documents and to take testimony and conduct cross-examination concerning its docket number 85-522, the subject of which was "[w]hether or not open-heart surgery, cardiac catheterization, coronary angioplasty or similar services have been or are contemplated to be introduced by any person or organization without the prior approval of the Commission [on Hospitals and Health Care]."

6. The respondents issued subpoenas to John C. Creasy, president of the complainant hospital, and Mark Sinning, M.D. requiring them to produce documents and to appear before the respondent commission at its January 3, 1986 meeting. On January 3, 1986 Mr. Creasy and Dr. Sinning appeared, but, on the advice of counsel, Mr. Creasy refused to submit any of the subpoenaed documents and refused to answer any questions, on the ground that the respondents' December 12, 1985 resolution was not broad enough to cover the scope of the documents and testimony requested.

7. Mr. Creasy affirmed that the complainant hospital expected to offer open-heart surgery and cardiac angioplasty, but the respondents were unable to determine whether any patients were, at the time, scheduled for open-heart surgery.

8. Faced with Mr. Creasy's refusal to respond to any questions or provide any documents based upon the claimed narrowness of the December 12, 1985 resolution, the respondent commission recessed the meeting and called an "emergency" meeting, during which it voted to add language to the December 12, 1985 resolution to broaden the scope of the investigation.

9. Minutes of the January 3, 1986 emergency meeting, identifying the nature of the emergency, were placed on file in the office of the Secretary of State on January 31, 1986.

10. The scheduled meeting was resumed following the adjournment of the emergency meeting and questions based upon the revised resolution were posed.

Docket #FIC 86-11 Page Three

11. The respondents claim that because of Mr. Creasy's refusal to answer any questions regarding the scheduling of surgery, it appeared that surgery could have been scheduled for that very day or very soon thereafter.

12. It is found that delaying further inquiry into the complainant's practices might have resulted in the performance of an open-heart surgical procedure without the necessary knowledge or approval of the respondent commission.

13. It is further found, based upon the compelling public interest in the proper implementation and regulation of a procedure such as open-heart surgery, that the refusal of Mr. Creasy to reply to the respondents' questions constituted an "emergency" within the meaning of 1-21(a), G.S.

14. It is concluded that the respondent commission's convening of its January 3, 1986 emergency meeting did not violate 1-21(a), G.S. The complainant's requests for a civil penalty and for the issuance of an order declaring the respondents' actions null and void are, therefore, denied.

15. The respondent commission violated 1-21(a), G.S., however, when it failed to file the minutes of the January 3, 1986 emergency meeting within 72 hours following the meeting.

The following order by the Commission is hereby recommended on the basis of the record concerning the above-captioned complaint.

1. The complaint is dismissed to the extent that it alleged that the convening of the respondents' January 3, 1986 emergency meeting violated 1-21(a), G.S.

2. The respondents shall henceforth act in strict compliance with 1-21(a), G.S. regarding the necessity of filing minutes of emergency meetings within 72 hours.

Approved by order of the Freedom of Information Commission at its regular meeting of August 27, 1986.

ÿ

Karen J. Haggett

Clerk of the Commission