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Government and People
David A. Catania
CATANIA AND CHAVOUS FILE MOTION FOR SUMMARY JUDGMENT IN SUIT AGAINST CONTROL BOARD OVER D.C. GENERAL
Councilmembers Also Ask Court to Compel Control Board to Produce Due Diligence Report
WASHINGTON, DC Councilmembers David Catania (At-Large) and Kevin Chavous (Ward 7) have filed motions in the United States District Court for the District of Columbia asking the Court to rule in their favor against the Control Board for its actions to force the privatization of D.C. General Hospital. The two Councilmembers, along with the Committee of Interns and Residents, filed suit against the Control Board on April 30, 2001. While Judge Richard Roberts denied the plaintiffs' request for a temporary restraining order to prevent implementation of the Privatization Contract, the case is still pending, and a hearing will be held before the Judge on June 8 to decide the legal merits of the plaintiffs' Complaint.
In their suit, filed on behalf of the plaintiff's by their attorneys, LeBoeuf, Lamb, Greene & MacRae, L.L.P., the Councilmembers contend that the Control Board acted without statutory authority and that implementing the Privatization Contract over the objections of the Council was unlawful and unconstitutional. In their Motion for Summary Judgment, filed on May 14, the plaintiffs petition the Court to declare the Privatization Contract and related orders null and void and stop their implementation.
"In one day the Control Board took a series of unprecedented actions to privatize the entire public health system of the District of Columbia," said Councilmember Catania. "They entered into a five-year, $500 million contract with the financially troubled Greater Southeast Community Hospital Corp.; they enacted legislation to repeal the Public Benefit Corporation; and ordered D.C. Department of Health to oversee the privatization process. They took these actions despite the fact that the Council unanimously rejected the Privatization Contract because it was in our judgment against the interest of the District of Columbia and its citizens."
In the papers filed with the Court, the plaintiffs explain why the actions of the Control Board went beyond their authority and are in violation of the United States Constitution. The plaintiffs contend that since the Control Board has certified the financial well-being of the District and their operation is winding down, they have no authority to enter into the Privatization Contract, enact laws, or issue orders. In addition, the plaintiffs state that the Control Board has no power to order the Council to take particular legislative action and has no authority to enter into a five-year, $500 million contract, since that authority rests solely with the Council. Moreover, when the Control Board executed the Privatization Contract it refused to allow the citizens of the District to be present, in violation of the District's Open Meetings Act.
"The predicted devastating effects upon the healthcare of District residents are now coming true," said Councilmember Chavous. "Residents are dying due to the closing of D.C. General's emergency room to ambulances and because of the inability of Greater Southeast to accept trauma patients despite its contractual obligations. Walkin emergency room patients requiring hospitalization are waiting more than a day for transfer to Greater Southeast, and long-term care patients are unsure where they will receive treatment. This increasing health care disaster not only violates the standards of human decency in a civilized society, it is indisputable proof that the express requirements of health care standards outlined by the Control Board are being violated".
In a separate motion, the plaintiffs moved to compel the Control Board to produce the Due Diligence Report submitted by PriceWaterhouseCoopers LLP to the Control Board regarding the proposed plan to provide healthcare to the uninsured population of the District. The Council has repeatedly expressed its concerns over the financial viability of Greater Southeast Hospital Corp. and requested that a Due Diligence Report be performed. To date, the Council has not been able to review this document.
Plaintiffs' attorney, Elizabeth Sandza, a partner in LeBoeuf's Washington D.C. office, stated that "the PriceWaterhouseCoopers report is essential to an understanding of the financial viability of the Greater Southeast Contract. The failure of the Control Board to allow public scrutiny of these financial documents is particularly troubling given that the Control Board's primary justification for privatization was the financial condition of the Public Benefit Corporation and the potential threat that posed to the community."
A hearing on this matter has been scheduled before a Magistrate Judge on May 18, 2001. This hearing will also resolve a motion to quash depositions of Alice Rivlin, the Chair of the Control Board and Francis Smith, the Executive Director of the Control Board.
[NOTE: Copies of the motions and memorandum filed by the Plaintiffs can be obtained by contacting Councilmember Catania's office at 202/724-7772.]
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
KEVIN P. CHAVOUS and DAVID A. CATANIA, individually and in their capacity as MEMBERS of the COUNCIL OF THE DISTRICT OF COLUMBIA, One Judiciary Square, 441 Fourth Street, NW, Washington, D.C. 20001, and
THE COMMITTEE OF INTERNS AND RESIDENTS, 1925 K Street, N.W., Suite 410, Washington, D.C. 20006, Plaintiffs,
DISTRICT OF COLUMBIA FINANCIAL RESPONSIBILITY AND MANAGEMENT ASSISTANCE AUTHORITY, serve: Alice M. Rivlin, Chair, One Thomas Circle, Suite 900, Washington, D.C. 20001, and
GREATER SOUTHEAST COMMUNITY HOSPITAL CORPORATION I, serve: Ana Raley, Chief Executive Officer, 1310 Southern Avenue, S.E., Washington, D.C. 20032, and
THE DISTRICT OF COLUMBIA, serve: secretary to the Deputy Corporation of the Civil Division and the Office of the Mayor, One Judiciary Square, 441 Fourth Street, N.W., Washington, D.C. 20001, Defendants.
Complaint for Declaratory Judgment and Injunctive ReliefPlaintiffs Kevin P. Chavous ("Councilmember Chavous") and David A. Catania (Councilmember Catania), individually and in their capacity as members of the Council of the District of Columbia, by counsel, bring this action seeking declaratory and injunctive relief to redress the statutory and constitutional violations arising out of efforts by the Defendant District of Columbia Financial Responsibility and Management Assistance Authority to privatize D.C. General Hospital.
Jurisdiction and Venue1. This Court has jurisdiction over this action pursuant to 28 U.S.C. § 1331 and the District of Columbia Financial Responsibility and Management Assistance Act of 1995, Pub.L. 104-8 (HR 1345) § 105 (codified at D.C. Code §§ 47-391.1, et seq.).
2. Venue is proper in this Court under 28 U.S.C. § 1391.
Parties3. Plaintiffs are competent adults over the age of eighteen years.
4. Plaintiffs are citizens of the United States.
5. Plaintiffs are citizens and residents of the District of Columbia.
6. Plaintiffs Kevin P. Chavous and David A. Catania are members of the Council of the District of Columbia ("D.C. Council") and bring this action in both their individual and official capacities.
7. The Committee of Interns and Residents is a national union affiliated with the Service Employees International Union, the largest union of health care workers in the United States. The Committee of Interns and Residents represents interns and residents at D.C. General Hospital.
8. Defendant District of Columbia Financial Responsibility and Management Assistance Authority (the "Control Board") is an entity within the government of the District of Columbia, established in 1995 with the passage of the District of Columbia Financial Responsibility and Management Assistance Act (the "Act"), consisting of five members appointed by the President of the United States.
9. Defendant Greater Southeast Community Hospital Corporation I is a Delaware corporation doing business in the District of Columbia.
10. Defendant District of Columbia is a municipal corporation with responsibility for oversight of the agency of the District of Columbia Department of Health.
11. In 1973, Congress passed the District of Columbia Self-Government and Governmental Reorganization Act ("Home Rule Act"), which granted greater rights of self-determination to District citizens and set forth the structural framework of the District government in the District Charter. Pub.L. 93-198, 87 Stat. 774 (Dec. 24, 1973). The D.C. Council is the legislative branch of the District of Columbia government, and all legislative powers of the District of Columbia government are vested in it.
12. As part of its statutory authority under the Home Rule Act, the D.C. Council established the District of Columbia Health and Hospitals Public Benefit Corporation ("PBC"), codified at D.C. Code §§ 32-261.1 and 32-262.1 through 262.20, et seq. The PBC was established as a non-profit public benefit corporation to provide comprehensive community-centered health care for the benefit of District of Columbia residents. The health care functions performed by the D.C. General Hospital and the community clinics of the Commissions of Public Health of the Department of Human Services were transferred to the PBC. D.C. Code § 32-261.1.
13. In 1995, Congress passed the District of Columbia Financial Responsibility and Management Assistance Act of 1995, which created the Control Board. Provisions governing the Control Board are codified at D.C. Code §§ 47-391.1, et seq. As set forth in Section 47.392(a), the Control Board may submit recommendations to the D.C. Council and, under subsection (b), the D.C. Council then has 90 days in which to approve or reject those recommendations. These recommendations are sometimes referred to as "Section 207 Recommendations" in reference to the Section number in the Control Board's enabling act. The Control Board's powers, as set forth in Section 47392.7, include the authority to issue orders to the Mayor and departments of agencies of the District of Columbia government, but does not authorize it to give orders to the D.C. Council or act in the stead of the D.C. Council.
14. As part of the appropriations for the District of Columbia for the fiscal year ending September 30, 2001, Congress allocated $90,000,000 "for the purpose of restructuring the delivery of health services in the District of Columbia." H.R. 5633, 106 `h Cong., 2d Sess. (2000). The appropriations act further provided that, "such restructuring shall be pursuant to a restructuring plan approved by the Mayor of the District of Columbia, the [D.C. Council], the [Control Board], and the Board of Directors of the [PBC]." Id.
15. On November 3, 2000, Councilmembers Chavous and Catania, along with D.C. Council member Sandy Allen, submitted a proposal to develop a comprehensive urban healthcare campus on the grounds of D.C. General Hospital to address the health care needs of the residents of the District of Columbia.
16. On December 4, 2000, the Control Board issued a Resolution, Recommendations and Orders Concerning the Public Benefit Corporation ("Control Board Resolution"), purportedly pursuant to its authority under Section 47-391.7(a). A copy of the Control Board Resolution is attached hereto as Exhibit A. The "Recommendations" set out in the Control Board Resolution were as follows:
1. The Authority recommends, pursuant to Section 207 of Public Law 104-8, that the Council, pursuant to its statutory authority under the Home Rule Act, repeal D.C. Act 13-454, "District of Columbia Health and Hospitals Public Benefit Corporation Emergency Amendment Act of 2000;"17. The Control Board Resolution was distributed to the Members of the D.C. Council on December 6, 2000.
18. On December 15, 2000, a Request for Proposal ("RFP") was issued by the Control Board seeking to "obtain the services of one qualified health care provider or team of qualified health care providers to provide comprehensive, integrated and coordinated health care services to the uninsured population of the District of Columbia". A copy of the RFP is attached hereto as Exhibit B. The stated closing date for response to the RFP was January 10, 2001, but was later extended.
19. The RFP included an "Anticipated Proposal Schedule" setting forth dates for the events that were to take place prior to the implementation of the selected contract. Those events, as listed in the RFP, included submission of the contract to both the Mayor and the D.C. Council for review prior to the contract being finalized.
20. On January 30, 2001 Greater Southeast Community Hospital Corporation I ("Greater Southeast") presented its proposal to the Control Board. A second proposal was submitted by Urban Healthcare Associates, LLC on February 5, 2001. The committee designated to assist with the RFP process recommended the acceptance of the proposal submitted by Greater Southeast.
21. Once Greater Southeast was recommended, the Control Board moved forward in negotiating a contract with Greater Southeast, refusing to allow the Council or its representatives to participate any further in the contracting process. It was not until last week that the D.C. Council was even made aware of the terms of the contract.
22. On March 6, 2001, the D.C. Council unanimously adopted Resolution 1455, titled the "Sense of the Council on the District of Columbia Health and Hospitals Public Benefit Corporation and D.C. General Hospital Emergency Resolution of 2001." A copy of Resolution 1455 is attached as Exhibit C. In that Resolution, the D. Council expressed its many concerns regarding the proposal submitted by Greater Southeast and the impact that a contract arising out of that proposal would have on the health care services in the District of Columbia.
23. On April 12, 2001, the D.C. Council approved a Fiscal Year 2001 supplemental Appropriation Act which, inter alia, provided $21 million in additional funding in order to fund the PBC through the end of the fiscal year.
24. Greater Southeast submitted a written contract to the Control Board on April 12, 2001. A copy of the contract was transmitted to Mayor Williams on April 13, 2001. A copy of the transmittal letter to Mayor Williams is attached as Exhibit D.
25. Alice Rivlin, Chairman of the Control Board, wrote to Mayor Williams on April 18, 2001, regarding the contract submitted by Greater Southeast. In that letter, Ms. Rivlin stated that "it is essential that this proposed contract and the enabling legislation are approved before May 1, 2001." A copy of that letter is attached as Exhibit E.
26. Mayor Williams provided a copy of the contract submitted by Greater Southeast to the D.C. Council on April 23, 2001. On that same date, Mayor Williams submitted to Linda Cropp, Chairman of the D.C. Council, proposed legislation entitled the "Health Care Privatization Emergency Amendment Act of 2001" providing for, inter alia, the abolishment of the PBC and providing the Mayor with the authority to contract for the delivery of medical services to the District of Columbia's uninsured residents. A copy of that submission is attached as Exhibit F.
27. The D.C. Council rejected the contract submitted by Greater Southeast by unanimous vote on April 27, 2001.
28. Upon information and belief, the Control Board ignored the Council's vote that the contract be rejected and executed the contract with Greater Southeast on April 30, 2001.
29. The effective date of the contract is May 1, 2001, at which time Greater Southeast will immediately begin the privatization of public health in the District of Columbia.
30. Paragraphs 1 through 29 are incorporated by
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