ACLU of Kentucky

This story appeared in the September 9, 2011 Edition of the Courier-Journal.

ACLU, C-J ask Conway to declare
University Hospital public

By Patrick Howington

The question of whether University Hospital is a public institution — an issue in the controversial plan to merge the University of Louisville’s main teaching hospital with two other health-care systems — has been placed before Kentucky Attorney General Jack Conway.

ACLU of Kentucky and The Courier-Journal have asked Conway to review recent refusals by University Medical Center Inc., which does business as University Hospital, to provide documents they sought under the Kentucky Open Records Act.

UMC turned down both requests on grounds that it is a nonprofit corporation rather than a public agency and therefore isn’t subject to the act.

A Kentucky attorney general’s open-records opinion has the force of law, but can be appealed to circuit court.

Conway’s decision likely would not affect the pending merger, since questions other than open records are involved in officials’ ongoing review of the deal’s legality. Conway and state Auditor Crit Luallen are conducting that review for Gov. Steve Beshear, whose approval of the transaction is needed. 

The merger would combine University Hospital, Jewish Hospital & St. Mary’s HealthCare and Lexington-based St. Joseph Health System. The merging hospitals have agreed to honor Catholic policies, prompting concerns about reproductive care at University, the area’s safety-net hospital.

Since debate over the merger began months ago, both U of L and University Hospital have maintained the state-built hospital is a private entity.

In turning down the record requests, UMC cited a 2006 attorney general’s opinion that it is not public.

However, that ruling was made when two private companies, Norton Healthcare and Jewish & St. Mary’s, were still partners with U of L in governing UMC. The following year, Norton and Jewish withdrew at U of L’s request.

“UMC has undergone significant changes in its composition and operation” since the 2006 opinion, ACLU staff attorney William Sharp said in an appeal letter to Conway last week.

The civil liberties organization also believes UMC “is effectively controlled by the
University of Louisville,” making it a public organization, Sharp wrote. That is based partly on the fact that U of L’s president or his designee is the chair of UMC’s board of directors and also the chair of the committee that nominates community members to join university representatives on the board.

UMC’s main purpose is to operate U of L’s medical teaching hospital, according to its articles of incorporation, and UMC turns over the hospital’s cash surplus to U of L each year, Sharp noted.

“UMC is, by design, an entity devoted to the management, operation and maintenance of a state-owned facility solely for the benefit of the University of Louisville,” making it a public agency, he wrote.

The Courier-Journal’s letter to Conway said the newspaper was aware of the ACLU’s appeal and adopts its arguments.

Hospital spokesman David McArthur said UMC is cooperating with the attorney’s general’s office as it weighs the appeals.

University Medical Center is the third U of L-affiliated corporation in recent years to face a challenge to its claim of being private. Both the others were found to be public.

In 2008 the University of Louisville Foundation lost a seven-year legal battle when the Kentucky Supreme Court ruled it was a public agency and must disclose donors’ names. And last April Conway’s office found that University Physicians Associates, a group representing faculty doctors, was public because it was created and controlled by the U of L School of Medicine.