Judge Agostini's ruling on NARH

8/12/2019 Judge Agostini's ruling on NARH

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COMMONWEALTH OF MASSACHUSETTSBerkshire Superior Court

76 East StPittsfield, Massachusetts 01201Telephone: (413) 499-7487FAX; (413) 442-9190

Deborah S. Capeless, ClerkFACSIMILE COVER SHEET

PATE: 2,7, 20 iM-TO: 6a./-V- Hollander, A Am FAX NO: u y i ^ - f g > 4 - j-zMU

FROM: S, QAc^NO. OF PAGES INCLUDING COVER SHEET: 7COMMENTS: S tqnr^ T R O op '

NOTICE OF CONFIDENTIALITYTRANSMISSION IS INTENDED TO ONLY THE ADDRESSEE^) LISTED ABOVE- THE DOCUMENTSACCOMPANYING THIS TELECOPY TRANSMISSION CONTAIN DSDFORMATTON FROM THEBERKSHIRE SUPERIOR COURT WHICHMAY BE CONFTDENTIAL OR PRIVILEGED. IFYOU ARENOT THE INTENDED RECIPIENT, BE AWARE THATANY DISCLOSURE COPYING, DISTRIBUTIONOR USE OF THE CONTENTS OF THIS TELECOPIED INFORMATION IS PROHIBITED, IFYOUHAVE RECEIVEDTEtS TRANSMISSION IN ERRORPLEASE NOTIFY US BY TELEPHONEIMMEDIATELY


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COMMONWEALTH OF MASSACHUSETTSBERKSHIRE, SS

MARTHA COAKLEY, as she isATTORNEY GENERAL of theCOMMONWEALTH OFMASSACHUSETTS,

andTHE COMMONWEALTH OF MASSACHUSETTSBY ITS DEPARTMENT OF PUBLIC HEALTH,

Plaifltiff-Petitionfirsv.

NORTH ADAMS REGIONAL HOSPITAL, INC.,and

BERKSHIRE HEALTH SYSTEMS, INC,Defendant-Respondents.

SUPERIOR COURTC . A . N O , 2 0 1 4 - 1 0 1

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Court's order, and (2) appointing BBS as temporary provider of emergency services and medicalrecord support services, in order to: (1) alleviate and avoid an immediate threat to the health andsafety of the residents in the NBH service area from the abrupt cessation of operations at NorthAdams Regional Hospital (the 'Hospital ), (2) prevent serious harm arising from imminentinaccessibilityof electronic health records for patients of NBH and other health care providersrelying on NBH for electronic health record hosting services, (3) pursueplanning for longer termprovision of emergency medical and other services for residents in the NBH service area, and (4)

if necessary, pursue orderly and safe closure of the Hospital facility in collaboration with theDepartment of Public Health ( DPH ) and others, and there being both subject matter andpersonal jurisdiction as well as sufficient basis of fact for the entry of this Order; it is herebyORDERED AND ADJUDGED that:

(1) NBH be and hereby is enjoined from closing its emergency department until itproperly and completely complies with the hospital closure requirements of G, L, e 111, 51G,and 105 CMR 130.122 or has exhausted The ftrnds that it possesses or that may be paid to it tocontinue operation of its emergency department. Or Until SiStf is able to license and operate asatellite emergency department from the NBH facility consistent with the terms and conditionsof this Order;

(2) After BHS obtains authorization from the DPIi to operate an emergencydepartment at the NBH facility.,^^shall beand hereby is appointed as temporary provider ofemergency medical and support services at the Hospital with such powers as are enumeratedherein,

(3) All persons and cniiiics, including without limiiation NBH, ttie Hospital,, and the

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directors, officers, employees, aad agents ofNBH and the Hospital having possession, custodyor control thereof shall turn, over or cause to be turned over to the control of such facilities,equipment and other items as ijllf and DPH mutually and reasonablydetermine are necessary or 'A

ktv\cdesirable for SJU toprovide emergency services and electronic health record support (as herein ^defined) at the Hospital facility, including without limitation (1) access to and control of relevantportions of the Hospital facility, systems, and records (including .without limitation medicalrecords and electronic health records); (2) access to and control of such equipment,supplies andother items and materials onsite at the Hospital as EBp and DPH detennine are necessary or

W : 'esirable to enable BSg to provide the emergency services and electromc health record support; syrVV^(3) such other items or facilities asS^and DPH determine me necessary toenable BHS to \ v\provide the emergency services and electromc health record support

(4) Emergency services shall mean those emergency medical and related servicesusually and customarily provided by an emergency department licensed by DPH and that -11^and DPH determine are necessary and feasible to provide to ensure the safety and well-being ofresidents of theNBH service area;

(5) Electronic health record support shall mean the maintenanceof all electronichealth records held or supported by NBH or the Hospital, maintenance of facilities and systemsfor storing and accessing such records, and services and equipment relating to the orderlytransfer of such records to alternative hosting and maintenance arrangements in the aftermath ofNBH's announced closure;

(6) For the purpose of providing the emergency services and electronic health recordsupport,PHUshall have fall power and authority to:

a. Employ, engage, discharge, assign, supervise and fix the compensatioji, salafies

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and wages for all additional personnel jjpi deems necessary and desirable,including without limitation medical, nursings administrative and supportpersonnel formerly employed by NBH or the Hospital;

b. Notify NBH's and the Hospital's business partners and patients about HSiJ's roleas provider of emergency services and electronic health record support andinformation about such services;

c. Expend such funds asmay be made available for the commencement andprovision of emergency services and electronic health record support ('the Startup Amount as defined herein), provided that shall maintain an accountingof such expenditures;

i Do any and ali acts not inconsistent with the terms and conditions of this Orderand DPH requirements to carry out the purposes hereof;

(7) BSS shall evaluate, with DPH, the feasibility of long-term provision ofemergency and other services at the Hospital facility with the goal of determining under whatterms essential health services will continue ro beprovided for residents of the Hospital servicearea after the expiration ofHiS's authority under this Order;

(8) shall file monthly reports of its operations pursuant to this Order with thisCourt. DPH and the Attorney General showing its progress in implementing this Order;

(9) All persons, firms and corporationsbe, and they hereby are, enjoined fromdisturbing or interfering with the present gas, telephone service, heat, electrical service, watersupplies orany other utility of like kind now being furnished to the Hospital facility, and fromcutting off or disconnecting the furnishing of any service, except upon notice to|||S& in writing

Sand after @811 has had an opportunity to be heard before this Court;

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(10) Wilh the exception of the Department of Public Health and other state or federalregulatory authorities, all creditors of NBH or the Hospital and any and all persons or parties arerestrainedand enjoined from taking possession of or interfering -with the Hospital facility or withany aspects of Bssl's operations at that facility pursuant to this Order, whether by attachment,trustee process, levy or otherwise, from discontmuing services to the Hospital facility or frominstituting any suit, action or other proceeding that would interfere with or frustrate the purposeof this Order without advance leave of this Court in each instance;

,(11) All lessors of real property or furniture furnishings, equipmefit or other personalproperty at the Hospital that and DPH reasonably determine are necessary or desirable forthe provision of emergency services or electronic health record support, or any of them, arc

ienjoined, restrained and stayed from in any way interferingwith the usual use of such property inat Wt j,the provision of said services, except upon notice to glfiSin writing and afterTSiaJJ has had an vi Vnr

iopportunity to be heard before this Court;(12) Health care payers contracting with for payment for services provided at

lllisf' current licensed facilities are directed tonegotiate in good faith the expeditious extension 3]^of current contractual terms to cover services provided by at Hospital pursuant to thisOrder;

(13) All persons and companies providing alarm and fire protection services or/

equipment to the Hospital facility, their employees, representativesand agents are enjoined,restrained and stayed from disconnecting or cancelling such services or equipment except uponnotice to in writing and after ^p^)has had an opportunity to be heard before this Court;

(14) All past and present members, officers and directors of NBH and the Hospital (a)shall cooperate fully with its officers, directors and agents, and with DPH, inproviding


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such access, records, and infoimation asBSjiriay detennine to be necessary for the effectiveprovision of emergency servicas and electronic health record support and planning for long-termservice availability in the Hospital service area and (b) arc enjoined from interferingwith orimpeding either the provision of emergency services and electronic health record support orplanning for long-term provision of services to tesldents of the Hospital services area;

(15) obligation to perform its duties as described in this Order is expressly .conditioned upon the timely availability to offunds necessary to perform such duties (theStart-Up Amount ), whether such funds are provided directly to|gi| r made available through Ow)

third parties or agencies;16)

Tfft-

shall provide notice to the Court and the Attorney General as soon as theStait-Up Amount is available. In the event of lack of clarify or dispute about the availability ofmthe Start-Up Amount, Ural or the Attorney General may request a hearing before this Court fordetermination of the issue;

(17) lor the Attorney General may apply to the Court from time to time for suchfurther directions or orders as may be necessary. During and at the conclusion of the periodspecified in this Order, the Court may make such further orders asare just and proper,

- COMMGa'.^ALTh 0? K)A..t$AG ,|i6tTT5 [s s PL'PERioa cgis-t

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By the Court, ( AGOSTINI , J-)

Entered; March 27, 2014

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Judge Agostini's ruling on NARH