Appeals court upholds ruling dismissing Cedar Rapids eye doctor's appeal

Birchansky sought to perform in-office cataract surgeries

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The Iowa Court of Appeals has upheld a district court ruling that a Cedar Rapids eye doctor failed to notify hospitals that joined the lawsuit when he filed a petition for judicial review.

The petition came after the Iowa Department of Public Health issued a $20,000 civil penalty against Cedar Rapids Opthamologist Lee Birchansky, claiming he had violated the law by performing outpatient cataract surgery in his office without a certificate of need in April 2010.

The ruling said Birchansky had applied for a certificate of need from the State Health Facilities Council in order to perform the surgeries in his office, rather than the hospital, on three separate occasions. All three were denied by the council.

After receiving reports that Birchansky continued to perform the surgeries, the Iowa Department of Public Health proposed the civil penalty and ordered him to stop. Birchansky then filed an appeal and requested a contested case hearing, and Mercy Medical Center and St. Luke's Hospital became intervenors in the case in Aug. 2010.

After an administrative law judge determined Birchansky had violated the law and ruled the civil penalty and cease and desist orders were reasonable, the Iowa Department of Public Health adopted the actions. Birchansky was denied requests for a rehearing and a stay in Feb. 2012, prompting him to file a petition for judicial review on March 6, 2012.

Though Birchansky named the Iowa Department of Public Health as a party, the ruling said he did not name Mercy Medical Center or St. Luke's and did not notify them until April 2, 2012. The District court later ruled to dismiss the petition because Birchansky failed to notify Mercy and St. Luke's within the 10 day requirement. That ruling has been upheld by the Iowa Court of Appeals.

The ruling stems from years of litigation over whether Birchansky should be allowed to perform in-office cataract surgeries at his private physician's office, Fox Eye Laser & Cosmetic Institute, which requires an certificate of need. That program is in place to avoid unnecessary duplication of services and to control medical costs.

Birchansky has previously argued that, in this case, the certificate is doing the opposite and creating a monopoly for larger healthcare institutes.

Both St. Luke's and Mercy have objected to Birchansky's applications, claiming enough capacity already exists in the area.

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