Birch Hill challenges state’s denial of license

KENT — The state Department of Public Health has turned down Birch Hill Recovery Center’s application to open a substance abuse treatment facility in the center of Kent.

Birch Hill responded this week with a brief in opposition to the state’s decision, calling it biased and illegal. 

Birch Hill had submitted a Certificate of Need application to the state in September 2017 and had also begun the process of getting permits from the Kent Planning and Zoning Commission. 

 Renovation of The Kent

The company had planned a $3 million renovation of the former nursing care facility known as The Kent, at 46 Maple St., near the transfer station and fire station. The Kent closed two and a half years ago and has been unoccupied since then. Birch Hill has leased the property from its owners. 

The Certificate of Need application says the lease is with Apple Rehab; the owner of the property according to Kent town records has been Kent Realty since 2008. The appraised value of the 11-acre property is $3,879,700.

Birch Hill is a company formed in 2017 in Connecticut. Its managing partner and developer is Ari Raskas. According to the Certificate of Need application, the company would like to put an 85-bed inpatient detoxification and intensive treatment facility for men and women ages 18 to 64 who are “substance abusive or dependent.”

Initially, joining Raskas in Birch Hill presentations was Keith Fowler, who was listed as the project’s CEO. Fowler has subsequently left Birch Hill, and his testimony during the March 2018 public hearing by the state has all been redacted, at Birch Hill’s request. 

When asked why by email this week, Raskas replied that, “Birch Hill accepted Keith Fowler’s resignation after due consideration of circumstances previously unknown to Birch Hill, because Birch Hill wished to search for a new candidate that would be in greater alignment with Birch Hill’s desire to achieve its ‘best-in-class’ objective.”

 A deepening opioid crisis

In the Certificate of Need application and at the public hearing in March, the Birch Hill representatives repeatedly cited statistics showing that the opioid crisis continues to worsen and that thousands of people are dying each year because of it. They said a facility such as theirs is needed to help adults with substance abuse disorders with detoxification and then therapy and medication. 

Kent already has two recovery facilities: Trinity Glen’s MCCA, a small facility for women–only in a residential-style building on Route 7; and High Watch Recovery Center on Carter Road. 

High Watch signed on to the Birch Hill application process as an intervenor, meaning that they were kept apprised of new developments and they had the right to cross examine the Birch Hill representatives at the public hearing. 

 High Watch as intervenors

CEO Jerry Schwab spoke at the hearing, and said High Watch was founded in Kent in 1939 by one of the founders of Alcoholics Anonymous. At the hearing, Schwab raised concerns about Birch Hill’s competence to run an addiction treatment center and questioned the company’s claims that a facility of its type is needed to serve Litchfield and Fairfield Counties. 

What are needed are outpatient treatment facilities, Schwab said; also needed are facilities that take Medicaid patients. 

Birch Hill is not able to take Medicaid patients because of its size. 

High Watch stressed that it takes a combination of insured and self-pay individuals and is therefore able to offer free care to patients who are unable to afford a stay at the facility. At any given time, Schwab estimated, about 15 percent of its patients are charity care patients. 

Schwab said that High Watch is a nonprofit organization, which allows it to use profits for care and improvements. A for-profit such as Birch Hill, he warned, will need to return its profits to its investors. He said that his company already does not have a large profit margin and he worries that if Birch Hill comes to Kent it will reduce High Watch’s profits enough that it will no longer be able to service patients who can’t afford care.

 Level 4.0 concerns

Also at the hearing, Schwab and Gerald Shulman, who was the editor for the American Society of  Addiction Medicine’s standards book, questioned Birch Hill’s claims that it will be able to provide level 4.0 care for patients.

“Level 4.0 can only exist in either a licensed  acute care hospital, a licensed psychiatric hospital or a licensed specialty hospital,” Shulman said. “A level 4.0 must be able to offer all the treatments a general hospital would offer. For example, if somebody has a heart attack, there would be no need to transfer them anywhere; they could treat it right there.”

Birch Hill responded at the hearing that there is no law saying that level 4.0 can only be offered at a hospital; it’s just a recommendation. 

Running separate but parallel to the hearings at the state level about whether Birch Hill could be certified to open its planned facility, there were also hearings before Kent Planning and Zoning.

The town of Kent has no authority over what type of facility can be opened on the property; it can only rule on whether the plan meets the town’s zoning regulations. 

 Concerns in Kent

Nonetheless, at hearings and meetings on Birch Hill, many town residents spoke up with concerns about putting a drug and alcohol treatment center in the middle of town in close proximity to an elementary school and a private high school and within walking distance of liquor stores and restaurants that serve liquor. While patients at Birch Hill would be discouraged from leaving the campus, they could not be forcibly restrained from leaving and walking to town.

Both High Watch and MCCA are several miles from town and in more isolated areas. 

Emergency services volunteers in town had also expressed concerns about the possibility of an increase of as many as 365 additional emergency calls per year. At present, the ambulance company responds to approximately 400 calls per year. Ambulance Chief Mike Petrone said at a Planning and Zoning meeting in July 2017 that he believes Mountainside, a recovery facility in North Canaan, calls the ambulance on average once a day. 

 After long deliberation, Kent Planning and Zoning approved the Birch Hill application in October 2017. High Watch then sued the town, the Planning and Zoning Commission and Birch Hill. Meanwhile, High Watch has also been before the commission seeking approval for an expansion of its own facility, including the addition of facilities to help as many as 12 patients at a time to undergo detox treatment. 

High Watch dropped its lawsuit on Oct. 31 of this year. 

 State denies Birch Hill

At the beginning of November, the state denied Birch Hill’s application, listing nine ways in which it feels that the company does not meet the state’s requirements for this type of facility. A main concern is that Birch Hill couldn’t demonstrate a clear need for a residential facility that does not serve the poorest patients. 

In its brief in opposition to the state’s denial, Birch Hill stresses the high rate of opioid addiction in America and the large number of deaths, especially in Connecticut. The company objects to what it sees as the state’s acceptance of statements made by High Watch as true. 

It accuses the state’s hearing officer of sloppy work and says the document denying Birch Hill’s application is “replete with errors and instances of defective analysis of the critical public dilemma at the core of this application.”

At one point the brief claims that “the Finding [by the state] shamelessly ignores the extensive documentation and data provided by Applicant in its nearly 3,200 page Certificate of Need application. Moreover, the Finding suggests that the Hearing Officer has either carelessly overlooked the overwhelming evidence and ignored stark reality of the need for what Birch Hill is proposing, or that extreme bias and a design to reach a foregone conclusion against Birch Hill caused the publication of a proposed final decision that is a sham when it comes to assessing the critical need for Applicant’ [sic] services.”

The brief responds to all the state’s points in similar language and concludes by also noting that the decision was supposed to be rendered within 60-days of the end of the public hearing but it was not.

“For this reason alone, the Proposed Final Decision is illegal and must be reversed or substantially modified to recommend granting of Applicant’s request for a Certificate of Need.”