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Sunset Committee at standstill on HRB recommendations

Katie Tabeling

DOVER — With two failed proposals one to recommend disbanding the Health Resources Board (HRB) and another to continue it with changes —  the Joint Legislative Oversight & Sunset Committee is at impasse on how to move forward on the powerful health care regulator.

One thing is clear after Thursday’s two-hour-long meeting: legislators were troubled by the HRB’s processes.

“This is a stark reminder to the HRB that we will be watching. Based on what they are doing, we had members of the Sunset Committee vote that they should be discontinued,” Sen. Brian Pettyjohn (R-Georgetown) said during the committee hearing. “It’s a good reminder for the HRB that there’s a lot of disappointment in what they’re doing.”

The Sunset Committee tabled the issue on March 25 for further discussion and consideration.

Last week, legislative analysts issued a report that recommended downsizing the HRB and turning it into an advisory board, directly reporting to a state appointed director. It also recommended adding staff to conduct independent research on applications, instead of relying solely on applicant data, as well as raising the expenditure cap to trigger a review. 

Delaware requires the HRB to review all health care projects costing $5.8 million or more, making it among the lowest in the Mid-Atlantic region. Maryland set its cap at $50 million, while New York’s falls between $15 million and $30 million.

The Sunset Committee is tasked with making a recommendation, if needed, on how to change the state’s various boards and committees if they are deemed to no longer be functioning effectively. But before forging on with recommending changes to the HRB, the committee failed to vote on continuing the board at all. Rep. Sherry Dorsey Walker (D-Wilmington) was the sole Democrat who voted to end the board.

Legislators spent much of the two-hour meeting criticizing the HRB for attendance issues that complicated many of its decisions and ultimately stood in the way of expanding health care access throughout the state. Before the meeting, lawmakers received several comments from the public.


Both Pettyjohn and Rep. Lyndon Yearick (R-Camden/Wyoming) pointed to the skyrocketing population growth in Sussex County, particularly among older residents. 

If the HRB were to continue, it would also need to put the board’s 2009 ban on new acute care facilities into law, which Yearick argued would put the state in trouble today.

“Could you imagine if the board declined acute care facilities and expansion of beds five years ago? That would have negatively impacted the possibility to serve people at the peak of the pandemic,” Yearick said. “And pandemics do come back around. Ten years ago, acute care facilities had this line in the sand for territory, now the gloves are off. We’re seeing two primary care facilities make aggressive moves.”

Pettyjohn also pointed to his district’s growth in sports facilities, raising the bar for immediate access in case of a sports injury. In some parts, the closest emergency room can be 20 to 30 minutes away.

“Adding to that, Georgetown’s not the wealthiest area of Sussex County. If you’re talking about providing services where they’re needed, that hasn’t always happened,” the senator said.

The HRB’s decision to deny Beebe Healthcare from expanding in 2019, which led to Bayhealth withdrawing a similar application, was repeatedly criticized throughout the meeting. The HRB review subcommittee later recommended denying Bayhealth’s hybrid facility last year, but it was overruled by the whole board.

HRB Board Chair Brett Fallon, who had to recuse himself from those past votes, said the board’s concern was that both Beebe and Bayhealth were looking to bring ERs, which might have driven patients of all ailments to visit and face higher bills.

“Emergency rooms tend to be used for non-emergency uses from time to time, and [ER] visits would cost multiples of an urgent care center visit,” Fallon said. “Your messages are loud and clear and understood.”

Others like Rep. Jeffrey Spiegelman (R-Clayton) pointed out that the HRB was the first approval that a health care facility needed, and it is not the only one. In order to open health care facilities, it would still need to meet state health care license requirements and local zoning requirements.

But Delaware Healthcare Commission Chair Dr. Nancy Fan said the criticisms were valid, but argued that leaving the health care industry to the free market would not serve patients in need. She pointed to other markets, like Philadelphia, where a revolving door of for-profit facilities opens and closes facilities if it does not meet the bottom line.

“I still believe there is a purpose and need for HRB … 21st century health care doesn’t mean no oversight or review, because I’m not so sure that within our state that market forces will be able to align access with need,” Fan said. “If we don’t have something, then you can have a for-profit facility come and say they fill a need, and then take it away. It can be a slippery slope for what happens in the future.”

Sunset Committee Chair Sen. Kyle Evans Gay (D-Elsmere) said that through this review she gained insight that the HRB was critical in looking at each area of Delaware and pinpointing need, rather than relying on market forecasts.

“I think we need to understand that people are not widgets, and we often need to understand that we need to serve them where they are and we need to have services that can reach them,” Evans Gay said. “What I have come to understand is how the board makes sure that we aren’t just bringing in care that is going to be profitable.”

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