Joe Biden’s Department of Health and Human Services is preparing to strip a Catholic hospital system in Tusla, OK, of its ability to serve Medicare, Medicaid, and CHIP patients if it retains its Catholic identity. The Saint Francis Healthcare System is the twelfth largest in the nation and runs five hospitals in Eastern Oklahoma. Those hospitals serve about 400,000 patients each year. Over the last five years, the hospital system has given away more than $650 million in free medical care to the indigent. It employs more than 11,000 people.

Unfortunately, the hospital system is Catholic in more than name. Because of the requirements of its faith, it maintains chapels in each of those hospitals that are available to patients and staff 24 hours a day. One of the features of a Catholic chapel is the presence of an eternal flame. The picture below shows three different angles of the flame in question.

St. Francis Hospital Chapel, Tulsa, OK. CREDIT: Becket Law

This is not a new thing. This candle sconce, or one very similar to it, has been used in St. Francis Healthcare System hospitals since the first one opened in 1960. On February 21, an inspector working for Xavier Becerra’s Department of Health and Human Services cited the hospital in Tulsa for a fire code violation. The hospital appealed. Naturally, the appeal was declined. I’d just note that the guy signing the disapproval of St. Francis’ appeal works for the first “woman” Surgeon General, “Rachel” Levine. I’m sure that has absolutely nothing to do with the situation, but it seemed worthy of notice. Losing their accreditation means they can no longer serve patients receiving federal health benefits.

While CMS appreciates St. Francis Health System’s additional information, CMS agrees with TJC’s deficiency citation because a hospital must ensure that the life safety from fire requirements are met in accordance with 42 CFR §482.41(b). Furthermore, TJC’s deficiency citation is consistent with CMS’s policy memorandum for nursing homes at S&C-07-07. Specifically, answer #14 addresses the use of lighted candles and states that such candles must be “placed in a substantial candle holder and supervised at all times they are lighted.” According to the information gathered by TJC and the survey finding, “there was a lit candle with open flame burning unattended 24/7.” The National Fire Protection Association (NFPA) Health Care Facilities Code (NFPA 99) also contains associated “Elimination of Sources of Ignition” requirements under sections 11.5.1.1.2 & 11.5.1.1.2, which require no open flame within one foot of a nasal cannula and 15 feet of any other oxygen delivery equipment. For hospitals that use TJC accreditation for deemed status purposes, the hospital must comply with the 2012 edition of NFPA 99: Health Care Facilities Code.

Denial of Appeal by HHS

DHHS Denial of St. Francis Appeal by streiff on Scribd

If a patient is in the hospital chapel with their nasal cannula within one foot of the flame, I’ve got news for Becerra and his cronies, the “National Fire Protection Association (NFPA) Health Care Facilities Code (NFPA 99)” is not going to stop them from finding some way of offing themself.

According to Becket Law, who is now defending the hospital, the story is a bit more tortured than HHS is letting on. It appears that the inspector, or the company employed to do the inspections, came looking for the chapel candle. The way the appeal has been handled makes it seem like this action was deliberate and at the direction of someone in HHS headquarters.

But both CMS and its accrediting organization have recently cast a shadow over Saint Francis’s chapels and the health system’s broader mission. On February 21, 2023, a surveyor with The Joint Commission—one of CMS’s official accrediting organizations for hospitals that wish to participate in the Medicare or Medicaid programs—paid a visit to Saint Francis South Hospital (HCO 399060). Curiously, during the inspection, the surveyor expressly asked to go to the chapel to see if there was a living flame. Of course, he found it: the same sanctuary flame that Saint Francis has kept alight since the chapel was blessed by the local Ordinary [editor’s note: this is the term for the bishop of the diocese].

Despite many sprinkler heads surrounding the candle, good exhaust, the flame’s double glass encasing, the bronze top enclosing the flame, despite its mounting to a wall over six feet high, and despite the surveyor’s knowledge of the fire marshal’s long-standing approval of the eternal flame, the sanctuary lamp did not meet with the surveyor’s favor. The surveyor observed to Saint Francis personnel that other Catholic hospitals had complied and extinguished the living flame at their chapels, substituting it with an electric light.

The surveyor cited the living flame in Saint Francis Hospital South as a violation of the CMS’s Life Safety Code Requirements. On a likelihood-of-harm scale ranging from “low,” to “moderate,” to “high,” to “immediate threat to health and safety,” the surveyor ranked the chapel’s enclosed living flame as a “moderate” threat. (What, one wonders, is the “low” risk category reserved for?)

…The surveyor stated: “During the building tour of the Chapel, there was a lit candle with an open flame burning unattended 24/7.” But when Saint Francis explained that the sanctuary candle is not an open flame but is enclosed, one representative asked how that flame was lit. Saint Francis’s answer? A lighter. Now it appears that this lighter’s (fleeting) flame, not the sanctuary lamp’s (eternal) flame, is the open flame that violates the National Fire Protection Association Codes and Standards adopted by CMS. Call it Maslow’s open flame.⁵

Footnote 5 refers to psychologist Abraham Masow’s quote, “I suppose it is tempting, if the only tool you have is a hammer, to treat everything as if it were a nail.”

Bottom line, the “surveyor,” either of his own volition or on orders, went into the hospital looking for the chapel Eternal Flame. The decision to decertify the hospital violates Fire Marshal’s instructions and HHS’s own regulations. It is unreasonable, and it violates established case law. Becket Law makes Becerra and his goons a fair offer, “If we go to court, you will lose. I write in the hope that you will see reason (or at least the law) and we can skip to the easy part.”

Having dug itself in this deep, the odds of HHS folding are zero. They will lose, but only after forcing St. Francis Healthcare System to litigate because the process is the punishment. And for every St. Francis that can find an ally like Becket Law, there will be other people who will be intimidated into submission.

Becket Law’s “Pre-Litigation” Letter to DHHS

Becket Law Letter to DHHS by streiff on Scribd