INDEPENDENCE CITIZENS “WILLED THEMSELVES” TO SOLVE WATER CRISIS

BY ANDY TAYLOR
chronicle@taylornews.org

INDEPENDENCE — Independence city commissioners and city staff — appearing frazzled, sleepy, and unwashed — for several days, applauded Independence residents early Friday in resolving a water crisis that nearly shut down the community for a period of 48 hours.

Commissioners met in an emergency meeting at 7 a.m., to cancel the water emergencies that had been in place since last Tuesday.

The water crisis was resolved early Friday when the Kansas Department of Health and Environment notified city officials that water from the Verdigris River could be received through the city’s water treatment plant. The water treatment plant began receiving water at 1 a.m., Friday, almost 48 hours since the intake valve was shut due to contaminants that flowed into the river from a chemical fire in Neodesha on Tuesday.

The issue for Independence was not just the contaminant levels in the river but the potential loss of pressurization to the city’s water system. When the intake valve was closed at 4 a.m., Wednesday, the city’s only available water was contained within the water distribution system. Consumption was severely restricted in order to save enough water to keep the system pressurized at about 20 psi. Had that pressurization dropped to below 20 psi, then the water customers would have had a mandatory boil order and a prolonged period of testing until the water system could return to normalization pressurization standards.

By limiting — and sacrificing — water consumption on a week in which holiday gatherings were planned, Independence water customers were able to save enough water to keep the system above pressure.

City commissioners congratulated city staff and city residents for their collective efforts.

“You can’t require someone to not flush a toilet or to not take a shower,” said commissioner Leonhard Caflisch. “That decision has to come from within a person’s own heart and soul. Independence residents understood the call to conserve the water in order to keep the system above pressure. They willed themselves to solve he problem.”

Commissioners also applauded the efforts of city employees — many of whom had not been asleep in two days.

Terry Lybarger, city superintendent, said he received the call from KDHE shortly after midnight that water could be pulled into the city’s water treatment plant for treatment.

“At first, I thought it was another phone call with bad news,” Lybarger told the Montgomery County Chronicle. “But, it was the guy from KDHE who is in charge of water testing. He was yelling in my ear, “The water is good! Turn the plant on! Turn the plant on!”

As soon as Lybarger got the news from KDHE that the water pressure was saved and the water contaminant level was low enough to warrant treatment in the city’s water plant, then the city’s police and fire departments went into overdrive. By 3 a.m., they were on the streets with fliers in hand, distributing the information to businesses and industries and even giving the news to a few sleepy-eyed residents who were awake in the early morning hours. City staff made the announcement official at 1 a.m., via the city’s website, and media outlets disseminated the information by 6:30 a.m., to a community that was awakening to the news that they could finally wash, cook, flush, and drink.

Commissioners said there was deep irony in the water crisis falling on a week of the Thanksgiving holiday.

“People always turn on their water faucets without thinking anything about how that water got there in the first place,” said Caflisch. “I believe no one will ever again turn on their water tap without being thankful for our water.”

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WEDNESDAY UPDATE TO WATER EMERGENCIES IN COFFEYVILLE AND INDEPENDENCE

HERE IS THE LATEST SITUATION CONFRONTING THE CITY OF INDEPENDENCE AND THE CITY OF COFFEYVILLE REGARDING ITS WATER EMERGENCY . . .

(6:30 P.M., WEDNESDAY) — Effective at 8 p.m. today, the City of Coffeyville is declaring a Stage 3 Water Emergency.  What a water emergency means is all non-essential use of water is prohibited.  All restaurants and delis, car washes and laundromats are to close.  Residents are to limit water to life sustaining use only – drinking, medical needs and food preparation. The City is still waiting on results from KDHE from testing of the Verdigris River.  The current water supply is safe to drink.  Plans are being finalized for bottled water distribution to take place Thursday morning.  Details to follow.
 
• At 6:15 p.m., the Independence City Commission concluded its second emergency meeting of the day to address the water emergency stemming from the release of chemicals in the Airosol Company fire in Neodesha on Tuesday.

• The Independence City Commission has asked all customers of the Independence city water system and rural water districts that also receive city water to cease all water consumption and usage except for life-sustaining activities. Life-sustaining activities have been defined as any event that is needed to prolong life, such as medical needs (kidney dialysis, etc.). The City of Independence water treatment plant stopped receiving water from the Verdigris River as of 4 a.m., Wednesday.

Rural water districts that receive water from the City of Independence include Montgomery County Rural Water Districts #1, #4 and #8; and Montgomery Consolidated Rural Water District #1.

• The Cities of Caney and Cherryvale are not impacted by the water emergency because they receive water from other sources than the Verdigris River.

• For now, the chief concern for the City of Independence is not the level of contamination within the Verdigris River, which is the city’s lone water source, but that the available water within the city’s distribution system could fall below safe pressure levels. If the pressure within the water distribution system falls below 20 psi, then a boil order would be triggered, and multiple tests would have to be initiated on a daily basis to determine the safety of the water supply. Such testing and boiling could take as long as five days. That’s why city officials are adamant that all water consumption cease immediately so that the existing water supply within the distribution system can remain pressurized above 20 psi.

• The first set of test results taken from the Fall River at Neodesha were announced at the meeting. The test results showed chemical contamination levels that were five times the allowed limit. Those test results were taken from water samples taken at Neodesha. City officials learned that water samples were also taken from the Verdigris River in Independence today (the Fall River joins the Verdigris River south of Neodesha), but those test results will not be released until Thursday morning. City officials said at the meeting that the chemical contaminants at Neodesha may be diluted to some degree by the time the water flows to Independence. However, the testing of those samples hinges on when the samples were taken, the flow of water in the river, and the release of water upstream. The U.S. Corps of Engineers, which operates the release of water from federal reservoirs, has been involved in the discussions to determine if any release from Toronto Reservoir, which feeds the Fall River, would assist in the dilution of those chemical contaminants.

• Until the next set of test results arrive on Thursday, Independence city officials believe the water consumption limitations will be in place for a prolonged period, perhaps through the next several days and into the weekend. However, the water emergency is being described “as a fluid situation” and can change based on test results and water treatment solutions recommended by the EPA and KDHE.

• Gov. Sam Brownback issued an emergency disaster declaration today that will allow for the Kansas National Guard to assist the impacted areas and also allow for the arrival of bottled water. Free bottled water is available to Independence residents at two locations tonight: ICC West parking lot on West Main Street, and at the parking lot of the Independence City Hall temporary site on Laurel Street. Additionally, non-potable water is available at the Independence CIty Hall temporary site. The non-potable water can be used for flushing toilets. Individuals must bring their own containers, such as buckets or small tanks, for filling the non-potable water.

Other water distribution locations will be announced on Thursday.

• The Kansas National Guard is in Montgomery and Wilson counties to assist with the water emergency. In Montgomery County, the Guard is operating a reverse osmosis apparatus at Elk City Lake to assist in the production of water. The Guard also is helping with the delivery of bottled water.

• Independence city officials learned that city staff was working with the Montgomery County Rural Water District #2 for a secondary water source. That rural water district, which covers an area south of Independence, is fed by Big Hill Lake and is not impacted by the water emergency. Staff from both the City of Independence and the rural water district were developing a plan to reverse a connection and allow some rural water to flow into the City’s water system. If that is a success, the additional water would not be used for consumption but merely to maintain the city’s water pressure at above 20 psi.

• The City of Independence has designated a special telephone number that is staffed by city staff 24 hours a day. That telephone number — 620-332-2500 — is to be used solely for information regarding the water emergency in Independence. Persons should not contact 911 to inquire about water emergency information.

• Volunteers are needed to help deliver bottled water to homebound residents. Persons interested in helping with the delivery of water should call 620-332-2500.

• A countywide burn ban has been instituted through Monday. No outdoor burning, including outdoor grilling or fire pits, will be allowed. The burn ban is being put into effect to deter any threat of outdoor fires, which, obviously, would require existing water supplies to extinguish.

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CITY OF INDEPENDENCE TELLS RESIDENTS: DO NOT USE ANY WATER EXCEPT FOR LIFE-SUSTAINING ACTIVITIES

(11:15 a.m., Wednesday) The Independence City Commission this morning declared the fullest stage of its water emergency plan, which calls for all water usage to stop within Independence city (and Montgomery County Rural Water Districts #1, #4 and #8 and Montgomery County Rural Water District #1) fed by the Independence city water treatment plant) until further notice today.

The only water consumption permitted will be life-sustaining activities, such as persons who require water for medical needs, such as kidney dialysis.

The City of Independence stopped the intake of raw water from the Verdigris River this morning at 4 a.m. so that state water regulators can evaluate the chemical content of the water supply. Because the only available treated water is within the water distribution system, city commissioners agreed to stop all water consumption except for life-sustaining activities. The chemical content was being evaluated after a fire at the Airosol Company in Neodesha on Tuesday allowed the release of chemicals, through water runoff and air, into the Fall and Verdigris rivers.

State water regulators hope to have a more definitive determination of chemical content in the Verdigris River later today and will report that information to the city commission at a meeting scheduled for 5:30 p.m., today at the municipal court room in the temporary Independence city hall.

Because water consumption is being stopped, all food establishments are being told to make alternate plans to their food services. Industries also are being told to stop water consumption for the manufacture of their products.

Also at the meeting this morning:

• Independence city officials said potable and non-potable water is being brought to Independence later today and will be distributed to local residents. The ICC West parking lot and the temporary Independence City Hall parking lot on Laurel Street will serve as distribution sites for that water. The exact time of when the water will arrive has not been determined but will be made available through social media and other media outlets.

• City officials encouraged Independence residents to find alternate sites for Thanksgiving Day meals because of the water limitations. City manager Micky Webb said residents should find alternate sites that are not located in the Neodesha, Independence and Coffeyville areas — towns that are served by the Fall and Verdigris rivers.

• More than 40 people from multiple agencies, including the U.S. Corps of Engineers, Kansas Department of Health and Environment, Kansas Division of Emergency Management, and Gov. Sam Brownback’s office, have been working since yesterday to determine the water situation in Neodesha, Independence and Coffeyville. Four large barrels of Verdigris River water were taken to laboratories in Kansas City and Tulsa this morning for further evaluation.

• The Independence City Commission will meet again at 5:30 p.m., Wednesday to receive an update on the water situation from local and state authorities. The meeting will be held at the municipal court room in the temporary Independence City Hall on Laurel street.

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Independence city manager describes mold strains, relocation of city offices

MORE INFORMATION RELEASED ABOUT INDEPENDENCE CITY HALL MOLD ISSUES AND RELOCATION OF CITY OFFICES

This week, Independence leaders received more specific information regarding the types of health concerns that have been identified through medical testing. Independence City Manager Micky Webb explained that employees filing complaints underwent RAST (radioallergosorbent) mold profile testing to identify the substances potentially causing their illnesses. As a result, the employees tested positive for six mold strains, Webb said.

Webb further explained the mold exposure is believed to have occurred within City Hall because the employees developed symptoms while in the building, but the symptoms resolved after a period of time outside of the building. Additionally, he said, untested mold growth is visible on multiple surfaces in the building’s interior, including on walls, air conditioning units, air vents and other areas.
In evaluating the safety of the facility, Webb said, a professional environmental consulting company has been engaged. After an on-site inspection, a company representative concurred with the decision to vacate the premises.

“The environmental consultants have advised the city that relocation of City Hall services will provide the safest alternative to protect employee health and to minimize public exposure,” Webb said.
“We know we have a problem, which has now been confirmed through medical testing and the evaluation by environmental consultants,” Webb said. “However, we don’t yet know the entire scope of the problem. Therefore, we are taking every precaution to avoid future health risks to our employees and our citizens who do business at City Hall.”

Over the next several days, city departments will relocate operations to temporary quarters in the former Mercy Hospital facility (“Building D”) at 811 W. Laurel. The Independence Police Department, currently located in the basement of City Hall, will be the first department to move, followed by other city services in a phased process. All departments currently housed at City Hall are expected to be operational in Building D by August 12, Webb said, with the exception of the 911 dispatch center, which will transition to a mobile unit outside of City Hall for the next several weeks to allow time for installation of a new 911 communications system at the Laurel Street location. Webb emphasized that there will be no disruption of any emergency services during the relocation process.

All other departments within City Hall will be closed Wednesday and Thursday, Aug. 10 and 11, to allow staff to complete the relocation. The regular city commission meeting scheduled for Thursday, Aug. 11, will be conducted as scheduled.

Once City Hall is vacated, Webb said, city leaders and commissioners will evaluate the next steps. He noted the city’s legal counsel advises the city engage an environmental consultant to help address next steps related to the building concerns.

As the relocation plan continues to develop, Webb said, more detailed information will be shared with the community on how to access city departments, as well as information on the status of the City Hall building. Citizens are, encouraged to continue to watch local newspapers and frequently visit the city’s Facebook page – facebook.com/IndependenceKS – and website – independenceks.gov – for developing information.

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Peck, Knox defeated in primary election; Goddard, Dierks, Gettler, Blex are winners

BREAKING NEWS . . .

(EDITOR’S NOTE: A previous posting indicating Virgil Peck was the winner in the Kansas Senate, 15th District, was in error due to final ballots not being counted by the Kansas Secretary of State’s Office. Even though the Secretary of State indicated via its website that all precincts in the 15th District had been accounted for in the polling, the actual ballots had not yet been finalized. The story below is an update to the earlier posting).

Virgil Peck, a Republican from Havana who is one of the more conservative members of the Kansas Legislature, was defeated in the Republican nomination for the Kansas Senate, 15th District, on Tuesday.

Peck lost the 15th District GOP nomination to Dan Goddard of Parsons. Goddard received 3,469 votes, or 51 percent, to Peck’s 3,302 votes, or 49 percent.

The 15th District includes most of Montgomery County and Labette County and all of Neosho County.

The difference in the race is 167 votes. Each county will count provisional ballots next week. However, its unknown if there are enough provisional ballots cast to render a change in the Peck-Goddard race. Provisional ballots are cast whenever a voter’s place of residency or voter registration is questionable at the polling site.

If Goddard clinches the nomination with the provisional ballots, he will face Chuck Schmidt, an Independence Democrat, in the Nov. 8 general election.

The Peck-Goddard race was one of several hot races in Tuesday’s primary election. The other hotly-contested battle saw State Sen. Forrest Knox, R-Altoona, defeated in his re-election bid. Knox, whose district includes the Elk City area, lost his Republican reelection bid to Bruce Givens of El Dorado. Givens won the 14th District Republican nomination with 6,392 votes, or 52 percent, compared to Knox’s 5,804 votes, or 48 percent.

Givens will now face Mark Pringle, a Democrat, in the Nov. 8 general election. Pringle defeated Carl Shay Jr., in a narrow fight for the Democrat nomination. Pringle had 1,163 votes, or 55 percent, while Shay earned 968 votes, or 45 percent.

The difference in the Shay-Pringle fight is 225 votes. Provisional ballots, which will be counted next week in each county, could yield a change in that race.

In another legislative race of local interest, Doug Blex, a rural Independence Republican, won the GOP nomination for the Kansas House of Representatives, 12th District, by defeating Brad Hall of Independence. Blex received the districtwide Republican total with 1,825 votes, or 61 percent, compared to Hall’s 1,173 votes, or 39 percent.

Blex will now face Democrat Party nominee Jean Kurtis Schodorf of Sedan for the 12th District general election on Nov. 8.

In other contested races in the area, Montgomery County Sheriff Robert Dierks is assured a four-year term to his office after winning the Republican nomination. Dierks defeated Sherlene Stroud by a 2,461 to 481 margin. Dierks will be uncontested in the Nov 8 general election.

Jeffrey Gettler will be the next judge in the 14th Judicial District, which includes Montgomery and Chautauqua counties. Gettler, an Independence attorney, defeated Robert Latin, also an Independence attorney, for the Republican nomination. Gettler received 2,239 votes, or 63 percent, compared to Lattin’s 1,323 votes, or 37 percent.

Gettler will be uncontested in the Nov. 8 general election.

MONTGOMERY COUNTY SHERIFF
* Robert Dierks: 2461
Sherlene Stroud: 481

14th JUDICIAL DISTRICT JUDGE
(Montgomery County):
Jeffrey Gettler: 1767
Robert Lattin: 1079

(Chautauqua County):
Jeffrey Gettler: 472
Robert Lattin: 244

TOTAL (Montgomery and Chautauqua counties)
* Jeffrey Gettler: 2239
Robert Lattin: 1323

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One year later: how private interest, local decisions influenced Independence’s changing medical scene

Editor’s foreword: The headline in the July 23, 2015 issue of the Montgomery County Chronicle read, “Letter of intent: CRMC to buy Mercy Hospital.” Much has happened since that story was written. Not only did the Coffeyville Regional Medical Center and Mercy letter of intent dissolve, so, too, did Mercy Hospital. The Mercy Health System closed its Independence hospital in October 2015, leaving the community devoid of hospital or emergency services. Since then, several area medical entities, including CRMC, St. John Health System/Jane Phillips Medical Center, Labette Health and Wilson Medical Center have expanded their primary care clinics in Independence. Labette Health has announced plans to build a 17,000 square feet facility that will include its primary care clinics but also an emergency department. Meanwhile, Independence city taxpayers became owners of the former Mercy Hospital facility in a deal that solidified St. John Health System’s presence in the community.
That agreement evolved into a lawsuit filed by Labette Health against Kansas Department of Health and Environment for issuing a memorandum of understanding that allows Oklahoma-based St. John Health System to receive a higher rate of reimbursement from Medicaid/Medicare for radiology and imaging services in Independence — without providing emergency care services in the community.
That lawsuit was rejected by a Shawnee County district court last week. However, it was viewed widely, especially those in the legal and medical communities who kept an eye on the changing medical scene in Independence as a harbinger of things to come elsewhere in Kansas hospitals.
This week, Lawrence attorney Max Kautsch prepared the following chronology of events that not only recounts the decisions that were made in the past year but also how those decisions by key stakeholders put the community in its present condition.
And, all of those decisions ultimately have influenced the timely discussions now occurring concerning the future location of the Independence City Hall.
Without a doubt, what has happened in Independence in the past 12 months has been a swift change in a community’s identity and a community’s reach of vital services. Healthcare has changed. The community has changed. And, others across Kansas are watching Independence to see what happens next.
It should be remembered that the bulk of all discussions concerning the future use of Mercy Hospital in 2015 were handled behind closed doors, pursuant to confidentiality agreements signed by medical providers and the City of Independence. Kautsch’s recreation of events was taken from news accounts that reported on the few public announcements and public decisions regarding Independence’s changing healthcare scene.
Kautsch’s initial story is fully footnoted. However, the Montgomery County Chronicle has removed those footnotes for the sake of space.
The full story will be printed in its entirety — with footnotes — at the Chronicle’s website at www.taylornews.org. — Andy Taylor, editor

AN ANALYSIS BY MAX KAUTSCH, attorney
When Mercy Hospital in Independence closed its doors in October 2015, it was national news partly because the city, with a population of around 9,500, became the largest in the state without emergency services.
Mercy made its intentions apparent more than a year earlier, and members of the community voiced concern. Local government officials began looking for a way to bring emergency services to town, including assisting Mercy negotiate with other healthcare providers to purchase Mercy’s assets.
When those negotiations failed, Labette County Medical Center, a Kansas healthcare organization already operating a clinic in Independence, proposed expanding those services to include an emergency room.
But instead of acting on that proposal or any other that would result in emergency services for Independence, local government officials abruptly changed course and said residents who need such care should go to a Bartlesville, Okla., hospital—the Jane Phillips Medical Center owned by St. John Health System—a 40-minute drive away.
Shortly after first stating publicly that Jane Phillips was a viable destination for emergency services, the City acquired the Mercy Hospital facilities as a result of city commission action still making news months later.
Then, the City leased the facilities to St. John for use as an outpatient clinic rather than as an emergency room.
The lease agreement also precluded the City from financially supporting any other healthcare provider’s attempt to bring emergency services to town as long as St. John operates there.
In spite of those obstacles, Labette Health initiated plans for an emergency room in Independence in March of 2016 to meet continued demand for hospital and emergency services.
However, that facility will not open until the summer of 2017, at the earliest. Until then, Independence will be without local emergency services.
Meanwhile, St. John, which is part of Ascension Health, a Missouri-based corporation describing itself as the “nation’s largest nonprofit health system and the world’s largest Catholic health system,” is now a key player in the Independence health care market. An agreement signed by the Kansas Department of Health and Environment will allow the St. John clinic, as soon as July 1, 2016, to receive substantially increased Medicare payments for imaging outpatient services at the clinic. Ordinarily, a clinic would be eligible for such increased revenues only if it were connected with a hospital with emergency services in Kansas. However, the agreement signed by KDHE will allow St. John to gain the increased Medicare payments without incurring the expense of providing costly emergency services in the state. Labette Health has filed a lawsuit to void the agreement, arguing in part that the agreement gives St. John a competitive advantage over Kansas healthcare providers who are required by law to provide needed emergency care before they can qualify to receive increased Medicare payments for other services, but a Shawnee County district court recently rejected Labette’s position.
Even so, the developments in Independence illuminate how the availability of health care can be influenced by local politics, competition among hospitals in static or declining markets, and prospects for enhanced hospital revenues for those willing to take advantage of the highly complex state and federal laws, regulations and public policy governing health care.

Mercy Hospital prepares for exit from Independence
Mercy Hospital had operated in Independence since 1910, but its parent company initiated a review of the facility, called “discernment,” in the spring 2014 with an eye toward “divesting itself” of its assets in Independence. To do so, Mercy negotiated with fellow Catholic organizations, including St. John.
However, Mercy failed to come to terms with St. John, so it began negotiations in the spring of 2015 with southeast Kansas healthcare provider Coffeyville Regional Medical Center (CRMC) to acquire Mercy’s Independence assets, including the emergency room.
In the summer of 2015, negotiations between the two healthcare providers stalled, and Mercy sought the City’s assistance.
Intent on retaining local emergency services, Independence city commissioners voted unanimously “to issue $3 million in bonds…for the purpose of retaining health care services in Independence” and appointed a committee to “look after the best interests of Independence” in the negotiations.
The bonds would issue only on the condition that Independence retain a “degree of health care services” in town, “including emergency or immediate care.”
Likewise, the Letter of Intent (LOI) between the parties indicated that the city was willing to spend the $3 million to ensure, among other healthcare-related objectives, the “provision of emergency/immediate care services at the Mercy facility.”
It was clear that city officials, including City Manager Micky Webb, “believed an emergency department was something of utmost importance for Independence,” and that the Mercy facilities would be used for that purpose.
Unfortunately for the citizens of Independence who shared that belief, even though Mercy and CRMC reached a reaching a tentative agreement on July 15, 2015 that would have left emergency services intact at the Mercy Hospital facilities, the parties ended negotiations on Sept. 1, 2015.
When it was announced that the hospitals could not reach an agreement, the Montgomery County Chronicle reported that “major blow was dealt to the Independence community—and to the future of medical coverage in Montgomery County.”
Webb concurred, stating “it’s a very difficult situation for Independence.”
Two days later, Mercy announced it would be closing its Independence inpatient treatment unit and emergency room on Oct. 10, and its remaining facilities would be open no later than the end of 2015.
Citizens were “shocked” by Mercy’s closure. In a piece titled “Closing a hospital, and fearing for the future,” the New York Times reported “the economic cost of losing the hospital could be stark, local officials said. Though there are two other hospitals within a half-hour’s drive, Micky Webb, the city manager, said companies considering coming to Independence often asked whether there was a hospital in town, and that residents felt more secure with one within a few minutes’ reach.”

Local healthcare in flux; Mercy turns to St. John and the City
After failing to make a deal with CRMC, Mercy Hospital officials announced in early September that they would “negotiate solely with St. John Health System for an assumption of Mercy’s clinics and related services,” but not its hospital or emergency room.
The proposal included a taxpayer subsidy from the City in the amount of $2,250,000 to “guarantee its profits.”
In response, the city commission appointed a Healthcare Committee in early October, 2015, that included City Manager Micky Webb, city commissioner Fred Meier, city attorney Jeff Chubb, and Jim Kelly, Mercy Hospital board chairman (and state representative for the legislative district that includes Independence).
The city commission authorized the committee to negotiate only with St. John to develop a “healthcare plan proposal” that “provides the healthcare we think we need now and in the future in the City of Independence.”
On Oct. 9, 2015, the day before Mercy closed its emergency room, the City issued a press release stating it planned to negotiate with Mercy and St. John for the continuation of some services. At the same time, St. John issued a statement on its website that “Mercy leaders have confirmed a preliminary agreement with St. John Health System and the City of Independence to assume operation of local outpatient services.” The proposal by the City and St. John did not include a provision for any emergency services, although “a long-term vision, but not a contractual obligation, called for creation of an emergency department.”
Despite Mercy’s announcement that it would negotiate only with St. John, Labette Health, based in nearby Parsons, planned to pitch the possibility of bringing an emergency room to Independence that the City would own, with the help of the $3 million in bonds previously earmarked for CRMC.
During the month of October 2015, city officials met behind closed doors with administrators from both St. John and Labette Health to discuss both organizations’ positions. On Oct. 21, 2015, Labette Health made its proposal to the city commission for “an emergency department for Independence.” However, the city commission never considered it.
Instead, after a meeting “with St. John/Jane Phillips officials” on Oct. 27, 2016, city manager Webb told a reporter that although he originally believed Independence needed an emergency room, he now believed “it would ‘be a mistake’ for Independence to have a free-standing emergency department.”
That same day, members of the Healthcare Committee, including Kelly and Webb, told the Independence Chamber of Commerce board of directors that the most favorable plan for Independence would favor a relationship with St. John Health System/Jane Phillips Medical Center” because “[t]he the bulk of traffic for medical care already goes south to Bartlesville and Tulsa, where Jane Phillips Medical Center and St. John Health System have a firm hold.”
Despite the Health Care Committee’s sudden efforts to convince the public that local emergency services were no longer necessary, the city commissioners rejected the St. John proposal by a 2-1 vote.
Then-Mayor Leonhard Caflisch explained his vote against by telling a reporter that the city “was looking for a medical provider that could bring an emergency department” and that because St. John is owned by a Missouri corporation, Ascension Health, the proposal did not provide for sufficient “local decision making.”
The other two commissioners, even Meier, who cast the one vote in favor, expressed concern because it included over $2 million in taxpayer subsidies to benefit a “billion dollar corporation.”
After the city rejected the St. John plan, the commission declared the city’s intent to “open negotiations with interested medical providers — including Wilson County Medical Center in Neodesha, Neosho Regional Medical Center in Chanute, Coffeyville Regional Medical Center, Labette Health in Parsons and even St. John Health System — to open an urgent care or emergency department in Independence.”
At the time, “commissioners admitted that prospects would be slim that St. John…would be willing to entertain another proposal for Independence healthcare coverage.”
However, by Nov. 20, 2015, Kelly, a member of the city’s Healthcare Committee and now the former chairman of the board of Mercy, remained in favor of a relationship with Jane Phillips. In various news reports, he cited “the tendency of patients to go out of town for health care. People in Independence are used to traveling to Bartlesville to shop, Kelly said, and the path from Independence to Bartlesville is well worn. When it comes to health care, he added, ‘the grass is always greener someplace else.’”

City negotiates for Mercy property, but not for
emergency services
Sentiment for emergency services at the Mercy Hospital property was so strong on Oct. 29, 2015, that the Independence City Commission rejected a plan for St. John to assume the property because the plan did not include an emergency room. Nevertheless, on Dec. 4, 2015, city officials made a deal for the property that would allow St. John to operate from the Mercy facilities anyway, even though emergency services would not be available there.
That day, the officials negotiated a Letter of Intent (LOI) with Mercy Hospital for the City itself to acquire the Mercy Hospital facilities. The City would then lease portions of them to St. John. The LOI provided that the transfer would occur with a “Restrictive Covenant” that will “remain in place for as long as St. John Health System…operates a multi-specialty clinic and provides laboratory and diagnostic imaging services in the Independence, Kansas community.” The restrictive covenants on the real estate the city received from Mercy allowed for administration of certain healthcare services, but prevented the establishment of an “abortion clinic,” or even a “counseling service” that “recommends…the consideration of abortion” as an option for its patients.
Even though the City had negotiated the LOI, there was still the matter of getting authority from the city commission in order to make the contract effective and acquire the property. In addition to the pushback the City was likely to receive given the proposal did not include the provision of emergency services, it had another problem: the wife of Commissioner Gary Hogsett, the commissioner most likely to join Commissioner Fred Meier and vote for the transfer, was employed as a doctor at Mercy. As such, Hogsett acknowledged that, by law, he had a “substantial interest” in that hospital. If he had a conflict of interest, Hogsett could not legally vote, and without his tiebreaking vote, the transfer was unlikely to go through, as Mayor Leonhard Caflisch was likely to vote against it.
Jeff Chubb, city attorney for Independence, sought to solve the problem by writing a letter to the Attorney General’s Office to get an advisory opinion on the conflict the day before the vote was to take place.
Chubb’s letter advised the Attorney General’s Office that he believed Hogsett’s vote would be permissible because “one element of a contract is not present: consideration.” In a response dated Dec. 17, 2015, the day of the vote, the Attorney General’s Office essentially concurred, noting that as long as the property was “transferred without exchange of any compensation,” an exception would apply, and Hogsett’s action at the meeting scheduled to take place that night would be permitted by law.
However, the deeds that ultimately recorded the transaction between Mercy and the City dated Dec. 21, 2015, included the restrictive covenants referenced in the Dec. 4 LOI. Although the City did not pay Mercy “compensation” in the traditional sense to acquire the property, the Kansas Court of Appeals has indicated that restrictive covenants are “part of the valuable contract consideration given and relied upon in the conveyance of land.”
There appears little doubt that Mercy, as a Catholic organization with strong pro-life views, benefited from “valuable consideration” by including the restrictions in the transfer. Likewise, the City gave Mercy “valuable consideration,” because in accepting the restrictive covenants, the City’s choices for how to use the property are limited.

Restrictions not
revealed; did city commission sign blank deed?
Unfortunately, the existence of the restrictions was not revealed to the commissioners or the public at the Dec. 17, 2015, city commission meeting when the commission considered, and ultimately accepted, the Mercy real estate on a 2-1 vote. Although the actual deeds recorded shortly thereafter included the restrictions, the vote was taken after the commission only considered what City Attorney Chubb later characterized as a “blank deed.”
City manager Micky Webb later admitted in a commission meeting he knew the restrictions would “follow” the property when the commission considered the issue, but didn’t “open” his “mouth” at the meeting. City Attorney Chubb also later admitted he was aware “since last June or July” that any transfer of the hospital would include such restrictions in accordance with the policy of the Roman Catholic Diocese of Wichita, but he didn’t say anything, either. Moreover, both of them had been in a position to know that the Dec. 4 LOI included explicit reference to the restrictions. Still, both failed to reveal that information to the commissioners or the public before or during the meeting.
In an attempt to explain how the restrictions appeared in the deeds after the vote was taken City Attorney Chubb was quoted in news reports that must have “added” the covenants to the deeds after the vote was taken, without the knowledge of the City.
Commissioner Hogsett’s vote was in favor of the transfer of Mercy’s real estate to the city. Before casting his vote, Hogsett indicated that after legal consultation, which included a discussion with the city attorney about the Attorney General’s Dec. 17, 2015, letter, the city attorney advised Hogsett that his admitted conflict of interest did not prevent him from voting. However, because Chubb expressly characterized the transaction as one that did not include “consideration” in his Dec. 16, 2015 letter to the Attorney General, that office did not have the opportunity to address whether accepting the property with restrictive covenants created an impermissible conflict of interest for Hogsett. Further, the Attorney General’s Office also advised Chubb that its opinion was not binding, and that the City should get an opinion from the Governmental Ethics Commission, but as of late June 2016, the city had yet to do so. Moreover, Mr. Hogsett has since recused himself on any matters involving Mercy “due to a conflict of interest with Commissioner Hogsett’s wife, Anne, a doctor, who was formerly employed by Mercy Hospital, [and] according to Kansas state statues (sic) make the commissioner ineligible to cast a vote in this matter.”
Why city officials seem to believe those same statutes permitted Hogsett to vote on the Mercy acquisition on Dec. 17, 2015, is unknown. The basis for questioning his eligibility to vote then is the same as now. If Hogsett voted when he had a conflict of interest, then, by law, he could be prosecuted for the conflict of interest violation, punishable as a Class B misdemeanor.
But with the votes cast, the City proceeded to acquire the property and lease it to St. John for $500,000 over five years to operate an imaging clinic. For all intents and purposes, the commission’s vote rejecting St. John’s assumption of the Mercy property on Oct. 29, 2015, had been nullified. Now, St. John not only occupied the property, but it also gained a market advantage because the lease prohibited the City from helping any other hospital organization set up a competing operation.
By Jan. 15, 2016, the $500,000 lease arrangement with St. John had been executed and was public knowledge. Further, on that day, the public became aware of an agreement between the City and Mercy, where Mercy would provide $1.4 million in demolition, remodeling, and construction services at the former Mercy facilities now owned by the City.

Ascension Health: higher Medicare
reimbursements thanks to the KDHE
Meanwhile, St. John and its parent company, Ascension, proceeded with plans to operate an outpatient imaging clinic at the former Mercy Hospital facilities.
The key to the plans was an agreement on April 19, 2016, between the Kansas Department of Health and Environment (KDHE) and the Oklahoma State Department of Health (OSDH). According to that document, the KDHE permits Ascension-owned Jane Phillips Medical Center in Bartlesville, Oklahoma “to operate a provider-based outpatient clinic in Independence, Kansas, as a department” of that hospital. According to Labette Health, who brought suit against the KDHE in Shawnee County District Court, the agreement allows Ascension “to receive substantially higher reimbursement” from Medicare for the imaging services it plans to offer in Independence beginning July 1, 2016.
If a clinic is a “provider-based entity,” it receives a special designation under Medicare law allowing it obtain reimbursement from the federal government for both the services rendered and the facilities at which they are rendered. In contrast, “freestanding facilities” are only allowed to bill for the services, not the facilities. The difference can amount to a profit increase of over 60 percent per patient. Ordinarily, the purpose of an arrangement to “reimburse at a higher rate to offset emergency room loses.”
However, St. John does not offer any emergency services in the state. Under Kansas law, in order for an outpatient clinic to be reimbursed by Medicare at a high rate as a “provider-based entity,” a Kansas health care provider is required to get a Kansas hospital license, and a condition of such a license is the provision of emergency services in the state.
Because St. John has no Kansas license, it only would appear eligible, under ordinary circumstances, to be reimbursed for services rendered at the former Mercy Hospital in Independence at the lower, “freestanding facility” rate.
Despite not investing in costly emergency services in Kansas, St. John remained undeterred in its efforts to obtain provider-based status for its Independence imaging clinic, and proceeded on Dec. 29, 2015, with its plans to open by July 1, 2016. Construction continued through the first half of 2016, and it became the beneficiary of the KDHE agreement allowing its Independence clinic to be reimbursed for services rendered as a “provider-based entity” on April 19, 2016.

Judge denies Labette Health’s attempt to challenge the KDHE
On June 27, 2016, a Shawnee County district judge denied Labette Health’s motion for a temporary restraining order that would have prevented St. John’s Independence clinic from becoming a “provider-based entity.”
Labette Health, due in large part to its recent significant commitment to providing needed emergency services in Independence, sought to dissolve the KDHE agreement in court. From it’s point of view, if St. John “is permitted to operate as it proposes, it will have all the benefits of being a Kansas hospital (including substantially higher reimbursement for the services it plans to provide) without a Kansas license and all of its accompanying obligations,” and “the Independence imaging center threatens the viability” of its planned “emergency care” operations in Independence.
KDHE argued that the contract benefiting St. John is valid in part because St. John relied on the prospect of “provider-based” billing in Independence before making further investment in the former Mercy Hospital property, and cites a post on St. John’s website reporting the Dec. 29, 2015, ground-breaking in support.
The KDHE further argued that it has broad statutory authority to contract with any party it chooses, and characterizes Labette Health’s lawsuit as an attempt to “stop a business competitor.” The agency further claims that Labette Health cannot operate in Independence because Independence is outside the Labette County borders.
Although none of those KDHE arguments were specifically referenced in the judge’s June 27, 2016 opinion, the Court still ruled against Labette Health in part because it concluded that the “loss of viability in the Labette satellite facility stems from competition with the Independence imaging center—not from certification by the KDHE.”

One year later:
has the public
been served?
Ascension, the Missouri-based health organization that owns St. John, has won a preferred position in the Independence health care market with the help of the KDHE and Independence officials. Unlike Kansas healthcare providers, who are required to provide emergency services in order to keep their hospital licenses, the KDHE agreement allows Ascension/St. John to forgo investing in such services while still receiving the higher “provider-based” reimbursement rate for imaging services rendered in the state. Not only would this arrangement appear to give Ascension/St. John a distinct competitive advantage over smaller Kansas providers, but it also is inconsistent with public policy that “provider-based” billing is designed to “offset to cost of emergency room expenses.”
Further, Independence city officials gave Ascension/St. John the opportunity to set up shop at the former Mercy Hospital, even though Ascension/St. John refused to provide local emergency services and precluded the City from financially supporting such services in Independence.
Meanwhile, city officials are suggesting that Independence residents in need of emergency care should go to the Bartlesville’s Jane Phillips Center—owned by St. John, which in turn is owned by Ascension.
Whether these health care outcomes and the procedures and policies that led to them serve the public interest is a matter for the citizens of Independence and Kansans generally to decide.

• Max Kautsch is a Lawrence-based attorney for the Independence citizen group Seeking Responsible Spending, LLC. However, this article was not prepared on behalf of or with direction from any client, nor the Montgomery County Chronicle. The views expressed are those of the author.

1 Joplin Regional Business Journal, “Mercy Announces Closure of Hospital in Independence, Kansas,” September 4, 2015.
2 The New York Times, “Closing a hospital, and fearing for the future,” October 8, 2015.
3 Montgomery County Chronicle, “Hospital merger discussions cease,” September 2, 2015,
4 Id.; Montgomery County Chronicle, “CRMC agrees to buy Mercy Hospital of Independence,” July 16, 2015,
5 Montgomery County Chronicle, “Emergency department proposed,” December 9, 2015.
6
7 Montgomery County Chronicle, “City reps, medical providers continue closed-door talks,” October 29, 2015; Winfield Courier, “Independence Hospital Closing for Many Reasons,” November 20, 2015.
8 Minutes of the Independence City Commission’s December 17, 2015; see generally K.S.A. 75-4301a et seq.
9 See generally K.S.A. 75-4301a et seq. See also Independence Daily Reporter, “Mayor speaks on Mercy vote,” May 22, 2016.
10 The Independence Reporter, “Commissioners discuss demolition of Mercy buildings,” January 15, 2016.
11 Montgomery County Chronicle, “Labette Health unveils expansion plan,” March 3, 2016.
12 Id.
13 Transcript, Labette County Health v. KDHE, June 16, 2016.
14 http://ascension.org/news/news-articles/2016/03/17/13/45/st-john-health-system-begins-operations-in-kansas
15 http://ascension.org/about/facts-and-stats
16 Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016; see generally Healthcare Strategy Group, “Provider-based billing: advantages and obstacles,” August, 2015; 42 CFR 413.65.
17 Id; 902 KAR 20:016, Hospitals; operations and services.
18 Exhibit A, Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016.
19 KDHE Response in Opposition, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 14, 2016.
20 Memorandum Decision and Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 27, 2016.
21 The New York Times, “Closing a hospital, and fearing for the future,” October 8, 2015.
22 https://en.wikipedia.org/wiki/Mercy_(healthcare_organization)
23 Winfield Courier, “Independence Hospital Closing for Many Reasons,” November 20, 2015; see also Transcript, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, June 16, 2016.
24 Montgomery County Chronicle, “Hospital merger discussions cease” September 2, 2015; Montgomery County Chronicle, “CRMC agrees to buy Mercy Hospital of Independence,” July 16, 2015.
25 Id.
26 Montgomery County Chronicle, “CRMC agrees to buy Mercy Hospital of Independence,” July 16, 2015.
27 Id.
28 Montgomery County Chronicle, “Committee to represent City of Independence in hospital merger talks,” July 6, 2015.
29 Montgomery County Chronicle, “CRMC agrees to buy Mercy Hospital of Independence,” July 16, 2015.
30 Id.
31 Montgomery County Chronicle, “City reps, medical providers continue closed-door talks,” October 29, 2015.
32 Montgomery County Chronicle, “Hospital merger discussions cease,” September 2, 2015.
33 Id.
34 Id.
35 KTUL Tulsa, “Mercy Announces Closure of Kansas Facility,” September 3, 2015.
36 The New York Times, “Closing a hospital, and fearing for the future,” October 8, 2015.
37 Id.
38 Montgomery County Chronicle, “Independence City Commission Rejects St. John proposal, open future talks to area medical providers,” October 30, 2015.
39 Id.
40 Id.
41 Minutes of the Independence City Commission’s special meeting, October 5, 2015.
42 Montgomery County Chronicle, “City reps, medical providers continue closed-door talks,” October 29, 2015.
43 http://www.stjohnhealthsystem.com/site:24/article/view/735
44 Montgomery County Chronicle, “Independence City Commission Rejects St. John proposal, open future talks to area medical providers,” October 30, 2015.
45 Montgomery County Chronicle, “Emergency department proposed,” December 9, 2015.
46 Minutes of the Independence City Commission’s special meetings, October 21, October 27, 2015.
47 Montgomery County Chronicle, “City reps, medical providers continue closed-door talks,” October 29, 2015.
48 Transcript, Labette County Health v. KDHE, June 16, 2016.
49 Montgomery County Chronicle, October 29, 2015, “City reps, medical providers continue closed-door talks.”
50 Id.
51 Montgomery County Chronicle, “Independence City Commission Rejects St. John proposal, open future talks to area medical providers,” October 30, 2015.
52 Id.
53 Id.
54 Id.
55 Id.
56 Winfield Courier, “Independence Hospital Closing for Many Reasons,” November 20, 2015.
57 “Letter of Intent and Terms Sheet” from Mercy to the City of Independence (December 4, 2015).
58 Id.
59 See, e.g., Quit Claim Deed, December 21, 2015, from Mercy Kansas Communities, Inc., to the City of Independence, Lots 4, 5 and 6, Block 6, CONCANNONS ADDITION.
60 Id.; see also The Independence Reporter, “Commissioners discuss demolition of Mercy buildings,” January 15, 2016.
61 Independence Daily Reporter, “Mayor speaks on Mercy vote,” May 22, 2016.
62 Minutes of the Independence City Commission’s December 17, 2015; see generally K.S.A. 75-4301a et seq.
63 http://www.lkm.org/directory/cities.php?ID=51
64 Letter from Jeffrey A. Chubb, Independence City Attorney, to Athena E. Andaya, Deputy Attorney General (December 16, 2015).
65 https://ballotpedia.org/Derek_Schmidt
66 Letter from Jeffrey A. Chubb, Independence City Attorney, to Athena E. Andaya, Deputy Attorney General (December 16, 2015).
67 Letter from Athena E. Andaya, Deputy Attorney General, to Jeffrey A. Chubb, Independence City Attorney (December 17, 2015).
68 K.S.A. 75-4304a(d)(2)
69 See, e.g., Quit Claim Deed, December 21, 2015, from Mercy Kansas Communities, Inc., to the City of Independence, Lots 4, 5 and 6, Block 6, CONCANNONS ADDITION.
70 Persimmon Hill First Homes Ass’n v. Lonsdale, 31 Kan.App.2d 889, 895 (2003).
71 Minutes of the Independence City Commission’s December 17, 2015; see generally K.S.A. 75-4301a et seq.
72 See, e.g., Quit Claim Deed, December 21, 2015, from Mercy Kansas Communities, Inc., to the City of Independence, Lots 4, 5 and 6, Block 6, CONCANNONS ADDITION.
73 Independence City Commission meeting, January 28, 2016, at the 51:06 mark of video available on City website.
74 Independence City Commission meeting, January 21, 2016, at the 57:52 mark of video available on City website.
75 Independence City Commission meeting, January 28, 2016, at the 52:13 mark of video available on City website.
76 Independence City Commission meeting, January 28, 2016, at the 51:20 mark of video available on City website.
77 Minutes of the Independence City Commission’s December 17, 2015 meeting, page 5.
78 Id.
79 Letter from Athena E. Andaya, Deputy Attorney General, to Jeffrey A. Chubb, Independence City Attorney (December 17, 2015).
80 The Independence Reporter, “Commissioners discuss demolition of Mercy buildings,” January 15, 2016.
81 K.S.A. 75-4306(a)
82 Montgomery County Chronicle, March 3, 2016, “Labette Health unveils expansion plan.” See also Transcript, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, June 16, 2016.
83 The Independence Reporter, “Commissioners discuss demolition of Mercy buildings,” January 15, 2016.
84 Id.; Agreement, January 14, 2016, between Mercy Health and City of Independence.
85 http://www.stjohnhealthsystem.com/site:7/article/view/754.
86 Memorandum in Support of Motion for Temporary Restraining Order, Exhibit A, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016, Exhibit A.
87 Memorandum in Support of Motion for Temporary Restraining Order, Exhibit A, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016.
88 Healthcare Strategy Group, “Provider-based billing: advantages and obstacles,” August, 2015; see also https://www.cms.gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMattersArticles/Downloads/mm7631.pdf; Dunlay and Dowdell, Provider-Based Status, Under Arrangements, Enrollment and Related Medicare Requirements, p. 3; see also see also 42 CFR 413.65(a)(2).
89 Id.
90 Healthcare Strategy Group, “Provider-based billing: advantages and obstacles,” August, 2015.
91 Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016; see also Healthcare Strategy Group, “Provider-based billing: advantages and obstacles,” August, 2015.
92 Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016; 902 Kansas Administrative Regulations 20:016, Hospitals; operations and services.
93 KDHE Response in Opposition, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 14, 2016; http://www.stjohnhealthsystem.com/site:7/article/view/754.
94 Memorandum Decision and Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 27, 2016.
95 Montgomery County Chronicle, March 3, 2016, “Labette Health unveils expansion plan”; Transcript, Labette County Health v. KDHE, June 16, 2016.
96 Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016, p. 11.
97 Reply Memorandum in Support, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 17, 2016, p. 3-4.
98 KDHE Response in Opposition, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 14, 2016, p. 3, ¶s 7 and 8.
99 KDHE Response in Opposition, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 14, 2016.
100 Id.
101 Id.
102 Memorandum Decision and Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed June 27, 2016, ¶ A.2.
103 Memorandum in Support of Motion for Temporary Restraining Order, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, filed May 11, 2016, p. 11.
104 Montgomery County Chronicle, “Labette Health unveils expansion plan,” March 3, 2016. See also Transcript, Labette County Health Center v. Kansas Department of Health and Environment, Shawnee County District Court Case No. 16 CV 353, June 16, 2016.

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CRMC seeks special election in April to consider continuation of local sales tax

CRMC seeks special election to consider continuation of 1/2-cent sales tax

BY ANDY TAYLOR
chronicle@taylornews.org

COFFEYVILLE — At their semi-monthly meeting on Feb. 23, Coffeyville city commissioners are expected to discuss a request by the Coffeyville Regional Medical Center board of directors to have a special election in April to consider whether to retain a one-half percent sales tax.

The commission is expected to debate the request at their meeting, which begins at 6:30 p.m., at the Senior Citizens Activity Center.

The commission does not decide whether to approve the sales tax; that decision will rest with local voters who, according to the CRMC board of directors’ request, will be asked on Tuesday, April 5 whether to continue a one-half percent sales tax.

Monte Coffman, CRMC board president, said the one-half percent sales tax would be a continuation of an existing sales tax that was approved by voters in 2001. That sales tax was used in the expansion of CRMC’s facilities and was scheduled to retire in 2022 or until the bonds that were issued in the expansion project were to be paid off. Through additional annual contributions by CRMC and refinancing of those bonds, the bonds are now scheduled to be paid off early, meaning in the summer of 2016. Therefore, the dedicated sales tax to the CRMC expansion project will retire in the summer of 2016.

Coffman said the proposed sales tax question on the April 5 ballot would ask residents to continue the one-half percent sales tax. However, this sales tax, if approved, would go toward CRMC’s healthcare and emergency services. CRMC is a municipal hospital, and any funding in the past has been devoted to physical improvements to the hospital facilities, such as the 2001 sales tax for the hospital expansion. Property tax revenue or any other tax revenue has not used by the City of Coffeyville to subsidize the hospital’s operations.

The continuation of the sales tax would be used to maintain healthcare and emergency services. Coffman said the financial state of rural healthcare makes it difficult for hospitals like CRMC to rely solely on Medicaid, Medicare and insurance reimbursements.

“As described in many news articles from across Kansas and the nation and shown by the recent closure of Mercy Hospital in Independence, these are challenging times for rural hospitals,” said Coffman. “Reimbursement rates for hospitals from Medicare and Medicaid have been drastically reduced. Like most rural hospitals, a large majority of CRMC’s patient base is on Medicare or Medicaid.

“CRMC is committed to providing the best healthcare for the citizens of Coffeyville and the surrounding area. A vibrant, independent hospital is an essential part Coffeyville’s future. CRMC is asking the citizens of Coffeyville to help us continue to meet the future healthcare needs of Coffeyville just as a group of citizens did in the 1940s when the hospital was established.”

Coffman said no Coffeyville city funds will be used for the special election on April 5. The expenses of the election will be borne by CRMC.

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Bumbling bandit, mortal mummy: Book details bizarre life (and after life) of former Cherryvale resident

BY ANDY TAYLOR
chronicle@taylornews.org

A recently released book on the history of Kansas bank history brings to light the career of a former Cherryvale man whose bumbling career included an attempt heist — by means of nitroglycerine — of a Chautauqua County bank in 1911.

In December, author Rod Beemer of Minneapolis, Kan., released “Notorious Kansas Bank Heists: Gunslingers to Gangsters” through The History Press. The paperback book chronicles the history of early-day Kansas bank heists.

Among the events found in the book is the story of Elmer McCurdy. His life in and around southeast Kansas could have been the plot for a movie mystery. In fact, in the 21st century, the story of Elmer McCurdy does conjure occasional references on history documentaries about true crime.

Here’s the story . . .

Elmer McCurdy was born in Maine in 1880 but found his way to southeast Kansas in his early adult years as a plumber in Cherryvale. He later moved to Iola and relocated to Webb City, Mo. Along the way, a serious bout with alcoholism put him at odds with local constables.

To dry out from his persistent binge drinking, McCurdy joined the U.S. Army in 1907 and was stationed at Fort Leavenworth where, among his many aspects of training, he learned how to use nitroglycerine for demolition purposes.

After his discharge from the U.S. Army, McCurdy stumbled back to southeast Kansas and Oklahoma Kansas where he began a short-lived career as a bank robber. His first attempt as a yegg was in Lenapah, Okla., in March 1911 when he and three other men decided to rob the Iron Mountain-Missouri Pacific train. McCurdy heard that one of the cars contained a safe holding $4,000 in currency.

The robbers successfully stopped the train and found the safe. McCurdy attempted to put his nitroglycerin knowledge — paid for by Uncle Sam — to work by blasting open the safe door.

However, McCurdy mismeasured the nitorglycerne . . . by putting too much nitro in the charge. Not only did the blast blow open the safe door but it destroyed the safe entirely . . . and all $4,000 in currency.

They did manage to pocket about $450 in silver coins . . . however most of the coins were welded together from the fierce heat caused by the nitroglycerine explosion. Most of the coins were fused to the safe’s frame.

Thinking that he learned from his failed train robbery, McCurdy attempted a bigger haul with less nitroglycerine in his pocket. This time it was in Chautauqua, Kan, in September 1911. McCurdy and two other men spent two hours attempting to break through the bank wall of the Citizens Bank in Chautauqua. Once inside the bank, they attempt to blast the door to the bank’s vault.

McCurdy once again attempted a nitro blast that, if successful, would have put him inside that vault. He believed he could have been like a kid in a candy store — easy pickings with delicious temptations.

However, McCurdy’s nitroglycerine blast of the vault door proved costly. Not only did he mismeasure the amount of nitroglycerine (the explosion literally blew the vault door through the entire of the bank lobby, before coming to rest in an wall on the opposite side of the bank) but he miscalculated the vault itself.

For inside the vault was most of the bank stash — safely tucked way inside a steel safe.

McCurdy quickly tried to use a nitro blast to open the safe, but the charge failed to ignite. Knowing that the initial explosion likely awakened a sleepy town, McCurdy and Company grabbed as much money as they could inside the vault, which amounted to about $150 in coins.

Later that night, they found safe harbor at the ranch of friend Charlie Revard near Bartlesville. McCurdy and his accomplices split up with McCurdy staying on the ranch inside a hayseed. He drank heavily for several days, planning his next robbery in between flasts of whiskey.

His final robbery came on Oct. 4, 1911, near Okesa, Okla., which is southwest of Bartlesville in Osage County. McCurdy and two men heard that a Katy Train was bound for Pawhuska carrying the prized royalty payments for members of the Osage Nation. They made a plan and attacked a train near Okesa.

However, their robbery proved unsuccessful. Rather than rob a freight train carrying heavy loot, they mistakenly robbed a passenger train with little to no money on board. They were able to scamper away with $46, a couple of demijohns of whiskey, a revolver, a coat and the train conductor’s watch.

McCurdy was hurt by the haul and returned to the Revard ranch to pout and drink away his spoils.

He stayed up drinking with some of the ranch hands before falling into a deeper slumber in the hayloft.

Unbeknowst to McCurdy, the hayseed would be surrounded by a sheriff’s posse the next morning.

The posse surrounded the structure until McCurdy awakened with a massive hangover. The posse’s audible call for McCurdy’s arrest was met McCurdy’s firearms. What ensured was an hour-long shootout between McCurdy and the posse.

Finally, one shotgun blast from the posse ended McCurdy’s life. He died outside the hayshed — a criminal who had little prize in his quest for fortunes.

However, his greatest fame was yet to come.

McCurdy’s body was eventually taken to the Johnson Funeral Home in Pawhuska, Okla., where it was embalmed using an arsenic-based preservative that was typical in that era of body preparation. No family members claimed McCurdy’s body, and the corpse remained in the funeral home — unclaimed yet preserved — for six months. Rather than release the body for burial and assume the costs himself, funeral parlor owner Joseph L. Johnson decided to make a profitable spectacle out of McCurdy. He propped McCurdy’s stiff body in a wicker coffin and placed it upright in the funeral parlor lobby. He even had a shotgun placed in McCurdy’s cold, dead hands. And, for a nickel, people could examine the corpse and even be photographed next to it.

McCurdy would remain a fixture in the Johnson Funeral Home until 1916 when it was collected by two men claiming to be long-lost brothers of McCurdy. They claimed the body and told others that McCurdy would be given a proper burial in California.

What Johnson and others did not know is the two men were nothing more than carnival barkers for a traveling circus.

So, Elmer McCurdy, more than five years dead and many times photographed, was now a traveling circus exhibit for the Great Patterson Carnival Show. McCurdy was touted as “the outlaw who would never be captured alive.”

The Patterson circus would change hands in 1922 when it was sold to Louis Sooney, who used McCurdy’s fame to create the Museum of Crime. Not only was McCurdy a chief attraction but so, too, were wax figures of Bill Doolin and Jesse James.

McCurdy’s body would become part of a sideshow for the Trans-American Footrace in 1928 before being loaned for a brief time by film director Dwain Esper to promote his film “Narcotic.” The corpse was placed in movie theatre lobbies as a “dead dope fiend” whom, Elmer claimed, had killed himself while surrounded by police after he had robbed a drug store to support his habit.

By this time, Elmer McCurdy’s dead body had shriveled and hardened. His frame had reduced to the size of a child. Esper claimed that McCurdy’s skin condition and small frame were the result of his continual drug habit.

After Sooney died in 1949, the corpse was placed in storage in a Los Angeles, Calif., warehouse. It was later found and used as a movie prop and in a traveling wax museum. However, the years of travel had left McCurdy’s stiffened body into a state of woeful deterioration. By the 1970s, McCurdy’s ears had fallen off and his fingers and toes had disintegrated. Not wanting to rid him of a circus show and possible movie prop, McCurdy’s new owner, Spoony Singh had McCurdy’s disintegrating body painted with wax. Appendages were replaced with balsa wood, and once-wrinkled features were filled with putty.

Singh then sold the corpse to Ed Liersch, owner of The Pike, an amusement park in Long Beach, Calif., who used it as a prop — McCurdy was viewed hanging from a hangman’s noose — in the Laff in the Dark funhouse exhibit. His body was painted with several coats of glow-in-the-dark neon paint.

McCurdy’s identity had been long forgotten by the time the his body was used painted and puttied. And, when the amusement park closed its doors for good in the mid-1970s, the life of Elmer McCurdy — then hanging from a rope in a darkened amusement park — was left to the ages.

Or, so it seemed.

When the dead amusement park was purchased by Universal Studios, prop crews found a prime location for shooting an episode of “The Six Million Dollar Man” starring Lee Majors. The former Laff In the Dark funhouse, featuring what prop crews thought was a mannequin hanging from a noose, would make an excellent scene for a television episode.

So, while getting the scene prepared for film shooting of “The Six Million Dollar Man,” prop crews began dusting off the equipment from The Pike, including the mannequin hanging in the laffhouse.

When they grabbed the arms of the mannequin, aka Elmer McCurdy, one of the arms fell off, exposing bone and mummified tissue to the horror of the television crew, who obviously thought the mannequin was only a dummy and note a real mummy.

Law enforcement officers were contacted, and the life of Elmer McCurdy — who had been dead for more than 60 years — was starting to come back to the headlines.

A forensic pathologist was summoned to make a positive identification.

By December 1976, the story of mummified and petrified Elmer McCurdy was making national news. Rather than see McCurdy continue to be abused by traveling circuses and television prop crews, an Oklahoma organization procured McCurdy’s remains and vowed to give him a proper burial.

So, Elmer McCurdy, whose remains had shriveled to only 50 pounds, was on his way back to the very state where he died: Oklahoma. The Indian Territory Posse of Oklahoma Westerns paid for McCurdy’s funeral expenses. The organization buried McCurdy in the Boot Hill section of the Summit View Cemetery in Guthrie, Okla., on April 22, 1977. A graveside service attended by approximately 300 people saw McCurdy’s coffin lowered into a grave that was adjacent to another well-known Oklahoma outlaw, Bill Doolin, whose fate was similar to McCurdy: killed by a posse.

To ensure that McCurdy’s body would not be stolen, two feet of concrete was poured over McCurdy’s casket — a thick barrier that Elmer McCurdy would have loved to blast open with the help of nitroglycerine and insatiable desire for easy money.

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Christmas finally arrives for Coffeyville woman — 47 years after giving daughter to adoption

BY ANDY TAYLOR
chronicle@taylornews.org

COFFEYVILLE — A Christmas tree has not adorned Mary Boyd’s house in 47 years.

Even if she had one, she did not have a family to celebrate it with her.

The thought of having a colorful, lively Christmas tree that beams with happiness, serves as a backdrop for photos that are shared with others, and echoes with the laughter and shrieks of delight from grandchildren . . . those are the cherished memories Mary Boyd has desired and prayed for.

But because of a series of painful situations that confronted Boyd when she was a young and abused mother in the late 1960s, Christmas has had no meaning.

“I would intentionally not decorate my house because I knew it would just be lonely and sad,” she said from her home in Coffeyville.

However, such sadness will not befall Mary Boyd’s house any further . . . especially in the weeks following the Christmas season. That’s because the great gift called Family reached her front door on Saturday in the form of a reunion of a child she gave up for adoption in 1969.

When Mary Boyd looked in the eyes of her daughter, Jodi Sykes, for the first time on Saturday afternoon, all the years of missed birthdays, the pain of quiet and cold Christmases, and her inability of spoiling grandkids vanished.

“I’m here,” said Jodi Sykes with open arms as she walked across the threshold of her mother’s house on Dakota Street.

And, with that, Mary Boyd and Jodi Sykes embraced tightly and sobbed . . . for three very long minutes.

* * * *

Mary Boyd’s journey as a young mother in the 1960s was filled with mountaintops and valleys.

But mostly valleys.

A resident in East St. Louis, Mo., Mary was pregnant and married by age 17. Teenage pregnancy in the early 1960s was a different time, when community norms relegated young mothers to near obscurity.

Her marriage to Forrest Robert Powell Sr., was a blur of constant abuse and strife. When they were first married, Forrest drove an ice cream truck. By 1968, Forrest and Mary (Boyd) Powell would be the parents of four children: three boys and one girl. They lived in Washington Park, Ill., during those years as the marriage crumbled. He lost his job as an ice cream truck driver and found himself hauling wrecked cars as a tow truck driver. She stayed at home to raise the family.

In 1968, Mary, who was pregnant with their fifth child, found herself as a single mother. Forrest had divorced Mary and, in the process, convinced state officials that she was an unfit mother. So, in the divorce process, the court awarded sole custody of the four Powell children to Forrest Powell.

That left Mary with the choice of raising her unborn child herself . . . or allowing the child to be adopted to another family. Mary chose the latter.

On a day that has literally been wiped away from Mary’s memory (“I can’t even tell you what day it was”), Mary gave birth to a baby girl in the St. Mary’s Hospital in St. Louis, Mo. Those were the days when a birth mother who chose to give up a newborn infant to adoption had no ability to see or touch that child. When the umbilical cord was severed, the act literally severed any connection between Mary Boyd and her daughter.

“I never even saw her . . . or got to hold her,” said Mary. “The nurses and doctor cut the cord, cleaned her up, and walked out the room with the baby in their arms.”

And, with that act of coldness, Mary Boyd was thrust into an incredibly painful period.

She was alone.

She reeled from a marriage that probably should not have happened. She no longer had any contact with her four children who, by the time she gave birth to her fifth child, were ages 2 through 6.

The fifth child simply vanished into an adoption system.

So, Mary Boyd tried to rebuild her life. She never remarried. And, she purposely shunned the Christmas season.

By 2004, after spending much of her adult years in Illinois and Missouri, she moved to Montgomery County to be close to her sister, Loretta Glasgow of Caney. Mary would live in Caney, Tyro and Coffeyville — working jobs in nursing homes and as an elder caregiver.

And, no day went by without Mary Boyd wondering what happened to her five children.

* * * *

While Mary Boyd spent many years wondering to the whereabouts of her children, a young Jodi Wells, who was living in southwestern Illinois, began a quest for her biological roots. While as a nosey teenager in the early 1980s, Jodi thumbed through some of her parents’ private belongings when she discovered a sealed bag containing an adoption certificate.

She read it.

And, after getting over the initial shock, she began to ask questions.

“I asked my mom and dad about the certificate, and that’s when they confirmed that I was adopted at birth,” said Jodi, recalling her adoption discovery when she was age 12. “All I knew of my birth parents was their names, when I was born (Jan. 20, 1969) and where I was born.”

That began Jodi’s quest to discover her biological roots. Just who were Forrest Robert Powell Jr. and Mary (Boyd) Powell? Did she have any brothers and sisters?

The many decades of questions and endless detective work began to bear fruit only in the past several months. An “adoption angel,” a person who is able to trace records in order birth parents and their biological children who are adopted to other families, was able to connect Jodi with a half sister, Brittany (Powell) Phillips, who was one of Forrest Powell’s children from a later marriage, living in Runnells, Iowa. Upon connecting with Brittany, Jodi learned that her biological father died in the 1990s. However, Jodi and Brittany had no information about Mary (Boyd) Powell . . . or even if Mary (Boyd) Powell went by the same name as she did in 1969.

Jodi even made a list — with data collected from online telephone directories — of persons named “Mary Boyd” in the United States. She even made cold calls to some of those numbers and wrote letters to others. Ninety-seven people named Mary Boyd were contacted. Each time she made a call or wrote a letter, she would not find the Mary Boyd whom she only knew as a name on an adoption certificate.

Leave it to the world of social media, specifically Facebook, to become the vehicle that would connect Jodi Sykes with her biological mother. Using a search engine on Facebook, Jodi Sykes was able to find Teresa McVey of Tyro. Teresa McVey listed a Mary Boyd as one of her Facebook friends. However, the Mary Boyd who was listed on McVey’s Friends list had not had any activity on her page in many months.

Teresa said she received a phone call from Brittany Powell last Tuesday.

“She asked me how I knew the Mary Boyd who was listed as a Facebook friend,” McVey said. “She asked me questions that only Mary’s personal friends would know. That’s when I knew immediately that I came across a person who knew something about one of Mary’s children.”

Teresa McVey has good reason to know much about Mary Boyd. Mary serves as the caregiver to Teresa’s elderly parents living near Tyro. Mary’s closeness to McVey and her parents made her a virtual family member in McVey’s life. Teresa also has been able to hear the stories of Boyd’s past.

“She has had an incredible journey throughout her life,” said McVey. “I can’t imagine what would go through a mother’s heart when she has lost all of her five children and had no way of knowing where they went.”

* * * *

Last Thursday, Teresa McVey surprised Mary Boyd by giving her a picture of an adult woman in her late 40s holding a grandbaby. That image was of Jodi Sykes — which marked the first time that Mary Boyd had ever seen a photograph of her youngest child.

“I couldn’t believe what Teresa was telling me,” Boyd said. “I just sat in my dining room chair looking at this photo and hearing for the first time that one of my children was looking for me.”

So, since learning of the whereabouts of her youngest daughter and learning that Jodi and her husband were planning a trip to Coffeyville last weekend for a reunion, Mary Boyd’s world has been a roller-coaster.

“This is all I’ve thought about since Teresa told me,” said Boyd. “I’ll even wake up at 1 o’clock in the morning and think about it. It’s just something incredibly overwhelming.”

On Saturday, the years of frustration and anguish came to an end for both Boyd and Sykes. Jodi Sykes, who now lives in Collinsville, Ill., re-entered Mary Boyd’s life 47 years to the very week that Mary gave birth to Jodi. Their tight embrace in Boyd’s living room was matched by the volume of tears that flowed liberally from their eyes and onto each other’s tear-stained shoulders.

“You are going home with me,” joked Jodi as she hugged her mom.

As the mother and daughter were able to dry their eyes and begin the process of building a relationship that has been separated by a 47-year void, they promised to try to find the other four children in the Powell family. Jodi said she hopes to find the whereabouts of her sister Rosemary and her three brothers: Michael Casey Powell, James Preston Pope Powell and Forrest Robert Powell Jr.

For now, Mary’s life that has been a broken puzzle is slowing being pieced together, one person at a time.

“In my wildest dreams, I thought it would be one of my boys who would come looking for me, but I never thought it would be the youngest daughter who I never knew,” she said. “I’m just glad to have my baby back.”

Sykes said she plans on making numerous trips to Coffeyville — and bringing her own four children and 10 grandchildren to get to know their new grandmother and great-grandmother in the Sunflower State.

Mary has already received one note from a grandchild via Facebook, a note that indicated Mary would be widely accepted and loved in her newly-found family.

And, what about the years that time has painfully put on hold?

One of the first things that Mary Boyd told her daughter on Saturday was that she has not decorated a Christmas tree in more than 47 years.

With that painful confession that came from her mother’s lips, Jodi Sykes could only look at her mother’s teary eyes, listen to Mary’s quivering voice, and whisper a long, exasperating, “Wow,” as she shook her head in equally matched pain.

They then cried again . . . and hugged for a very long time.

Christmas may have finally arrived.

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Deadline to file as candidate for Caney City Council is Jan. 26

Caney city voters will go to the polls in the spring months to decide four positions for the Caney City Council.

The deadline to file for candidacy for those four positions is noon Tuesday, Jan. 26. The four positions that will be decided in the spring election cycle will be:

• Ward 1: position now held by council Nathan Byrd.

• Ward 2: position now held by councilor Ralph Anthony.

• Ward 3: position now held by councilor Dan Vernon.

• Ward 4: position now held by councilor Zoe Wahl.

If four or more candidates file any one of the four positions, then a run-off election will be required on Tuesday, March 1. The general election will be held on Tuesday, April 5 with the winning candidates assuming the oath of office at the second Caney City Council meeting in April.

Normally, all city council positions are two-year terms. However, the Kansas Legislature in 2015 approved a new law that moves all local elections (city council, school board, community college trustees) to the fall election cycle effective in 2017. That means the winning candidates in the spring election cycle — which will be the final spring elections in Caney due to the change in state law — will have to serve a longer- term in office as the council positions transition to a new election timeframe.

Persons interested in filing for the council elections should fill out the necessary paperwork at Caney City Hall.

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