South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Florence Public School District One vs. SCDHEC, et al

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
Florence Public School District One

Respondents:
South Carolina Department of Health and Environmental Control and Starting Point of Florence
 
DOCKET NUMBER:
04-ALJ-07-0070-CC

APPEARANCES:
D. Lawrence McIntosh, Esquire, for the Petitioner

Nancy S. Layman, Esquire, and Ashley C. Biggers, Esquire, for Respondent SC DHEC

M. Elizabeth Crum, Esquire, and Ariail B. Kirk, Esquire, for Respondent Starting Point of Florence
 

ORDERS:

FINAL ORDER AND DECISION

STATEMENT OF THE CASE


This matter comes before the Administrative Law Court (Court) upon the request of the Petitioner Florence Public School District One (Petitioner or District) for a contested case hearing pursuant to the South Carolina Administrative Procedures Act, S.C. Code Ann. §§ 1-23-310, et seq. (Supp. 2003) (APA) and the State Certificate of Need and Health Facility Licensure Act, S.C. Code Ann. §§ 44-7-110, et seq. (2002) (CON Act), specifically § 44-7-210(D)(2). The Petitioner sought review of the S.C. Department of Health and Environmental Control's (DHEC or Department) decision to grant a Certificate of Need (CON) to Starting Point of Florence, LLC, (Starting Point or Clinic) for construction and operation of an outpatient narcotics treatment program providing methadone treatment. The Respondents seek to have the Court uphold the Starting Point CON application. A hearing was held before me on September 21 and 22, 2004, at the offices of the Administrative Law Court in Columbia, South Carolina.

ISSUE PRESENTED

Whether the Certificate of Need for Starting Point should be denied because Starting Point is located too close to Carver Elementary School.

FINDINGS OF FACT

Having carefully considered all testimony, exhibits, and arguments presented at the hearing in this case and taking into account the credibility and accuracy of the evidence, I make the following Findings of Fact by a preponderance of the evidence:

Background

1.Notice of the date, time, place and subject matter of the hearing was properly given to all the parties.

2.Starting Point applied for a Certificate of Need with the Department to operate a methadone clinic on October 22, 2003 under the 2003 South Carolina Health Plan (2003 Plan). The proposed service area for the Clinic is Florence, Sumter, Kershaw, Darlington, Lancaster, and Marlboro counties. However, the primary service area will be Florence and Darlington Counties.

3.Center of Hope of Florence, LLC, (COHF) also filed a CON application to develop and operate a methadone treatment facility in Florence, South Carolina under the 2003 Plan. As a result, Starting Point and COHF were competing applicants and pursuant to the CON Act, only the applicant that best met the 2003 Plan, the CON Act and the Project Review Criteria could be approved for a CON.

4.On February 6, 2004 (Decision Letter), the Department denied COHF’s CON application and approved Starting Point’s CON application on the grounds that Starting Point was the applicant whose application “most fully complies with the requirements, goals and purposes of the State, State Health Plan, Project Review Criteria and regulations adopted by the Department.” The Department’s decision was based on the fact that:

Starting Point of Florence, LLC has projected the need for the proposed facility using actual patients receiving treatment at its existing facility in Columbia rather than relying on statistical estimates of need; there is less documented opposition to its proposed physical location and there are no existing narcotic treatment programs in Florence County. This program intends to serve an area of the state (Florence and Darlington Counties) that does not currently have a narcotic treatment program.

5.24A S.C. Code Ann. Regs. 61-15 § 402 (Supp. 2003) provides that: “Any persons showing ‘good cause,’ as defined in these regulations, may request a staff reconsideration of the Department's proposed decision.” Furthermore, the written request must state the specific reasons and provide documentation of the “good cause” as defined in Section 103.12 of Regulation 61-15. That section defines “good cause” as: “a) significant and relevant information not previously considered by the Department; b) significant changes in factors or circumstances relied upon by the Department in making its decision; c) showing that the Department has materially failed to follow procedures in reaching its decision; or d) other basis for a public hearing.” On February 13, 2004, pursuant to Section 402, the Carver Elementary School Parent Teacher Organization (PTO) requested that the Department reconsider its determination to approve the Starting Point CON application. Footnote On March 11, 2004, DHEC denied the reconsideration request. The PTO did not appeal either the denial of the reconsideration request or the Decision Letter.

6.On February 13, 2004, COHF and the District each appealed the Department’s Decision Letter.

Methadone Treatment Facility Criteria

7.24A S.C. Code Ann. Regs. 61-15 § 802 (Supp. 20003) lists general criteria applicable to all CON applications. As required by § 44-7-220(C), the Department identified the following as the Section 802 criteria ranked in order of priority to be applied in evaluating Starting Point’s application. The criteria listed by the Department ranked in order of importance are: 1) Compliance with the State Health Plan—1; 2) Community Need Documentation—2a, 2c; 3) Distribution (Accessibility)—3b; (4) Acceptability—4a; and 5) Record of the Applicant—13d. Footnote

Furthermore, the licensure requirements for methadone clinics are set forth in 25A S.C. Code Ann. Regs. 61-93 § 2618 (Supp. 2003) and provide, in relevant part, that:

A.The facility shall be served by roads that are passable at all times and are adequate for the volume of expected traffic.

B.The facility shall have parking space to reasonably satisfy the needs of clients, staff/volunteers, and visitors.

C.Facilities shall maintain adequate access to and around the building(s) for firefighting equipment.

D.NTP facilities shall not operate within 500 feet of . . . [a] public or private elementary or secondary school. . . .


The 2003 State Health Plan also provides in pertinent part: “Because clients must usually attend a Methadone Treatment Center 6 days per week to receive their dose of methadone, these centers should be located throughout the state. Until these clinics are developed throughout the state, additional Methadone Treatment Centers are not needed in counties where an existing clinic exists, but should be developed in counties where none exists to improve accessibility.” None of the Petitioner’s witnesses questioned the need for a methadone clinic in Florence County. On the other hand, the evidence clearly established that there was a need for a methadone clinic in Florence County. There is currently no methadone clinic in Florence or Darlington Counties and at the time of the application, there were ninety-four (94) patients traveling from the Florence/Darlington area daily to Columbia to receive methadone treatment. Additionally, the Petitioner did not establish that the location was: 1) less that five hundred (500) feet from Carver Elementary School; 2) the Clinic would not be served by roads that are passable at all times and are adequate for the volume of expected traffic; 3) the Clinic would not have parking adequate to satisfy the needs of its clients, staff/volunteers, and visitors; and 4) the Clinic would not be accessible for firefighting equipment. Therefore, the only issue for consideration is the general suitability of Starting Point’s location.

Location

8.The Petitioner asserts that Starting Point would be located too close to Carver Elementary School (Carver) and, therefore, should not be approved for a Certificate of Need. In that regard, the Petitioner presented the testimony of various PTO members. The PTO's and the District’s paramount concern was that the safety of the children at Carver would be compromised by the proximity of the Clinic to the school. Those concerns included an exacerbation of the existing traffic problem, the potential danger associated with patients leaving the Clinic driving automobiles, and the potential danger of patients wandering onto the Carver campus.

9.Carver Elementary School is located on North Cashua Drive (Cashua), also known as State Highway No. 29. The proposed location of the Clinic is on the same side of the road as Carver at 797 North Cashua Drive. Though the Clinic would be more than five hundred (500) feet from Carver, it is approximately one thousand (1,000) feet from the school. Both Carver and the Clinic location are in a commercial business area. The area businesses include a dialysis clinic next to the school and a convenience store that sells beer and cigarettes off-premises between the Clinic and Carver.

10.It is very difficult to locate a site for a methadone clinic because of the stringent requirements contained in 25A S.C. Code Ann. Regs. 61-93 § 2618 (Supp. 2003). Of the competing CON applicants, Starting Point best met those location requirements because it is more centrally located and easily accessible. Starting Point is also more likely to be passable at all times because Cashua is a State four-lane road. COHF's location, on the other hand, was across a bridge over the interstate at the back of an industrial park, accessible only by a winding two-lane road without clear markings and had inadequate parking. Thus, the proposed site for COHF is not very accessible and would have been significantly more difficult for patients to access than the Starting Point facility.

Traffic

11.The stretch of Cashua in front of Carver and the proposed site for Starting Point is a four-lane highway. During the school year, there is heavy traffic on Cashua in front of Carver from 7:15 a.m. to 7:50 a.m. Footnote This problem emanates not from the school buses but from children being dropped off at school from individual cars. The Petitioner presented anecdotal information involving sporadic traffic accidents in the vicinity of Carver. However, there simply was no probative evidence that the traffic created by the Clinic’s patients would negatively affect the traffic in front of Carver. In particular, the Petitioner presented no evidence regarding the number of patients who would pass Carver each day to access or leave the Clinic, or whether they could access the Clinic without driving past Carver.

The evidence established that only the turning lanes in front of Carver are backed up between 7:15 a.m. and 7:50 a.m. The two non-turning lanes on Cashua flow freely. Moreover, the traffic generated by the patients of the Clinic would not meaningfully correlate with the school traffic. Most of the patients normally get to the methadone clinic between 5:00 a.m. and 6:45 a.m. Additionally, Starting Point has procedures and trained personnel in place to prevent impaired patients, if any, from receiving their methadone. Dr. Merlin, Starting Point's Administrator, also explained that it is very rare that a patient would come to a treatment facility impaired. Indeed, the patients are coming to the facility to end their dependency upon drugs. Moreover, any patient who comes to the Clinic impaired is immediately terminated from the treatment program. Therefore, there are significant consequences to an individual arriving at the facility impaired.

Furthermore, the treatment given the patients at the Clinic will not result in them being impaired. Methadone “takes effect” anywhere from one to two hours after being taken. After receiving the treatment, the patients are required to promptly leave unless they are awaiting transportation. Accordingly, patients who are driving to the facility will have left the area before the treatment “takes effect.” Moreover, because methadone treatment is not given to individuals unless they have developed a tolerance to barbiturates, the treatment has little, if any, effect upon a patient's motor function. Numerous studies indicate that there is no driving impairment for patients on methadone treatment. Illustratively, there have been no traffic accidents in front of the other treatment facilities operated by Dr. Merlin.

Danger

12.The evidence did not establish that Starting Point would create a danger to the children of Carver. As noted above, most of Starting Point’s patients would arrive at the clinic between 5:00 a.m. and 6:45 a.m. which is before the children would arrive for school. Few patients, if any, would walk to the Clinic but would rather normally drive their own vehicles or take some form of public transportation. In that regard, Starting Point also has a policy that its patients cannot be homeless but must have a place of residence. In fact, most methadone patients are employed, have families and regularly go to their jobs. Seventy-five (75) to eighty (80) percent of the methadone patients do not have criminal records. Of those who do have criminal records, most are drug-related crimes such as bad checks, simple possession or buying illegal drugs, as opposed to violent crimes.

The Clinic is also specifically designed so that the staff can see its patients in the parking lot and prevent loitering. It also has an anti-loitering policy which it will enforce strenuously. Additionally, the intersection of West Sumter and Cashua acts as a separation between the Clinic and Carver. Furthermore, Carver is set back from Cashua a significant distance with a vast grassy area between it and West Sumter.

13.The Principals for Starting Point, Stephen I. Merlin, M.D., and Larry J. Worley, are not only experienced in the area of methadone treatment, they have a history of properly operating these facilities without any ensuing problems. Dr. Merlin is the director of outpatient addiction services at Palmetto Health Alliance and is the medical director of the chemical dependency treatment unit at Palmetto Richland Memorial Hospital. He is the owner and medical director of Starting Point of Columbia, and CEO and sole owner of Substance Abuse Consultants, Inc., a legal consulting firm that also does drug testing, including Department of Transportation related testing. Moreover, Dr. Merlin is a clinical assistant professor of psychiatry at the U.S.C. School of Medicine, Department of Psychiatry, and is certified by the American Board of Internal Medicine and the American Society of Addictive Medicine.

Mr. Worley has bachelors’ degrees in biblical studies, psychology, and theology. He also has masters’ degrees in arts, divinity and religious education with a concentration in counseling, and is a licensed Baptist minister. Mr. Worley has worked with outpatient narcotics treatment programs since 1989. He has ownership interests in three (3) operating methadone clinics in South Carolina: Piedmont Treatment Center in Greenville, Starting Point of Columbia and Center of Hope Myrtle Beach.

The Center of Hope Myrtle Beach clinic serves approximately two hundred twenty-two (222) patients. This facility is located on Highway 501, a four-lane road with heavy traffic, and is approximately 1500 to 1800 feet from a children’s academy. There have never been any complaints from that school regarding Center of Hope Myrtle Beach despite strong opposition to their CON. Furthermore, Starting Point of Columbia is located in close proximity to Heathwood Hall Episcopal School in Columbia and has never had any complaints from that school about the clinic’s patients. Starting Point of Columbia has also never had any complaints about its patients loitering around the clinic. Additionally, there have been no complaints regarding the Piedmont Treatment Center on Poinsett Highway in Greenville, SC, which is also owned and operated by Dr. Merlin and Mr. Worley.

Conclusion

14.The concerns presented by the witnesses on behalf of the Petitioner appear to be based on a sincere concern for the attendees of Carver Elementary School. In fact, the Petitioner and the State of South Carolina should fervently strive to avoid placing innocent school children at risk. However, the Petitioner’s evidence did not establish that the Clinic would introduce any danger for/to the students of Carver if the CON is granted. Additionally, though the Petitioner’s evidence raises the “potential” that traffic will be further congested as a result of the Petitioner’s business, the evidence did not establish that the granting of the CON will meaningfully contribute to that congestion or create a traffic hazard for the community.

Dr. Young, the principal of Carver, testified that she was concerned about the “perception” that parents coming into the community would have of Carver if the Clinic was located near to the school. Though she recognized that the existing perception “might not be real,” she nonetheless believed that it “is going to affect parents’ willingness to send their children to Carver.” Simply put, her testimony concerning the resulting perception that parents may have if this CON is granted best encapsulates the Petitioner's evidence. However, the facts simply did not warrant that potential perception.

Furthermore, the testimony of Dr. Jebaily, who appears to be an outstanding doctor in the Florence area, did not establish that the Clinic would introduce any danger for the students. He testified that addicts generally have physical and psychological problems in addition to their addiction. However, Dr. Jebaily has neither treated patients with methadone nor is he an addictionologist. He also provided no testimony as to how any physical or psychological problems that addicts may have would be detrimental to the Carver students if the Clinic was approved at its proposed location.

Finally, none of the Petitioner’s witnesses had read the Starting Point CON application. The only information that those witnesses had regarding the Clinic was from information they had read in the newspaper or that had been told to them by other individuals. Therefore, the witnesses were unfortunately unaware of many of the pertinent facts that reflect there is no potential increased danger to the Carver schoolchildren if Starting Point is located at the proposed location.

CONCLUSIONS OF LAW

Based upon the foregoing Findings of Fact, I conclude as a matter of law, the following:

1.The South Carolina Administrative Law Court has jurisdiction over CON contested case proceedings pursuant to S.C. Code Ann. § 44-7-210 (2002) and § 1-23-600(B)

(Supp. 2003). In a CON contested case, the Petitioner bears the burden of proving its case by a preponderance of the evidence. S.C. Code Ann. § 44-7-210(E) (2002); see also Nat’l Health Corp. v. SCDHEC, 298 S.C. 373, 380 S.E.2d 841 (1989). Thus, the Petitioner must prove by a preponderance of the evidence that Starting Point’s CON application does not meet the legal requirements for approval under the CON Act and applicable regulations.

2.The Administrative Law Judge is the fact finder in this matter. Brown v. S.C. Dep't of Health and Envtl. Control, 348 S.C. 507, 560 S.E.2d 410 (2002). In making those factual determinations, the findings must be based upon reliable and probative evidence, not on surmise or speculation. See S.C. Code Ann. § 1-23-380 (A)(6)(e) (Supp. 2003); Coleman v. Palmetto State Life Ins. Co., 241 S.C. 384, 128 S.E.2d 699 (1962). As trier of fact, the Administrative Law Judge is not compelled to accept an expert’s testimony, but may give it the weight and credibility the ALJ determines it deserves. Florence County Dep’t. of Social Serv. v. Ward, 310 S.C. 69, 425 S.E.2d 61 (1992). Nevertheless, it is appropriate to give due consideration to the CON staff’s utilization of its specialized knowledge and expertise in the application of the CON Act and CON regulations. See S.C. Code Ann. § 1-23-330(4) (Supp. 2003). However, the Department's Board and not the Department's CON staff is the policymaker for the Department and thus possesses the authority to interpret its regulatory and statutory provisions.

3.A methadone clinic is a health care facility. S.C. Code Ann. § 44-7-130(10) (2002). Consequently, methadone clinics must obtain a CON pursuant to Section 44-7-210 of the South Carolina Code. The Department is the sole agency designated to administer the granting of CONs and the licensure of health care facilities under the CON Act pursuant to those regulations. See S.C. Code Ann. § 44-7-140 (2002). Furthermore, it can only issue a CON if the application complies with the State Health Plan, Project Review Criteria, and other regulations. S.C. Code Ann. § 44-7-210(C) (2000). The applicable regulations governing CON approval in this case are 24A S.C. Code Ann. Regs. 61-15 (Supp. 2003) (entitled "Certification of Need for Health Facilities and Services") and 25A S.C. Code Ann. Regs. 61-93 (Supp. 2003) (entitled "Standards for Licensing Facilities that Treat Individuals for Psychoactive Substance Abuse or Dependence"). Additionally, a CON application must be reviewed under the State Health Plan in effect when the application was filed. 24A S.C. Code Ann. Regs. 61-15 § 504 (Supp. 2003). Accordingly, in reviewing this case, the 2003 South Carolina Health Plan is the relevant Plan to consider.

The general purposes of the CON Act are “to promote cost containment, prevent unnecessary duplication of health care facilities and services, guide the establishment of health facilities and services which will best serve public needs, and ensure that high quality services are provided in health facilities in this State.” S.C. Code Ann. § 44-7-120 (2002). In this case, 25A S.C. Code Ann. Regs. 61-93 § 2618 (Supp. 2003) sets forth the specific licensure requirements for methadone clinics. That regulation provides, in relevant part, that:

A.The facility shall be served by roads that are passable at all times and are adequate for the volume of expected traffic.


B.The facility shall have parking space to reasonably satisfy the needs of clients, staff/volunteers, and visitors.


C.Facilities shall maintain adequate access to and around the building (s) for firefighting equipment.

D.NTP facilities shall not operate within 500 feet of ¼ [a] public or private elementary or secondary school. . . .


Section 3223 of Regulation 61-93 also requires that a methadone clinic not allow loitering or disorderly conduct in the clinic’s vicinity. Starting Point’s policies and procedures meet the requirements of Regulation 61-93 § 3223.

4.Starting Point properly sought a CON pursuant to § 44-7-210 of the South Carolina Code. Furthermore, the District has not met its burden of proof by a preponderance of the evidence that Starting Point’s location is not in conformance with the requirements of S.C. Code Ann. § 44-7-210(E), 25A S.C. Code Ann. Regs. 61-93 § 2618 and the 2003 South Carolina Health Plan. More specifically, the Starting Point Clinic meets the requirements of 25A S.C. Code Ann. Regs. 61-93 § 2618 regarding location of the facility. Nevertheless, to further reduce the potential for an adverse impact upon traffic, Starting Point shall request that its patients not drive past Carver between the hours of 7:00 a.m. and 8:00 a.m. on days when school is in session and shall also conspicuously display a sign to that effect on the Clinic's premises.

ORDER

Based on the foregoing Findings of Fact and Conclusions of Law,

IT IS HEREBY ORDERED that the Department’s decision to issue the CON to Starting Point of Florence, LLC, is AFFIRMED and the CON is GRANTED.

AND IT IS SO ORDERED.

_________________________________

Ralph King Anderson, III

Administrative Law Judge


December 15, 2004

Columbia, South Carolina


Brown Bldg.

 

 

 

 

 

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