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.
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.
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.
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 |
