ORDERS:
What is the geographic area served or to be served by Springs?
Notwithstanding this Court’s decision that Carolinas does not meet the residency
requirement for purposes of the State Certification of Need and Health Facility Licensure
Act, this Court will identify the geographic area to be served by Springs with its proposed
ASC. Neither the Department nor this Court is required to examine or consider the
geographic area served by Carolinas. See Roper Hospital, Inc. v. South Carolina Dep’t
of Health and Envtl. Control, 01-ALJ-07-0186-CC (February 12, 2002).
In Roper Hospital, the court dismissed St. Joseph’s Hospital from the case,
finding it was not an affected person because it did not reside in the geographic area for
which the CON was sought. St. Joseph’s Hospital, Inc. (St. Joseph’s), located in
Savannah, Georgia, conducted an adult open-heart surgery program and cardiac
catheterization service. It provided some limited service to residents of South Carolina
primarily in Beaufort, Jasper, and Hampton Counties. St. Joseph’s challenged the
Department’s decision to approve Hilton Head Medical Center and Clinics’ (Hilton
Head) CON application to provide open-heart surgery to residents of these three South
Carolina counties. In its arguments, St. Joseph’s argued that it met the definition of
“affected person” under the same statutory provisions at issue in this case.
The court in Roper Hospital examined the geographic area served or to be served
by Hilton Head for its open heart surgery program. The court noted that the geographic
service area consisted of Beaufort, Jasper, and Hampton Counties and that Hilton Head
had no plan to serve the geographic area of Savannah. Furthermore, the court held that
its determination of the geographic area was best supported by past history of the
services provided by Hilton Head and its future plans. In this case, the evidence is clear
that all of the surgical services provided by Carolinas are in North Carolina.
Furthermore, the majority of Carolinas’ patients are from North Carolina, not from the
geographic area in South Carolina which is the primary focus for Springs.
Carolinas opines that the geographic area to be served by Springs will include
counties in North Carolina, which Carolinas’ facilities serve. Contrary to Carolinas’
contention, the primary geographic service area for Springs consists of several counties
in South Carolina, including Lancaster, York, Chester and Chesterfield.
Accordingly,
this Court finds that Carolinas does not reside in the geographic area served or to be
served by Springs.
Is Carolinas a person located in the health service area in which the proposed
ASC is to be located and does Carolinas provide similar services there?
An “affected person” also includes “persons located in the health service area in
which the project is to be located and who provide similar services to the proposed
project.” S.C. Code Ann. § 44-7-130(1) (2003) and S.C. Code Reg. 61-15 § 103(1)
(2003).
When a phrase is not defined, the meaning of the words must be ascertained in the
manner that fulfills the intent of the legislature. Rosenbaum v. S-M-S 32, 311 S.C. 140,
427 S.E.2d 897 (1993) (expressing the well known maxim that the cardinal rule of
statutory construction is that the courts must ascertain and give effect to the actual intent
of the legislature); Browning v. Hartvigsen, 307 S.C. 122, 414 S.E.2d 115 (1992).
Legislative intent is best found from the plain meaning of the words used in the statute.
Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct. App. 1996). When terms
of a statute are clear and unambiguous, they must be applied according to their literal
meaning. Medlock v. Ford F-150 Pick Up, 308 S.C. 68, 417 S.E. 2d 85 (1992).
However, the plain meaning will not be applied if the legislature utilizes words having
acquired a technical meaning since such words are generally to be construed as being
used in their technical sense. Poole v. Saxon Mills, 192 S.C. 339, 6 S.E.2d 761 (1940).
Finding the phrase “health service area” had acquired a technical meaning, the
court explored that meaning in Roper Hospital, supra. While it was argued that the
phrase “health service area” was synonymous with “service area” as used in the South
Carolina Health Plan, the court disagreed and determined that the phrase “‘health service
area’ means one of four geographic regions of the state (HSA I, II, III, IV).” Roper
Hospital at 6.
Noting that “words in a statute must be construed ‘in light of the conditions
obtaining at the time of their enactment,’” the court examined the South Carolina Health
Plan and the phrase “health service area” in the years closest to the 1988 amendment of
the statutory definition of “affected person,” in which the Legislature did not alter the
phrase “health service area.” The court found the Legislature’s adoption of the technical
use of the phrase “health service area” was synonymous with the Department’s adoption
of “Health Service Areas” (HSAs I through IV). HSAs equated to a health service area
within a geographic region of the state. While the Department abandoned the Health
Service Areas as a planning tool, the Department never abandoned HSAs as a concept.
The Department “merely shifted the concept from a planning tool to an administrative
tool used for inventorying services.” Roper Hospital at 8; see also 2003 South Carolina
Health Plan at II-3 - II-4. Like the South Carolina Health Plan in use at the time of the
Roper Hospital case, the 2003 South Carolina Health Plan also states:
This State Plan has adopted four regions and one statewide category for
the purpose of inventorying health facilities and services as specified in
Section C. below. These regions, based on existing geographic, trade and
political areas, are a practical method of administration. The Health
Service Area (HSA) designations previously used are no longer applicable
and have been replaced.
. . .
The needs for most services (cardiac catheterization, open heart surgery,
etc.) are based upon the service standard, which is a combination of
utilization criteria and travel time requirements. Each service standard
constitutes the service area for that particular service.
See Roper Hospital at 6-7.
Because the court in Roper Hospital found the term “health service area,” rather
than being synonymous with “service area” as used in the State Health Plan, meant one
of the four geographic regions of the state (HSA I, II, III, and IV), the court held that
Savannah, Georgia was not within one of the four HSAs. Because St. Joseph’s was
located in Savannah, it was not an affected person because it was not one of the “persons
located in the health service area in which the project is to be located.” Id. at 9.
Here, Carolinas contends it is a person located in the health service area in which
the Springs’ ASC is to be located and providing similar services because Carolinas
operates four hospitals that provide outpatient surgical services and one freestanding
outpatient surgery center within a 30-minute drive of the proposed sites. In addition,
CMC-Pineville is located only 7.2 miles from the proposed site. (See Exhibit A,
“Written Comments and Exhibits Regarding Proposed Outpatient Surgery Centers”
submitted to the Department by Carolinas, p. 6). All of the facilities cited by Carolinas
are located in North Carolina. None of them are located within one of the applicable four
geographic health service areas, or inventorying areas, in South Carolina. See 2003
South Carolina Health Plan at II-3 – II-4. In addition, while Carolinas maintains that it
owns physician practices and a radiation treatment facility in South Carolina, these
providers are not parties to this action and there is no evidence that they provide similar
services to Springs’ proposed project. As such, the question is only whether Carolinas is
located in the health service area in which Springs’ ASC is to be located.
Just like Savannah, Georgia was not within one of the four geographic regions of
the state, Mecklenburg County, North Carolina also is not within one of the four
geographic regions of the state. Therefore, Carolinas is not an affected person because it
is not one of the “persons in the health service area in which the project is to be located.”
Lack of Reciprocity between North Carolina and South Carolina in the CON
process
Even if Carolinas met the definition of “affected person” under S.C. Code Ann. §
Section 44-7-130(1) and S.C. Code Regs. 61-15 § 103(1), Carolinas could not participate
in a South Carolina contested case because North Carolina does not provide for similar
involvement of persons from South Carolina in its certificate of need process.
S.C. Code Ann. § 44-7-130(1) outlines those persons who qualify as an affected
person. However, it provides that those “[p]ersons from another state who would
otherwise be considered ‘affected persons’ are not included unless that state provides for
similar involvement of persons from South Carolina in its certificate of need process.”
(Emphasis added). The word “provide” means “[t]o make, procure, or furnish for future
use, prepare; to supply; to afford; to contribute.” See Black’s Law Dictionary 1224 (6th
ed. 1990). Piedmont, the Department, Springs, and South Cross argue that this last
sentence in S.C. Code Ann. § 44-7-130(1) prohibits Carolinas from requesting a
contested case hearing in South Carolina because North Carolina does not provide for
similar involvement of persons from South Carolina in the North Carolina CON process.
The term “affected persons” is defined by statute in North Carolina as follows:
The term “affected persons” includes: the applicant; any person residing
within the geographic area served or to be served by the applicant; any
person who regularly uses health service facilities within that geographic
area; health service facilities and health maintenance organizations
(HMOs) located in the health service area in which the project is proposed
to be located, which provide services similar to the services of the facility
under review; health service facilities and HMOs which, prior to receipt
by the agency of the proposal being reviewed, have formally indicated an
intention to provide similar services in the future; third party payers who
reimburse health service facilities for services in the health service area in
which the project is proposed to be located; and any agency which
establishes rates for health service facilities or HMOs located in the health
service area in which the project is proposed to be located.
N.C. Gen. Stat. § 131E-188(c).
While the definition of an “affected person” in the North Carolina statute is
similar to South Carolina’s statutory definition, North Carolina’s definition is noticeably
silent with regard to the issue of reciprocity in its CON process for participation of
persons from other states. There are no provisions in North Carolina’s CON law or
North Carolina’s State Medical Facilities Plan which furnish, supply, or provide for
reciprocity to persons from other states. Instead, North Carolina’s statutes and State
Medical Facilities Plan express an intention to limit North Carolina’s CON process to
persons in that state.
In particular, the definition used in North Carolina’s CON statutes defines
“service area” as “the area of the State, as defined in the State Medical Facilities Plan or
in rules adopted by the Department, which receives services from a health service
facility.” N.C. Gen. Stat. § 131E-176(24a). “Service area” is clearly defined by North
Carolina to be an applicable area within that state.
Carolinas offered into evidence an affidavit from Lee Hoffman, Chief of the
Certificate of Need Section of the North Carolina Department of Health and Human
Services Division of Facility Services, dated November 23, 2004. Ms. Hoffman stated in
the affidavit that she was familiar with the North Carolina CON statute. She opined that
the term “geographic area” as used in the North Carolina statute was “not limited to only
those areas within the State of North Carolina, but rather can include areas outside of,
and may cross the state boundary lines of the State of North Carolina” and that it could
“include areas within states bordering North Carolina, such as areas within the State of
South Carolina.” Also, Ms. Hoffman opined that the North Carolina General Statutes do
not prohibit persons from areas in South Carolina, which are served or to be served by an
applicant, from filing a petition for a contested case hearing on a decision made by the
Certificate of Need Section of the North Carolina Department of Health and Human
Services Division of Facility Services, regarding the applicant’s proposed project.
In Charlotte Orthopedic Specialists, P.A. v. N.C. Department of Health and
Human Services, Division of Facility Services, Certificate of Need Section and Orion
Imaging, LLC, Mercy Hospital, Inc. d/b/a Carolinas Medical Center-Pineville, Docket
No. 03- DHR 0505, the Hon. Beecher R. Gray, Administrative Law Judge with the North
Carolina Office of Administrative Hearings, applied the North Carolina certificate of
need statutory and regulatory law to decide whether Charlotte Orthopedic Specialists or
Orion Imaging should be granted a CON for one fixed magnetic resonance imaging
machine in service area 17. In the order Judge Gray analyzed a criterion which requires
an applicant to demonstrate that the proposed health services will accommodate the
clinical needs of health professional training programs in the area. In reviewing the
affiliation agreement between Orion Imaging and an MRI training program in Greenville,
South Carolina, he stated that “it is unreasonable to assume that in adopting North
Carolina’s Certificate of Need statute, the [North Carolina] General Assembly intended
to accommodate the needs of health professional training programs in other States.”
Judge Gray made it clear that an applicant for a CON in North Carolina should not
consider the needs of patients outside a service area in North Carolina.
Further, Judge Gray, in finding that the phrase “in the area” was not defined,
noted that one of Ms. Hoffman’s subordinates provided three different definitions for the
term at the hearing before him. Based on the testimony, Judge Gray concluded, “The
Agency has no clear standards for applying this Criterion.” Id. In light of the plain
language of North Carolina’s statutory provisions and State Medical Facilities Plan, and
giving deference to the North Carolina Administrative Law Judge’s opinion set forth
above, which included findings of inconsistencies by Ms. Hoffman and her staff in
applying the CON statutes and regulations to applications, this court finds Ms.
Hoffman’s affidavit unpersuasive.
Neither N.C. Gen. Stat. § 131E-188(c) nor any other applicable North Carolina
statutory provision provides for involvement of persons from South Carolina or any other
state in its CON process. This Court finds and concludes, after a thorough review of the
North Carolina CON statute defining “affected person” and the decision by Judge Gray,
that North Carolina does not acknowledge any reciprocity with this state in the CON
process.
Because North Carolina does not provide for involvement of persons from South
Carolina in its CON process, Carolinas cannot be treated as an “affected person” in South
Carolina’s CON process. Furthermore, Carolinas is not a resident of this State, is not
located in this State, nor does it have standing to challenge the grant or denial of a CON
in this State. For all these reasons, Carolinas is dismissed as a party in Docket Numbers
04-ALJ-07-0044-CC and 04-ALJ-07-0068-CC.
ORDER
Having considered all the issues raised and for all the foregoing reasons, this
Court grants the Motion to Dismiss by Piedmont and dismisses Carolinas as a party in
Carolinas Health Care System vs. South Carolina Department of Health and
Environmental Control and Carolina andSurgery Center, LLC, Docket Number 04-ALJ-07-0044-CC and South Cross Surgery Center, LLC v. South Carolina Department of
Health and Environmental Control, Docket Number 04-ALJ-07-0068-CC.
AND IT IS SO ORDERED.
________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 20, 2005
Columbia, South Carolina What is the geographic area served or to be served by Springs?
Notwithstanding this Court’s decision that Carolinas does not meet the residency
requirement for purposes of the State Certification of Need and Health Facility Licensure
Act, this Court will identify the geographic area to be served by Springs with its proposed
ASC. Neither the Department nor this Court is required to examine or consider the
geographic area served by Carolinas. See Roper Hospital, Inc. v. South Carolina Dep’t
of Health and Envtl. Control, 01-ALJ-07-0186-CC (February 12, 2002).
In Roper Hospital, the court dismissed St. Joseph’s Hospital from the case,
finding it was not an affected person because it did not reside in the geographic area for
which the CON was sought. St. Joseph’s Hospital, Inc. (St. Joseph’s), located in
Savannah, Georgia, conducted an adult open-heart surgery program and cardiac
catheterization service. It provided some limited service to residents of South Carolina
primarily in Beaufort, Jasper, and Hampton Counties. St. Joseph’s challenged the
Department’s decision to approve Hilton Head Medical Center and Clinics’ (Hilton
Head) CON application to provide open-heart surgery to residents of these three South
Carolina counties. In its arguments, St. Joseph’s argued that it met the definition of
“affected person” under the same statutory provisions at issue in this case.
The court in Roper Hospital examined the geographic area served or to be served
by Hilton Head for its open heart surgery program. The court noted that the geographic
service area consisted of Beaufort, Jasper, and Hampton Counties and that Hilton Head
had no plan to serve the geographic area of Savannah. Furthermore, the court held that
its determination of the geographic area was best supported by past history of the
services provided by Hilton Head and its future plans. In this case, the evidence is clear
that all of the surgical services provided by Carolinas are in North Carolina.
Furthermore, the majority of Carolinas’ patients are from North Carolina, not from the
geographic area in South Carolina which is the primary focus for Springs.
Carolinas opines that the geographic area to be served by Springs will include
counties in North Carolina, which Carolinas’ facilities serve. Contrary to Carolinas’
contention, the primary geographic service area for Springs consists of several counties
in South Carolina, including Lancaster, York, Chester and Chesterfield.
Accordingly,
this Court finds that Carolinas does not reside in the geographic area served or to be
served by Springs.
Is Carolinas a person located in the health service area in which the proposed
ASC is to be located and does Carolinas provide similar services there?
An “affected person” also includes “persons located in the health service area in
which the project is to be located and who provide similar services to the proposed
project.” S.C. Code Ann. § 44-7-130(1) (2003) and S.C. Code Reg. 61-15 § 103(1)
(2003).
When a phrase is not defined, the meaning of the words must be ascertained in the
manner that fulfills the intent of the legislature. Rosenbaum v. S-M-S 32, 311 S.C. 140,
427 S.E.2d 897 (1993) (expressing the well known maxim that the cardinal rule of
statutory construction is that the courts must ascertain and give effect to the actual intent
of the legislature); Browning v. Hartvigsen, 307 S.C. 122, 414 S.E.2d 115 (1992).
Legislative intent is best found from the plain meaning of the words used in the statute.
Stephen v. Avins Constr. Co., 324 S.C. 334, 478 S.E.2d 74 (Ct. App. 1996). When terms
of a statute are clear and unambiguous, they must be applied according to their literal
meaning. Medlock v. Ford F-150 Pick Up, 308 S.C. 68, 417 S.E. 2d 85 (1992).
However, the plain meaning will not be applied if the legislature utilizes words having
acquired a technical meaning since such words are generally to be construed as being
used in their technical sense. Poole v. Saxon Mills, 192 S.C. 339, 6 S.E.2d 761 (1940).
Finding the phrase “health service area” had acquired a technical meaning, the
court explored that meaning in Roper Hospital, supra. While it was argued that the
phrase “health service area” was synonymous with “service area” as used in the South
Carolina Health Plan, the court disagreed and determined that the phrase “‘health service
area’ means one of four geographic regions of the state (HSA I, II, III, IV).” Roper
Hospital at 6.
Noting that “words in a statute must be construed ‘in light of the conditions
obtaining at the time of their enactment,’” the court examined the South Carolina Health
Plan and the phrase “health service area” in the years closest to the 1988 amendment of
the statutory definition of “affected person,” in which the Legislature did not alter the
phrase “health service area.” The court found the Legislature’s adoption of the technical
use of the phrase “health service area” was synonymous with the Department’s adoption
of “Health Service Areas” (HSAs I through IV). HSAs equated to a health service area
within a geographic region of the state. While the Department abandoned the Health
Service Areas as a planning tool, the Department never abandoned HSAs as a concept.
The Department “merely shifted the concept from a planning tool to an administrative
tool used for inventorying services.” Roper Hospital at 8; see also 2003 South Carolina
Health Plan at II-3 - II-4. Like the South Carolina Health Plan in use at the time of the
Roper Hospital case, the 2003 South Carolina Health Plan also states:
This State Plan has adopted four regions and one statewide category for
the purpose of inventorying health facilities and services as specified in
Section C. below. These regions, based on existing geographic, trade and
political areas, are a practical method of administration. The Health
Service Area (HSA) designations previously used are no longer applicable
and have been replaced.
. . .
The needs for most services (cardiac catheterization, open heart surgery,
etc.) are based upon the service standard, which is a combination of
utilization criteria and travel time requirements. Each service standard
constitutes the service area for that particular service.
See Roper Hospital at 6-7.
Because the court in Roper Hospital found the term “health service area,” rather
than being synonymous with “service area” as used in the State Health Plan, meant one
of the four geographic regions of the state (HSA I, II, III, and IV), the court held that
Savannah, Georgia was not within one of the four HSAs. Because St. Joseph’s was
located in Savannah, it was not an affected person because it was not one of the “persons
located in the health service area in which the project is to be located.” Id. at 9.
Here, Carolinas contends it is a person located in the health service area in which
the Springs’ ASC is to be located and providing similar services because Carolinas
operates four hospitals that provide outpatient surgical services and one freestanding
outpatient surgery center within a 30-minute drive of the proposed sites. In addition,
CMC-Pineville is located only 7.2 miles from the proposed site. (See Exhibit A,
“Written Comments and Exhibits Regarding Proposed Outpatient Surgery Centers”
submitted to the Department by Carolinas, p. 6). All of the facilities cited by Carolinas
are located in North Carolina. None of them are located within one of the applicable four
geographic health service areas, or inventorying areas, in South Carolina. See 2003
South Carolina Health Plan at II-3 – II-4. In addition, while Carolinas maintains that it
owns physician practices and a radiation treatment facility in South Carolina, these
providers are not parties to this action and there is no evidence that they provide similar
services to Springs’ proposed project. As such, the question is only whether Carolinas is
located in the health service area in which Springs’ ASC is to be located.
Just like Savannah, Georgia was not within one of the four geographic regions of
the state, Mecklenburg County, North Carolina also is not within one of the four
geographic regions of the state. Therefore, Carolinas is not an affected person because it
is not one of the “persons in the health service area in which the project is to be located.”
Lack of Reciprocity between North Carolina and South Carolina in the CON
process
Even if Carolinas met the definition of “affected person” under S.C. Code Ann. §
Section 44-7-130(1) and S.C. Code Regs. 61-15 § 103(1), Carolinas could not participate
in a South Carolina contested case because North Carolina does not provide for similar
involvement of persons from South Carolina in its certificate of need process.
S.C. Code Ann. § 44-7-130(1) outlines those persons who qualify as an affected
person. However, it provides that those “[p]ersons from another state who would
otherwise be considered ‘affected persons’ are not included unless that state provides for
similar involvement of persons from South Carolina in its certificate of need process.”
(Emphasis added). The word “provide” means “[t]o make, procure, or furnish for future
use, prepare; to supply; to afford; to contribute.” See Black’s Law Dictionary 1224 (6th
ed. 1990). Piedmont, the Department, Springs, and South Cross argue that this last
sentence in S.C. Code Ann. § 44-7-130(1) prohibits Carolinas from requesting a
contested case hearing in South Carolina because North Carolina does not provide for
similar involvement of persons from South Carolina in the North Carolina CON process.
The term “affected persons” is defined by statute in North Carolina as follows:
The term “affected persons” includes: the applicant; any person residing
within the geographic area served or to be served by the applicant; any
person who regularly uses health service facilities within that geographic
area; health service facilities and health maintenance organizations
(HMOs) located in the health service area in which the project is proposed
to be located, which provide services similar to the services of the facility
under review; health service facilities and HMOs which, prior to receipt
by the agency of the proposal being reviewed, have formally indicated an
intention to provide similar services in the future; third party payers who
reimburse health service facilities for services in the health service area in
which the project is proposed to be located; and any agency which
establishes rates for health service facilities or HMOs located in the health
service area in which the project is proposed to be located.
N.C. Gen. Stat. § 131E-188(c).
While the definition of an “affected person” in the North Carolina statute is
similar to South Carolina’s statutory definition, North Carolina’s definition is noticeably
silent with regard to the issue of reciprocity in its CON process for participation of
persons from other states. There are no provisions in North Carolina’s CON law or
North Carolina’s State Medical Facilities Plan which furnish, supply, or provide for
reciprocity to persons from other states. Instead, North Carolina’s statutes and State
Medical Facilities Plan express an intention to limit North Carolina’s CON process to
persons in that state.
In particular, the definition used in North Carolina’s CON statutes defines
“service area” as “the area of the State, as defined in the State Medical Facilities Plan or
in rules adopted by the Department, which receives services from a health service
facility.” N.C. Gen. Stat. § 131E-176(24a). “Service area” is clearly defined by North
Carolina to be an applicable area within that state.
Carolinas offered into evidence an affidavit from Lee Hoffman, Chief of the
Certificate of Need Section of the North Carolina Department of Health and Human
Services Division of Facility Services, dated November 23, 2004. Ms. Hoffman stated in
the affidavit that she was familiar with the North Carolina CON statute. She opined that
the term “geographic area” as used in the North Carolina statute was “not limited to only
those areas within the State of North Carolina, but rather can include areas outside of,
and may cross the state boundary lines of the State of North Carolina” and that it could
“include areas within states bordering North Carolina, such as areas within the State of
South Carolina.” Also, Ms. Hoffman opined that the North Carolina General Statutes do
not prohibit persons from areas in South Carolina, which are served or to be served by an
applicant, from filing a petition for a contested case hearing on a decision made by the
Certificate of Need Section of the North Carolina Department of Health and Human
Services Division of Facility Services, regarding the applicant’s proposed project.
In Charlotte Orthopedic Specialists, P.A. v. N.C. Department of Health and
Human Services, Division of Facility Services, Certificate of Need Section and Orion
Imaging, LLC, Mercy Hospital, Inc. d/b/a Carolinas Medical Center-Pineville, Docket
No. 03- DHR 0505, the Hon. Beecher R. Gray, Administrative Law Judge with the North
Carolina Office of Administrative Hearings, applied the North Carolina certificate of
need statutory and regulatory law to decide whether Charlotte Orthopedic Specialists or
Orion Imaging should be granted a CON for one fixed magnetic resonance imaging
machine in service area 17. In the order Judge Gray analyzed a criterion which requires
an applicant to demonstrate that the proposed health services will accommodate the
clinical needs of health professional training programs in the area. In reviewing the
affiliation agreement between Orion Imaging and an MRI training program in Greenville,
South Carolina, he stated that “it is unreasonable to assume that in adopting North
Carolina’s Certificate of Need statute, the [North Carolina] General Assembly intended
to accommodate the needs of health professional training programs in other States.”
Judge Gray made it clear that an applicant for a CON in North Carolina should not
consider the needs of patients outside a service area in North Carolina.
Further, Judge Gray, in finding that the phrase “in the area” was not defined,
noted that one of Ms. Hoffman’s subordinates provided three different definitions for the
term at the hearing before him. Based on the testimony, Judge Gray concluded, “The
Agency has no clear standards for applying this Criterion.” Id. In light of the plain
language of North Carolina’s statutory provisions and State Medical Facilities Plan, and
giving deference to the North Carolina Administrative Law Judge’s opinion set forth
above, which included findings of inconsistencies by Ms. Hoffman and her staff in
applying the CON statutes and regulations to applications, this court finds Ms.
Hoffman’s affidavit unpersuasive.
Neither N.C. Gen. Stat. § 131E-188(c) nor any other applicable North Carolina
statutory provision provides for involvement of persons from South Carolina or any other
state in its CON process. This Court finds and concludes, after a thorough review of the
North Carolina CON statute defining “affected person” and the decision by Judge Gray,
that North Carolina does not acknowledge any reciprocity with this state in the CON
process.
Because North Carolina does not provide for involvement of persons from South
Carolina in its CON process, Carolinas cannot be treated as an “affected person” in South
Carolina’s CON process. Furthermore, Carolinas is not a resident of this State, is not
located in this State, nor does it have standing to challenge the grant or denial of a CON
in this State. For all these reasons, Carolinas is dismissed as a party in Docket Numbers
04-ALJ-07-0044-CC and 04-ALJ-07-0068-CC.
ORDER
Having considered all the issues raised and for all the foregoing reasons, this
Court grants the Motion to Dismiss by Piedmont and dismisses Carolinas as a party in
Carolinas Health Care System vs. South Carolina Department of Health and
Environmental Control and Carolina andSurgery Center, LLC, Docket Number 04-ALJ-07-0044-CC and South Cross Surgery Center, LLC v. South Carolina Department of
Health and Environmental Control, Docket Number 04-ALJ-07-0068-CC.
AND IT IS SO ORDERED.
________________________________________
Marvin F. Kittrell
Chief Administrative Law Judge
April 20, 2005
Columbia, South Carolina |