South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
East Cooper Regional Medical Center vs. DHEC and Roper Mount Pleasant Emergency Room and Diagnostic Center

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
East Cooper Regional Medical Center

Respondents:
South Carolina Department of Health and Environmental Control and Roper
Mount Pleasant Emergency Room and Diagnostic Center
 
DOCKET NUMBER:
02-ALJ-07-0143-CC

APPEARANCES:
Stuart M. Andrews, Jr.
Alice V. Harris
Travis Dayhuff
Nelson Mullins Riley & Scarborough, LLP
1330 Lady Street, Third Floor
P.O. Box 11070
Columbia, South Carolina 29211
(803) 799-2000
sma@nmrs.com
avh@nmrs.com
txd@nmrs.com
Attorneys for Petitioner East Cooper Regional Medical Center

Trudy H. Robertson
Moore & Van Allen, PLLC
40 Calhoun Street, Suite 300
P.O. Box 22828
Charleston, South Carolina 29413-2828
(843) 579-7061
trudyrobertson@mvalaw.com
Attorneys for Respondent Roper Mount Pleasant Department of Health and Emergency Room and Diagnostic Center

Nancy S. Layman, Esquire
Nancy L. Roberts, Esquire
Environmental Control
2600 Bull Street
Columbia, South Carolina 29201
(803) 898-3353
laymanns@dhec.sc.gov
robertnl@dhec.sc.gov
Attorneys for Department of Health and Environmental Control

Mitchell Willoughby
Paige J. Gossett
Randolph R. Lowell
Willoughby & Hoefer, PA
1022 Calhoun Street, Suite 302
P.O. Box 8416
Columbia, South Carolina 29202-8416
(803) 252-3300
mwilloughby@willoughbyhoefer.com
pgossett@willoughbyhoefer.com
rlowell@willoughbyhoefer.com
 

ORDERS:

CONSENT ORDER OF DISMISSAL WITH PREJUDICE


On March 22, 2002 the South Carolina Department of Health and Environmental Control (“DHEC”) duly executed and issued an administrative consent order (“Consent Order”), finding, among other things, that Roper Hospital, Inc.’s (“Roper”) total project cost for constructing and equipping a freestanding emergency room and diagnostic center in the Mount Pleasant community known as the Roper Mount Pleasant Emergency Room and Diagnostic Center (“Roper ED”) did not exceed $1,000,000. The Consent Order simultaneously issued a determination of nonapplicability[1]and reinstated the determination of nonapplicability (“NA”) issued to Roper by DHEC on September 8, 2000 in docket number NA-00-66. The September 2000 NA was issued based upon Roper’s projected capital cost for constructing and equipping the Roper ED and was Roper’s authority for constructing (between September 8, 2000 and June 8, 2001), opening (on June 8, 2001) and initially operating the Roper ED. The Consent Order NA was issued based upon DHEC’s finding that the actual total project (capital) cost of constructing and equipping the Roper ED was less than $1,000,000. The September 8, 2000 NA and the Consent Order were issued by DHEC under the authority of S.C. Code Ann. §§ 44-7-110, et seq. and implementing regulations.

East Cooper Regional Medical Center (“ECRMC” or “East Cooper”) timely contested DHEC’s issuance of the September 8, 2000 NA to Roper for the construction of the Roper ED in case number 00-ALJ-07-0523-CC, which case was subsequently remanded to DHEC in November 2001. Following remand of the matter to DHEC and review of additional information, DHEC entered into and issued the Consent Order dated March 22, 2002 that, among other things, found, under generally accepted accounting principles (“GAAP”) consistently applied and DHEC’s practices, that the total project (capital) cost of constructing and equipping the Roper ED was less than $1,000,000 and therefore permitted the Roper ED to continue to operate.


East Cooper then initiated the above-captioned contested case challenging the Consent Order. Specifically, ECRMC challenged DHEC’s finding that the actual total project (capital) cost of constructing and equipping the Roper ED did not exceed $1,000,000, asserting that under GAAP and DHEC practices the total project (capital) cost exceeded $1,000,000 and that, therefore, the facility should be closed pending certificate of need review pursuant to S.C. Code Ann. §§ 44-7-110 et seq. This case was vigorously prosecuted by ECRMC and vigorously defended by Roper and DHEC. Following the completion of intensive discovery, the case was to be heard by the court in public hearings on April 21 through 25, 2003. The testimony of all expert witnesses for each party was prefiled with the court and exchanged between the parties on April 17, 2003. On Friday, April 18, 2003, after considered negotiations, the parties reported to the court that an oral settlement agreement had been reached resolving the issues to be decided in the above-captioned case. The hearing was therefore cancelled upon counsels’ representation that an order of dismissal would be forwarded to the court upon the finalization of a written settlement agreement.


The matter is now before the court by consent of all parties requesting that this case be dismissed with prejudice. As part of the settlement of this matter, ECRMC agreed to dismiss its challenge to DHEC’s issuance of a determination of nonapplicability and finding in the Consent Order that the capital expenditures for the Roper ED as reported in Roper’s final cost completion reports and as accepted by DHEC did not exceed $1,000,000. Moreover, as part of the settlement, Roper agreed that it would convert the emergency room in the Roper ED to an urgent care center by October 31, 2003 and would amend by relinquishing that portion of any license[2]it holds that authorizes Roper to operate an emergency room at the current location of the Roper ED at 570 Long Point Road, Suite 150, Mount Pleasant, South Carolina. The urgent care center will utilize the same facilities and equipment as is currently utilized by the Roper ED.[3] In regard to the function and services of the urgent care center, it will differ from the current function and services of the emergency room in the Roper ED in two ways: (1) Roper will not hold out the urgent care center as receiving patients transported by ambulance pursuant to emergency calls and dispatch, and (2) Roper will not, in marketing the services of the urgent care center, characterize it as an “emergency room” or a “day hospital.” [4] DHEC agrees that converting the emergency room in the Roper ED to an urgent care center requires no additional departmental review because (1) the scope of services of the urgent care center is included within the scope of services of an emergency room, (2) there are no material additional capital expenditures required to accomplish the conversion,[5](3) the conversion does not represent an increase in the scope of the project requiring the issuance of an NA different from NA-00-66 or the NA issued by the Consent Order, and (4) the conversion is scheduled to occur more than two years from the date of the initial opening of the Roper ED. [6]NOW THEREFORE, the issues being contested in the above captioned case having been fully resolved by settlement agreement of the parties, on motion of ECRMC and with the consent of Roper and DHEC,

IT IS HEREBY ORDERED that the above-captioned case is DISMISSED WITH PREJUDICE.


AND IT IS SO ORDERED.

____________________________________

The Honorable Ray N. Stevens

Administrative Law Judge

June 12, 2003

Columbia, South Carolina.

WE SO MOVE: WE CONSENT AND AGREE:

____________________________ ____________________________

Stuart M. Andrews, Jr. Mitchell Willoughby

Alice V. Harris Paige J. Gossett

Travis Dayhuff Randolph R. Lowell

Nelson Mullins Riley Willoughby & Hoefer, PA

& Scarborough, LLP 1022 Calhoun Street, Suite 302

1330 Lady Street, Third Floor P.O. Box 8416

P.O. Box 11070 Columbia, South Carolina 29202-8416

Columbia, South Carolina 29211 (803) 252-3300

(803) 799-2000 mwilloughby@willoughbyhoefer.com

sma@nmrs.com pgossett@willoughbyhoefer.com

avh@nmrs.com rlowell@willoughbyhoefer.com

txd@nmrs.com

Trudy H. Robertson

Attorneys for Petitioner East Moore & Van Allen, PLLC

Cooper Regional Medical Center 40 Calhoun Street, Suite 300

P.O. Box 22828

WE CONSENT AND AGREE: Charleston, South Carolina 29413-2828

(843) 579-7061

____________________________ trudyrobertson@mvalaw.com

Nancy S. Layman, Esquire

Nancy L. Roberts, Esquire Attorneys for Respondent Roper Mount Pleasant Department of Health and Emergency Room and Diagnostic Center

Environmental Control

2600 Bull Street

Columbia, South Carolina 29201

(803) 898-3353

laymanns@dhec.sc.gov

robertnl@dhec.sc.gov

Attorneys for Department of Health

and Environmental Control



[1] On page 10 of an order dated September 11, 2002 issued in this case, the Court found that the March 22, 2002 administrative consent order was “the issuance of a non-applicability letter” to Roper.

[2] Roper may amend or renew (as appropriate) its license number 063 issued by DHEC to reflect the conversion of the emergency room to an urgent care center.

[3] Roper retains the right to make changes and additions in facilities and equipment that require neither certificate of need nor determination of nonapplicability review. See 24A S.C. Code Regs. 61-15, ' 102(3). (“When any question exists, a potential applicant shall forward a letter requesting a formal determination by the Department as to the applicability of the certificate of need requirements to a particular project.”)

[4] Roper may of its own volition further limit the function of the urgent care center, for example, limit the hours of operation for efficiency and cost of service reasons, but is not required to do so under the terms of the settlement agreement.

[5] The primary conversion expense relates to changing signage on the building and premises of the Roper ED, which costs are projected to be relatively minor and not requiring DHEC review.

[6] For NAs and certificates of need DHEC policy permits additions of equipment and upgrade of facilities to occur without such costs being included in total project cost if the addition or upgrade occurs more than one (1) year after operations commence and if the addition or upgrade does not itself trigger review under DHEC regulations.


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