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SC Administrative Law Court Decisions

F.B.P., L.L.C. vs. SCDHEC et al.

South Carolina Department of Health and Environmental Control

F.B.P., L.L.C.

South Carolina Department of Health and Environmental Control, Georgetown Memorial Hospital, and R. Steven Bass, M.D., P.A., d/b/a Myrtle Beach Radiation Therapy Center




This matter is before me pursuant to the motion of the Petitioner, F.B.P., L.L.C. ("FBP") for reconsideration of my Order of February 16, 2000 ("Order"), granting summary judgment to the Respondents on FBP's claim that the Respondent, South Carolina Department of Health and Environmental Control ("DHEC") erroneously refused to issue an x-ray facility registration for FBP's radiation therapy facility at Conway, South Carolina. Upon careful consideration of the arguments raised in the motion and upon further review of the Order, the motion is denied.


I. Due Process and Equal Protection Arguments

FBP first contends that this Court failed to address its claims that application of the 1999 amendment to the Certificate of Need ("CON") statutes to it would deny FBP due process and equal protection under the law. With respect to the due process claim, the Order specifically rejects FBP's due process argument on the grounds that FBP had no vested right to construct radiation therapy facilities. See Order at 8 n.3. As for FBP's equal protection argument, the Order correctly notes FBP's concession at the motions hearing that the equal protection claim went to the merits of the case rather than to the issue of the applicability of the CON statutes to FBP. Regardless of whether

FBP made such a concession, however, upon further review of FBP's equal protection claim, I find that the equal protection argument is not relevant to the summary judgment motions.

II. Construction of the Applicable Statutes

FBP argues that the Court misinterpreted S.C. Code Ann. § 44-7-160(1) (Supp. 1998), and that the Court incorrectly applied the March 1999 amendment to it. I find that the Order of February 16 fully and correctly addressed the issues relating to statutory construction and to the procedural or remedial nature of the 1999 amendment. Accordingly, FBP's argument is without merit.

III. FBP's Noncompliance with Former CON Statutes

FBP further argues that this Court improperly relied on disputed issues of fact in reaching its conclusion that FBP did not comply with the CON statutes and regulations in existence prior to the March 1999 amendment. FBP's argument is unfounded, as it is undisputed in this case that DHEC questioned whether FBP's project costs exceeded the $600,000 threshold under former law.

Moreover, FBP argues that due process requires a factual hearing to take place whenever the costs of a proposed project are questioned. FBP overlooks the fact that a procedure does exist to review DHEC's decision on a letter of non-applicability. This Division has, on several occasions, conducted contested case hearings to review decisions by DHEC to issue a letter of non-applicability and exempt a facility from the CON requirements. See, e.g., Physician Imaging Centers, Inc. v. S.C. Dept. of Health and Envtl. Control and Tricounty Radiology Assoc., P.A., Docket No. 95-ALJ-07-0540-CC (January 17, 1996); Image Trust Florence, Inc. v. S.C. Dept. of Health and Envtl. Control and Florence Medical Imaging, Docket No. 95-ALJ-07-0539-CC (April 19, 1996). A corresponding right to a contested case hearing exists when DHEC denies an application for a letter of non-applicability. Had FBP received a formal ruling from DHEC on its application for a letter of non-applicability, it could have availed itself of this right, and all of the issues relating to the denial, including issues relating to FBP's project costs, could have been raised and resolved in a contested case hearing before the Division. Instead, FBP made the decision to formally revoke its request for a letter of non-applicability and to proceed without DHEC approval. Since DHEC had already questioned FBP's project costs, FBP was required under law to either renew the request or to seek a CON. However, FBP failed to follow the procedures required by law, and instead proceeded, without any legal right to do so and at its own risk, to build its facilities. Because FBP withdrew its request for a letter of non-applicability, and because all radiation therapy facilities are now required to comply with the CON requirements, FBP cannot now reassert its position challenging DHEC's review of its project costs. FBP's only recourse at this juncture, if it wishes to operate its facilities in South Carolina, is to apply for a CON.

IV. Applicability of CON Statutes to Facility Registration Approval

Finally, FBP makes the argument, both in the Motion itself and in the Supplement to the Motion, filed March 14, 2000, that the CON statutes are not applicable to a proceeding contesting the denial of a facility registration. This argument ignores several salient facts. First, all health care facilities must comply with the CON laws in South Carolina, regardless of whether the facility would otherwise meet registration requirements. If a facility is constructed in violation of the CON laws, it simply cannot lawfully operate, no matter how "safe" the facility might be. Furthermore, the sole basis upon which DHEC denied FBP's facility registration was FBP's failure to comply with the CON laws. Finally, FBP itself specifically requested this Court to determine whether the CON laws applied to its facilities. Accordingly, this argument does not present a basis upon which to grant FBP's motion.


For all the foregoing reasons, FBP's Motion for Reconsideration and to Alter or Amend Judgment is hereby DENIED.



Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

March 16, 2000

Brown Bldg.






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