ORDERS:
ORDER DENYING MOTION FOR RECONSIDERATION AND TO ALTER OR AMEND JUDGMENT
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.
DISCUSSION
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.
ORDER
For all the foregoing reasons, FBP's Motion for Reconsideration and to Alter or Amend Judgment is hereby DENIED.
AND IT IS SO ORDERED.
__________________________________
Marvin F. Kittrell
Chief Judge
Columbia, South Carolina
March 16, 2000 |