SC Administrative Law Court Decisions

This matter is before the Administrative Law Judge Division (Division) pursuant to the Motion of the Petitioner, Trident Medical Center, LLC, d/b/a Trident Medical Center (Trident), for a temporary injunction in Docket No. 00-ALJ-07-0422-IJ; and the Motions of the Respondents, South Carolina Department of Health and Environmental Control (DHEC) and Roper Hospital, Inc. (Roper), to dismiss Trident's requests for a contested case hearing in Docket Nos. 00-ALJ-07-0422-IJ and 00-ALJ-07-0442-CC. A hearing on these Motions was held on August 2, 2000, at the offices of the Division in Columbia, South Carolina. For the following reasons, Trident's motion for a temporary injunction is denied, and the Respondents' Motions to Dismiss are hereby granted.

These matters arise from decisions of DHEC to approve Roper's application for a Certificate of Need (CON) for a Positron Emission Tomography Scanner (PET Scanner), and to deny a competing CON application for a PET Scanner filed by Trident. Both CON applications were made under the 1999 South Carolina Health Plan (Health Plan), which provides that only one PET Scanner shall be approved for the geographical region served by both Roper and Trident. By separate certified letters, dated June 23, 2000, DHEC notified both Trident and Roper of its proposed decisions to approve Roper's application for the PET Scanner and to deny Trident's application. Each applicant was also sent a copy of the competing applicant's notification letter. These letters were mailed by DHEC on June 26, 2000. Based upon the information contained in the return receipts (Respondent's Exhibits 1 and 2), Roper received notification from DHEC of its staff's proposed decision to approve Roper's CON application for the PET Scanner on June 27, 2000. On June 28, 2000, Trident received notice of DHEC's decision to approve Roper's CON application and also received notice of DHEC's decision to deny Trident's CON application.

In addition to setting forth the basis for DHEC's decision to grant Roper's CON application and to deny Trident's CON application, the letters set forth the following information regarding the time frames in which a party could request staff reconsideration or a contested case hearing:

This proposed decision becomes the final agency decision ten (10) days after receipt of this notice unless one of the following occurs:

1. Pursuant to Section 44-7-210(D)(1) of the amended Code of Laws of South Carolina, 1976, any persons showing "good cause" as defined in Regulation No. 61-15 may request reconsideration of this Department's decision. Such request must be made in writing to this office within ten (10) days from the date of receipt of this notice and must state the specific reasons for such request.

2. Pursuant to Section 44-7-210(D)(2) of the amended Code of Laws of South Carolina, 1976, any appeal may be submitted by any affected person or the applicant, within a ten (10) day period, which gives notice in writing that the person is desirous of a hearing before the S.C. Board of Health and Environmental Control. Should this be the case, the affected person/applicant should submit the original request to [address of the DHEC Board].

(Emphasis added).

Trident filed requests for staff reconsideration of both the decision to grant the CON to Roper and the decision to deny Trident's application on July 10, 2000. On July 13, 2000, DHEC responded to both requests in separate letters. With respect to Trident's request for a reconsideration of the denial of its application, DHEC stated that Trident had failed to demonstrate "good cause" in accordance with S.C. Code Ann. § 44-7-210(D)(1) (Supp. 1999), and S.C. Code Ann. Regs. § 61-15, and denied the request. With respect to Trident's request for reconsideration of the decision to approve Roper's CON application, DHEC denied the request on the grounds that Trident had failed to file its request for reconsideration within ten days of Roper's receipt of the decision, citing S.C. Code Ann. § 44-7-210(D)(2) (Supp. 1999) and S.C. Code Ann. Regs. 61-15 § 402.1 (Supp. 1999).

In the meantime, DHEC had already issued CON No. SC-00-36 to Roper on July 12, 2000, since no appeal had been filed within ten days from the date Roper had received DHEC's decision to grant Roper's CON application.

On July 21, 2000, Trident filed with the Clerk of the DHEC Board a request for a contested case hearing regarding DHEC's approval of Roper's CON application, a request for a contested case hearing regarding DHEC's denial of Trident's CON application, and a Motion for Consolidation of both matters. In conjunction with its requests for contested case hearings, Trident also filed a Motion for Temporary Injunction with the Division on July 25, 2000, requesting the Division to assume jurisdiction over the cases, declare void the CON issued to Roper, and restrain Roper from taking any action in reliance on the CON. Thereafter, Roper and DHEC filed Motions to Dismiss both cases.

I. Trident's Challenge to DHEC's Approval of Roper's CON

Timeliness

Roper and DHEC move to dismiss Trident's request for a contested case hearing concerning DHEC's approval of Roper's CON application, on the grounds that Trident did not file its request for staff reconsideration within the ten-day period established by S.C. Code Ann. § 44-7-210(D) (Supp. 1999). That statute provides:

The proposed decision becomes the final agency decision within ten days after the receipt of a notice of the proposed decision by the applicant unless:

(1) a reconsideration by the staff of the department is requested in writing within the ten-day period by an affected person showing good cause for reconsideration of the proposed decision; or

(2) a contested case hearing before the board, or its designee, regarding the grant or denial of the Certificate of Need is requested in writing within the ten-day period by the applicant or other affected person with standing to contest the grant or denial of the application.

(Emphasis added). In this case, Trident elected to file requests for staff reconsideration of both DHEC's decisions to grant Roper's CON application and to deny Trident's application, rather than to request contested case hearings. Accordingly, the determining factor is whether Trident filed its requests for reconsideration within ten days after receipt of notice of the proposed decision "by the applicant." It is undisputed that Roper received notice of DHEC's decision on its CON application on June 27, 2000, and that Trident received notice of the decision on June 28, 2000. Trident argues that, because its application and Roper's application were deemed competing applications by DHEC, it should be considered an "applicant" within the meaning of Section 44-7-210(D). However, the statute is clear and unambiguous. It does not mention the receipt of notice of DHEC's decision by the "competing applicant" or "affected person." The statute plainly states that the time frame is triggered by the receipt of notice by the applicant. There is no ambiguity in this language.

The South Carolina Supreme Court has consistently held that statutes will be construed with regard to the plain and ordinary meaning of the words chosen by the legislature. Whiteside v. Cherokee County School District, 311 S.C. 335, 428 S.E.2d 886 (1993); Berkebile v. Outen, 311 S.C. 50, 426 S.E.2d 760 (1993); Nucor Steel v. S.C. Public Service Comm'n, 310 S.C. 539, 426 S.E.2d 319 (1992); Hartford Accident and Indemnity Co. v. Lindsay, 273 S.C. 79, 254 S.E.2d 301 (1979). In Berkebile, the Supreme Court stated, "[w]e cannot construe a statute without regard to its plain and ordinary meaning, and we will not resort to subtle or forced construction in an attempt to limit or expand the scope of a statute." 426 S.E.2d at 763. I find that the ten-day time frame set forth in the statute is triggered by receipt of notice by the applicant. Since Roper was the "applicant" with respect to its own CON application, the ten-day period set forth in Section 44-7-210(D) expired on July 7, 2000, and DHEC's approval of Roper's CON application for the PET Scanner became final that same day. Trident's request for staff reconsideration, filed July 10, 2000, was therefore untimely.

A request for a contested case hearing must be timely in order to confer jurisdiction upon the reviewing tribunal. Botany Bay Marina, Inc. v. Townsend, 296 S.C. 330, 372 S.E.2d 584 (1988), overruled in part on other grounds, Woodard v. Westvaco Corp., 319 S.C. 240, 460 S.E.2d 392 (1995). Since Trident did not timely file its request for reconsideration or for a contested case hearing regarding DHEC's decision to grant Roper's CON application, this Division lacks jurisdiction to consider the matter. Accordingly, the Respondents' Motion to Dismiss as to Roper's CON application must be granted.

Due Process

Trident contends that DHEC's interpretation of Section 44-7-210(D) as requiring an affected person to request reconsideration or a contested case hearing within ten days after the applicant receives notice of DHEC's decision constitutes a denial of due process. However, as discussed above, the language of the statute is unambiguous. Moreover, the applicable statute and regulations contain constitutionally adequate procedural due process protections for notice and a hearing. See S.C. Code Ann. § 44-7-210(D)(Supp. 1999) and S.C. Code Ann. Regs. 61-15 § 401 (Supp. 1999). Specifically, S.C. Code Ann. Regs. 61-15 § 401 sets forth the notice requirements in the statutory and regulatory scheme. Section 401 states that "[n]otice of the decision must be sent to the applicant and to affected persons who have requested to be notified." In conformity with the statute, the regulation then explicitly states that the decision becomes final "ten (10) days after the receipt of the notice of the proposed decision by the applicant," S.C. Code Ann. Regs. 61-15 § 401 (Supp. 1999)(emphasis added), unless the applicant or an affected party requests either staff reconsideration or a contested case hearing. S.C. Code Ann. § 44-7-210(D) (Supp. 1999).

The South Carolina Constitution provides that "[n]o person shall be finally bound by a judicial or quasi-judicial decision of an administrative agency affecting private rights except on due notice and an opportunity to be heard." S.C. Const. art. I, § 22. The procedures set forth in the statute and regulations provide a constitutionally sufficient procedure by which an applicant or affected person may request a contested case hearing. This procedure must be followed unless declared unconstitutional by a court of law. South Carolina Tax Comm'n v. S.C. Tax Board of Review, 278 S.C. 556, 299 S.E.2d 489 (1983). Trident is not entitled to due process greater than that which is afforded in a constitutionally sufficient statutory and regulatory scheme. Trident had the right and the opportunity to take advantage of the procedure in the statute and regulations. "One cannot complain of a due process violation if he has recourse to a constitutionally sufficient administrative procedure but merely declines or fails to take advantage of it." Zaman v. S.C. State Bd. of Medical Examiners, 305 S.C. 281, 408 S.E.2d 213, 215 (1991). A procedure existed by which Trident could have been heard on its challenge to the Roper CON decision. However, Trident did not timely file its request for reconsideration. Accordingly, Trident cannot complain of a lack of due process.

Estoppel

Trident further argues that it relied on conversations with DHEC staff and on the notification letter received from DHEC in determining that it could file its request for staff reconsideration as late as July 10, 2000. First, Trident states that the notification letter states that the proposed decision becomes the final agency decision "ten (10) days after receipt of this notice" unless a party requests either reconsideration or a contested case hearing. The letter further states that a request for reconsideration must be made in writing "within ten (10) days from the date of receipt of this notice." Although this language appears to be misleading, it must be noted that Trident received notice of the decision to grant the CON to Roper by a copy of the notification letter which was addressed to Roper. Therefore, the phrase "ten days after receipt of this notice" refers to Roper's receipt of the notice, not Trident's, and is in accordance with the language of Section 44-7-210(D).

Second, Trident contends that it relied on a telephone conversation between its counsel, Andrea Brisbin, and Joel Grice of DHEC in determining that it could file its request for staff reconsideration on or before July 10, 2000. According to the affidavits of both Ms. Brisbin and Mr. Grice and the testimony presented at the motion hearing, Ms. Brisbin telephoned Mr. Grice on June 28, 2000, the date on which Trident received notice of both CON decisions, in order to ascertain the deadline for filing a request for reconsideration. According to Ms. Brisbin's affidavit,

Mr. Grice . . . explained that the Department requires Trident to file two separate requests for reconsideration, one regarding the Department's proposed decision to deny Trident's application, and another regarding the Department's proposed decision to grant Roper's application. Mr. Grice then indicated that Trident must file the requests within ten days from receipt, which is determined by the certified mail receipts signed by Trident and Roper, respectively. Mr. Grice and I calculated that, assuming that Trident and Roper received the decisions on the same day (June 28, 2000), the deadline to file requests for reconsideration falls on Saturday, July 8, 2000. Mr. Grice did not affirmatively represent to me that Roper received its notice on the same day as Trident received its notice. However, it was apparent from our conversation that Mr. Grice had no information to the contrary.

Affidavit of Andrea Brisbin, Paragraph 4 (emphasis added). Mr. Grice testified at the hearing that, at the time of the telephone conversation with Ms. Brisbin, DHEC had not yet received the U.S. Postal Service certified mail return receipt indicating the date Roper had received its notification letter. He further stated that he advised Ms. Brisbin to file any appeal by Trident no later than Friday, July 7, 2000, since the date of Roper's receipt was unknown at the time. There is no evidence in the record that Trident made any follow-up inquiries to DHEC to determine the date on which Roper received its notification letter, prior to filing its request for reconsideration on July 10, 2000.

Trident's argument must fail for several reasons. First, there is no evidence that Mr. Grice conveyed any false or misleading information to Ms. Brisbin. Ms. Brisbin's own affidavit provides that (1) Mr. Grice told her that Trident would have to file separate requests for reconsideration; (2) that the deadline for filing such requests was determined by the certified mail return receipts sent to Trident and Roper, respectively; and (3) Mr. Grice did not affirmatively state the date on which Roper received its letter. None of this information is inconsistent with DHEC's position concerning the timeliness of Trident's appeal or with the language of Section 44-7-210. Therefore, there was no false representation or concealment of material facts, such as would be necessary for Trident to successfully argue that DHEC should be equitably estopped from claiming that Trident's reconsideration request was untimely. See McDuffie v. O'Neal, 476 S.E.2d 702, 324 S.E.2d 297 (Ct. App. 1996).

Second, even if Mr. Grice had stated equivocally that Trident could file its challenge to Roper's CON decision on July 10, such a statement would have contradicted the clear language of Section 44-7-210(D) and would have been beyond DHEC's authority. It is axiomatic that, as an administrative agency, DHEC can take only such action as is within the authority granted it by statute. See Triska v. S.C. Dep't of Health and Envtl. Control, 292 S.C. 190, 355 S.E.2d 531 (1987). Any action taken by DHEC outside that authority is null and void. Id. Therefore, Trident could not justifiably rely upon any statement by Mr. Grice which may have contradicted the statute.

Request for Preliminary Injunction

Trident requests that the Division assume jurisdiction of this matter and that it enjoin Roper from taking any action based upon the CON issued to it by DHEC. Having determined that Trident's request for reconsideration concerning the Roper CON decision was untimely and that the Division lacks jurisdiction to conduct a contested case hearing in that matter, I likewise find that the Division lacks jurisdiction to provide the injunctive relief prayed for by Trident. Accordingly, Trident's request for a preliminary injunction must be dismissed.

II. Denial of Trident's CON Application

It is undisputed that Trident's request for staff reconsideration of the decision to deny its CON application for the PET Scanner, filed on July 10, 2000, was timely, since Trident, the applicant in that case, did not receive its notification letter until June 28, 2000. ⁽¹⁾ However, Roper and DHEC now move to dismiss Trident's request for a contested case hearing on the grounds that the request is moot.

The 1999 State Health Plan (Health Plan) governs both Roper's and Trident's CON applications for the PET Scanner. Pursuant to the Health Plan, South Carolina is divided into four geographic regions for purposes of inventorying health facilities and services. Trident and Roper are located in Region IV, which includes the counties of Aiken, Allendale, Bamberg, Barnwell, Beaufort, Berkeley, Calhoun, Charleston, Colleton, Dorchester, Hampton, Jasper and Orangeburg. The Health Plan specifies that a population of one million persons is the minimum patient referral base for PET services necessary to justify a CON for a PET Scanner. All parties in this case agree that only one PET Scanner CON is available for Region IV. For this reason, DHEC deemed Roper and Trident to be competing applicants.

Roper and DHEC argue that, because the decision to award the CON for the PET Scanner to Roper is a final agency decision, there are no more PET Scanners available for Region IV and DHEC has no authority under the Health Plan to award a PET Scanner CON to Trident. Therefore, Trident's request for a contested case hearing on the denial of its application is moot.

[Courts] will not pass on moot and academic questions or make an adjudication where there remains no actual controversy. Mootness has been defined as follows: "A case becomes moot when judgment, if rendered, will have no practical legal effect upon [the] existing controversy. This is true when some event occurs making it impossible for [the] reviewing Court to grant effectual relief."

Charleston County School Dist. v. Charleston County Election Comm'n, 336 S.C. 174, 519 S.E.2d 567 (1999), quoting Byrd v. Irmo High School, 321 S.C. 426, 431, 468 S.E.2d 861, 864 (1996).

In this case, Trident failed to file its request for staff reconsideration of the decision to award the PET Scanner CON to Roper within the statutorily mandated period. Thus, that decision became final by operation of law and this Division was divested of jurisdiction to hear that matter. With regard to DHEC's decision to deny Trident's CON application, Trident filed its request for reconsideration before the deadline. However, as no more PET Scanner CONs are available under the Health Plan for Region IV, neither DHEC nor this Division has the authority to award such a CON to Trident. Therefore, the Division cannot grant effectual relief to Trident and this matter is moot. Accordingly, Roper and DHEC's Motions to Dismiss are hereby granted.

For all the foregoing reasons, Roper and DHEC's Motions to Dismiss are hereby GRANTED as to Docket Numbers 00-ALJ-07-0422-IJ and 00-ALJ-07-0442-CC, and Trident's Motion for Preliminary Injunction in Docket Number 00-ALJ-07-0422-IJ is hereby DENIED.

AND IT IS SO ORDERED.

___________________________________

Marvin F. Kittrell

Chief Judge

Columbia, South Carolina

September 27, 2000

1. The ten-day period from Trident's receipt of its notification letter expired on July 8, 2000, which fell on a Saturday. Trident's request was submitted on the next business day, July 10, 2000.