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SC Administrative Law Court Decisions

Roper Hospital, Inc. vs. SCDHEC et al.

South Carolina Department of Health and Environmental Control

Roper Hospital, Inc.

South Carolina Department of Health and Environmental Control and East Cooper Regional Medical Center




By an Order of Dismissal dated February 15, 2002, this tribunal granted Petitioner Roper Hospital's ("Roper") motion for a voluntary dismissal of the above-captioned case without prejudice. On February 22, 2002, Respondent East Cooper Regional Medical Center ("East Cooper") filed a Motion to Alter or Amend the Order of Dismissal. Roper filed a memorandum in opposition to East Cooper's motion on March 4, 2002. For the reasons set forth below, East Cooper's motion is hereby denied.

In its motion, East Cooper raises issues far beyond the scope of Roper's original petition for administrative review and seeks relief far beyond that which this tribunal could prudently grant. In its Petition for Administrative Review, Roper sought a contested case hearing to review "the decision made by the Respondent, South Carolina Department of Health and Environmental Control ("DHEC"), on November 29, 2001 to void its determination made on September 8, 2000 that Roper's relocation of diagnostic services currently provided in Mt. Pleasant, South Carolina and the addition of emergency services . . . did not require Certificate of Need [(CON)] review." (Pet'r Pet. for Admin. Rev. at 1.) Accordingly, when Roper decided to no longer contest DHEC's decision to revoke the non-applicability determination and moved for a voluntary dismissal of this case, the only issue properly before this tribunal was extinguished. The issues raised by East Cooper, both during the pendency of this matter and in its motion to alter the dismissal of this case, regarding DHEC's alleged failure to enforce a cease and desist order against Roper and possible future agreements between DHEC and Roper concerning Roper's Mt. Pleasant operations were merely collateral to the genuine issue at hand. Consequently, this tribunal did not find it appropriate to prevent Roper from withdrawing its request for a contested case, thus compelling Roper to pursue this matter solely for the sake of allowing East Cooper to litigate these collateral issues. (1)

Moreover, the collateral issues raised by East Cooper are largely speculative in nature, and therefore afford this tribunal little basis upon which to render an order. East Cooper is concerned that DHEC and Roper may attempt to circumvent the CON Act either through DHEC inaction with regard to Roper's operations or through a consent order that permits Roper's continued operations, and that it will not be able to challenge any such attempts at circumventing the CON Act in a legal forum. (Resp't Mot. to Alter or Amend the Order of Dismissal at 2-4.) However, these concerns are purely speculative, with their realization hinging upon DHEC abnegating its duty to enforce the CON statutes and regulations by reaching an illegal arrangement with Roper, DHEC and Roper arguing that East Cooper has no standing to challenge their arrangement, and courts adopting the position that East Cooper lacks standing to oppose the arrangement. This tribunal cannot base the terms of its order of dismissal on such a contingent and hypothetical set of circumstances. Cf. Waters v. S.C. Land Res. Conservation Comm'n, 321 S.C. 219, 227, 467 S.E.2d 913, 917-18 (1996) ("A justiciable controversy is a real and substantial controversy which is ripe and appropriate for judicial determination, as distinguished from a contingent, hypothetical or abstract dispute.").

Further, the relief requested by East Cooper in its motion could not providently be granted by this tribunal. East Cooper seeks to have the following conditions placed on the Order of Dismissal in the case: (1) that East Cooper be granted the "right to challenge immediately, through the filing of a contested case, a decision made by DHEC to rescind or not enforce the cease and desist order as well as any consent order that permits the continued operations of the Roper ER"; (2) that DHEC be required to notify East Cooper of whether it will enforce a cease and desist order against Roper within fifteen days of the dismissal; and (3) that, if DHEC intends to enter into a consent order with Roper, DHEC be required to execute the consent order within fifteen days of the dismissal and that DHEC be required to provide the terms of the consent order to East Cooper. (Resp't Mot. to Alter or Amend the Order of Dismissal at 4-5.) The first condition asks this tribunal to grant East Cooper standing to challenge actions and events that have not, and may not, occur by creating a new right to bring a contested case hearing. Plainly, though, this tribunal cannot guarantee East Cooper standing to bring a future action based a purely hypothetical set of facts, see Sea Pines Ass'n for the Prot. of Wildlife v. S.C. Dep't of Natural Res., 345 S.C. 594, 550 S.E.2d 287 (2001), nor can it create a right to bring a contested case ex nihilo and without reference to some constitutional, statutory, or regulatory grant of authority. See, e.g., Stono River Envtl. Prot. Ass'n v. S.C. Dep't of Health & Envtl. Control, 305 S.C. 90, 406 S.E.2d 340 (1991). The second and third conditions ask this tribunal to interfere in matters best left to DHEC's discretion. DHEC is given the discretion to make enforcement decisions under the CON Act, see S.C. Code Ann. § 44-7-320(A)(1) (Supp. 2000), and this tribunal will not intrude upon that discretion without compelling reasons. Cf. In re Tyson, 282 S.C. 212, 219, 318 S.E.2d 279, 283 (Ct. App. 1984) ("When a refusal to act is under consideration, the courts should exercise the utmost circumspection not to substitute their own discretion for that of the agency and should interfere by mandamus only when the facts so clearly show a duty to act that there is really no room for the exercise of reasonable discretion against the doing of the act . . . .").

East Cooper's Motion to Alter or Amend the Order of Dismissal must be denied. The issues raised by the motion are not properly within the scope of this case and the relief requested in the motion could not be properly granted by this tribunal.

IT IS THEREFORE ORDERED that East Cooper's Motion to Alter or Amend the Order of Dismissal in this case is DENIED.




Administrative Law Judge

March 15, 2002

Columbia, South Carolina

1. As this tribunal has noted elsewhere, "[i]t is fundamental that Petitioner cannot be required to press its case except as outlined [in Rule 41(a)(2), SCRCP.]" Pee Dee Reg'l Landfill Auth. v. S.C. Dep't of Health and Envtl. Control, Docket No. 00-ALJ-07-0630-CC (Admin. Law Judge Div. June 22, 2001).

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