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Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
CareAlliance Health Services vs. SCDHEC et al.

AGENCY:
South Carolina Department of Health and Environmental Control

PARTIES:
Petitioner:
CareAlliance Health Services

Respondent:
South Carolina Department of Health and Environment Control and Health First, LLC
 
DOCKET NUMBER:
01-ALJ-07-0583-CC

APPEARANCES:
n/a
 

ORDERS:

ORDER OF DISMISSAL

BACKGROUND



On December 11, 2001, Health First received notice that the Department of Health and Environmental Control (DHEC) approved its application for a Certificate of Need (CON) to construct an ambulatory surgery center with two operating rooms in the area of Charleston County commonly known as West Ashley. CareAlliance Health Services (CareAlliance) opposed the CON application during the review process and hand-delivered a Request for Contested Case Hearing to the Administrative Law Judge Division (Division) accompanied by a filing fee on December 21, 2001. Also, on December 21, 2001, CareAlliance placed a copy of the request in the United States mail, postage paid, addressed to DHEC. DHEC received its copy on December 27, 2001. The intervening days were either weekend days or state holidays.

On January 31, 2002, DHEC filed a Motion to Dismiss with the Division on the ground that the Division has no jurisdiction to hear the contested case because the appeal was not timely filed and must be dismissed. Health First filed a Motion to Dismiss for the same reason on February 5, 2002.

On February 12, 2002, CareAlliance responded to the motions contending that ALJD Rule 4(c) provides that date of filing can be date of delivery or date of receipt. Also, CareAlliance asserts that on December 21, 2001, the Clerk of the Board of DHEC represented to CareAlliance that mailing on the final date is sufficient for timely filing.

Both DHEC and Health First responded to CareAlliance's Return. Both argue that the referenced provision of ALJD Rule 4 (c) does not apply and that the Clerk of the DHEC Board did not talk with CareAlliance on December 21, 2001.

A motion hearing was held on March 7, 2002. The undersigned judge heard arguments from the parties. In addition to previous argument, CareAlliance also asserted that the filing was absolutely timely because Trident Medical Center filed a Motion for Reconsideration on December 21, 2001 which tolled the time that the agency decision became effective.

DISCUSSION

A review of the granting or denial of a CON is governed by S.C. Code Ann. §44-7-210 (D):

On the basis of staff review of the application, the staff of the department shall make a proposed decision to grant or deny the Certificate of Need. Notice of the proposed decision must be sent to the applicant and affected persons who have asked to be notified. 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, (1) 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.



Reconsideration by the staff must occur within thirty days from receipt of the request.



Based on the statute, CareAlliance's request for a contested case hearing must have been requested in writing within the ten-day period following the receipt of the notice by the applicant. It is undisputed that the request was delivered to the Division on December 21, 2001, the tenth day. It is also undisputed that the request was mailed to DHEC on December 21. The questions presented are whether it was sufficient to file the request at the Division on the tenth day and if not, was mailing to DHEC on the tenth day sufficient.

CareAlliance failed to file its request for a contested case hearing with DHEC pursuant to ALJD Rule 11. Rule 11 states, "In all contested cases except county tax matters, the request for a contested case hearing shall be filed with the affected agency...." See also 25 S.C. Code Ann. Regs. 61-72 §201 (A) (Supp. 2001)( "Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the Clerk of the Board.") Thereafter, ALJD Rule 12 provides the manner in which the agency is to get the case to the Division. Additionally, the Temporary Amendment to ALJD Rule 11, effective August 22, 2001, requires that "[a] copy of the request for a contested case hearing, accompanied by a filing fee as provided in Rule 71, shall also be filed with the clerk of the Division." The accompanying note to the amendment to Rule 11 provides that "a copy of the request for a contested case hearing, accompanied by a filing fee as provided in Rule 71, shall be filed with the clerk of the Division at the same time the original request for a contested case hearing is filed with the affected agency." Both statute and rule require the request to be filed with the agency by the tenth day. Therefore, the critical question is now whether mailing constitued filing.

ALJD Rule 4 (C) does not apply to this matter. ALJD Rule 4 (C) is the rule that provides that the date of filing is the date of delivery or the date of mailing. However, it is clear that the rule applies to filings with the Division after the original filing has been made with the agency [See ALJD Rule 4 (A)] and the transmittal form has been sent from the agency to the Division [See

ALJD Rule 4 (B)].

Recently the South Carolina Supreme Court stated, "It is clear that under South Carolina law that mailing does not constitute filing. When a statute requires the filing of a paper or document, it is filed when delivered to and received by the proper officer." Gary v. State, Op. No. 25391 (S.C.Sup.Ct. filed Dec. 17, 2001)(Shearouse Adv.Sh.No.44 at 23, 25). Obviously, a statute or rule allowing mailing date to be filing date would apply; however, there is no such statute or rule which applies to this case.

Further, the argument that CareAlliance relied upon the statement of the Clerk of the Board is without merit. The parties have supplied contradictory affidavits regarding whether CareAlliance spoke to the clerk of DHEC's Board regarding the validity of mailing a request for a contested case hearing. However, the issue does not have to be reached. Assuming arguendo that the Clerk of the DHEC Board told counsel for CareAlliance that as long as the request was mailed on the tenth day it would be timely, the information was incorrect and DHEC is not bound by it. Estoppel will not be applied to deprive the state of the due exercise of its police power or to thwart its application of public policy. South Carolina Dep't of Social Servs. v. Parker, 275 S.C. 176, 268 S.E.2d 282 (1980); Heyward v. South Carolina Tax Comm'n, 240 S.C. 347, 126 S.E.2d 15 (1962).

The argument by CareAlliance that its request was timely filed because the agency decision was not final until the reconsideration request of another party was decided is without merit. S.C. Code Ann. §44-7-210 (D) must be read to be applicable to each "affected person" on his own or the purpose of the statute would be undermined.

ORDER

Based on the foregoing it appears this Division has no subject matter jurisdiction over this matter because the Request for a Contested Case Hearing was not timely filed with the agency. Accordingly, DHEC's Motion to Dismiss is GRANTED and

IT IS HEREBY ORDERED that this case is DISMISSED.

AND IT IS SO ORDERED.





______________________________

CAROLYN C. MATTHEWS

Administrative Law Judge





March 14, 2002

Columbia, South Carolina

1. Although the DHEC Board has not heard contested cases since the ALJ Division was created by statute in 1993, and this portion of §44-7-210 (D)(2) is therefore invalid, the ten-day filing period remains in effect.


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