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SC Administrative Law Court Decisions

Palmetto Richland Memorial Hospital vs. SCDHEC

South Carolina Department of Health and Environmental Control

Palmetto Richland Memorial Hospital

South Carolina Department of Health and Environmental Control, and Providence Hospital

M. Elizabeth Crum, Esquire, Mary D. Shahid, Esquire and Francis
P. Mood, Esquire, for Petitioner Palmetto Richland Memorial Hospital

Harold W. Jacobs, Esquire, and Ralph W. Barbier, Esquire,
for Respondent Providence Hospital

Nancy S. Layman, Esquire, and Nancy Roberts, Esquire for Respondent SC DHEC



This matter came before me on Respondent Providence Hospital's ("Providence") Motion to Dismiss this contested case brought by the Petitioner Palmetto Richland Memorial Hospital ("Palmetto"). A hearing was held on this matter on Thursday, June 20, 2002, at which all parties were represented by counsel. Based upon the pleadings, motions, memorandum, and oral arguments, and for the reasons set forth below, I grant Providence's Motion and dismiss this contested case.


On or about July 23, 1999, Providence filed an application for a Certificate of Need ("CON") to expand and consolidate the Providence Heart Institute ("Heart Institute"). Palmetto was notified, as an affected party, of Providence's CON application. On November 2, 1999, the Department of Health and Environmental Control ("DHEC") granted Providence a CON for the Heart Institute.

On September 22, 2000, Providence notified DHEC of the need to modify certain aspects of the Heart Institute project in the following particulars: (a) adding additional seismic bracing in order to comply with code requirements; (b) eliminating the proposed elevator bank; (c) reducing the square footage of the Heart Institute project; and (d) eliminating the proposed heliport relocation portion of the project due to fire and safety issues. On October 31, 2000, DHEC made the decision, pursuant to 24A S.C. Code Ann. Regs. 61-15 § 605 (Supp. 2001), that Providence's modifications under the Heart Institute CON were not substantial and were in compliance with the CON statutes and regulations. On August 27, 2001, DHEC confirmed that Providence had properly implemented the Heart Institute CON.

On May 9, 2002, a year-and-a-half after DHEC's decision regarding Providence's proposed modifications under the Heart Institute CON, Palmetto filed this Petition for a contested case, seeking to challenge DHEC's October 31, 2000 decision regarding these modifications. (1)


The question to be considered in determining the Respondent's Motion to Dismiss is "whether in the light most favorable to the [Petitioner], and with every doubt resolved in [its] behalf," the Petitioner has set forth any valid claim for relief. Washington v. Lexington County Jail, 337 S.C. 400, 523 S.E.2d 204, 206 (Ct. App. 1999). In other words, "[t]he motion will not be sustained if the facts alleged and the inferences reasonably deductible therefrom would entitle the [Petitioner] to relief on any theory of the case." Id.


The Administrative Law Judge Division ("ALJD" or "Division") has subject matter jurisdiction over this case. S.C. Code Ann. § 1-23-600(B) (1986 & Supp. 2001). Nevertheless, At the time that DHEC made its decisions regarding Providence's modifications to the Heart Institute, ALJD Rule 11 stated, "The request for a contested case hearing shall be filed with the affected agency within the time frame authorized by that agency." ALJD Rule 11 (2000). (2) 25 S.C. Code Ann. Regs. 61-72 § 201(A) (Supp. 2001) sets forth that:

Any person may request an adjudicatory hearing by filing a Petition for Administrative Review with the Clerk of the Board. Any such Petition must be filed within 15 days, or other period provided by law, following actual or constructive notice of a final staff decision on a licensing matter as defined above, or following receipt of an administrative order.

Thus, § 201(A) sets forth a fixed period of time by which an individual can seek contested case review of a DHEC staff decision. "A statute of limitations has been defined as the action of the state in determining that after the lapse of a specified time a claim shall not be enforceable in a judicial proceeding. Thus, any law which creates a condition of the enforcement of a right to be performed within a fixed time may be defined as a statute of limitations." 51 Am. Jur. 2d Limitation of Actions § 2 (1970). Furthermore,

[t]here has been some difference of opinion among the authorities whether, at least in the absence of an expression of the legislature in this particular respect, the running of a statute of limitations operates to extinguish merely the remedy or to extinguish the substantive right as well as the remedy. The general rule in this respect, supported by the great preponderance of the authorities on the subject, is that a statute of limitations operates on the remedy directly only and does not extinguish the substantive right. Under this rule the courts have regarded true statutes of limitation as doing no more than cut [sic] off resort to the courts for enforcement of the substantive claim or right.

51 Am. Jur. 2d Limitation of Actions § 22 (1970). I therefore find that Regulation 61-72 § 201 operates as a "statute of limitations." Furthermore, though the ALJD is not divested of subject matter jurisdiction in this case, the Petitioner's remedy to seek a contested case before the Division is foreclosed. Moreover, this court has no authority to expand the time in which the request for a hearing must be filed. See Mears v. Mears, 287 S.C. 168, 337 S.E. 2d 206 (1985).

On the face of its Petition, Palmetto clearly did not make its filing within the time limits set out under ALJD Rule 11. Palmetto argued that its Petition was based on a due process claim, and, therefore, should not be held to the filing requirements found in DHEC's regulations or in the ALJD Rules of Procedure. 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. Contested cases founded on due process claims, however, must be brought within the time periods prescribed by statute or regulations, if these laws or regulations are constitutional. South Carolina Tax Comm'n v. S.C. Tax Board of Review, 278 S.C. 556, 299 S.E.2d 489 (1983).

The ALJD Rules and Regulation 61-72 § 201(A) are very clear on the time frame within which a contested case may be brought, whether the case is based on alleged statutory or regulatory violations or based on due process. In this instance, Palmetto had fifteen (15) days from actual or constructive notice of DHEC's decision within which to bring this contested case. However, Palmetto did not file its Petition for a contested case until one and one-half years later, well outside of its notice of the Department's decision. The time requirement of Section 201(A) provides an affected person a constitutionally sufficient time frame to pursue their due process right to a hearing. Simply because Palmetto seeks review of the Department's decision pursuant to an Article I, Section 22 due process claim, Palmetto is not entitled to greater due process rights than that which is afforded by the statutes and regulations. In other words, though Palmetto seeks to present its claim pursuant to Article I, Section 22, Palmetto must follow the hearing procedures set forth in the statutes and regulations. Moreover, "[o]ne 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).

IT IS THEREFORE ORDERED that this case be dismissed.



Ralph King Anderson, III

Administrative Law Judge

August 13, 2002

Columbia, South Carolina

1. Although Palmetto bases its Petition on DHEC's August 27, 2001 letter acknowledging implementation, it is clear that Palmetto's alleged grievances concerning whether or not Providence's changes were substantial stem from DHEC's October 31, 2000 decision concerning these changes. For the reasons stated in this Order, however, the use of either DHEC decision would not change this Court's decision regarding this matter.

2. Rule 11 was amended, effective May 1, 2001,and now provides for the filing of a request for a contested case within thirty (30) days after receipt of an agency decision. See ALJD Rule 11 (2002).

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