ORDERS:
PREHEARING ORDER
This matter involves two competing CON applicants seeking to provide home health services in
Fairfield County. DHEC has preliminarily granted a CON to Respondent Fairfield Home Health
Services ("Fairfield") and denied a CON to Petitioner Home Health of South Carolina, Inc.,
("Home Health"). Home Health subsequently filed a Petition to review the DHEC staff decision
on July 7, 1995, and this matter was transmitted July 11, 1995, to the Administrative Law Judge
Division for a contested case hearing on the merits. Fairfield filed a Motion to Dismiss on August
25, 1995. Fairfield and Home Health filed briefs on the Motion. Pursuant to agreement of
counsel and by Prehearing Order of this Court dated September 18, 1995, no oral arguments were
heard. Upon consideration of the briefed arguments and applicable law, the Motion is denied.
In attacking the sufficiency of the Petition, Fairfield moves for dismissal of Petitioner's Petition on
the grounds that it fails to state with particularity the factual grounds entitling it to relief and fails
to state a claim for which the Department can grant relief. Fairfield further moves for a lift of the
automatic stay to allow Fairfield to proceed with operation of its CON project. Fairfield argues
that the Petition is too broad and general to be considered without a review of the entire
administrative record. In its Amended Brief, Fairfield cites extensive authority relating to
appellate review principles and standards in support of its motion.
Home Health asserts that the caselaw involving appellate practice cited by Fairfield is inapplicable
in the present case and the Motion to Dismiss should be denied. Home Health's Petition states the
following grounds in its request for a contested case hearing:
(1) The Approved Project is not in compliance with the Plan and all applicable criteria for
project review as set forth in S.C. Regulation No. 61-15, § 801, et seq., including, but not
limited to, §§ 802.1, 802.4, and 802.32; and
(2) Home Health's CON application . . . most fully complies with the requirements, goals,
and purposes of the CON statute, the Plan, the project review criteria, and the Department's
applicable regulations:
(a) The Approved Project provides substantially fewer assurances of home health referrals
from physicians and other healthcare providers in Fairfield County than Home Health's
Project;
(b) The Approved Project will not guarantee the continuity of care for patients needing
home health services in Fairfield County that Home Health's Project will because the
substantial majority of the home health referrals for Fairfield residents are made by
non-Fairfield County healthcare providers, [and, therefore] no less consideration should be
given to such referrals than is given to referrals from physicians with Fairfield County
practices who make fewer home health referrals;
(c) The Approved Project does not contain the quality control documentation required
under the Plan.
An Administrative Law Judge's review of a DHEC proposed decision to grant/deny a CON is
conducted as a contested case pursuant to the Administrative Procedures Act and the
Administrative Law Judge Division Rules of Procedure. S.C. Code Ann. §§ 1-23-310(2);
1-23-600(E); and 44-7-210(D)(2) & (E) (Supp. 1994); 24A S.C. Code Ann. Regs. 61-15, § 403
(Supp. 1994). While termed an "appeal" in the regulations, the filing of a Petition actually
amounts to nothing more than filing a request for a contested case hearing. Limited by the
issues presented or considered during the DHEC staff review and decision process, the contested
case is otherwise conducted as a trial de novo, with a preponderance of the evidence standard of
proof applied. National Health Corp. v. South Carolina Department of Health and Environmental
Control, 298 S.C. 373, 380 S.E.2d 841 (Ct. App. 1989); S.C. Code Ann. §§ 1-23-320 and
1-23-330 (Supp. 1994). Judicial review is available to parties upon exhaustion of administrative
remedies, pursuant to S.C. Code Ann. §§ 1-23-380 and 1-23-610 (Supp. 1994); S.C. Code Ann.
Regs. 61-15, § 403.
If greater specificity is needed to define the points in controversy, a party may seek an order from
the presiding administrative law judge pursuant to ALJD Rule 18 to require the filing of pleadings
or move to compel an opposing party to make more definite and certain. Parties may also
conduct discovery pursuant to ALJD Rule 21 to further develop the case and narrow the issues in
dispute. The sufficiency of the grounds stated in a petition for review of a proposed CON
decision are measured by the standards of ALJD Rule 11 and S.C. Code Ann. Regs. 61-15, §
403. S.C. Code Ann. Regs. 61-72 is applicable in CON cases before the Administrative Law
Judge Division only to the extent that the regulation is not in conflict to the APA, the ALJD Rules
of Procedure, and S.C. Code Ann. Regs. 61-15. Home Health's Petition is sufficient to meet the
requirements of the APA, S.C. Code Ann. Regs. 61-15, § 403 and ALJD Rule 11.
For the foregoing reasons, Fairfield's Motion to Dismiss is denied. Accordingly, the Motion to
lift the stay is also denied.
AND IT IS SO ORDERED.
___________________________________
STEPHEN P. BATES
ADMINISTRATIVE LAW JUDGE
October 11, 1995
Columbia, South Carolina |
